Democracy For Nepal: Conflict Study Center

Friday, September 15, 2006

Conflict Study Center

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal. Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update

Kathmandu:July 25, 2006

CPN (Maoist) Chairman Prachanda sent a letter on July 24, 2006 to UN Secretary General Kofi Annan expressing his Party’s strong protest against and disagreeing with the letter sent to the UN Secretary General by the Prime Minister Girija Pd. Koirala on July 02, 2006. The key point of his letter concerned with gross violation of the Clause # 3 of 8-point Political Agreement “Peace Accord” between SPA and CPN (Maoist) supremos on June 16, 2006 that consisted of “request UN to manage armies, arms and ammunition of both sides for the elections to CA”. The letter from the Government of Nepal requested the UN to “assist in the monitoring of the combatants of the Maoists and decommissioning of their weapons in order to ensure a free and fair election to the CA” and “monitor Nepal army inside their barrack.” The Maoist supremo straightforwardly objected on decommissioning of the arms and ammunition of the PLA alone.

The letter by Prachanda was sent on the verge of the ensuing visit of the high level UN Mission led by Staffen de Mistura, Director of the UN Information Center in Rome. The UN Mission is arriving on July 26, 2006 for a nine day assessment visit. He is accompanied by Tamrat Samuel, Senior Political Affairs Officer at the Asia and Pacific Division at UN HQ, who frequently visited Nepal over the past few years.

The Civil Society is concerned over the war of letters between the government and Maoists. The letter by the Prime Minister was not shared with the Cabinet Ministers, SPA, Peace Secretariat and the Maoists, and only was made public after dissents from the House of Representatives, the Civil Society and the Maoists.

The civil society is worried whether the government is influenced by the Underground forces/elements against the peace process and democratization. Certain national and international forces are active in disarming only the Maoists and bringing them into the existing political scenario. These are also working towards saving the skins of the Nepali Monarch and exerting undue pressures on the political parties for the same.

The public concern is whether peace process would proceed on the road to success based on the 12-point Political Understanding and 8-point Peace Accord. These incidences have happened in the present context of preparations of Interim Constitution and broad reconciliations. The people are doubtful whether elections to CA would be held in a free and fair manner and sustainable peace would be achieved.

Forward looking peace, human rights, liberal democracy in Nepal are the wishes and dreams of all the Nepalis, civil society and the political parties including the Maoists, and international communities.

Dr. Bishnu Pathak Chitra Niraula

President Secretary General

CS Center, established recently in 2006, is an academic and policy oriented non-government, non-partisan and non-profit making autonomous institution registered with the Government of Nepal. Its purpose is to promote peace, respect human rights, enhance democratic process, and protect the poor, marginalized, disadvantaged and vulnerable (PMDV) people and endorse social justice and dignity through education, action research, action advocacy, capacity building and networking as a Think Tank.

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update 2

Nepal’s Peace Process at the Crossroads

August 2, 2006

The Seven Party Alliance (SPA) and CPN (Maoist) actively participated in the People’s Movement II (April 6-24, 2006) recognizing coexistence and affable relationship for abolishing autocratic regime of King Gyanendra. Nepali people were pro-active in the movement for restoration of democracy with high expectations for sustainable peace, respect for human rights and transfer of sovereignty and state power to the people. However, within 100 days, intensification of distrust and the clouds of “cold war” have widened gaps between the two key political forces, the SPA and the Maoists, regarding genuine compliance of 12-point Political Understanding¹ and 8-point Political Agreement², smashing the zest and zeal of the people. The result has shoved Nepal’s peace process at the shambles!

1. Political Crisis

The constituents of SPA have involved and engrossed in “money and muscle” politics, breaching the consensus between SPA and Maoists reached at New Delhi to dissolve the parliament within seven days of reinstation. Along with this, the First Summit in Kathmandu also proclaimed to dissolve reinstated House of Representatives (HoR) and People’s Government (PG) of the Maoists.
The Members of the HoR and the Government have overtly became disloyal with the 8-point Accords signed by their own leaders before the ink dried and are clamoring for continuation of the HoR.
The debate over Constitutional/Ceremonial Monarchy and Democratic Republic between SPA and Maoists has not come to a common understanding.
The Prime Minister and the President of Nepali Congress (NC) Girija Prasad Koirala, without sharing with the Cabinet Ministers and Vice Premier, or the Peace Secretariat, or the SPA and Maoists, sent a clandestine letter to the UN requesting to assist in monitoring of Maoist combatants and decommissioning of their weapons. The entire political forces and the civil society protested on the one-sided letter to the UN. The Maoists have blatantly opposed to “decommissioning” the People’s Liberation Army (PLA) alone and officially sent a letter to the UN General Secretary on July 24, 2006.
The key political parties have not yet formulated common understanding (the deadline is 79 hours after July 30, 2006) on what role the UN should play on management and monitoring of arms as well as other concerns as per the stipulation of High Level UN Mission headed by Staffen de Mistura. Because of the dilly-dallying of the government, it has unilaterally requested the Mission to extend the ultimatum, but Mistura annulled extension of Mission’s visit.
The SPA and media have objected to continued abductions, threats and extortions, and proceedings and passing of verdicts by People’s Courts on cadres of political parties and civilians by the Maoists.

2. Constitutional Disaster

Legitimacy of HoR is an issue of burning debate. The Constitution of 1990 ensues five years duration for the parliamentarians. The last election was held in April 1999. The Understanding and Accord between the SPA and CPN (Maoist) along with the mandate of the Popular Movement II is against continuation of the HoR, but the parliamentarians who have lost popular base and are shadowed in the eyes of their leaders want to prolong the HoR as far as they can.
The Constitution of 1990 is derailed on the one hand but on the other, the “illegitimate” parliamentarians are playing games by annulling and reforming the existing acts. In the meantime, groundwork for Interim Constitution is underway. The critical issue is that there is an absence of constitutional experts and connoisseurs of social sciences in the Draft Committee, except lawyers.
People are confused because of derailment of the Constitution of 1990 and under construction of Interim Constitution. This transitional situation has created lawlessness in the country. Because of the Transitional Dilemma, the country has been facing grave problems and crimes of looting, dacoit, rape, social violence, murder and so forth. In many cases, army and police have been found involved.
The SPA has not been able to build a common ground on the status of Monarchy. The CPN (UML) has proposed for a referendum on Monarchy vs. Republic together with election to Constitutional Assembly (CA). The CPN (Maoist) put forward seven-key point proposal (in box below).

All sided political conference, the selection of delegates and process decided by SPA and Maoists;
An interim parliament consisting of 303 members (101 from SPA, Maoist and Civil Society each)
Election of interim President from among the Interim Parliamentarians;
Supreme Court, Subordinate Courts and People’s Courts in rural areas formed by the interim parliament;
An interim government consisting of not more than 10% of the interim parliament led by a PM;
Federal structure government with nine autonomous republican states based on caste/ethnicities, regions and linguistics; and
Election of CA to be held within a year of proclamation of Interim Constitution

3. Operational Predicament

People in general do not have access to go to different ministries even after the government formed by the People’s Movement II. The security forces ask them to show permission card issued by ministries.
The Army Chief of Staff Pyar Jung Thapa defied appearing before High Level Probe Commission (HPC) on July 30, 2006 relating to the use of excessive force to crush People’s Movement II. The PM, Koirala, breaking his long silence on the hot issues of Army Chief, defended Thapa by saying “he had taken permission before the Probe Commission summoned him” on August 1, 2006. People have suspicion that Koirala gave the verdict after he received pressure from the Army. This type of incident is neither the first nor the last one. People have no trust on Mr. Koirala’s statements; he was silent on that issue even in the immediate past Cabinet Meeting and HoR. Another example, while the Probe Commission recommended suspending all four Heads of Security Forces, the government followed it accordingly excluding the Army Chief. This happened after the Army Chief and the Second in Command visited the PM. The background of Nepal Army shows that it is less affiliated with the people and nation but with autocratic monarchy.
The policies, programs and budgets of 2006/07 addressed neither the 12-pt understanding nor 8-pt agreement and 40-pt demand of the CPN (Maoist) submitted on February 1, 1996, to the then government 13 days prior to initiation of the People’s War. It has further failed to tackle the present paucity of and measures to raise livelihood of the general masses, rather it has projected to elevating the owner or “the rich” and downsizing the PMDV³ and the working classes.
In addition, the budget has overtly and covertly alloted 210 million Nepali Rupees to sustain the Monarchy, which is 96% above the budget, provided prior to the Palace Massacre 2001. The point worth mentioning here is that the then budget had to sustain 19 royalties that has downsized by half now.
The budget approved by HoR has grossly ignored to cope with the 6Rs – Reculturation, Rehabilitation, Reintegration, Reconstruction, Restructuration and Reconciliation – of post-conflict dimensions.

The five-member High Level Probe Commission is composed of 60% Newar, and 20% Bahun and Chhetri each
The 6-member Interim Constitution Drafting Committee formed on June 16, 2006 consisted of 67% Bahun, and 17% Chhetri and Madise each that failed to include dalit, ethnic groups and women. After tremendous pressure from all corners, additional 10 members were included on July 16, 2006 comprising of 37.5% Bahun, 25% Ethnicities, 12.5% Chhetri and Newar each, and 6.25% Madise and Dalit each and 25% women.
The Government Peace Talk Committee headed by the Minister of Home Affairs is composed of 100% Bahun. The CPN (Maoist) Talk Committee led by Krishna Bahadur Mahara is comprised of 33.3% Bahun, Chhetri and Ethnic Groups each.
The 5-member Parliamentary Committee formed under the Chair of Jagannath Khatiwada is composed of 100% Bahun. Etc.

The Commissions formed by the government have failed to integrate and include the PMDVs and women in their prominent structures (in box below).

4. Security Debacle

Nepal Army: The recent activities of Nepal Army are as follows:
The Army Chief of Staff Pyar Jung Thapa’s defiance to appear before High Level Probe Commission (HPC) on July 30, 2006
The Second in Command Lt. General Rukmangat Katwal and retired Major General Dipak Bikram Rana defied the HPC probing the suppression of Peoples’ Movement II on July 31, 2006.
Army men from Bhairabnath Battalion seized the Ward Police Post at Durbarmarg (in front of Palace) and forcibly took three police persons, including an Inspector, to their barracks and tortured them on July 29, 2006. The incident highly debated in the HoR, where NC parliamentarian Dilli Ram Sharma said, “People do not believe in the internal probe by the army, because they do not trust the internal investigations”. Along with this, the reports and results of the probes on incidences by army have not been made public. People in general have demanded to bring army cases relating civilians to public courts.
The army HQ did not compliance the order of Supreme Court to present the overall process and Army Welfare Fund of UN Peacekeeping Forces.
The activities, and income and expenditures of the Army Officer’s Wives Association is not transparent. People are curious about it.
According to UNOHCHR report, the very Bhairabnath battalion was responsible for the disappearance of 49 individuals, who were murdered and buried at Nagarjun in the allegation of Maoist towards the end of 2003.
Army men at Belbari, Morang District, shot to death six and injured five dozen people in April 2006 when people were protesting against rape and subsequent killing of Sapana Gurung.
In December 2005, soldier Basu Dev Thapa extrajudicially killed 11 local people at Nagarkot, while they were celebrating Hindu festival.
While third round of Peace Talks II (August 15-17, 2003) at Nepalgunj and Dang was underway during cease-fire recognized by both the conflicting parties, the army arrested 18 unarmed Maoists at Doramba Ramechhap district, when they were holding a meeting at Yubraj Moktan’s house. They were shot at Daraketari of Daduwa VDC at three hours walking distance while they were being brought to army barracks on August 16, 2003 at 10:30 am. This incident triggered off the violation of the truce and led to break the peace process.
The series of incidences inculcated by the army and acquiescence of the political/government leaders have created anxiety among the public and are concerned of similar threat lingering in the course of the present peace process.
Nepali people are afraid of the very term ARMY. Most of the senior army officers are from autocratic feudal and elite circles in which they prefer monocracy rather than liberal democracy, because they are from the circles close to the Monarchy and like-minded backgrounds.
The Army Chief on July 30, 2006 directed army officers to treat people with politeness and decency and demonstrate good discipline to make people feel that it is to serve and protect them. It is self-explanatory that the army is not maintaining law and order, and discipline. Only the change of name of the army is not enough, it is required to change its pattern, attitude and professional behavior.
PLA:
The media has frequently raised concerns upon number of PLA and weapons, income and expenditure of the Maoists, but people are deprived to be informed.
People are concerned about the affects of decommissioning of PLA to the security situation in the wide rural areas and of their own.
Weapons Management
Maoists have proposed UN monitoring of both the armed forces confined within their barracks.
The SPA has projected UN monitoring of arms and ammunitions in lock and chains. Nevertheless CPN (UML) has unilaterally submitted a “three phase model” to the UN Mission – (i) registration and certification, and confinement into barracks of PLA, (ii) decommissioning of weapons from PLA, and (iii) assimilation of all the PLA troops.
The Government of Nepal has reiterated its stand on commissioning Maoist arms and ammunitions before they join in an Interim Government.
The issue of arms management of PLA has been raised but not the Government Security Forces (Army, Armed Police and Civil Police).

5. Conclusions

There has been a constant tussle amongst conformist, reformist, and progressive forces. The conformist tends to kagatiko botma suntala falauna (yield orange at lemon tree). Reformists tend to perform kalami (grafting) of orange at the lemon plant whereas the progressive force tends to harvest fruits of orange planting suntalako biruwa (orange sapling). On the other hand, kagatiko botma aad lagera (propping itself at the lemon tree) the monarchy wants to crush the progressive forces in particular and the reformist in general. Therefore, the peace process of Nepal is at critical crossroads.

In five year’s period (July 2001 to June 2006), truce has been declared six times. They were: (i) July 23 to November 22, 2001; (ii) January 29 to August 17, 2003; (iii) September 26 to October 4, 2003; (iv) October 20 to 29, 2004; (vi) September 3, 2005 to January 2, 2006; and (vi) April 26, 2006 to till date. The important observation is that the CPN (Maoist) announced five-time truce unilaterally except one in July 2001. The Nepal government did not reciprocate 50% truce (no. iii, iv and v).

Exchange of bullets with ballots is a supreme form of democracy. The way out of national crisis through voting rights lies under purview of values, norms and principles of genuine democracy. Universal genuine democracy is for the sake of democratic nation and nation for the people. It is note-worthy that only the people have the inherent, non-derogable and sovereign right to accept or reject parliamentary monarchy and feudal-mindset democracy or pseudo-democracy. However, the election should be held in free, fair and impartial manner as it has the universal spirit for genuine democracy. At last but not the least, we can see the silver lining of hope in the dark clouds that we may enjoy with fruits of genuine democracy if national and international communities pay attention on peace process, and disarmament and/or demobilization along with content of the interim and new constitution, and process of the CA honestly.

