Category: Opinions

 An amendment bill on the Citizenship Act 1964 enabling all immigrants and their offspring to claim Nepali citizenship is awaiting legislative process of the House of Representatives for its passage into law. According to the bill, citizenship certificates will be provided to all applicants if they are able to prove that they were born in Nepal before the 1990 mass movement or residing in the country since then.

The bill has also introduced new provisions in the Act enabling men married to Nepali women and their children to claim citizenship with ease. Surprisingly, under the present formulation, the applicant is not even required to declare his or her intention to settle and reside in the country permanently.

While the year 1990 has been accepted as the cut-off year for distribution of citizenship, it is not clear how the idea is not to grant citizenship en masse (as was originally intended but later dropped off from the draft Interim Constitution last month) but to recognize the claim of every individual who is a de facto Nepali. The formulation that even if there is no written proof, a person can still qualify for the citizenship if he is successful to get recommendations from three Nepali citizens definitely indicates towards the fragility of the legal principles being employed by the government under the amendment bill.

There is no dispute over the fact that there are certain valid claims for the citizenship of Nepal. However, granting citizenship simply because someone happens to be born in Nepal before 1990 or happens to be on the electoral rolls cannot be a rational formulation. Birth is a biological act. Place of performance of this act has hardly any influence on a person’s psyche. For the sake of legal convenience, some importance has been ascribed to place of birth in laws relating to citizenship. But that can be no justification for treating it as the only important factor by this law. This is true about the fact of residence as well.

As a matter of principle, for example, international law has a concept of domicile, which is not solely based on the place of birth. Domicile is based on the intentions and mind of the person concerned. One must prove one’s domicile in the host country before one becomes eligible for acquiring citizenship of that country. One must also prove one’s renunciation of domicile of the country of origin. Tests and qualifications must be prescribed to ensure that the person is truly domiciled in the host country.

Moreover, the proposed amendment does not even make it mandatory for the authorities to verify the antecedents of the applicant in the country of origin. The danger that this poses is a bit too obvious and is surely not far-fetched in a country that is at the neighborhood of the two most populated countries of the world.

Especially, the inflow of people from India is never going to decrease in Nepal given the size of the population of India and the ongoing pace in which the haphazard industrialization process is creating mass poverty and marginalization in that country.

If the idea is to take such drastic measures to end the citizenship problems for ever, as it is being propagated by the government, which has the habit of ruling over the Constitution, then there is no reason why the government is not coming up with a bold determination to immediately start regulating the porous international border that this tiny country shares with India, and thereby starts implementing existing immigration laws and work permit policies to control the movement of the Indian people in Nepal. The inflow of immigrants from across the border and their settlement inside Nepal will never decrease just by attempting to distribute citizenship and ‘Nepalize’ all these immigrants every eight or ten year.

As two distinguished critiques, Buddhi N Shrestha and Madan Regmi, emphasized this author recently (in response to his earlier commentary on the issue), nothing forbids the government of Nepal to regulate the international border in keeping with its best national interests. In fact, what is necessary now is also to withdraw the provision of the 1950 treaty under which the government of India and Nepal “agree to grant, on reciprocal basis, to the nationals of one country in the territories of the other the same privileges in the matter of movement and privileges of a similar nature.”

Our compassionate neighbor has always been too demanding under this clause, and at times such demands have even ignored the long term Indian interests in Nepal. The treaty must be revised or abrogated if the Citizenship Act is being amended in good faith of the poor sovereign people of this country.

It is strange that the omnipotent government, which is so much forthcoming in certain strategic matters of Indian interest is just silent on what is going to be the fate of millions of Nepali citizens living in India without citizenship, and whether the Indian state is going to give the same treatment to the interested Nepalis living out there as at the cut off date marked for this country. Has the government of India in any case proposed similar amendment to the prevailing Indian Citizenship Act, and agreed to repatriate the Bhutanese refugees in the eastern Nepal back to their land? If this is not the basis of Nepali benevolence, then the government needs to explain why these blanket provisions are being proposed.

