Since King Gyanendra's handing over of power, the Seven Party Alliance (SPA) led by Prime Minister Girija Prasad Koirala has taken a few measures to establish the rule of law. However, some of its measures have fallen short of expectations.
I. Impartial inquiry and due process of law
The establishment of the judicial commission of inquiry headed by Justice Krishna Jung Rayamajhi to probe into excesses by the Royal government is an important step of the SPA Government. It is essential that inquiry is completed in a fair manner without any interference. Therefore, the recommendation of the Justice Krishna Jung Rayamajhi Commission of Inquiry to suspend Inspector General of the Nepal Police, Shyam Bhakta Thapa, Inspector General of the Armed Police Force, Shahabir Thapa, and NID head, Devi Ram Sharma is welcome. These officials had the power to tamper or destroy evidence and therefore have been rightly removed. But, the government of Nepal has faltered and so far failed to suspend the Chief of the Royal Nepal Army, Pyar Jung Thapa. Does it mean that the role of the RNA in the violations of human rights will not be seriously investigated?
It is in this context that the hasty decision to arrest five former Ministers who served under King Gyanendra's direct rule viz., former Home Minister Kamal Thapa, former Foreign Minister Ramesh Nath Pandey, former minister of state for Information and Communications, Shrish Shumsher Rana, former minister for Local Development Tanka Dhakal, and former Assistant Minister for Health Nikshya Shumsher Rana under the Public Safety Act is questionable.
First, the SPA government must not use the draconian preventive detention laws such as Public Offences Act and Public Safety Act, which have been consistently misused by the monarchy to suppress pro-democracy movements. One of the major failures of the 1990 pro-democracy movement was the failure of the democratic governments in Kathmandu to repeal these draconian laws. Before King Gyanendra took over absolute power, all the governments misused the Public Safety Act and Public Offences Act.
Second, the cardinal principles of jurisprudence as provided under Article 14(2) of the International Covenant on Civil and Political Rights states that “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” A democratic government must not flout the sacred principles of fair trial. In fact, the former ministers have not been charged with any offence. If the ground for their detention is to prevent tampering or destroying evidence, the officials who have been merely suspended too should have been arrested. But two wrongs do not make one right.
Gross human rights violations by King Gyanendra's regime and the role of the Ministers require no introduction. Yet, the Judicial Commission of Inquiry must first conclude its inquiry before recommending any arrest, identify the culprits including the chain of command and recommend their prosecution. The question also remains whether the Justice Krishna Jung Rayamajhi Commission of Inquiry will investigate the responsibility of King Gyanendra as the Chairman of the Council of Ministers. All decisions were taken in the name of and on behalf of the Chairman of the Council of Ministers.
II. No benefit of doubt
Given the past experiences, unfortunately, the leaders of the SPA cannot be given the benefit of doubt about their commitment on human rights and democracy issues. It is these democratic governments, which enacted draconian laws like the Terrorist and Disruptive Activities (Prevention and Regulation) Act. The democratic governments justified disappearances of hundreds of persons at the hands of the security forces. Until King Gyanendra took over absolute power on 1 February 2005, the political leaders did not hold the army responsible for gross human rights violations. That the Royal Nepal Army is under King Gyanendra cannot be an excuse. Most importantly, the political parties are responsible for the failure to prosecute the culprits identified by the Malla Commission of Inquiry. If the present trend continues, none might be prosecuted by Justice Krishna Jung Rayamajhi Commission of Inquiry. The government is caught in a legal wrangle as former Ministers Pandey and Rana challenged their detention even before the Commission could take off. If the Supreme Court finds no justification of their detention, it would be a serious setback for establishing accountability.
The Maoists too on their part have failed to ensure the respect for international humanitarian laws despite declaring cease-fire after the handing over power to the SPA government by King Gyanendra. The Maoists continue to be responsible for killing, kidnapping, torture, intimidation, extortion etc. By blaming King Gyanendra alone, the Maoists cannot justify the violations of the principles of international humanitarian laws by them. The continued violations of international humanitarian laws expose the lack of faith of the Maoists in the 12-point agreement signed with the SPA and the fact that they cannot be taken for granted.
III. Not yet over
While there is overwhelming optimism over the peace process, the conflict in Nepal is far from over. There is an urge from the people of Nepal and international community to get Nepal back on the track to democracy and prosperity.
Is the SPA ready to give up power to the Maoists? Are the key actors in the international community ready to accept the Maoists led democratic government in Kathmandu? The issue is not only about whether the institution of monarchy will be retained or not by the Constituent Assembly. The key issue is how to agree to the process of holding the constituent assembly elections. It is more difficult and complex than the optimism suggests.
No insurgent group has been known for surrendering all its arms. The Maoists are unlikely to be any exception. And, without disarming the Maoists cadres, it is unlikely that free and fair elections to the constituent assembly can be ensured. But, the million-dollar question is, who will disarm the Maoists cadres? Mr Tamarat Samuel, Special Political Advisor to the UN Secretary General failed to give any indication after two-week long parleys both in Kathmandu and New Delhi about the possible role of the UN.
Because of continued their violations of the international humanitarian laws, international community and the SPA have legitimate reasons to be wary of the Maoists. The political parties have been decimated by the Maoists in most parts of rural Nepal. The Maoists continue the onslaught as reflected from the present alleged campaign of forcing UML cadres to attend the Maoists' rallies. By the time the Peoples Movement of April 2006 was launched, the political parties gained some public support. However, whether that is adequate to win elections in the constituent assembly is doubtful. Moreover, political parties are all set to lose further grounds during their current interim term, as the government is unlikely to be able to fulfill aspirations of the people. Unless, the SPA can stick together to field common candidates, the Maoists are likely to have majority in the constituent assembly. It is as much about allowing the Maoists to form the future government as disarming a tyrant monarch.
If the constituent assembly is established, it is most likely to change two things: the role of monarchy in politics and governance (irrespective of whether Nepal becomes a constitutional monarchy or republic) and change of command of the Royal Nepal Army from the King to civilian authorities. Over 13,000 persons have been killed and hundreds of people disappeared in addition to other gross human rights violations to bring in these two changes. The people of Nepal have paid a heavy price and they deserve a society based on the rule of law.
On their part, the Maoists have specific responsibilities to establish peace. Under the present circumstances, only the Maoists can stand in the way of establishing permanent peace in Nepal and indirectly help the Palace by their consistent violations of international humanitarian laws and denial of democratic space to the SPA. The Maoists must shun all acts of violence including extortion and intimidation of political activists; and their belief in democracy must be seen to be believed. It is essential that negotiations between the SPA and the Maoists start as soon as possible before optimism takes a back seat.