The ongoing and possible self-determination conflict can only be mitigated, if existing policies and programs revive, reorganize, and restructure on “people’s rights-based approach” as per their needs, demands, and interests. Without respect and promote the life standards of PMDV communities, whatever political and development slogans were made, should fail. If the current peace process of Nepal fails, the October Revolution is inevitable. Moreover, nation leads to socio-cultural violence.

Any conflicting country should give priority to “bottom-up approaches” across the nation. If we genuinely aspire for peace, we ought to develop multiple processes initiated from the grass roots. People’s participation and representation in peace building and sustaining processes should be fostered on multiple layers, so that another is reactivated itself if one channel is deadlocked. The peace talk teams should have people’s mandate and authority, for which national facilitators should facilitate the entire peace process supported by international experts. International communities should not be involved in provocations but respect the zeal and zest for peace of people. For rights- or participatory-based peace process, the concerned actors need proper use of coalition building, unofficial networks, shuttled mediations and referendum initiatives. Otherwise, the discussion of peace process starts to polarization, which produces segregation and finally turns over to destruction.

Some people both in land and abroad, think that peace if just for left; few others suggest it is for right or moderate; but we pursue peace is neither left, nor right and/or moderate. Peace is the interest of all Nepalis and International communities. In a country where Buddha - the apostle of peace - was born, the desire for peace amongst the commoners and elites, particularly the PMDV group, is greater than money and muscle politics (more than power, politics, property and privileges). Otherwise, it is most remarkable that non other than the elements of weapon producers, traffickers and commission agents are going to win the foreseeable future.

It is the Nepalis who are going to bear irreparable physical, socio-cultural and economical losses. Let us find out common consensus for the agendas of peace - a peace to consolidate “people’s basic needs as basic rights” for a respected and dignified life.

Donors and human rights defenders, peace workers and development activists are the pillars to removal of injustices, grievances, and pains of PMDV communities. To minimize the risks and assumptions and mitigate the impact of the conflict, all the stakeholders of peace should accept seven strategies: Neutral image; Simple and plain get-up; Low profile behavior; Sincerity, honesty, and commitment; Transparency and accountability; Flexibility; and Quick responsive.

Dr. Bishnu Pathak in his book Politics of People’s War and Human Rights in Nepal says: “Last but not the least, the state, political parties and civic organizations may finally attain the fruits of their endeavor, if they initiate their efforts and undertake their respective assignments by putting the people first. For that to achieve, let us all resolve to:

Go to the people;
Listen to the people;
Participate with the people;
Work for the people;
Dedicate for justice.”

Dr. Bishnu Pathak and Mr. Chitra Niraula

¹ The SPA and the CPN (Maoist) issued a 12-point Understanding on November 22, 2005, the summary of which is: End autocratic monarchy for democracy, peace, prosperity, social advancement and a free and sovereign Nepal; Form an all-party government with complete authority, holding elections to a constituent assembly through dialogue and understanding to resolve conflict in the country and to transfer sovereignty and state power to the people; Hold an election to constituent assembly keeping the armed Maoist force and the Nepal army under the supervision of the United Nations or any other reliable international supervision; Respect the democratic norms and values of multiparty system, civil liberties, human and fundamental rights, rule of law, etc; Allow the conflict-induced displacement to return to their nativities with dignity and return confiscated property; and Boycott the King's election proclamations and subsequent actions

² The high level summit between SPA and the Maoists on June 16, 2006 agreed upon eight-point Accords: Frame an interim constitution; Include all sided interim government to hold election to CA; Dissolve reinstated HoR and PG of the Maoists; Request UN to manage armies, arms and ammunition of both sides to conduct a free and fair election to CA; Respect multiparty democracy, parliamentary system for government, constitutional fundamental rights and press freedom, and Genuinely implement the 12-point Political Understanding

³ The poor, marginalized, disadvantaged and vulnerable groups

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update III

Issues pertaining to Mainstream Parties’ Proposals to Drafting Commission

August 9, 2006

Conformism Progressivism

Issues	Nepali Congress	Nepali Congress (Democratic)	CPN (UML)	CPN (Maoist)
Monarchy/ Head of the State	Shall be decided by the CA; currently as per HoR decision 2006	Shall be decided by referendum or CA	Shall be decided by referendum together with CA elections	Declaration of a democratic republic The President of Interim Parliament (IP) functions as Interim Head of the State
Security	Nepali Army shall be inclusive with national character Control, use and mobilization of Nepali army by National Security Council headed by Prime Minister The appointment to the Chief of Army Staff decided by Cabinet The decision to mobilize army to be approved within 30 days by parliament	All political parties/organizations having arms demobilized Special security measures to be adopted for free and fair CA elections	Nepali Army shall be inclusive with national and democratic character Nepali Army responsive to Parliament under to Cabinet of Ministers The Interim Cabinet forms National Security Council to Control, use and mobilization of Nepali army	Army and PLA confined into barracks/camps during CA elections monitored by national and international mechanisms Both the armies under IP and Government PM will be the Supreme Commander for both the Armies High Level Army Commission (HLAC) formed by SPA and Maoists for Interim security management for scrutiny, control and mobilization of both armies Chairperson of HLAC appointed by IP Democratization of Nepali Army to be done by HLAC Formation of Militia, jointly by SPA and Maoists and mobilized by PM, to regulate judicial and CA elections management Restructuring of both Armies to form New National Army
Interim Parliament	The Incumbent Cabinet submits Interim Constitution to the incumbent HoR and passed by two-third majority All legislative rights handled by the IP consisting of elected HoR and NA (National Assembly), and selected through political consensus Number of Parliamentarians and process of election decided by political consensus The IP dissolved upon the first meeting of CA	Continuation of incumbent HoR till alternative arrangement is found through Political Consensus after Arms management IP formed through political consensus with balanced representations of SPA, Maoists and Civil Society Special opportunity to Karnali, dalit, women, indigenous/ethnicity and Madise for inclusion in IP All legislative rights handled by the IP Dissolution of IP upon the first meeting of CA	Continuation of incumbent HoR till alternative arrangement is found All legislative rights handled by the IP; action plan development, formulation of laws, economic procedures, etc.	IP as a powerful and supreme legislative body formed thru Extensive National Political Conference (ENPC) Basis of delegation for ENPC is 33.3% for each of SPA, Maoists and Civil Society in the total 303 Selection of delegates based on inclusion of class, caste/ethnicity, region, gender and others The reinstated HoR automatically dissolved upon Interim Constitution (IC) Proclamation IP holds election to Constitutional Bodies; formulation, amendment, and annulations of laws; treaty and agreements ratifications; declarations of war and peace; national budget; First assembly elects President and Vice-president General decisions are taken on majority basis and issues of strategic national significance through two-third majority or referendum
Executive or Interim Government (IG) and Local Governance (LG) or Restructration of State	The formation and dissolution of Interim Cabinet rests on IP The Interim Cabinet is responsible to IP Basis of restructuration of state based on interrelation of Geo-political, population, language, economy and identification of cultural community	33% participation of women in all levels Inclusive democracy and federal structure government	IP will elect Prime Minister, who appoints Interim Cabinet Ministers Executive authorities rests on I Cabinet Interim Cabinet is responsible to IP The Transitional Cabinet formed and performed thru political consensus Ensure structures and rights for Local self governance	IP will elect Prime Minister, who appoints Interim Cabinet Executive authorities rests on IG or Interim Cabinet Interim Cabinet is responsible to IP Member of Interim Cabinet not more than 10% (n30) of IP A Federal Republic divided into nine autonomous republic (AR) provinces based on ethnicity, geo-political and linguistic regions (Kirat, Madesh, Tamang, Newa, Tamuwan, Magarat, Tharuwan, Bheri-Karnali, and Seti-Mahakali) and formation of nine AR governments as per consensus of SPA and Maoists Interim Local Authorities at District, Municipality and Village formed thru Governments after formation of LGs
Judiciary/Constitutional Court		Formation of Constitutional Court to impediments to election of CA and functions of IC based on political consensus	All courts formed as of the Constitution of 1990 continued in IC A Constitutional Council under the PM inclusive of Chief Justice and Speaker of HoR or Chief of Legislative Reappointment of all officials of Constitutional Bodies including The Chief Justice The Chief Justice of Apex Court appoints judges of Supreme and Appeal Courts recommended by Judiciary Council District judges appointed thru free competition of Public Service Commission Provision of writ to Apex Court on verdicts of Court Martial cases Formation of Constitutional Court to impediments to election of CA and functions of IC	Interim Judiciary consist of Supreme Court, Appellate and District Courts, and People’s Courts at the rural areas All the justices and judges appointed by Interim Legislature or relevant representative body
CA Electoral Process	CA elections held within one year of Interim Government Proclamation Mixed direct and indirect election for CA (direct: majority vote, indirect: proposed list proportional system or the number elected from a list of candidates receiving % of total vote) CA consist of 50% each of direct and indirect representations Representations of women, dalits, indigenous/ethnicities, madhise, minorities, differentially abled, backward areas, professionals and civil society based on the number of votes acquired by the participating parties in addition to the directly elected representatives	CA elections held within one year of IP Proclamation CA consist of 50% each of direct and indirect representatives Ensure representations of women, indigenous/ethnicities, madhise, dalits, Karnali, including remote areas based on the principle of special opportunity to them 10% candidates from professionals, and civil society All electoral procedures defined by developing act The CA functions both as a Constitution making body and a parliament The CA announces new constitution within two years of CA formation	Ensuring Inclusive and proportional election system All electoral procedures defined by act	CA elections held within one year of IC Proclamation A total of 225 CA members comprising 90 from nine autonomous regions; and 125 from 200-thousand population each; and 10 from marginalized and experts, ensuring inclusion and proportional representations Proportional representations of women, disadvantaged castes/ethnicity, differentially abled
Certification of Interim Constitution	National Commission formed of experts to draft CA The draft submitted thru Interim Cabinet to IP and approved/amend by two-thirds majority of IP			IP approves and Interim Cabinet proclaims

Source: Excerpts from Kantipur daily; various dates of August 2006

There has been a constant tussle amongst conformist, reformist, and progressive forces. The conformists tend to kagatiko botma suntala falauna (yield orange at lemon tree). Reformists tend to perform kagatiko botma kalami gari suntala falauna (grafting of orange at the lemon plant) whereas the progressive forces tend to suntalakai biruwa ropera suntala falauna (harvest orange planting orange sapling). There are different political forces operating beyond the extremes of both left and right. On the other hand, budo kagatiko botma aad lagera (propping itself at the old lemon tree) the monarchy wants to crush the ongoing peace process provocating the issues of monarchy, parliament and weapon management sidelining progressive forces in particular and the reformist in general with the help of invisible international and national forces fishing in muddy waters. The hegemony of the latter one is prominently constraining the peace process.

Monarchy: It is a major issue of difference and constant tussle amongst the political parties after the PM Koirala announced to “provide space to Monarchy as equal as Maoists” influencing IC Drafting Commission. The announcement has been extensively criticized, inclusive of the coalition partners of the government, including Deputy PM Amik Serchan and civil society along with Maoists. Dr. Baburam Bhattrai has even warned “the peace process on the verge of collapse”. People are worried whether violence would be regenerated again. Kholo tare pachhi lauro birsane (forgetting the stick after crossing a river) is a chronic disease of PM Koirala. His stance is against the mandate of the People’s Movement II and 12-pt Understanding and 8-pt Agreement. There are three options to decide the fate of Monarchy: (i) declaration of Democratic Republic by incumbent HoR (ii) referendum (prior to or during CA elections) and (iii) People’s Movement III (October Revolution).

Weapons Management: Another critical issue is arms management for a free and fair CA elections. The propositions of all the parties except CPN (Maoist) are silent on it. The international power centers do not want to see armed Maoists either in Interim Government or in CA elections. Their voices propounded, which eventually affects the peace process. The incumbent government has proposed two alternatives: placing Nepali Army in barracks and PLA in temporary camps dissociating arms from PLA. The Maoist Chairperson Prachanda remarked, “Dissociation of arms and PLA is unthinkable prior to CA”. The stalwarts of civil society have rejected the notions of the government from street to House. Weapons Management should take into consideration the security situation within the country, and free and fair CA elections. An alternative to weapons management is to keep the armed forces (Nepal Army, Armed Police and Intelligence) and PLA into the intended barracks/camps disarming and keeping their arms under lock and keys, and monitored by UN. No doubt, this would solve the problem to free and fair CA elections. However, considering the security situation within the country, both the rural and urban areas, special arrangements should be made.

- by Dr. Bishnu Pathak & Chitra Niraula

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Special Update: Supplementary to III

One-Step Ahead to Peace Process in Nepal

August 10, 2006

It is extremely heartening that the Talks Teams of both the government and the CPN (Maoist) finally reached on a common position yesterday relating to Arms Management. The issue of Arms Management has been critical to continue peace process. A faction of National and international power centers were inclined to decommissioning of weapons from the PLA. The justifiable point of view, shared by many, was to manage the weapons of both conflicting parties by confining their arms and armed personnel in barracks/camps monitored by UN. At last, both the parties agreed on the latter option reflecting peaceful coexistence. All the peace- and justice-loving people in Nepal and abroad are happy from the bottom of the heart.
Although belated, both the heads of Talks Teams finally handed over the separate official letters of similar contents to the acting UN Coordinator Abraham Abraham on Role of UN in the Peace Process. The government letter was signed by PM Girija Prasad Koirala and that of CPN (Maoist) by its Chairperson, Prachanda (Puspa Kamal Dahal). Both the separate letters sought to invite the UN to monitor weapons and observe CA elections, which have five common understandings:

Confining Maoist armed personnel and their weapons in designated camps
Restricting Nepali Army employees and their weapons in barracks
Continuing UNOHCHR to Monitor Rights violations and abuses
Assisting monitor the 25-point Code of Conduct of the Truce
Observation of CA elections

The dilemma is that the point concerning Arms Management does not cover the Armed Police and Intelligence Agency of the Government.
The Five Common Understanding deserves to but does not deal with the flexible security situation of the country. Because of the presence of Nepali Army, Armed Police, Intelligence Agency and Civil Police are providing security in the urban whereas the Maoist PLA and Militia in rural areas and along the Highways. In the transitory phase, there has been a rise of violence e.g. goons, robbery, dacoits, rape, etc.
Monarchy and Arms Management are on the fore among the critical issues of political conflict. Although an agreement has been reached on Arms Management, but there are still many things to settle for implementation. Yet, consensus has not been reached on the most perplexing point “Monarchy”- the crucial issue of debate is “providing a space to Monarchy” or “straight to Republic”. Let the people decide by referendum the fate of Monarchy in Nepal.