[lawyers_inc_nepal@yahoo.com]

 ”Intended to heal the wounds of the past, and reconcile all political forces in new Liberia, the TRC of Liberia is mandated to conduct a thorough investigation and publish a report documenting gross human rights violations, violations of international humanitarian law, and importantly, economic crimes, such as the exploitation of natural resources to perpetuate armed conflict, that occurred between January 1979 and October 14, 2003.”.
The Truth and Reconciliation Commission (TRC), one of the important institutions envisaged by the Comprehensive Peace Agreement negotiated in Accra in June 2003 has now been constituted.

Intended to heal the wounds of the past, and reconcile all political forces in new Liberia, the TRC is mandated to conduct a thorough investigation and publish a report documenting gross human rights violations, violations of international humanitarian law, and importantly, economic crimes, such as the exploitation of natural resources to perpetuate armed conflict, that occurred between January 1979 and October 14, 2003. In addition, the TRC will also “recommend” that amnesty be granted to persons making “full disclosures of their wrongs” and “expressing remorse for their acts,” with the proviso that amnesty will not apply to serious violations of international humanitarian law and crimes against humanity. Finally, the TRC will make recommendations to the government about reparations, the need for legal and other institutional reforms, and the need to hold prosecutions in certain cases, presumably those cases involving crimes against humanity.

The Chairman of the Transitional Government of Liberia (NTGL), Mr. Gyude Bryant, on 18 October 2005 appointed nine commissioners for the Truth and Reconciliation Commission (TRC). These Commissioners were appointed after a long participatory process as laid down by the TRC Act passed by the transitional legislative assembly in mid 2005 amidst a complex and politically challenging environment. With this appointment, the controversy regarding the TRC members appointed by Chairman Bryant without the authority of an enabling law has come to an end.

Additionally, the Economic Council of West African States (ECOWAS), has already nominated two members for the TRC International Technical Advisory Committee (ITAC) members, and the third member by the Office of the High Commissioner for Human Rights (OHCHR). All of these technical advisors are the nationals of ECOWAS countries, and according to the TRC Act, enjoy all rights and privileges accorded to commissioners save that they do not have the right to vote.

In its new composition, the TRC is not only an inclusive body, but it also commands the faith of the common people. The newly appointed Commissioners wanted to be commissioned to their new office by the elected government based on preliminary consultations with UN agencies and some representatives of donors. In fact, it is politically desirable to have the TRC inaugurated under the new democratically elected government as it will need considerable political and financial backing for its work, and protection from any attempt to influence its findings, including recommendations on individuals who should be prosecuted. Although the date for inauguration is not yet fixed, the preparation for the inauguration is going on. The act of inauguration would set in motion the statutorily defined three month preparatory period to be followed immediately by the two years anticipated as the timeframe the TRC would need to accomplish its tasks.

One of the principal issues beforehand is the issue of funding of the monumental tasks the new body is going to perform. According to the TRC Act, Article VI (12), “Members of the TRC shall be employed by the government of Liberia and shall render services on a full basis and receive remuneration in an amount determined not to be less than that received by Justices of the Supreme Court of Liberia.” The government’s responsibility in this regard is clear. Article VI (12) goes on to say “Members of the International Technical Advisory Committee shall receive remuneration pursuant to international standards for persons carrying out similar mandates.” However, the Act stops short of specifying how and by whom members of the committee should be paid. The United Nations Development Fund (UNDP), the ECOWAS and the United Nations Mission in Liberia (UNMIL) are working together with the TRC members and the international donors to sort out the funding issues.

Once inaugurated, the TRC is likely to run for at least two and half years to perform all its responsibilities leading to a final report. This means that what is put in motion now will be completed at the last leg of 2008. The newly elected President of Liberia, Ms Ellen Johnson-Sirleaft, who was shorn in on 16 January, has already spoken of her full support to the TRC and its mandate.