- Dr. Bishnu Pathak & Chitra Niraula

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update IV

Issues of Janajatis, Madhesis and Dalits pertaining to Interim Constitution

August 17, 2006

Issues	Janajatis¹ (Nepal Federation of Indigenous Peoples)	Madhesis² (Nepal Sadhbhawana Party-Anandidevi)	Dalits³ (Dalit NGO Federation)	Key Political Parties
Monarchy/ Head of the State	Nepal is a multi-ethnic, multi-religion, multi-lingual and multi-cultural Independent, indivisible and Sovereign and secular Democratic Republic State	Sovereignty, state power and governance shall be vested in the people, and the representative institution shall use people’s supremacy		NC⁴: decided by the CA; currently as per HoR decision 2006 NC(D)⁵: decided by referendum or CA CPN(UML)⁶: decided by referendum together with CA elections Maoist⁷: Declaration of a Democratic Republic
Security		Nepal Army shall be restructured as per inclusive dimensions		NC: Cabinet controls inclusive Army, NC(D): Demobilization of arms of political organizations and special security for free and fair CA elections CPN(UML): National Security Council formed by IP⁸ controls NA⁹ and responsive to Cabinet, Maoist: NA and PLA¹⁰ restrained into barracks /camps during CA elections monitored by national and international mechanisms, both under IP and Government (PM as Supreme Commander), High Level Army Commission (Chairperson appointed by IP) formed jointly by SPA¹¹ and Maoists for Interim security management and restructuration of both Armies into New National Army SPA and Maoist: Arms and combatants of NA and PLA confined into barracks/camps monitored by UN
Interim Constitution and Parliament	State council shall use the legislative powers selected through extensive political conference The issues relating to distribution of natural resources and to critical national importance shall be decided by referendum	IP shall be formed thru consensus of SPA, Maoists and civil society based on caste/ethnicity and regional proportional inclusive principles. IP should be oriented to inclusive CA elections Elected representatives shall be repelled deferring vote to concerned party IC shall address the issues of gender, caste/ethnicity, Madhesi, Dalit, religion, language, culture and region	Ensure proportional representation based on inclusive democratic principles A sovereign alternative legislative with proportional representation of Dalits, women, indigenous, ethnic groups, Madhesis based on inclusive democratic principles and 8-pt Accord between SPA and Maoists instead of incumbent HoR	NC: Incumbent Cabinet submits IC¹² to incumbent HoR and passed by two-third majority, consisting of elected HoR¹³ and National Assembly selected through political consensus forms IP, which is dissolved upon the first meeting of CA NC(D): incumbent HoR continued till alternative arrangement through Political Consensus after Arms management, an inclusive IP formed through political consensus with balanced representations of SPA, Maoists and Civil Society, which is dissolved upon the first meeting of CA CPN(UML): present HoR continued till alternative arrangement, legislative rights handled by the IP Maoist: inclusive IP formed thru Extensive National Political Conference (33.3% for each of SPA, Maoists and Civil Society), present HoR automatically dissolved upon Proclamation of IC
Executive or Interim Government (IG) and Local Governance (LG) or Restructration of State	The PM shall be elected by the State Council and the Cabinet shall be formed by PM and the cabinet shall dissolve upon approval of PM’s resignation PM could appoint ministers from outside State Council PM including cabinet shall be responsible to State Council During Interim period, PM shall tenure resignation to Speaker No question shall raise in judiciary regarding political decisions made by cabinet The political and administrative units shall be restructured based on historical topographical regions, caste/ethnicity and linguistics consisting of two types of autonomous bodies. The Caste/ethnic autonomous regions shall consist of district, municipality and village levels with legislative, executive, judicial and religious authorities Indigenous nationalities shall have special privileges in the bodies of caste/ethnic autonomous regions and proportional representation shall be meted to other castes/ethnicities Legislative, executive and judicial bodies shall be headed by Indigenous nationalities Local autonomy denotes ethnic administrative unit of the ethnic autonomous province	Federal Structure of the State based on Territory and culture The center takes care of monetary, foreign policy, security and coordination with federal states and the rest by federate states with full authority A regional council shall be formed by the federal state on the issues of caste/ethnicity, linguistic and culture. IG shall be formed thru consensus of SPA, Maoists and civil society based on caste/ethnicity and regional proportional inclusive principles.	Ensure proportional representation based on inclusive democratic principles	NC: IP forms and dissolves IG¹⁴, basis of restructuration of state based on interrelation of geo-political, population, language, economy and identification of cultural community NC(D): 33% participation of women in all levels, inclusive democracy and federal structure government CPN(UML): IP elects PM, who forms Interim Cabinet thru political consensus and ensuring structures and rights for local self governance Maoist: IP elects PM, who forms Interim Cabinet; Federal Republic divided into nine AR¹⁵ based on ethnicity, geo-political and linguistic regions (Kirat, Madesh, Tamang, Newa, Tamuwan, Magarat, Tharuwan, Bheri-Karnali, and Seti-Mahakali) and formation of nine AR governments and Interim Local Authorities at District, Municipality and Village in consensus of SPA and Maoists
Judiciary/Constitutional Court	The judiciary of the kingdom shall consist of Supreme court, constitutional court, Appellate court, and District Court but special courts or judicial commissions shall be formed to deal with special cases, but no such special courts or judicial commissions shall be formed for individual case All the courts except Constitutional and Military Courts shall be under the jurisdiction of Supreme Court	Proportional representation in both central and federal structure constitutional bodies	Independent and autonomous judiciary Special policies and programs to develop skilled judicial officials from Dalits, women and other marginalized communities/classes who lack access to law	NC: N/A NC(D): Formation of Constitutional Court formed to CA election impediments CPN(UML): All courts of the Constitution of 1990 continued in IC, Constitutional Council under the PM inclusive of Chief Justice and Speaker of HoR and Formation of Constitutional Court formed to CA election impediments Maoist: formation of Interim Judiciary consist of Supreme Court, Appellate and District Courts, and People’s Courts at the rural areas; all the justices and judges appointed by Interim Legislature or relevant representative body
CA Electoral Process	An Election Commission shall be formed for CA elections, the Chief and other commissioners shall be appointed by State Council Constituency Delineation Commission shall be formed The CA shall consist of 300 representatives; 250 from community lists based on caste/ethnic population on the proportion of 1:100 thousand and 50 from general lists “popular votes.” Each community list shall consists of caste/ethnic proportion and be publicized in parallel and Collective list following Ethnic Autonomous Region or Linguistic Local Autonomy. They are: Indigenous nationalities Hill Khash high caste Madhesis (excluding nationalities and Dalits) Dalits Religious minorities and others All the lists shall consist of 50% women All citizens above 16 years of age shall cast their votes	Multi-member election delineation system shall adopt to represent territorial, social and cultural diversities CA election based on proportional representation shall be inclusive Fixed poll list shall be used for inclusive electoral system Election Commission shall decide on proportional number of representation of caste, ethnicity including priority on gender based on socio-cultural structure of the population and act accordingly 200-250 CA members shall be directly elected thru adult franchise All citizens above 16 years of age shall cast their votes CA shall finalize New Constitution within one year thru two-third majority The issues not materialized in CA shall be decided by referendum The CA acts both as CA and IP	Proportional representation of marginalized and disadvantaged groups based on population Create special electoral constituencies to ensure proportional representation of and through competitive process of Dalits and other marginalized communities/classes Proportional representation of Dalits, women and other marginalized groups at all levels of political parties	NC: CA elections within one year of IG Proclamation consisting 50% each of direct and indirect representations; indirect composed of women, dalits, indigenous/ethnicities, Madhesis, minorities, differentially abled, backward areas, professionals and civil society NC(D): CA elections within one year of IP Proclamation consisting 50% each of direct and indirect representatives, ensuring women, indigenous, ethnicities, Madhesi, dalits, Karnali, including remote areas and 10% from professionals and civil society CPN(UML): Electoral procedures defined by act, ensuring inclusive and proportional election system Maoist: CA elections within one year of IC Proclamation; 225 CA members comprising 90 from nine autonomous regions; and 125 from 200-thousand population each; and 10 from marginalized and experts, ensuring inclusion and proportional representations of women, disadvantaged castes, ethnicity, differentially abled
Certification of Constitution		Approved by two-third majority of CA Proclamation of new Constitution by Chair of the CA		NC: National Commission of experts to draft of CA by National Commission submitted thru Interim Cabinet to IP and approved/amended by two-thirds majority of IP NC(D): The CA announces new constitution within two years of CA formation CPN(UML): N/A Maoist: IP approves and Interim Cabinet proclaims
Guiding Principles of State	Fair distribution of country’s economic resources without discriminating caste/ethnicity, gender, class, region, and person, abolishing control and use by limited central elites Promotion of international relations keeping sovereignty, integrity and freedom of the nation Autonomous provinces shall formed restructuring state in terms of caste/ethnicity and language Basic livelihood of people e.g. education, health, transportation, housing and employment shall be developed and distributed fairly	Ensure inclusive proportional representation of all classes/groups at all echelons to policy formulation of State	Guarantee proportional representation of all classes/groups at all echelons to policy formulation of State Ensure representations of 20% Dalits and 33% women in all state’s policy formulation infrastructures Special provisions for Dalits, Janajatis, Madhesis, women and differentially-abled for discrimination-free peaceful and developed state Formation of Dalit Development Council elected directly by Dalits for overall development of Dalits	NC: Special proportional provisions shall be endowed to women, Dalit, dalits, Janajatis, indigenous, Madhesis, differentially-abled, labors, peasants, remote areas, poor; policy of 33% representation of women; trade union rights; conflict-affected persons shall be compensated and transitional justice shall be provided; etc NC(D): Multi-party democracy; special programs to martyrs and families of wounded during People’s Movement II; at least 33% women representation in public and party positions; federal state with inclusive democracy; etc CPN(UML): One-third women shall be included; Special programs shall be conducted for dalits, Janajatis, indigenous, Madhesis, differentially-abled, labors, peasants, disadvantaged areas and below the poverty line Maoist: Establishment of Democratic Republic abolishing monarchy and feudal autocracy; competitive Multiparty systems, adult franchise, periodic elections, rule of law, human rights, fundamental rights shall be guaranteed; democratic values promoted in economic, social and cultural spheres; Right to self-determination; Establishment of federal structural autonomous governance; Secular nation; End feudal ownership and right to the tillers; Special management to labor , poor peasants, landless, Kamaiya, haruwa, charuwa, etc.; Formulation of appropriate policies on industrialization, trade and business; Peaceful coexistence with all countries; repel all unequal treaties and agreements; etc.
Citizenship/Nationality	Citizenship shall be based on descendents through father, mother and five generation, no one shall be deprived from citizenship Each citizen or linguistic group has the right to education on his/her mother tongue Any individual born after adoption of the Constitution will be a Nepali citizen if his/her father or mother is a Nepali Citizen Any child with unidentified paternity or maternity shall get citizenship upon recommendation of an institution or a lawyer Concerning Terai, citizenship shall be awarded based on the voter list for referendum of 2037 Bikram Sambat¹⁶ Any male/female from abroad having matrimonial relation with a Nepali citizen and discarding his/her native citizenship shall be awarded Nepalese citizenship Honorary citizenship may be conferred to International figures of distinction	Conduction of census prior to CA elections thru inclusive representative team to make CA inclusive and proportional representative Prior to collection of voter’s list for CA elections, arrangements for awarding citizenship to all people deprived of citizenship shall be made by IC On the recommendation of a citizenship holder, concerned authority through citizenship distribution team, shall distribute citizenship to all individuals residing in Nepal before IC After commencement of IC, citizenship shall be acquired by birth, either father or mother born in Nepal, and matrimonial relationship Central government confers citizenship to foreigners on the recommendation of Federal government	Guarantee the birth right to citizenship based on descendency and clan devoid of discrimination Madhesis, landless, Badi, etc groups to be awarded citizenship immediately	NC: Persons born or residing permanently prior to proclamation of constitution 1990 shall be provided citizenship; citizenship shall be hereditary of father or mother, etc. NC(D): Citizenship shall be defined as per Permanent residence, heredity, birth, matrimonial relationship, acquisition, and honorary; Special provision based on inhabitance shall be guaranteed to those without citizenship; All-Party Citizenship Identification Commission shall be formed to distribute at the local levels; etc CPN(UML): citizenship shall be awarded based on the voter list for referendum of 2037 Bikram Sambat; citizenship shall also be provided on the basis of mother Maoist: Citizenship shall be provided to all; Citizenship shall be provided either from father’s or mother’s identity; A high level commission to provide citizenship to Madhesis of Terai inhabitants prior to CA elections shall be formed
Fundamental Rights	All individuals shall be equal before and under law No one shall be discriminated based on religion, caste, gender, language, ethnicity, and ideological conscience Special provisions to protection and development shall be made to women, children, elderly, differentially-abled, and socio-economically deprived indigenous nationalities, Dalits, Madhesis and other disadvantaged groups No one shall on the basis of caste and ethnicity be discriminated as untouchables or be denied access to any public place or be deprived of use of public utilities. Any act in violation of this provision shall be punishable by law All mother tongues shall be national languages. For public affairs tri-linguist policy shall be adopted: first shall be concerned regional language, second is ethnic neighboring community based on social, trade and culture, and third is international language Non-discrimination to education, health and employment Freedom of thought and _expression, to peaceful assembly without arms, to form unions and associations, to mobility and domicile, to choose any profession and trade Freedom to press and publication rights Right to intellectual property Right against all kinds of exploitations	All citizens shall enjoy internationally recognized and unrestricted fundamental rights including personal property and press freedom The state shall adopt Multi-lingual policy Non-discrimination to religion, culture and dress Reservation in the fields of education, health and employment to the disadvantaged groups for instance Madhesi, Indigenous nationalities, Dalit, women.	Ensure FR of citizens based on UDHR and international norms Protection and promotion of universal rights of Dalits, minorities, Janajatis, Madhesis, //differentially-abled, children and women Penalizing as crime to those practicing of untouchability and caste discrimination Nepali people being the source of state immediate abolition of bonded labor like Haliya, Khali, Balighare and so on discriminatory systems under feudal state structures, and develop special programs for their social and economic development	NC: Keeping all rights to incumbent constitution, extensive rights shall be provided to women, Dalits, nationalities, indigenous, Madhesi, differentially-abled, including disadvantaged areas and trade union, etc NC(D): N/A CPN(UML): Rights to life, health, education, security, compensation, rehabilitation, minorities, indigenous, differentially-abled, children, intellectual, employment, food security and equal property in addition to the incumbent FR Maoist: Right to equality, union and association, vote and candidacy, mobility, assemble, parental property to both sexes, and press, publication and freedom of _expression, along with, matrimony, property, divorce, abortion etc. No one shall possess property above the sanction of the law. All are free to accept or refuse religion. Locals shall have rights on water, land, forest and mines of their territories

Citizenship

The state policy depriving the people linking them with open borders to India or China is a critical concern. Such deprivation is a violation of inherent and unalienable rights. It is blatant infringement of international and national human rights instruments. Citizenship is coupled with sovereignty, state power and regional integrity. To devoid of citizenship in one’s own country is a great suffering, which is itself incompetence of the State power. Deprivation of Citizenship leads to violent conflict resulting to impairing people’s aspirations to peace and the country will ultimately fall into a cyclone of violence.

Dalits

Over the centuries, Nepal has developed strict hierarchical society consisting of ‘high castes,’ ‘upper meso-castes,’ 'lower meso-castes,' ‘higher untouchables’, ‘lower untouchables’, and also ‘pure’ and ‘impure’ castes. Casteism has been abolished legally, but since the conservative Nepalese society considers Dalits at the very bottom of Hindu caste hierarchy, the evils of casteism have not been fully eradicated in practice. The tradition of discrimination based on caste, race, birth, sex, occupation, and avoidable physical contact is still ubiquitously practiced in Nepalese society. Due to it, about 4 million Dalits have been deprived of exercising their fundamental rights. The practice of untouchability toward Tarai Dalits is deep-rooted and widespread. They continue to face denial of access to resources, services and opportunities; denial of socio-cultural participation; and denial in private, common and public matters. Due to persistent inequalities and injustices in political as well as socio-economic dimensions, dissident characters keep rising from among the people. Politically, only a few among the Dalit communities have been lucky to participate in politics and become elected representatives.

Many works in the areas of political, socio-cultural and legal dimensions have to be undertaken to free Nepal from discrimination and to set up an equitable and just society. Merely amending or annulling some of the legal provisions contradicting with the fundamental rights and international bills of rights would not be enough. Several questions have begun to surface. Where are the fundamental rights and freedoms of economically deprived, politically repressed, socially discriminated and isolated, and culturally exploited Dalits of grassroots level? Will the opportunities created through reservation really reach at the grassroots? If not, Nepal is waiting for unprecedented and volatile unrest. Therefore, result-oriented organizations and programs need to be established urgently.

Contributed by

Dr. Bishnu Pathak, President

And

Mr. Chitra Niraula, Secretary General

¹ Janajatis: Nationalities, Indigenous groups and ethnic minorities

² Madhesis: People living in the Terai (plains to the South bordering India)

³ Dalits: Traditionally untouchables, at the bottom of Hindu Caste hierarchy

⁴ NC: Nepali Congress

⁵ NC(D): Nepali Congress (Democratic)

⁶ CPN (UML): Communist Party of Nepal (United Marxist-Leninist)

⁷ Maoist: Communist Party of Nepal (Maoist)

⁸ IP: Interim Parliament

⁹ NA: Nepal Army

¹⁰ PLA: People’s Liberation Army (inclusive of both regular and militia) led by CPN (Maoist)

¹¹ SPA: Seven Party Alliance

¹² IC: Interim Constitution

¹³ HoR: House of Representatives

¹⁴ IG: Interim Government rr Executive

¹⁵ AR(s): Autonomous Region(s)

¹⁶ Bikram Sambat: Hindu Calendar, which is 56 years 8 months and 16 days ahead of Gregorian Calendar

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Special Update: Supplementary to IV

Petro-Product Crisis in Nepal

August 20, 2006

Again, within four months of the founding of a Democratic Government after the Popular Movement II, the nation is suffocating with dust and smoke. Thousands of protesters, particularly youths, are on the streets shouting slogans (for instance, thief Girija leaves nation, Murderer Girija enters into India, etc.) against the newly formed coalition government and key political parties and leaders. Demonstrators have not only burned tyres but also vehicles and smashed windows of the party leaders participating in the Government along with business enterprises. Riot Police are on the high alert positions at crossroads.

Shops and shutters are closed. Pedestrians are scurrying in a hurry. Vehicles are at standstill, consequently thousands of people, who were traveling, are stranded on the high-ways/streets without food and rest, drenching in rain. Blue-collar workers, earning livelihoods by toiling whole day, are now jobless and so penny-less (living in empty stomach). White-collar workers are shivering in their offices. Schools are closed and children are playing on the roads. Shortage of foodstuffs is becoming strife.

The key political leaders participating in the Coalition Government are within special security cordon of security forces. How come the “leaders” are afraid of people so soon again? Why the sudden angry outbursts? Who are accountable to all these events?

NOC¹, a GoN² undertaking, to hike the price of petroleum products effective from August 18, 2006. The increase ranges from 11 to 39 percent, the details are in the box. The Old price refers to the price increase on February 17, 2006.

Particulars	Unit	Cost (Nepali Rupees)
Particulars	Unit	Old	New	% hike
Petrol	liter	67.25	84.25	25
Diesel	Liter	53.15	59.10	11
Kerosene	Liter	47.65	59.25	23
LP Gas	14.2kg	900.00	1000.00	11
Aviation Fuel	liter	55.00	76.38	39

(US$1=NRs.74)

It is astonishing that not only the political parties outside the government but also the ruling parties have protested to the price hike. Even Girija Prasad Koirala, the Prime Minister and President of NC³, has protested the decision of NOC and insisted on immediate roll back of the prices. The acting Chief Secretary of NC said, “NC urges the government to revoke the decision as it slots in additional financial burden to the middle-and-lower classes.” CPN (UML)⁴, the second-major faction in the Government, also opposed the government’s decision. Their chameleon roles in the present context is not new, as a result some angry demonstrators even went and pelted stones at General Secretary of CPN(UML) Madhav Kumar Nepal’s residence, chanting slogans against both the power-centers – PM Girija and Madhav.
The entire country is in tense. Hot discussions and protests are continuing throughout the country regarding the price hike. People are raising query on why the government has not adopted other alternative measures and expressing their suspicions on a high game of commissions and corruptions played similar to the past. Before the decision of price hike, about 130.2 million liters petroleum products were on stocks in private petrol pumps. The common people are apprehensive of double standards (themselves hike the prices and opposing it to save their faces in public) of the political parties in power and government.
People have raised voices on why the Government has not given due attention to the dreadful corruption in the NOC.

Such actions of the Government have loosened the initiatives of peace process, which is the crucial issue of the present day in Nepal and at the core of the commoners. Peace in Nepal is not only the national concern but also that of international communities at large. Such petty attitudes and behaviors of the Government and Key Political Actors have contributed grossly to delaying the Peace process.

Contributed by

Dr. Bishnu Pathak

and

Mr. Chitra Niraula

¹ NOC = Nepal Oil Corporation

² GoN = Government of Nepal

³ NC = Nepali Congress

⁴ CPN (UML) = Communist Party of Nepal (United Marxist-Leninist)

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update V

Give Peace a Chance!

August 24, 2006

12-pt SPA-Maoist Understanding

(November 22, 2005)

8-pt SPA-Maoist Accord

(June 16, 2006)

5-pt SPA-Maoist (UN Assistance) Agreement

(August 9, 2006)

25-pt Government-Maoist

Code of Conduct

(May 26, 2006)

Establish absolute democracy by ending autocratic monarchy for democracy, peace, prosperity, social advancement and a free and sovereign Nepal;
(i) Restoration of parliament to form an all-party government with complete authority; (ii) hold elections to CA through dialogue and understanding; (iii) conduct a national political conference of the agitating democratic forces to form an interim government for CA elections;
Confine the armed Maoist force and the royal army under the supervision of the UN or any other reliable agency to conclude the CA elections in a free and fair manner;
Commitment of CPN (Maoist) to democratic norms and values like competitive multiparty system of governance, civil liberties, human rights, rule of law, fundamental rights, etc;
Assurance of CPN (Maoist) to allow conflict-induced displaced activists to return to their home, land and property ensuring dignity, and to carry out their activities without obstacles;
Recognizing past mistakes, CPN (Maoist) has committed not to repeat those mistakes in future;
Recognizing past mistakes while they were in parliament and in government, the seven political parties committed not to repeat those mistakes;
Commit to fully respect the norms and values of human rights and press freedom for moving the peace process forward;
Boycott the King's municipal and parliament election proclamations and subsequent actions;
Believing that people and their representative political parties are the real guardians of nationality; firmly commit to protect independence, sovereignty, geographical integrity of the country and national unity, and to peaceful co-existence with all countries of the world and good-neighbor relationship with India and China.
Urge civil society, professional organizations, various wings of parties, people of all communities and regions, press and intellectuals to actively participate in the peaceful movement centered on democracy, peace, prosperity, forward-looking social change and the country's independence, sovereignty, and pride; and
_Expression of commitment to objections raised by any party over incidents of misconducts to settle through peaceful dialogue at the concerned level or at the leadership level, by conducting investigations, addressing the wrongs and making those public.

Effectively and honestly implement the 12-point understanding and the 25-point Code of Conduct;
Commitment to democratic norms and values including competitive multi-party system, civil liberties, fundamental rights, human rights, press freedom, and rule of law and carry out activities in a peaceful manner;
Request the UN to help in the monitoring and management of the armies and arms of both government and Maoist sides for a free and fair election to the CA;
(i) Guarantee the democratic rights achieved through Popular Movement I and II; (ii) draft an interim constitution based on the 12-point understanding and the Code of Conduct; (iii) form an interim government accordingly; (iv) announce the dates for CA elections; (v) dissolve the House of Representatives through consensus after making alternative arrangement; (vi) dissolve the People’s Governments of CPN (Maoist);
Decide issues of national interests having long-term effects through consensus
Guarantee the fundamental rights of the Nepali people to participate in the CA elections without any fear, influence, threat and violence inviting international observation and monitoring as per the need;
(i) Bring about a forward-looking restructuring of the state to resolve the class-based, racial, regional and gender-based problems through CA elections; (ii) Transform the truce between the Nepal Government and CPN-Maoist into permanent peace by focusing on democracy, peace, prosperity, forward-looking change and the country’s independence, sovereignty and pride; and (iii) express commitment to resolve the problems through talks; and
The government and Maoist talks teams have been directed to accomplish all tasks related to above-mentioned points without any delay.

Continue its human rights monitoring through the office of the high commissioner for human rights in Nepal (OHCHR);
Assist monitoring of the code of conduct during the truce;
Deploy qualified civilian personnel to monitor and verify the confinement of CPN (Maoist) combatants and their weapons within designated cantonment on the basis of the agreement to seek UN assistance in the management of arms and armed personnel of both sides, the modalities for all arrangements, including of arms and munitions, will be worked out later among the parties and the UN;
Monitor the Nepal army to ensure that it remains in its barracks and its weapons are not used for or against any side, the modalities will be worked out among the parties and the UN; and
Provide election observation for the CA elections in consultation with the parties.

Not issue any statement or engage in any activities that could provoke each other;
Not mobilize, display or use their armed forces in a manner that could spread fear and terror among the people;
(i) Not attack or destroy each other’s military or security installations, (ii) not lay down mines or ambushes, (iii) not recruit new people in one’s military, and (iv) not spy on each other;
Extend mutual cooperation on maintaining peace and security;
Discuss and reach understanding regarding the issue of management of arms and armed personnel;
Not participate in public meetings, conference or any other political activities in combat dresses or with arms for creating a conducive environment among the people;
Not hinder political activists of either side and members of social organizations to move around the country and express their views, organize meetings or engage in their organizational works, and not subject them to any mental or physical pressure;
Not organize activities such as bandh (general strike) and chakka-jam (transport strike) during the period of truce, but may hold peaceful demonstrations for ensuring the basic service delivery to the people and development;
Allow operating essential services and facilities to the people without any disruption;
Not create hurdles in undertaking regular development works peacefully and other works aimed at people’s benefit;
Not obstruct or ban transport of items such as food, medicines, and materials used in development woks, and items of daily use;
Create an environment conducive to the smooth functioning of education, health and industrial institutions;
Use civilized and dignified language for disseminating information on truce, code of conduct, the peace process, and other political activities to ensure cooperation from media on peace talks;
Not issue statements to the media in a manner, which could hamper the talks and peace process;
Not to collect forcibly or extort donations or financial assistance in cash, kind or in the form of services;
Withdraw accusation, claims or cases filed by both the parties against individuals, and release the detainees and rehabilitate them gradually;
Publicize the whereabouts of the disappeared people immediately;
Extend cooperation to rehabilitate displaced people in a peaceful, comfortable and respectable manner;
Resolve the problems to return the properties of all, which were seized, locked up or prohibited to use during the conflict, to concerned persons or their families through mutual agreement;
Not create hurdles in the movement and activities of individuals involved in negotiations for facilitating the talks;
Ask national and international monitoring teams to monitor the truce based on the mutual agreement between the two parties;
Resolve dispute, if any, in the interpretation of this code of conduct, on the basis of agreement between the two parties;
Make amendments to the code of conduct through mutual agreement;
Enforce this code of conduct immediately after it is signed; and
Make the code of conduct public immediately after it is signed.

Attainments and anomalies

Monarchy: All agreements between the SPA and the CPN (Maoist) except 12-point Common Understanding (#1) are silent on Monarchy, which only speaks for “ending autocratic monarchy”. However, all SPA and CPN (Maoist) except the NC, led by Girija Prasad Koirala, have expressed abolition of monarchy and establishment of democratic republic in different documents and public statements. PM Koirala is the only SPA leader, who has overtly supported for ceremonial monarchy, whereas after massive pressures from other SPA factions, civil society and even NC figures he was compelled to express “should the people vote for a republican system, he would support it”. Such double standards came on public, as he might not was able to propound his voices and concerns strongly in the high-level meetings. Although the incumbent government formed on the consensus of SPA except Nepal Majdur Kisan Party, the government’s stand on peace process seems very weak. Maoist Chairman Prachanda held that the constitutional assembly elections would also decide whether Nepal would become a democratic republic or whether it would retain ceremonial monarchy.