 It is not clear who said it, but the claim that every ambitious man is a captive and every covetous one a pauper, has a heavy dose of truth. Whether this claim applies to Prachanda, the most successful among the practicing Maoists around the world, is the issue of concern here.

This issue has at once become very important after the government of Nepal and Maoists signed the peace deal declaring a formal end to the 10-year rebel ‘industry’ – thereby accepting the limits of the armed movement. After signing the Comprehensive Peace Agreement, the government and rebels have paved the way for the guerrillas to join the country’s interim government.

Prachanda’s counterpart in Peru , Abimael Guzmán or the founder of the Shining Path, a failed Maoist insurgency between 1980 and 2000 which was responsible for many of the 69,000 deaths in that period has been recently sentenced to life in prison by a civilian court. It was the third trial the group’s leader faced. Under ex-President Alberto Fujimori (1990-2000), Guzmán was sentenced to life in prison by a secret military tribunal in 1992, but that sentence was discarded in 2003 for violation of due process. Prachanda survived these challenges in Nepal, and before it was too late came down to a political path that is being cleared for him.

If democracy is the future of the nation and people are to decide the course of events through their elected representatives, then the leaders especially the ‘fiercest ones’ like Prachanda, must give up their personal ambitions, without pride and prejudice and be loud and clear in relinquishing their relationship with arms which are still floating around.

Maoists know what they are being expected of in the given situation. Unfortunately, while the government side has done everything within its reach, they are still short of determination to prove their credentials reasonably. Their ongoing moves to recruit into their armed rank as many children as possible before the actual cantonment process kicks off and is self explanatory. They have also continued their violence, intimidation and extortion. There is no effort on their part to make sure that impunity comes to an end, and the rule of law takes its course.

Additionally, the 40-point demands with which the Maoists started their “people’s war” has never been the issue in recent days. The talk about socio-economic and political empowerment of the deprived people, and abrogation of the 1950 treaty with India, scrapping of the Mahakali treaty, regulation of the international border (opened since 1950 under Indian pressure); introduction of work permit system in Nepal, and end of imperialist hegemony of India has disappeared from the agenda.

What has so far been achieved is the decision to defunct the Constitution which posed difficulties in offering Nepalese citizenship to all interested Indians en masse; eliminate constitutional safeguards in the international treaties or agreements in the exploitation of Nepal’s natural resources; and knock out the King from the nation building process. These are the issues already ignored by the draft interim constitution which will impact the quality of peace in Nepal for many years.

Moral losses that we see in our parties are like radiation – colorless, odorless and terrifying. In particular, the Nepali Congress, has become a amusing case in point. This oldest democratic party of Nepal has gone to the extent of giving a deadly blow to its long established policy of national reconciliation. It has ignored that the challenge before the democrats is not only to take the responsibility of restoring democracy but also safeguarding the nation, which is being pushed to a bargaining table to negotiate things that are not negotiable.

It needs to be pointed out that the King of Nepal might have lost a part of his credibility but he has not lost his appeal. There are people who stand by the system of constitutional monarchy for various reasons; it is basically because of the force in their pledges that some countries are out here to dismantle monarchy through their instruments.

Once again the Comprehensive Peace Agreement has brought a period of enthusiasm and euphoria, of resurrection of democratic commitment and of options for the common people in the streets. However, even now, the independent critical mass of this country has not forgotten how the Maoists declared war against parliamentary democracy when it had already started delivering its promises.

The atmosphere of secrecy and disinformation, which are consistently dished out by Maoists for strategic purposes explain for themselves without any hitch. It is here that Maoists need change, it is here that they need to keep their ambitions under some limit.

[1]This Article was supposed to be published on November 23, 2006 by the Kathmandu Post as the author’s column on “Conflict and Rights.” The article was politely rejected being too early for the comments that were made. However, it was never published thereafter.