Interim Constitution: The 8-pt Accord stipulates to draft an interim constitution based on the 12-point understanding, which is silent on its contents and process resulting in further delay to complete its draft on time. The bottlenecks to reach a common consensus are monarchy, interim government and parliament, management of weapons, process for CA, etc. Another reason for the deferral is lack of involvement of expertise in the drafting. The peace process has been lost amidst the mist due to lack of smooth Interim Constitution process and subsequent proclamation.

Interim Parliament and Government: The 12-pt Understanding confuses itself as it raises two contradictory issues: first, restoration of parliament to form an all-party government with complete authority and second, conduction of a national political conference of the agitating democratic forces to form an interim government. The 8-point Accord consists to form an interim government after formation of Interim Parliament and to dissolve both the House of Representatives (HoR) and the People’s Governments of CPN (Maoist) after making alternative arrangements. The HoR as well as the People’s Governments are functioning. There is a big question mark why all sided national political conference has been shadowed, consequently the entire peace process is at the standstill.

Management of arms and armed forces: The 12-pt Understanding quotes to place armed Maoist force and the royal army under the supervision of the UN. The 8-pt Accord urges UN to help in the monitoring and management of the armies and arms of both government and Maoist sides for a free and fair election. The 5-pt sought for monitoring and verification of the confinement of CPN (Maoist) combatants and their weapons within designated cantonments, and the insurance of Nepal army to remain in its barracks and its weapons are not used for or against any side. Finally, the Code of Conduct also prohibits recruiting, mobilizing, displaying or using armed forces. Several public statements on isolating of arms and Maoist combatants only has further delayed the peace process, as none of the above documents speak for isolation of weapons from the either side.

CA Elections: The 12-pt Understanding asserts to hold elections to CA through dialogue and understanding, whereas the 8-pt Accord emphasizes to announce the dates for CA elections after implementing an interim constitution and forming an interim government. The delay in Interim Constitution has led to holdup in CA elections and for that reason impediment to the peace process.

Allusion

Although the top echelons of the SPA and CPN (Maoist) have initiated talks, found truce and the peace process, the other layers of the conflicting parties along with the common people have not yet been involved. There are not only many minor issues but also multiple major issues to be resolved for building sustainable and just democracy and peace, which requires active and thorough involvement of common people in the entire process. Any conflicting country should give priority to “bottom-up approaches” across the nation. If we genuinely aspire for peace, we ought to develop multiple processes initiated from the grass roots to top of all sides. People’s participation and representation, focusing on that of poor, marginalized, disadvantaged and vulnerable groups, in peace building and sustaining processes requires to be fostered on multiple layers (i.e., village, district, region and national levels), so that another is reactivated itself if one channel is deadlocked. The peace talk teams should have people’s mandate and authority, for which national facilitators or mediators should facilitate or mediate the entire peace process supported by international experts. International communities should refrain themselves from involving in provocations but should respect the zeal and zest of people for peace. For rights - or participatory-based peace process, the concerned actors need proper use of coalition building, unofficial networks, shuttled mediations and referendum initiatives. Otherwise, the discussion of peace process would start to polarization, which would produce segregation and finally turn over to destruction.

CS Center, established recently in 2006, is an academic, policy oriented and research based non-government, non-partisan and non-profit making autonomous institution registered with the Government of Nepal. Its purpose is to promote peace, respect human rights, enhance democratic process, and protect the poor, marginalized, disadvantaged and vulnerable (PMDV) people and endorse social justice and dignity through education, action research, action advocacy, capacity building and networking as a Think Tank.

Contributed by

Dr. Bishnu Pathak, President

and

Mr. Chitra Niraula, Secretary General

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update VI

Derisory Interim Constitution Draft 2006

August 28, 2006

Issue	ICDC¹ proposed Draft (August 25, 2006)	Proposed Drafts of Key Political Parties
Monarchy	Decided by referendum together with CA² elections; In case of the end of Monarchy, the Interim Chair of IP shall function as the President before the CA elections;	NC³: decided by the CA; currently as per HoR decision 2006; NC(D)⁴: decided by referendum or CA; CPN(UML)⁵: decided by referendum together with CA elections; Maoist⁶: Declaration of a Democratic Republic;
Sovereignty and State Power	Sovereignty and state power shall rest on Nepali People; Nepal shall be a multi-ethnic, multi-lingual, multi-religious, multi-cultural, secular (with four options) – (i) Provincial Federal Republic; (ii) Federal Democratic; (iii) Socialist oriented to Republic; and (iv) Oriented to Republic – fully independent democratic, indivisible, and sovereign state;	NC: Secular nation with Sovereignty and State Power vested to the People NC(D): Multi-party democracy; federal state with inclusive democracy; CPN(UML): Secular nation with sovereign people, implemented by legislative; Maoist: Establishment of Democratic Republic abolishing monarchy and feudal autocracy; competitive Multiparty systems;
Interim Parliament	There shall be a legislative with the following members: (all blank/not identified by ICDC) The tenure of IP shall end after the 1^st meeting of CA; Each IP member shall take oath prior to 1^st attendance to House; IP formed through political consensus immediately upon implementation of the IC; The Chairperson and Deputy shall be elected from amongst IP members, both shall not represent a single party; the eldest member shall Chair IP in their absence; Special Privileges: (i) Full Freedom of _Expression to members during house sessions; (ii) no arrests, detention and court proceedings shall be held to any idea expressed or cast of vote by members during house in favor of or against any notion; (iii) full rights to regulation of all internal affairs of IP, (iv) decision of house shall be supreme and not be challenged in any court; Publication of any written document, vote, or action in the IP by any member shall not be raised in any court; The HoR meetings shall be called by PM at specified place and time on the 21^st day of the IC proclamation, and ends the session on the recommendation of Chair; The PM shall call IP session upon written request by one-fourth members when House is not running or adjourned; Quorum of IP session shall be presence of one-fourth members;	NC: Incumbent CoM⁷ submits IC⁸ to incumbent HoR and passed by two-third majority, consisting of elected HoR⁹ and National Assembly selected through political consensus forms IP¹⁰, which is dissolved upon the first meeting of CA NC(D): incumbent HoR continued till alternative arrangement through Political Consensus, an inclusive IP formed through political consensus with balanced representations of SPA, Maoists and Civil Society, which is dissolved upon the first meeting of CA CPN(UML): present HoR continued till alternative arrangement, legislative rights handled by the IP Maoist: inclusive IP formed thru Extensive National Political Conference (33.3% for each of SPA¹¹, Maoists and Civil Society), present HoR automatically dissolved upon Proclamation of IC;
Interim Executive	All executive powers shall be vested in the CoM; All executive functions shall be carried out in the name of Government of Nepal; Responsibility of Governance system for general direction, control and execution shall be with the CoM; The majority holder member of IP shall be elected to the Prime Minister, who Chairs the CoM and shall appoint Deputy and other Ministers as required upon recommendations of the concerned parties; Any individual not a Member of Parliament could be appointed as a Minister; The CoM shall be collectively responsible to the IP; but the Ministers shall be responsible to the PM¹² and IP for Ministerial affairs; The PM shall take oath with IP Chair and other Ministers with the PM;	NC: IP forms and dissolves IG¹³ NC(D): 33% participation of women in all levels, inclusive democracy and federal structure government CPN(UML): IP elects PM, who forms Interim CoM thru political consensus and ensuring structures and rights for local self governance Maoist: IP elects PM, who forms Interim CoM;
Interim Judiciary	There shall be three types of courts: Supreme, Appellate and District courts, in addition to these special tribunals for special types/characters of cases shall be formed; All the incumbent Courts shall be recognized as formed by the IC upon its proclamation and the filed cases under their jurisdictions shall be continued; All the Judges of all the Courts shall be terminated unless reappointed within six months of IC proclamation; but any Judge shall be terminated in prior if need be; Reappointment of Judges shall be vested upon Legislature; Chief Justice of Supreme Court shall be appointed by the PM on recommendation of Constitutional Council or CoM and Judges by Chief Justice on recommendation of Judicial Council or CoM; All Judges of Appellate and District Courts shall be appointed by Chief Justice on recommendation of Judicial Council or CoM; A Judicial Council shall be formed to appoint, transfer, disciplinary action, fire and judicial administration consisting of (i) Chief Justice, (ii) Minister of Law, and (iii) Senior advocate on recommendation of BAR;	CPN(UML): All courts of the Constitution of 1990 continued in IC, Constitutional Council under the PM inclusive of Chief Justice and Speaker of HoR; Maoist: formation of Interim Judiciary consisting of Supreme Court, Appellate and District Courts, and People’s Courts at the rural areas; all the justices and judges appointed by Interim Legislature or relevant representative body;
Security	There shall be an organization of NA, which shall be inclusive and national in nature; Chief of the Staff of the NA shall be appointed by the CoM; Establishment, control, use, mobilization and others of the NA shall prescribed by law; A NSC¹⁴ under the chairmanship of the PM with members including Ministers of Defense, Finance, Home and Foreign Affairs shall be formed; On the recommendation of the NSC, the CoM shall control, use and mobilize the army; The decision of the CoM on mobilizing the NA, must be tabled and endorsed within 30 days from the Special Committee of the Legislature; Alternative: if NSC is annulled, There shall be organizations of NA and PLA; Till CA elections, NA and PLA shall be confined into designated barracks and cantonments, and their monitoring shall be performed by UN as per the 5-pt Agreement; Both the armies shall be under the IP and IG, the PM shall be the Supreme Commander of both; A High Level Army Commission shall be formed for internal security management, control and mobilization of both the armies, the number of the Commission shall be decided on the mutual consensus of SPA and Maoist; Militia shall be formed on the mutual understanding of SPA and Maoist to maintain security during Interim Period; After CA elections, both armies shall be integrated into National Army;	NC: Cabinet controls inclusive Army, NC(D): Demobilization of arms of political organizations and special security for free and fair CA elections CPN(UML): National Security Council formed by IP¹⁵ controls NA¹⁶ and responsive to Cabinet, Maoist: NA and PLA¹⁷ restrained into barracks /camps during CA elections monitored by national and international mechanisms, both under IP and Government (PM as Supreme Commander), High Level Army Commission (Chairperson appointed by IP) formed jointly by SPA and Maoists for Interim security management and restructuration of both Armies into New National Army SPA and Maoist: Arms and combatants of NA and PLA confined into barracks/camps monitored by UN
CA	A CA (number and process of elections of representatives not identified by ICDC) shall be formed under the IC to formulate a New Constitution by the People themselves; One person one vote through secret ballot shall be followed for CA representative elections; A person attaining 16/18 years of age (not confirmed by ICDC) shall cast vote in any constituency; CA elections and relevant proceedings shall follow respective laws under this IC; The tenure of CA shall be two years from its 1^st meeting, six months shall be added in state of emergency; All CA members shall take oath before 1^st attendance of House session; The first meeting of CA shall be called by the Chair on the 21^st day of the publication of final results by Election Commission; The Chair shall call CA session within 15 days upon written request by one-fourth members when House is not running or adjourned; Passing of Bill on Constitution Preamble and each Article of the New Constitution shall be passed through voting; Voting shall be based on consensus, the quorum shall be the presence of two-third representatives; A period for Consultations, for 15 days from above situation, of leaders of the parliamentarians of the concerned parties shall be held if consensus could not be reached in the House; Voting shall again be done within seven days of such consultations for the clauses not reached consensus, the quorum shall be the presence of two-third representatives and shall be passed by two-third of the quorum; Any delegate not casting vote against Preamble or any clause shall be counted as consensus; Special Privileges: (i) Full Freedom of _Expression to members during CA sessions; (ii) no arrests, detention and court proceedings shall be held to any CA in favor of or against any notion; (iii) full rights to regulation of all internal affairs of CA, (iv) no comments shall be raised/published in any manner of _expression of a member in CA, (v) decision of House shall be supreme and not be challenged in any court; Publication of any written document, vote, or action in the CA by any member shall not be raised in any court;	NC: CA elections within one year of IG Proclamation consisting 50% each of direct and indirect representations; indirect composed of women, dalits, indigenous/ethnicities, Madhesis, minorities, differentially abled, backward areas, professionals and civil society NC(D): CA elections within one year of IP Proclamation consisting 50% each of direct and indirect representatives, ensuring women, indigenous, ethnicities, Madhesi, dalits, Karnali, including remote areas and 10% from professionals and civil society CPN(UML): Electoral procedures defined by act, ensuring inclusive and proportional election system Maoist: CA elections within one year of IC Proclamation; 225 CA members comprising 90 from nine autonomous regions; and 125 from 200-thousand population each; and 10 from marginalized and experts, ensuring inclusion and proportional representations of women, disadvantaged castes, ethnicity, differentially abled
Constitutional Court	A Constitutional Court shall be established under IC as a part of Supreme Court; The Constitutional Court shall consist of three Judges of Supreme Court who have experience on decisions in Court regarding Constitutional debate on CA on recommendation of Judicial Council or CoM; The Seniormost among the three shall perform as Chair; Its jurisdiction shall be (i) disqualification of a CA membership, (ii) debate on CA elections, (iii) electoral law confronting with IC; etc.	NC(D): Formation of Constitutional Court formed to CA election impediments CPN(UML): Formation of Constitutional Court formed to CA election impediments
Local Autonomous Governance	Promotion of maximum people’s participation from, availing services at and institutionalization of democracy at the grass roots shall be used to projection of Decentralization and Rights (Ethnic Provincial Republic System inclusive of Right to Self Determination) for exercising people’s sovereignty; The country, with Federal structure, shall be divided into nine Autonomous Republic Provinces such as Kirant, Mahesh, Tamang, Newa, Tamuwan, Magarat, Tharuwan, Bheri-Karnali and Seti-Mahakali Republics, and Interim Autonomous Governments shall be formed in each with consensus of SPA and Maoist; Interim local state powers at districts, villages, municipalities levels shall be formed in consensus of SPA and Maoist;	NC: Restructuration of state shall be based on interrelation of geo-political, population, language, economy and identification of cultural community; NC(D): Federal structure government with 33% participation of women in all levels and inclusive democracy; CPN(UML): Political consensus shall ensure structures and rights for local self governance; Maoist: Federal Republic divided into nine AR¹⁸ based on ethnicity, geo-political and linguistic regions (Kirat, Madesh, Tamang, Newa, Tamuwan, Magarat, Tharuwan, Bheri-Karnali, and Seti-Mahakali) and formation of nine AR governments and Interim Local Authorities at District, Municipality and Village in consensus of SPA and Maoists;

Accomplishments and incongruities

The IC, of a thick volume than in the past, consists of 26 Parts and 172 Articles. It could play the role of a milestone on the way to CA elections. The clouds of confusion whether IC shall materialize, at last have cleared. It has taken 353% more time than first mandated. It has come off the ground starting with six-member Commission finally turning to sixteen, comprising gender, dalit, caste and ethnicities.

The following are the inconsistencies:

The language, although in Nepali, is difficult to understand even by the academia.
There are plenty of confusions. It has not addressed the critical popular political, economic, social, cultural and ideological concerns.
It speaks both of Monarchy and President of the State (Republic).
About four dozen important issues are blank and more than a dozen proposals contain a maximum of four alternatives.
It is silent on the national emblem as well as national anthem, whereas continued the national flag.
Some members of the ICDC have tabled their own concept as a part of the Draft, and few others have added their political party concerns.
The personalities involved in ICDC have neither academic horizons nor competent qualitative professional leadership. They worked as activists of their concerned political parties; a point worth considering is that it left out the representation of all political forces. The ICDC members are basically from law background, who shadowed the importance of lawyers over the Draft. Regretfully, the expertises of social scientists, anthropologists, constitution making, human rights, conflict transformation and peace building have not been utilized. These resulted in a weak IC Draft that could reflect neither the mandates of the Popular Movement II nor expectations of common Nepali people.

Contributed by

Dr. Bishnu Pathak, President

and

Mr. Chitra Niraula, Secretary General

¹ Interim Constitution Drafting Committee was formed by SPA (NC, CPN-UML, NC-D, Nepal Majdoor Kisan Party, Jana Morcha, Nepal Sadhbhavana Party-A, and CPN-ML) and CPN (Maoist) on June 16, 2006.

² CA: Constituent Assembly

³ NC: Nepali Congress

⁴ NC(D): Nepali Congress (Democratic)

⁵ CPN (UML): Communist Party of Nepal (Unified Marxist-Leninist)

⁶ Maoist: Communist Party of Nepal (Maoist)

⁷ CoM: Council of Ministers

⁸ IC: Interim Constitution

⁹ HoR: House of Representatives

¹⁰ IP: Interim Parliament

¹¹ SPA: Seven Party Alliance

¹² PM: Prime Minister

¹³ IG: Interim Government or Executive

¹⁴ NSC: National Security Council

¹⁵ IP: Interim Parliament

¹⁶ NA: Nepal Army

¹⁷ PLA: People’s Liberation Army (regular) led by CPN (Maoist)

¹⁸ AR(s): Autonomous Region(s)

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update VII

Genuine Compliance of Ceasefire to Just Peace

September 7, 2006

Issue	Code of Conduct May 26, 2006	Preliminary Findings of NMCC¹ on CoC Breaching	Code of Conduct March 13, 2003
Provocations	Non issuance of any statement or engage in any activities that could provoke each other;	Both sides involved in allegations
Non-mobilization to armed forces	Not mobilize, display or use their armed forces in a manner that could spread fear and terror among the people;	The arms distributed by Army to Vigilante in Kapilvastu against CPN (Maoist) not yet returned and still used against them Democratic Terai Liberation Front in Saptari and Siraha attacked CPN (Maoist) organizing strike; CPN (Maoist) announced withdrawal of truce in Saptari and Siraha against them CPN (Maoist) established camps in some places in Siraha and Saptari	Both sides will stop all kinds of violent activities, and will not mobilize or use armed forces that may cause terror among the people
Non-aggression	(i) Not attack or destroy each other’s military or security installations, (ii) not lay down mines or ambushes, (iii) not recruit new people in one’s military, and (iv) not spy on each other;
Mutual Cooperation	Extend mutual cooperation on maintaining peace and security;	Kangaroo courts in rural areas continued CPN (Maoist) created obstructions in biddings to DDCs and municipalities	2.Both sides will try for a consensus on all important matters in view of national interest
Arms management	Discuss and reach understanding regarding the issue of management of arms and armed personnel;
Non-participation with combat fatigue and arms	Not participate in public meetings, conference or any other political activities in combat dresses or with arms for creating a conducive environment among the people;
No mental or physical pressure to activists	Not hinder political activists of either side and members of social organizations to move around the country and express their views, organize meetings or engage in their organizational works, and not subject them to any mental or physical pressure;
Stop strike during truce	Not organize activities such as bandh (general strike) and chakka-jam (transport strike) during the period of truce, but may hold peaceful demonstrations for ensuring the basic service delivery to the people and development;		10.Both sides will not organize transportation or other kinds of strikes during the talks but peaceful rallies or gatherings may be organized
Non disturbance to essential service	Allow operating essential services and facilities to the people without any disruption;
No hurdles to development	Not create hurdles in undertaking regular development works peacefully and other works aimed at people’s benefit;		6.Both sides will not hinder in regular and peaceful activities of public welfare
Allow transportation of vital goods	Not obstruct or ban transport of items such as food, medicines, and materials used in development woks, and items of daily use;		13.Both sides will not prevent the transportation of food items, medicines and other daily consumer goods
Peace zone	Create an environment conducive to the smooth functioning of education, health and industrial institutions;		12.Both sides will help each other to maintain peace in the country during the ceasefire
Use of language	Use civilized and dignified language for disseminating information on truce, code of conduct, the peace process, and other political activities to ensure cooperation from media on peace talks;		8.Nobody will vent their views which are likely to adversely affect the talks and peace process. They will pay attention to use polite and disciplined language while publicizing their own political views through media
Statements	Not issue statements to the media in a manner, which could hamper the talks and peace process;	Different expressions by SPA, government and Parliament leaders regarding the continuation of incumbent reinstated House and its dissolution with alternatives In response CPN (Maoist) leaders threatened break of talks process	3. Both sides will not perform activities which may incite the other party in the sensitive areas
Extort donations	Not to collect forcibly or extort donations or financial assistance in cash, kind or in the form of services;	Direct or indirect collection of donations continued	9.Both sides will not extort money or seek financial support against the will of the person concerned
Withdraw charges and rehabilitate detainees	Withdraw accusation, claims or cases filed by both the parties against individuals, and release the detainees and rehabilitate them gradually;	Not withdrawn the cases of displaced activists of Maoist Victims’ Association	5.Both sides will gradually release all the people captured by them
Kidnapping/ Disappearances	Publicize the whereabouts of the disappeared people immediately;	Abduction of persons still continued Whereabouts of the people disappeared/abducted by state and Maoists not made public	11.Both sides will stop unnecessary search, arrest or kidnapping
Displaced people or displacements	Extend cooperation to rehabilitate displaced people in a peaceful, comfortable and respectable manner;	Initiations for return of the displaced people without fear not yet performed	17. Both sides will help the displaced people to return to their homes
Private property	Resolve the problems to return the properties of all, which were seized, locked up or prohibited to use during the conflict, to concerned persons or their families through mutual agreement;	The property seized by CPN (Maoist) not returned The cash and kind of insurgents seized by the state in various occasions not yet returned
Freedom of Movement	Not create hurdles in the movement and activities of individuals involved in negotiations for facilitating the talks;		14.Both sides will respect people’s rights to free movement from one place to another 16. Both sides will not disturb the movement and activities of the persons involved in the peace talks
National and international monitor	Ask national and international monitoring teams to monitor the truce based on the mutual agreement between the two parties;		18. The code of conduct monitoring team will be formed through mutual agreement
Dispute resolution	Resolve dispute, if any, in the interpretation of this CoC, on the basis of agreement between the two parties;		20. In case of a difference or controversy in the interpretation of the CoC, both sides will sit together to solve it
Amendments to CoC	Make amendments to the CoC through mutual agreement;		19. If any amendment in the CoC is needed, it will only be done through mutual agreement
Enforcement	Enforce this CoC immediately after it is signed; and		22. And this CoC will come into effect immediately and should be fully implemented within three weeks of the signing of this agreement
Publication	Make the CoC public immediately after it is signed
Commitment			1.Both sides will remain committed to find a peaceful solution of the problem through talks
Media		Media presentations lack sensitivity in favor of peace process and prioritize expressions for incitements	7. Government-owned media will impartially broadcast opinions of both sides
Fundamental rights			15. Both sides will respect the fundamental rights of people
Termination			21. The CoC can be terminated through mutual agreement

Accomplishments and incongruities

A couple of issues raised by CoC are developing positively at the national level, but there exist problems of compatibility in the rural areas.
Dynamism of senior political level of both sides is crucial to promote culture of reconciliation and ensure smooth peace process
The commitment to the 12-point Understanding and 8-point Agreement for announcement of CA elections as soon as possible would ensure sustainable peace.
The CPN (Maoist) has claimed that SPA, government and parliament have been breaching the CoC by issuing provocative statements, mobilizing police force against peaceful demonstrations, violations of clauses of Understanding/Agreement reached between both the sides. Whereas, the later also allege that the former is continuing extortions, tax and donations, and abductions, along with creating hurdles in rehabilitation of the displaced, functioning of kangaroo courts and armed demonstrations.
To sustain truce and move peace process straightforward, the civil society is generating pressure for peace and human rights agreement between the SPA and CPN (Maoist).
NMCC advised the government to stop the public statements form international communities, particularly the US Ambassador James F Moriarty, threatening to gag assistance to Nepal if Maoists are included in the interim government without disarming them and concluded that such expressions would hamper the peace process.
Breaching the CoC, both the sides have expressed opinions, given interviews, and produced write-ups provoking the other side.
Both the government security forces and Maoist PLAs are still usurping not only public institutions such as schools and health posts but also private properties to station their combatants and function as outposts, hampering access of the people to the services.
A couple of manufacturing industries have been closed temporarily due to pressures by the fraternal trade union organizations of CPN (Maoist) and other political parties.
The parliamentary committee of the Nepali Congress passed a motion that the House of Representative could not be dissolved, and Speaker of the House and a Deputy Prime Minister/Minister of Foreign Affairs also proclaimed that the House could not be dissolved prior to the results of CA elections. The CPN (Maoist) has threatened that peace process would collapse if the House is not dissolved. Noteworthy point is that the clause 4 of 8-point Agreement between government and CPN (Maoist) stipulated to draft an interim constitution based on the 12-point understanding and the CoC, form an interim government accordingly; announce the dates for CA elections, dissolve the House of Representatives after making alternative arrangement, and dissolve the People’s Governments of CPN (Maoist).
The Central Committee Meeting of CPN (Maoist) which was held from 27 August to September 1, 2006 noted that a conspiracy is being hatched by Royal Palace, Singhadurbar (House and Ministry), and Embassies against the ongoing peace process and decided that they would launch Kathmandu-centered revolution (people’s movement III), if the political agendas on Monarchy, Incumbent House, Interim Constitution, Interim Government, Arms Management and announcement of CA elections are not finalized within the deadline of 10 days, prior to September 11, by Political Summit

October Revolution

The February Revolution of 1917 in Russia abdicated Tsar Nicholas II and handed the state power to an alliance of liberals and socialists. A provisional government was formed of which Alexander Kerensky, the Minister of War, was the driving force. People wanted peace after long years of war, including World War I, but Kerensky started a new offensive and turned into defeat. Famine, unemployment and poverty was rife and not only the workers but also the soldiers were underpaid. There were strikes throughout Russia, led by Bolsheviks. He turned against the Bolsheviks and the people. Finally the Bolsheviks led by VI Lenin in a nearly bloodless revolt in October 24 which is known as October Revolution. In fact, it was the second phase of the Russian Revolution of 1917. This marked the first official Marxist communist revolution of the twentieth century.

After the popular movement II, CPN (Maoist) held from 7-10 April 2006 a special meeting at Punjab (India) where Prachanda forwarded six point thesis. The agenda has not been come out in the public, but on our findings and analysis four of the six thesis are (i) peace talks would be the first priority if republican Nepal could be achieved through it; (ii) prepare the ground for Kathmandu centered revolution, which is also called “October Revolution”, if peace talks could not be held smoothly; (iii) formation of extensive republican front all over the country at the grass roots comprising pro-republican forces; and (iv) initiate rebellion within the ranks and file of the government Security Forces

CPN (Maoist) commitment to peace is evident by formation of another 10-member high-level talks team under the Chairmanship of Prachanda, Chairperson. However, the government team still continues with the three-member team.
As the data provided by National Human Rights Commission on the occasion of the International Day of the Disappeared, among 1768 people arrested by security forces 32% are yet disappeared and out of 750 individuals abducted by Maoists 42% are unknown till mid-August. Similarly, in May 2006, OHCHR asked the Nepali Army (formally Royal Nepali Army) to clarify the cases of 49 individuals who were arbitrarily detained, tortured and murdered at Maharajgunj barracks between 2003 and 2004. No formal responses have yet been provided by the concerned authorities. It is also the breach of the clause 17 of the CoC.
Three members of CPN (Maoist) talks team led a night time rally on September 4, 2006 with families of individuals disappeared by the state demanding the whereabouts of the disappeared. The government baton charged on the protesters at 20:30 hrs where about 100 protesters were injured in front of the Nepali Army headquarters. Despite the police actions, the protesters drenched in rain continued their protest throughout the night. Public life was paralyzed because of this and all public transport was at a standstill during 5 and 6 September 2006. It is rumored that Special Task Force of CPN (Maoist) have entered Kathmandu. Similarly, an additional 2,000 police and armed police forces have been mobilized in Kathmandu since September 4. There is tight security in Kathmandu. The long and medium distance buses and public transportation has completely stopped. Civilians are concerned that these incidents would lead to break of peace talks. Maoist supremo Prachanda and Dr. Baburam have gone underground from September 4. Nepal’s peace process is at the tightrope.
Human rights communities of Nepal appealed to Kofi Annan about the confirmation of Lt. General Rukmangat Katwal as Chief of the Army Staff by the Cabinet meeting on September 5, 2006, who has been documented for gross human rights and humanitarian law violations in the past. It also claimed that the current Army Bill of the interim government leaves enough space for extensive impunity for armed force members. OHCHR has also expressed three main concerns on 20 August 2006 about the Army Bill:

OHCHR comments on Army Bill

the Bill, like the existing Army Act 1959, allows the possibility for military courts rather than ordinary (civilian) courts to exercise jurisdiction over Nepal Army personnel who commit serious human rights violations such as extrajudicial executions, enforced disappearance and torture;
the Bill, like the Army Act, does not sufficiently require the Nepal Army to cooperate with civilian authorities empowered to investigate military personnel who commit serious human rights violations; and
the Bill, like the Army Act, does not safeguard the rights of defendants in court martial proceedings to a just and fair trial, and also lacks any provisions on the rights of victims to have access to court martial proceedings and on human rights protections for persons detained or imprisoned by the Nepal Army

Arms and ammunitions ordered for the Nepali Army being shipped via Ahamedabad (India) has made headlines in major media and raised concerns of the concerned on its implications to peace process. The government clarified that the orders were placed for Rocket Launchers and ammunition for MI 17 helicopters and other raw materials for the then Royal Nepali Army on January 3, 2005. But, the incumbent interim government has asked the Indian Government not to permit the cargo ground at Ahamedabad and clarified that it has no policy to buy arms and ammunitions at present.