 The issue of management of small arms, which were used to ruthlessly slaughtering more than 13,000 Nepalis, is unfortunately still the most intractable part of the story of a revolution that has already gone sour.
There are indigestible misrepresentation by the constituents of the Seven Party Alliance as to the issue beforehand, falsification and distortion of major facts, and arbitrary shift in the major requirements of the transition in Nepal. So much so that even the international community seems to be confused about the priority of the hour.

What the April movement has finally brought in is a turn of the wheel of fortune, by which those who were at the bottom mounted to the top and assumed the choice positions, crushing the former power-holders beneath them. Every constituent of the Seven Party Alliance is standing only for its narrow and opportunistic interests, and is trying to browbeat each other in the power sharing game, twisting that loktantrik ideology to suit their masters. In effect, there is very little concern for the arms that were raised against the state, the common folks and a functioning democracy, finally bringing untold miseries to the people.

Arms management in our context is an all encompassing subject, which must not be reduced only to the demand of ‘separation between Maoists and their arms’ as some pundits are trying to do. In ongoing peace process it should refer to all restrictions that must be imposed on the armed groups on production, development, stockpiling, proliferation, import, distribution and usage of small arms and light weapons and decommissioning of the insurgents in order to liberate the political environment from their clutches. They need to be disabled to change the Maoists from an armed group into a political party in equal footing with others, and then hold the elections to the constituent assembly as demanded by them as a way out to the conflict in Nepal.

Linking the issue of arms management with constitutional monarchy or any other political issues on the national agenda at this stage is very questionable. It is a tactical Maoist game calculated to retain some form of countervailing power during the peace process (as they know that the parties without arms cannot ‘live in water and become an enemy of the crocodile.’

It needs to be recognized by all including the international community that the Seven Party Alliance and the Maoists, even if united in their stand, do not represent all political forces in the country, let alone the whole of Nepal. There are sizable parties outside the present framework, and there are many people who have never sold their loyalty to any political party; and who are habituated to vote in elections based on what is their current perspective on the political issues.

In any case, political issues including what form of governance this country should adopt is a question that can only be decided by the people casting their vote in a free environment. The issue of the management of arms and these general political issues are always mutually exclusive, and are not supposed to be negotiable with bloodstained arms. The ongoing attempt to unethically link these two separate issues tends to foreshadow the real objective of maintaining simultaneous access to the arms and political power, and also limiting the choice that the free people can make through the popular process. It is not surprising that the Maoists want to pre-empt the exercise of powers by the constituent assembly in areas that might not cut much ice in an arms-free environment.

Arms smack of power and intimidation whether they are in use or not. Specially, elections under the shadow of arms, whether for constituent assembly, the House of Representatives or for any other representative institution, cannot be free, fair and impartial. The demand that the arms of the Maoists must be decommissioned has strong moral force. It is better for the parties to stand up now than to live with problems later on, especially in view of the complexity that the mismanagement of the decommissioning issue might create in rural Nepal. It is hard to live in Rome and strive against the Pope. In fact, the context here is more rigorous.

If morning shows the day, the Maoists activities at this stage aptly show how they intend to pose themselves during the constituent assembly elections if they are able to have access to their arms, physically or otherwise.

Even the recent OHCHR reports say that they have continued with abductions, ill-treatment, killings and child recruitment in spite of the peace process of which they have been a proud owner. They continue to impose tax and other levies, and run their unjust administration including peoples’ courts. The way the combatants are demonstrating their arms in the far-flung villages and intimidating people to join them in their political platform show how the people can always be frightened into closing their eyes and voting what they have been asked to vote on without exercising judgment.

Against these facts, the assurance of the Maoists that their arms are the arms of liberators just look ridiculous. It plainly reminds what is emphasized by ‘the cat embarking on a pilgrimage after feasting on hundreds of mice.’ The whole problem with the SPA government is that it is full of doubt while the Maoists and fanatics surrounding them are always so certain of themselves.

It is also the time for the United Nations to come forward with some concrete options for the management of arms in Nepal. There are dozens of success stories and many important lessons, which have become relevant for Nepal.

There is no doubt that the UN job becomes less cumbersome when it is asked only to execute what has been mutually agreed by the parties to the conflict. But there is no reason why the UN cannot take a proactive role the way it has done in many other countries and facilitate the parties in the issue beforehand to find a solution acceptable to the free people, albeit behind the screen.

[lawyers_inc_nepal@yahoo.com]

 For a long time the people of Nepal have known deep down that the future of this country will be different from the past. The million dollor question is – “is the future that they are talking about going to be better than what had been their immediate past at all?”

The long awaited high-level talks between Prime Minister Girija Prasad Koirala and Maoist Chairman, Prachanda, has resumed at the Prime Minister’s residence at Baluwatar. Several contentious issues between the government and the rebels are being discussed for final resolution.

The issues deliberately ignored in the discussion are the three crucial steps which must have been decided first before they started discussing any political agenda: (a) conclusion of a reliable ceasefire agreement; (b) immediate end to kidnapping, killing, extortion and other criminal activities from the Maoist side; and (c) surrendering of all weapons held by the guerrillas.

As of today, the entire thrust is on power sharing, the promulgation of the interim constitution and the election of the constituent assembly. One needs to peel back the veil of media-induced deception to reveal exactly, when, where, how and especially why Maoists brought into the lies that they want to join the democratic mainstream – yet without signing a ceasefire agreement – continuing with kidnapping, killing and extortion, and without bidding farewell to arms.

If there is some honesty in what is being done, the omnipotent government of G.P. Koirala needs to respond to the people on this issue. Just explain how a civic government is possible when one of the constituents intends to have its own private army and run a parallel government from the platform of a legitimate power. There are no regrets in life, just lessons: false humility of the government can be even more harmful in this respect than false pride of becoming an invincible government.

In fact, the emerging situation reminds the educated Nepalis of George Orwell’s “Animal Farm” – a simple fable of great symbolic value – which was published in 1945. What exemplifies George Orwell’s fable is the declared goals of the revolution and the failure to meet them. George Orwell’s illustrates this failure through the malfunction of the new leaders, and their disastrous reign. Power corrupts, but absolute power the leaders vest in themselves (with the strength of the revolution) corrupts absolutely.

Before the Revolution, as the fable goes, the inhabitants of the “Animal Farm” are ruled by a tyrannical human being, Mr Jones [or King Gyanendra?]. The animals get fed up with the treatment they have been receiving and, at one meeting, one Old Major [or RAW?] provides a solution that befits its scheme, Revolution. The Revolution plans to overthrow Jones, the tyrannical farmer, and set up an animal government [supervised by New Delhi?]. The forces find their way and the plan is successful.

Then comes the simple and tragic story of what happens when the oppressed farm animals drive out Mr. Jones, the farmer, and attempt to rule the farm themselves, on the basis of equality.

The new regime begins in idealistic optimism as expressed by the motto” no animal must ever tyrannize over his own kind. Weak or strong, clever or simple, we are all brothers.” The Seven Commandments (or the parliamentary proclamations?) are soon proclamed with all the animals contented as equals. The pigs (or the members of the Seven Party Alliance?) come to take the charge of the new government. They become successful propagandist, use the dogs (the security umbrella?) as force to keep animals in line, and in fact the rest of the animals are easily led. There is of course no change in tyranny that these animals had been historically facing.

The venture fails, and the “Animal Farm” ends up being a dictatorship of pigs, who were said to be the brightest, and most idle of the animals. At the climax of the story, these pigs even start walking upright like human beings. The ultimate return of humans indicates the overall failure of the rebellion, with the farm in human hands, due to start the same hellish life they had before Old Major prompted them to change.

The government of the Seven Party Alliance has to live the vision, day in day out – embodying it – and empowering the people to implement and execute that vision in everything they do. Of course, it has the right to commit suicide should it want. But it does not have any right to mislead the country, and to surrender the legitimate stakes that the people have in the peace process.