CPN (Maoist) has raised concern that US military is providing training to Nepali Army, which is a blatant violation of CoC.
A national monitoring team was established but no progress was made towards inviting an international monitoring team as per the provision of clause 21 of CoC.

Conflict Transformation by Peaceful Means

In 1995, Professor Johan Galtung* had an opportunity to meet with the former President of Ecuador who was involved in border negotiations with Peru. In the peace treaty of Rio de Janeiro of 1941, it was agreed that the border should run along the watershed in the upper Amazon basin. But, depending on rainfall, the watershed has shifted. Each country insisted that the true border is where the watershed once was closest to its neighbor. Since 1941, Ecuador and Peru have fought four wars over this sparsely populated 500 square kilometer territory.

Galtung patiently listened to the Ex-President complain about Peru's inflexibility. But, he also always carefully listens to what people do not say. The Ex-President never said that each square meter of territory must belong to one and only one country, because he assumed that was obvious, since that principle was adopted at the peace treaty of Westphalia in 1648. So Galtung asked him what he thought of the idea of making the disputed border territory into a jointly administered "bi-national zone with a natural park," attracting tourists to benefit both countries. The Ex-President said, "This is very original – but it is too original, it will take at least 30 years to get used to such a new idea, and another 30 years to implement it." But out of curiosity he did propose it to Peru in the next round of peace negotiations, and to his surprise, Peru accepted it with minor modifications. This led to the Peace treaty signed in Brasilia on October 27, 1998.

Galtung pointed out that this initiative cost him only $250 for an extra stopover in Quito, a night in a hotel, and a very lavish meal for the Ex-President and his wife. By comparison, the Gulf War cost $100 billion, not counting the destruction it caused. Most of all, peaceful conflict transformation can save many lives.

Source: Professor Dietrich Fisher, European University Center for Peace Studies (EPU)

*Johan Galtung, Professor of Peace Studies, is Director of TRANSCEND, a global peace and development network. He is author of 123 books and over 1000 articles, including nine volumes of Essays on Peace Research and Methodology, and most recently "Transcend and Transform: An Introduction to Conflict Work". Over the last four decades, he has mediated in fifty international conflicts.

Conclusion

The CPN (Maoist) seems to be more sensitive to peace talks drawing the experiences from Nicaraguan Communist Movement that formed government but could not run for long and that from Peruvian Communist Movement whose leadership was crushed by the government forces.
The peace talks teams are focused only on political agenda, whereas other significant structural concerns have not been placed in the agenda. According to a book study on Politics of People’s War and Human Rights in Nepal 2006, the root causes of the “People’s War” consist of economic 32%, politico-ideological 26%, social 25%, regional 9%, cultural 4% and others 4%. These concerns along with political issues need to be addressed comprehensively during the peace talks.
Democracy is not merely to rule over the minorities by majority. The later should observe the rights and dignity of the former. The respected dignity has evaded grave civil and socio-cultural wars. In many instances, their rebellious feelings could be minimized if the majority pays attention to and respects their language, dresses, culture, religion, etc.
The Nepali monarchy that was really an Indigent King of the Paupers until the reign of Tribhuvan, the grandfather of King Gyandndra, grew to become a billionaire within a half century. There is a huge demand from the public to make public the King’s property, but the desire of the people has not been fulfilled because those who have taken up the responsibility to do so are also wearing the same coat.
CS Center agrees what Professor Fisher said, “We need a UN Agency for Mediation, with several thousand professionals, who can detect emerging conflicts and help transform them peacefully before they lead to war. That would be an excellent investment for a more peaceful world.”
Most governments wait until a conflict erupts in violent outbursts and war, and then intervene with military force, instead of seeking to find a peaceful solution long before it leads to violence. Such a policy is comparable to driving a car with closed eyes, waiting until we hit an obstacle and then calling an ambulance, instead of anticipating dangers and avoiding them.
The very day the State and leadership adheres to constructive creativity, non-violence, co-existence, and enhancement of respect-bound capacities with the people, sustainable peace would prevail from that same day in Nepal.
Their greatness is displayed if the concerned authorities, who wish for sustainable peace in Nepal, should adhere to the wishes, dreams and desires of Nepali people for genuine peace rather than inculcating own hidden interest, vocals, money and muscle games, and demand and supply of weapons. In certain stages, individuals role becomes critical than the institution they belong to or work for. If the peace process is analyzed through sky-view we see that the people are inside a house which is held by the four pillars SPA, CPN (Maoist), Monarchy and its feudal forces, and International communities including India and China. If a pillar was weak, the people would not feel confident and secure to live in the house.
Nepal is in a transitional phase. On the one hand, Arms Management, Interim Constitution and Constitutional Assembly are hot topics of discussion and on the other hand, the incumbent HoR, unpopular actions of incumbent government, violations of human rights and violent outbursts are rife, resulting in restraining peace process. The entire Nepalese society is increasingly concerned about the process and contents of peace, human rights and democratization.
Peace is at the roots and an issue of primary concern in the changing environment. Sustainable peace should be built at three tiers: top, middle and grass roots in different layers, so that if one tier and/or layer breaks down the other continues. The issue of critical concern in Nepal is that talks has initiated at the mono-level or the top levels of SPA and CPN (Maoist). This not only deprived of the roles of involvement of multiple stakeholders in the society but also left other political forces and actors outside. Genuine dialogue for peace and efforts to mediations at the middle and bottom layers and/or tiers has not been affected knowingly or unknowingly yet. This makes the situation evidently vulnerable. The issues emanating from lack of confidence, mutual trust, acknowledgement and compromise/acceptance are refueling the embers of conflict.
Peace and Reconciliation through Reculturation, Rehabilitation and Reintegration in multiple tiers and layers from the grass roots to those of the central is critical for conflict transformation and building sustainable and just peace.
If you want peace, you have to work for peace. To work for peace is a Dharma, Karma and Kartabya (religion, action, duty and responsibility). Peace is the obligatory necessity of all classes, levels, castes/ethnicities, sex, and religion. Peace is people’s wish; also rights; therefore, not only our policies, plans and programs but also our attitudes and behaviors required to be oriented towards just peace.

Craving of all Nepalis: Compliance to CoC and Yearning for Sustainable Peace!

(Sabai Nepaliko eutai chahana: achar sanhitako purna palana, digo shantiko sandhai kamana!)

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Contributed by

Dr. Bishnu Pathak

and

Mr. Chitra Niraula

¹ NMCC National Monitoring Committee on Code of Conduct for Ceasefire, formed by First Summit between SPA-Maoist in June 2006

PO Box 11374, Share Market Complex, Putalisadak, Kathmandu, Nepal Tel: +977-1-6218777 Email: cscenter.nepal@gmail.com

Situation Update VIII

Ratification of International Criminal Court to Just Peace

September 15, 2006

Intro

ICC, also known as Rome Statute, is a permanent treaty based international court located at Hague in Netherlands, has been established on July 17, 1998 by 120 countries. Altogether 139 countries have signed the treaty of which 73% have acceded to or ratified it as of August 2006. The treaty entered into force on July 1, 2002. The purpose of the ICC is to promote the rule of law, to achieve justice for all, to end impunity, to assist end conflicts, to remedy the deficiencies of ad-hoc tribunals, to deter future war criminals, etc. It acts following the principle of complementarity, i.e. in cases where states are reluctant or incapable to do so. Eighteen judges and a prosecutor are elected by the countries ratifying the treaty to lead investigations and try cases.

The ICC investigates and takes to court not states but individuals for serious international crimes such as genocide, crimes against humanity, war crimes and aggression. Its jurisdiction covers crimes committed in the geo-political landscape of ratifying states and crimes committed anywhere by nationals of ratifying states. The States that have not endorsed the treaty could choose to allow its jurisdiction in particular cases. All states parties, including those agreeing for particular cases, are required to cooperate with the court.

Cases could be brought to the ICC through three ways: (i) a case could be referred by the state party to ICC, (ii) the UN Security Council could refer a case, and (iii) the ICC prosecutor could start an investigation based on information received from victims, NGOs, or any other reliable source. If the Security Council submits a case, the ICC has jurisdiction over any State despite the fact that the State concerned is not a party to the ICC treaty.

History

Child soldier charges in the first ICC case

Aug 28, 2006. Thomas Lubanga Dyilo, a former leader of a militia group at war in the North Eastern Ituri district of the Democratic Republic of the Congo, was formally charged by the Prosecutor of the ICC for enlisting, conscripting and using children below 15 years of age to participate actively in fighting.

(Source: http://www.icc-cpi.int/home.html&l=en)

In 1872, Gustav Moynier¹ proposed a permanent court in response to the crimes of the Franco-Prussian War. The drafters of the 1919 Treaty of Versailles, envisaged an ad hoc international court to try the criminals of World War I. After World War II, the Allies set up the Nuremberg and Tokyo tribunals to try war criminals.
The UN General Assembly (GA) adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 that urged for criminals to be tried by international penal tribunals with jurisdiction and invited the International Law Commission (ILC) to draft a statute in the early 1950s. UN Security Council established two separate ad-hoc tribunals to hold individuals accountable for the atrocities, crimes against humanity, war crimes, and genocide during the conflicts in Bosnia-Herzegovina and Croatia and in Rwanda in the early 1990s.
In 1994, the ILC presented its draft statute for an ICC to the GA.

The GA created the Preparatory Committee on the Establishment of the ICC. It decided to convene the UN Conference of Plenipotentiaries at its 52^nd session to finalize and adopt a convention to establish an ICC. The Rome Conference took place from June 15 to July 17, 1998 in Italy, with 160 countries participating in the negotiations and monitored by more than 200 NGO Coalition. After 15 days, 120 nations voted in favor of the adoption of the Rome Statute, with seven nations (including the United States, Israel, China, Iraq and Qatar) voting against and 21 states refraining. The Assembly of States Parties met for the first time in September 2002. The ICC is currently conducting three investigations following state referrals by the Democratic Republic of the Congo (DRC) and Uganda, and a UN Security Council referral of the situation of Darfur, Sudan to the Court. In addition to these the ICC is reportedly analyzing a number of other situations on different continents including the Central African Republic and Côte d'Ivoire.

Nepal: A Country of Impunity²

During the popular movement I, dozens of people were extrajudicially killed and hundreds were injured. The interim government formed a high level Investigation Committee under the Supreme Court Justice Janardhan Mallik. This was the first public committee made after the restoration of democracy. The principal aim of the committee was to investigate the concerned authorities responsible for the loss of life and security and damage of public or private property during the period of February 17 to mid-April 1990. The committee submitted a 1,100-page report to the interim government on December 31, 1990. The report found over one hundred persons in high offices, including two former prime ministers Marich Man Shrestha and Lokendra Bahadur Chand, responsible for extrajudicial killings, arbitrary arrests and detentions, cruel and inhuman or degrading treatment and recommended for further action on them. The Mallik Commission reports, “45 ordinary people were killed and 2,300 citizens were injured during the popular movement I”.
The Ministry of Foreign Affairs seized the passports of the members of the council of ministers formed on June 16, 1986 under Marich Man Singh, the succeeding Prime Minister Lokendra Bahadur Chanda, some members of his council of ministers. Likewise, Ministry for Home Affairs issued an order prohibiting them going abroad without the permission of the government. The Commission also mentioned the names of the security and administrative personnel who were responsible for use of excessive force. The ex-Inspector General of Police Achyut Krishna Kharel was on top of the hit list in the report among the circle of police. He was at the time Acting Deputy Inspector General of Police, Central Region, which included the capital of Nepal during the people’s movement I.

Investigation into arbitrary detention, torture and disappearances at Maharajgunj RNA Barracks

On May 26, 2006, OHCHR submitted to the Prime Minister, in his capacity as Minister of Defense, as well as to the Chief of Army Staff, a report of its investigations into the arrest, detention, torture and continuing disappearance of individuals arrested by the then Royal Nepalese Army (RNA, now the Nepalese Army) and held in Maharajgunj barracks in Kathmandu in 2003 on suspicion of being linked to the Communist Party of Nepal (Maoist)

“…most of the hundreds of individuals who were arrested by the RNA in 2003 and detained for varying periods in Maharajgunj barracks were subjected to severe and prolonged ill-treatment and torture, with a principal role played by the Bhairabnath battalion. … at least 49 persons, and probably a significantly higher number, remain disappeared.”

“In spite of national and international norms governing detentions of suspected insurgents, including in times of internal armed conflict, these detentions were consistently denied by the RNA and those detained were disappeared. National and international appeals for information and clarification were ignored. Detainees were hidden from inspection. The fundamental guarantee of judicial control over detentions was denied. The only official documentation available regarding any of these detentions was prepared when some of the detainees were eventually transferred to civilian custody following habeas corpus proceedings.”

“…description of torture and cruel, inhuman or degrading conditions of detention to which detainees were subject deeply shocking. OHCHR has documented a sufficient number of cases to conclude that a significant number of detainees were subjected to various methods of torture, including beating with plastic pipes on the lower back, legs, and soles of the feet, submersion in water, and electric shocks. In almost all cases, victims of this torture, including women, were made first to remove their clothing, and were subjected to continuous abusive and degrading language. In addition, there were acts of torture involving sexual humiliation of both male and female detainees. Detainees were repeatedly threatened with execution.”

“All of the witnesses interviewed by OHCHR consistently describe the cruel, inhuman or degrading conditions in which the detainees were held for up to 18 months, permanently handcuffed and blindfolded. Some victims described these general conditions to have been cumulatively worse than the ‘formal’ torture and threat of execution. OHCHR received credible reports of at least three deaths due to, or aggravated by, these conditions. Former detainees continue to suffer the psychological and physical consequences of torture and ill-treatment.”

“The Bhairabnath battalion now acknowledges responsibility for the arrest and detention of 137 people during the period concerned and claims that these individuals were released or transferred after short periods of detention. However, absent from this list are at least 49 additional individuals known to OHCHR to have been held in the custody of the Bhairabnath or Yuddha Bhairab battalions (both part of RNA’s 10^th Brigade) between September and December 2003 and who remain disappeared. Many of these were removed from their place of detention during the last week of December 2003 and never seen again. During subsequent interrogations, officers stopped asking questions related to any of these former detainees. Most former detainees interviewed by OHCHR believe that these detainees were executed.”