The mandate of the SPA government is to accommodate Maoists in the political mainstream of the country; it is not the mandate to establish them in power with their private army and other paraphernalia, and run the country into oblivion.

Changes in mindset do not start on a larger scale. Maoists are yet to develop that democratic mindset and the ability to build on it. They also need a sense of purpose beyond themselves. If the purpose is only for oneself, it rapidly dissipates the way the democratic arrangements under the 1990 constitution dissipated. In fact, it is not enough to talk about the future – the leaders should also show that they are building it. And, this is not the case.

[LAWYERS_INC_NEPAL@yahoo.com]

 Harka Gurung, a senior scholar, once emphasized political boundary and citizenship as two bases of national identity. On both counts, he said, the situation of Nepal seemed precarious.

This precariousness owes to several factors. The porous international border that this tiny country shares with India is still unregulated under a treaty forced on it during the transition of 1950. While the inflow of immigrants from across the border and their settlement inside Nepal has never decreased, the attempt of the government to distribute citizenship and ‘Nepalize’ all these immigrants for once and ever (to finally stop the floodgate) has never been successful. Besides, the issue of the encroachment of Nepal’s international border is a regular feature in the local news. There are still some parts of Nepal under foreign illegal occupation. Indeed, the country is shrinking physically, and there is no voice against it.

On the 56th year of the 1950 treaty, while the country is in another period of transition, attempts are being made again to play out Nepal demographically. Efforts were made, although unsuccessfully, to propose a provision in the draft Interim Constitution granting Nepali citizenship to all individuals who participated in the referendum of 1980 or took part in the elections after 1990 or whose father or mother is born in Nepal. While the later formulation has some logic, the former two formulations seem to have been imposed on the drafting team after carefully sidelining the citizenship provisions that existed under the 1990 Constitution.

Granting citizenship simply because someone happens to be on the electoral rolls cannot be a rational formulation. The law of Nepal and for that matter any other country (ruled by itself) cannot recognize an electoral roll to be the exclusive proof of citizenship. It is a document created for an entirely separate purpose and with a view to enable the residents to cast his or her vote in a given election. The claim of citizenship has to be established the way paternity or maternity is to be established, and simply because somebody has spent some years in a foreign country does not entitle him or her to the citizenship certificate from this state. This is the bottom line everywhere.

The existing Constitution does not give the government the power to gift the citizenship en masse to foreigners. Every claim for citizenship must be judged on case to case basis and on the strength of the merit of each claim. In most parts of the world, the burden of proving whether one is an illegal migrant or not falls on the very person. There is good and sound reason for placing the burden of proof upon the person concerned who asserts to be a citizen of a particular country.

In order to establish one’s citizenship, normally he or she may be required to give evidence of his/her date of birth, place of birth, name of his/her parents, and their place of birth and citizenship. Sometimes the place of birth of his/her grand parents may also be relevant. All these facts would necessarily be within the personal knowledge of the person concerned and not of the authorities of the state. After s/he has given evidence on these points, the state authorities can verify the facts and can then lead evidence in rebuttal, if necessary.

There are definitely some genuine citizenship claims of people in Madhesh which must be settled by all means. Those who have valid claims must get citizenship certificates, and genuine citizens must be provided with the certificate as soon as possible. If necessary, the state should also consider making legal aid available to the concerned claimant on the recommendation of the civil society. But the attempt of granting citizenship en masse and outside the normal legal process is not only questionable but also a serious breach of the loyalty and trust that politicians are expected to demonstrate towards the nation.

Obviously, a lot of money is being spent to keep the public opinion under control in this matter and change Nepal demographically. This is the reason that Nepal never had anti-foreigner agitation as we happen to see around the world every year. Even in India, for example, in the late 1970s and early 1980s anti-foreigner agitations were led by the All Assam Students Union (AASU) which protested the presence of hundreds of thousands of illegal foreigners from Bangladesh in the electoral rolls.

For those of the politicians, and civil society leaders, who are proud to be more Indian than the Indians themselves, suffice it to remind them that in India itself there is a Supreme Court order since April 2002 which maintains that foreigners cannot claim the right to Indian citizenship on the ground that they are enrolled in voter lists, have ration cards and that they have been living in India for a long time. By equating the influx with external aggression, the Supreme Court of India has also pinpointed that the impact of such large scale influx is the root cause of insurgency as well as economic deprivation of the Northeastern parts of the country.

The Indian Supreme Court has in fact made a telling observation: “The report of the Governor, the affidavits and other material on record show that millions of Bangladeshi nationals have illegally crossed the international border and have occupied vast tracts of barren or cultivable land, forest area and have taken possession of the same in Assam as well. Their willingness to work at low wages has deprived Indian citizens and specially people in Assam of employment opportunities.”

Nepal has been very modest in citizenship matters. Besides, many non-Nepalis have already acquired citizenship by bribing the authorities, and illegally procuring documents that allow them to claim citizenship certificates. Limited police capacities to combat document fraud and lack of administrative systems necessary to properly document immigrants in the first place has enabled many people to acquire Nepali citizenship. Weak documentation systems have led not only to illegal entry of economic migrants (from beggars to the businessmen), terrorists, and other criminals via document fraud, but to massive electoral fraud as well, which has serious implications for the conduct of democratic politics.Sovereignty is nowhere more absolute than in matters of emigration, naturalization, nationality, and expulsion. It is at the threshold of a state’s membership and its territorial boundaries that the rules of entry and residence apply.

If influx continues and citizenship certificates are distributed the way they are being discussed, Nepalis will soon be swamped, and there would be no Nepal left for the natives.

[lawyers_inc_nepal@yahoo.com]

 Turning conflict into peace is challenging even if those attempting to do it are highly trained and well-equipped. Several of the most violent and tragic episodes of the 1990s occurred after the negotiation of peace agreements. This is the reason that every peace process should have a credible peace facilitator.

The United Nations has a long experience in mediating and implementing peace agreements. It has enough know-how in garnering broad based political coalition to solve conflict, and ensure that peace agreements are implemented in a sustained and sustainable manner. This is the reason why many people in Nepal are demanding that the United Nations be involved in the peace process in Nepal as a facilitator.

Last week, Matthew Kahane, the United Nations (UN) Resident Representative and Humanitarian Coordinator, rightly remarked that the current ceasefire agreement (code of conduct) between the Nepal government and the Maoist party is too general and needs to include many specific provisions. It doesn’t talk about the number of armies on both sides; and the questions like who are commanding the armies; where the soldiers are kept; is their uniform identifiable or not; who are actually in the armies, etc are left unanswered. Kahane was right on the issue when he said the code of conduct should be detailed to such an extent that it should talk about the numbers of guns, tagging those guns with numbers, keeping them inside an alarm enabled armor with as much as three keys- “two of them will be with the two sides and one will be with us.” Had the SPA government and the Maoists little sense, they should have adopted the ceasefire agreement that the National Human Rights Commission of Nepal had submitted to them just few weeks before for their consideration.

In the days ahead, the government will have to take further crucial decisions involving a wide range of complex tasks that often require the combined use of military, police and civilian capabilities to define and enforce the code of conduct. Operational concepts emerge from these mandated tasks, which need greater clarity in their application. They include protection of civilians, security sector reform, DDR (disarmament, demobilization and rehabilitation), extension of state authority, organization of free, fair and transparent elections, and support to national transitional processes.

All these issues require mature facilitators. There has been significant support in Nepal for the role of the UN in four major areas of the peace process: (1) facilitation of peace dialogue and witnessing of decisions (2) guidance in best international practices (3) cease-fire monitoring and (4) assisting the government in decommissioning of Maoist arms and demobilization of the Maoist militia (prior to constituent assembly elections). Unfortunately, Nepal has never been referred to the Security Council and, perhaps even more surprisingly, no steps have ever been taken by the Secretary-General to establish a special representative in the country.