The NHRC on Aug 27, 2006 stated that 66 individuals, including 5 women have gone missing from the Bairabnath Battlion between 2002 to early 2005.

The first elected government of NC presented the report in the House along with the decision of the interim government and the advice of Attorney General. Out of 265 members of both the houses, an absolute majority with 67 percent of the parliamentarians was in favor of taking action on the perpetrators. Moreover, the government and parliamentarians were considerably pressured by the civil society, human rights organizations and party activists to act. Despite such huge support from public and parliamentarians, the government kept the action pending and sent the report packing into the daraj (filing cabinet) where hundreds of other reports were kept. The government did not act on the pretext that there were some difficulties pertaining to legitimacy. But, it did not bother to disclose the nut of difficulty through parliament. Due to increasing criminalization in politics and vested interests of the political parties and their leaders, especially the ruling party NC, most of the well known perpetrators such as Achyut Krishna Kharel, Kamal Thapa, etc. were eventually awarded with very senior public posts. Moreover, the last prime minister of Panchayat era, Lokendra Bahadur Chand, whose passport was seized, became Prime Minister in 1997 and again in 2002 after the restoration of democracy. Kamal Thapa, Rabindra Nath Sharma, Dr. Prakash Chandra Lohani, and a few other ministers of RPP had cast their votes against their own council of ministers during the no-confidence motion in 1997 without even resigning from the posts of ministers. The former Inspector General of Police D.B. Lama, who had got life sentence during the last months of the Panchayat regime, became free a few years later and eventually a dignified member of parliament on behalf of the ruling party NC.
While atrocities of Operation Romeo were condemned throughout the nation from street to the parliament, it exerted pressure to set up a parliamentary investigation commission. On December 11, 1995, an eleven-member All Party Parliamentary Committee (APPC) was formed to investigate impartially the incidents of human rights violations and abuses in Rolpa during Operation Romeo. Except three, eight other parliamentarians namely Shankar Pokhrel, Nava Raj Subedi, Asha Kaji Basukala, Dal Bahadur Rana, Mahesh Chaudhary, Indu Rana, Man Bahadur Biswokarma, and Bashudev Bhatta visited the operation area in Rolpa and submitted a report to the House of Representatives and National Assembly. The report stated that the operation Romeo was unjustified which had only created terror among the local people. It further illustrated that many innocent people were kept in jail and many girls and women were sexually harassed. It had also recommended for strong action against the perpetrators. Similarly, the main opposition party UML also demanded to take strong action against those who were responsible for creating such types of incidents.

Three members of APPC, namely Ananda Prasad Dhungana, Bishnu Bikram Thapa and Anis Ansari, neither visited Rolpa nor concurred with the report, nor tendered their resignation from the Committee. While the ruling party had nominated them, they tried to raise a lot of impediments over the report. Without a field visit, they said that Operation Romeo was justified because the UPF cadres had terrorized the local people. However, these ruling party members did accept that the crisis had developed after 1992 when the Chief District Officer (CDO) of Rolpa Abdul Rais Khan had adopted very severe repressive policies against the opposition political parties, especially the activists of UPF. It is intriguing that Rais Khan was neither suspended nor any action was taken against him.

Prime Minister Man Mohan Adhikari, the leader of CPN (UML), had commissioned the Dang-Rolpa Ghatana Chhanbin Samiti (Incident Investigation Committee) to impartially investigate the murder cases in the two districts under the leadership of human rights activist Birendra Kesari Pokhrel with two other members in January 1995. Narayan Chaudhary of Dhikpur, Dang district had been killed on the spot in a gathering when the NC leader and Minister Khum Bahadur Khadka had ordered to shoot them. Twenty-nine persons had sustained bullet injuries in the incident. In another incident, two supporters of UPF, Lok Bahadur Gharti, a local inhabitant of Rangsi VDC-9 and Man Bahadur Pun of Iriwang VDC-1 were killed and many were injured when the police opened fire indiscriminately at a mela (public fair or festival) in Rolpa district on November 25, 1994 in the command of the Sub-inspector of Liwang. The report was duly submitted in time with recommendations to take stern action against the perpetrators, but no action was ever taken.

Number of individuals killed during the tenure of PM or Chairman of Council of Ministers

(February 13, 1996 to April 24, 2006)

	Premier	From	To	Months	by State	by Maoists	Total	Percent
1	K. P. Bhattarai	19 Apr1990	25 May 1991	13.2	-	-	-	-
2	G. P. Koirala	26 May 1991	28 Nov 1994	42.07	-	-	-	-
3	M. M. Adhikari	29 Nov 1994	10 Sept 1995	9.34	-	-	-	-
4	S. B. Deuba	11 Sept 1995	11 Mar 1997	18	71	31	102	0.78
5	L. B. Chand	12 Mar 1997	5 Oct 1997	6.77	1	18	19	0.15
6	S. B. Thapa	6 Oct 1997	1 Apr 1998	5.84	18	16	34	0.26
7	G. P. Koirala	2 Apr 1998	26 May 1999	12.8	457	139	596	4.57
8	K. P. Bhattarai	27 May 1999	19 Mar 2000	9.74	279	141	420	3.22
9	G. P. Koirala	20 Mar 2000	22 Jul 2001	16.07	151	354	505	3.88
10	S. B. Deuba	23 Jul 2001	10 Oct 2002	14.57	2,974	1,248	4,222	32.41
11	L. B. Chand	11 Oct 2002	3 Jun 2003	7.74	607	344	951	7.30
12	S. B. Thapa	4 Jun 2003	1 Jun 2004	11.9	1,902	1,005	2,907	22.31
13	S. B. Deuba	2 Jun 2004	31 Jan 2005	19	819	702	1,521	11.67
14	Gyanendra BBS	1 Feb 2005	24 Apr 2006	15	959	792	1,751	13.44
Total					8,238	4,790	13,028	100.00

Source: INSEC and Politics of People’s War and Human Rights in Nepal: 2006

Maoists had unilaterally announced four-months ceasefire from Sept 3, 2005 to January 2, 2006 on the request of civil society during the reign of Chairperson Gyanendra. The government outrightly rejected the ceasefire. As a result, the government killed 85 individuals whereas the Maoists 24. The number could have been higher if there was no unilateral ceasefire from the Maoist side.
On Sept 9, 2006, Maoist Supremo Prachanda while giving an exclusive interview to Kantipur TV pledged to disclose the status of the abductees within a month if sought. Following his announcement, the National Human Rights Commission (NHRC) submitted on September 11 a list of 152 individuals abducted by Maoist in various occasions.

Pinnacle of Atrocity

On August 23, 2006, the Maoists abducted Phulo Devi Yadav, inhabitant of Hardiya VDC 7 of Saptari district. She was the second wife to Kisun Dev Mahato of the same village. The Maoists had also fined Nepali Rupees 3,000 three years ago on the charge of illicit relation between them. The couple were staying in India and returned three weeks ago to celebrate Krishnaastami, a Hindu festival. On August 22, local Maoist leaders namely Badri Nath Adhikary and Subhash Narayan Yadav called a social gathering and passed the verdict to separate them deciding that their marriage was injustice to society. But Phulo refused to abide the Maoist verdict. The Maoists thrashed both of them in a variety of inhuman ways including electric shock. The Maoists handed over Kisun to the villagers and took Phulo away to undisclosed place. Kisun left for treatment to India. Three days later, the Maoists declared that Phulo had committed suicide by poison, but did not let anyone see her dead body. Later villagers, human rights defenders and journalists pressured the Maoists and dug out her corpse from a riverbank. The Maoists had publicly announced to punish the culprits.

Source: Kathmandu Post, August 31, 2006

Two Supreme Court Justices, namely Arjun Prasad Singh and Badri Kumar Basnet, gave a verdict in favor of Mahaluxmi Sugar Mills, out of 1470 defaulters blacklisted by Nepal Rastra Bank , the State Bank. The Mills had to pay a total of 1,220 millions Nepali Currency to Nepal Bank Ltd., Rastriya Banijya Bank, Himalaya Bank, Karmachari Sanchaya Kosh, Nepal Industrial Development Corporation. On August 19, 2006, the five Banks requested to the incumbent House of Representative to impeach both of them and had also appealed to the Supreme Court. Even the Supreme Court Chief Justice, who was then abroad, had expressed his opposition to the verdict to remove the Mills from the blacklist. He had instructed not to conduct hearings of the case until he returned. The governor of Nepal Rastra Bank, in front of the Public Account Committee, said that the Supreme Court order removing certain business houses from the Bank Defaulter Blacklist would have a long-term impact on the economic and financial systems of the country. This is an illustrative instance of the money and muscle game, which is not new to Nepal, for example in Nepal attorneys show fingers to the judges to influence verdicts in favor of his/her client, one finger indicates one hundred thousands Nepali Currency.
Families affected due to extrajudicial killings by Security Forces in the decade of armed conflict have started to lodge complaints to NHRC and Courts. For instance, on September 9, 2006, family of Hari Prasad Bolakhe, allegedly killed by security forces, filed a case at the District Police Office at Kavre against Nepali Army Major Krishna Dhoj Thapa and Lieutenant Babu Ram Thapa for their involvement in Bolakhe’s detention and killing. Rights Group (an NGO) is coordinating to bring this case to try in a civilian court.
OHCHR demanded to revise the current Army the Bill to meet human rights standards (see situation update VII). A majority of the House members are against the Bill, but it is wonder that the House has not done anything about it yet.
The government promoted Lt. General Rukmangat Katwal to Chief of the Army Staff on September 5, 2006 despite protests from major factions in SPA, House and civil society in Nepal, who has been documented for gross human rights and humanitarian law violations in the past.

Cruelty to a young working girl at an Army Officer’s House

Laxmi Pun of Surkhet (Mid-Western Hills of Nepal) aged 12-years was a housemaid at Army colonel Romeo Jung Rana’s house at Khumaltar of Lalitpur Metropolis since a year.

Mrs. Siddhartha Rana, the colonel’s wife, and his orderly used to give severe cruel, inhuman and degrading treatment and punishment to her. The neighbors informed to an NGO (CWIN) about the atrocities.

On September 3, 2006 Mrs. Rana abused and returned the CWIN representative saying that there was no child labor at hers. The following day CWIN went there with police and rescued her. Laxmi said, “Mrs. Rana and the orderly used to beat and pinch so that she had bruises all over her body. I was living and eating at the kennel of five dogs.” She further said, “I was studying at grade two and I was promised to schooling, but I had to work from 5 am to 11 pm.”

(Source: Kantipur Daily, September 4 and 5, 2006

On August 17, 2006, soldiers allegedly beat their Commander Major Himendra Thapa and Captain Yadav Silwal on charging of cruel treatment to them at Tripura Company in Pokhara (Western Region). The Army HQ has suspended both of them, detained almost three dozen soldiers and initiated a probe. The detained soldiers have voiced strongly at the human rights organizations and agencies for not taking the case seriously.
There is a huge political hullabaloo from the streets to the House about the property of the rich King Gyanendra of the paupers. In preliminary investigations billions of US Dollars have been identified to be invested in different industries and lands in Nepal; no one has any idea of his property in foreign land.
The High Level Investigation Commission formed to investigate the loss of life and property during the Popular Movement II, interrogated to Pashupati Bhakta Maharjan on his alleged role in suppression of the demonstrations, who is the Principal Secretary of King Gyanendra. He declined the allegations but claimed that he had only played the role to bridge between Royal Palace and other concerned Government Authorities. The Commission has strongly declared that it has decided to summon the King Gyanendra as he worked as the Chairperson of the Council of Ministers.
By the end of August 2006, CPN (Maoist) stopped the Department of International Development (DFID), UK to continue its programs in Parbat district in Western Region of Nepal and they withdrew from the district accordingly.

Conclusions

Asia’s representation at ICC is pitiable. Presently only six Asian States are Parties to the ICC, i.e., Cambodia, East Timor, Republic of Korea, Mongolia, Afghanistan and Tajikistan, while Thailand, Philippines and Bangladesh have signed the Rome Statute but yet to ratify. Greater Asian participation is required to ensure diverse cultures in ICC. The need to support the ICC in Asia is crucial for the growing global fight against impunity and for the defense of fundamental human rights.
Nepal’s accession to the Rome Statute would further strengthen the peace process in Nepal. The challenges facing Nepal in the context of its transition to democracy and its strengthening of the democratic order are crucial. By joining the ICC, Nepal will further consolidate the rule of law and the commitment to uphold the highest international human rights standards. On July 24, 2006, the House of Representatives unanimously endorsed a proposal to accede to the Rome Statute of ICC, and the government affirmed that Nepal will take the necessary measures to accede very soon.
Because of the influence of power, politics, and property (3Ps) along with nepotism, favoritism, and sycophancy, the reports remain without implementation, no matter how important they are. But, only the poor, disadvantaged, marginalized, and rural people are compelled to obey the rules and regulations in Nepal even for minor offenses.
These are but a few examples of the culture of impunity. In recent years, especially after the restoration of democracy, impunity has highly increased due to the polarization of people in political parties. The 3Ps are influencing the courts and state apparatus even more vigorously. As a result, more and more people are getting dissatisfied with the present democracy, which subsequently fuels the conflict.
Culture of impunity is expanding in a very fast pace. The incumbent PM Girija Prasad Koirala does not see any Grand Design now to Royal Massacre in June 2001 who claimed such a Design when he was not in government. However, it is remarkable that he was the PM then and Defense Minister simultaneously, whose major responsibility was to look after the Palace affairs, including security.
Nepali people look upon ICC with high hopes and expectations to end impunities and bring the perpetrators into court of gross human rights violations. The ICC focuses its actions particularly to the line of command rather than implementers. Accession and ratification to Rome Statute of ICC and its genuine compliance is a milestone to sustainable peace in Nepal.

Contributed by

Dr. Bishnu Pathak

and

Mr. Chitra Niraula

CS Center, established recently in 2006, is an academic, policy oriented and research based non-government, non-partisan and non-profit making autonomous institution registered with the Government of Nepal. Its purpose is to promote peace, respect human rights, enhance democratic process, and protect the poor, marginalized, disadvantaged and vulnerable (PMDV) people and endorse social justice and dignity through education, training, action research, action advocacy, capacity building and networking as a Think Tank, Center for Excellence.

¹ One of the founders of the International Committee of the Red Cross

² Many parts of this section are extracted from Politics of People’s War and Human Rights in Nepal, written by Bishnu Pathak.

Democracy For Nepal

Pages

Friday, September 15, 2006

Conflict Study Center

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