It was the United Kingdom, the first and foremost ally of Nepal, which appointed a special representative to Nepal to help with the peace process. As a British member of Parliament, Sir John Stanley, remarked on 22 June 2005, “I welcomed the appointment of Sir Jeffrey James as the special representative. The parliamentary group had beneficial contact with him throughout the time that he held the post. The need for a special representative is even greater now than when Sir Jeffrey James was appointed, especially with the assumption of autocratic power by King Gyanendra. Yet Sir Jeffrey James has retired and not been replaced.”Till date Sir Stanley is not duly responded by the concerned British Minister why a successor has not been appointed and who is taking on the responsibilities that were previously discharged by Sir Jeffrey James. The frustration of a person who understands the complications can be noted when he says: “I hope that the Minister can assure us that the fact that there has been no successor to Sir Jeffrey James in no way suggests a diminution in the priority that the British Government give Nepal.”

Why the British government has got off on the wrong foot is a question that needs to be properly analyzed. But the way some other countries which also offered political assistance to the peace initiative like Norway, Denmark and the European Union were also ignored explain the same phenomenon. Even now the Swiss government is offering what Nepal might need to facilitate dialogue, peace and reconciliation; but there is hardly any response either from the SPA government or the Maoists. Both the government and its armed opposition have become victim of the invisible pressure not to involve any transparent procedure and third-party facilitation, which could empower everybody and harm none.

It is difficult to rationalize the decision to dissolve the House of Representatives (allegedly reinstated by the force of mass movement) without proper guarantee of a deliberative process until the constituent assembly is elected. Similarly, bringing the Maoists on board as the constituent of the proposed interim government without first categorically renouncing violence by them cannot be a responsible act of any civilian government.

There has never been a demand for promulgation of the interim constitution from the democratic side so far. The drive is no more than an attempt to do away with the basic structures of the existing Constitution, and the net safety that it has assured to the nation. It was possible to accommodate the demands of the Maoists by amending the existing Constitution, and giving to it an interim status acceptable to all. It is surprising that all these crucial decisions were made after setting aside first what has been lauded as the “sovereign’ House of Representatives.

The force that is unrepresented in all this undertaking is the mass that has either been left out, or is lacking in power to speak up for fear of violence and persecution. This is a clear case of the “winners-take-all” rule. It does not help the quest for a sustainable democracy.

In fact, Nepal is not a typical ‘peacekeeping’ subject. It is not a case of building a new state from scratch, or reconstructing a war-torn society, from all angles. The state still has full ability to provide security-or ‘renationalize’ the use of force and the prevention of violence within society- once the insurgents decommission arms. There is a functioning system of law and order within the society. There are necessary legal and administrative structures. All that was needed was a small group of UN political advisors facilitating the peace process in all four major areas noted above rescuing the peace process from misadventure and various external and internal sabotages.

A group of advisors of this type, not necessarily more than a dozen senior experts, was all that was necessary to ensure a peace process that could address all tough and poignant questions. Even the size of the UN operations for the demobilization purpose needs to be discussed more. What was needed was a political back up of the Security Council appointed advisors, working with the professional bureaucracy of Nepal, and the government of the day, rather than nitty-gritty of UN peacekeeping, or DDR process.

By sidelining the UN without giving enough justifications, the SPA government and its Maoist counterpart have explained what are their political weaknesses, and for whom they have brought the fate of Nepalese people under the growing black cloud of invisible forces. They still have time to break their bondage and shackles and come forward with the revised offer to use the UN peace assistance and resources without hesitation. Unless the UN is on board, it is least likely that the enthusiastic European countries can give a hand to the peace process.
(lawyers_inc_nepal@yahoo.co.uk)

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