We are a ‘working couple’, a two- income family, and have been one since the very beginning of our married lives. We share financial responsibility and decision making in the family, and just as much, we share our household responsibilities and care work. In the beginning, this raised some interesting comments and criticisms from friends and families; naturally, because although ‘working wives’ were becoming common among educated couples, you could rarely see a husband, educated or otherwise, doing dishes and washing clothes. It’s not that men never did these tasks. Those who were staying away from home—or rather, away from other female members of the family—especially while attending universities and colleges, cooked for themselves and did all the chores; but once they got married, the wife automatically ‘inherited’ the responsibilities.
Defying the popular trend where the wife has to compromise her career after marriage to move in with her husband, the first place we chose to settle in right after marriage was Pokhara, where she was working. We are now in Kathmandu because it meets both our interests and our children’s too, we hope. In the course of our work, we have had to be away from home, for months sometimes, but that has never been a problem because one of us is there to look after the children and take care of the home.
Breaking ground
The important thing is that this is not a portrayal of our individual lives alone but a tiny microcosm of the emerging generation of men and women who are challenging conventional male-centric power-dynamics in marriage. We have many of these inspirational couples within our own family and friends, and beyond, who practice a fairly unbiased division of labour where both spouses share the responsibilities of the ‘provider’ and the ‘caretaker’. We know of men who have readily invested money for their wives’ education to empower them. Such efforts are enabling couples to enjoy comparatively more balanced power and privileges in marriage.
Coming to the point: the relationship between a husband and wife, or a man and a woman, is not only about the ‘chemistry’ between the two—it is also about the straightforward ‘mathematics’ of marriage. A distinct analogy can be drawn with ‘set theory’ in mathematics, which says A equals B only when there is a ‘two-way inclusion’. Let us go a little further to explain this: ‘A’ is a subset of ‘B’, is one-way inclusion. When ‘B’ is also a subset of ‘A’, it is two-way inclusion: and only in this condition is ‘A’ equal to ‘B’. To site an example, women’s engagement in ‘paid work’ (traditionally considered the man’s domain) is one-way inclusion. Men’s engagement in ‘unpaid work’ to fill the gap that arises as a result is two way inclusion. ‘Equality’ is when both these conditions are achieved simultaneously.
Partners for progress
What is even more promising is that today’s couples are seeking equality not only as two separate individuals but as important ‘partners’, who support each other to fulfill their personal and professional goals. They are enjoying their individual spaces but are also meaningfully engaged in each other’s lives. This is definitely a significant achievement away from the traditional norm in families where the men’s world and the women’s world were so distinctly separated that there was no place for mutual involvement.
But things have changed for the better. A husband who wants to attain a higher degree does not have to worry as much about financial matters because the family has the wife’s income as an alternative source. Women are not only looking after their children and home but are also taking charge of economic and public responsibilities while their husbands are away working in foreign lands. Similarly, husbands are taking the turn to look after the children and household work when their wives are away from home—improving intimacy between the father and the children. In the process, both husband and wife realise the value of each other’s contributions and also enjoy the benefits brought on by such an exchange of roles.
Yes, couples today have truly become the ‘two wheels’ of the proverbial chariot.
Closing the gap
But one important reality is that the speed with which women are entering the public world has not been met by a similar degree of men’s involvement in the private sphere; and it is essential to check this widening gap before it is too late. Because of the inadequate involvement of men in the private sphere, the issue of a ‘double burden’ for women is already a serious concern. Similarly, what is also true is that there may be men who are already working too hard to provide for the family and one cannot expect them to work as much at home.
It is, therefore, important to strike a balance here. If you are willing to or able to hire paid help or help from families, this is one solution, but still, considering the current scenario, it is necessary for men to reduce the amount of time they spend outside to fill this gap and create an encouraging environment for women to go out and work too. A woman, a mother, who is active in the public sphere, is not about money alone, it is also about setting ground for a fair, progressive and happy society.
Coming back to where we started, marriages are about unconditional love and sacrifice, where husbands and wives are active ‘partners for progressi.
Parajuli is associated with the Nepal Youth Foundation and Kattel is a lecturer of mathematics at Trichandra Multiple Campus
2 A six-page essay in a recent issue of The Economist (1-7 March), called “What’s gone wrong with democracy?”, reflects on the setbacks democracy has faced in various parts of the world. The news magazine has assessed impediments to democracy in the 21st century, compared to its surge in the 20th century.
Democracy is often defined as the least bad form of governance. Are we still stuck with this ‘lesser evil’ definition of democracy and thus, supposed to expect not much good from democracy? Are all democracies destined to fail? Is democracy all about the messy, zigzag road? The Economist has sought to unravel and answer questions like these. Given Nepal’s political situation—prolonged transition, drafting a new constitution and, moreover, a resurgence of some ultra-left and ultra-right political parties—the questions raised and the answers found by The Economist are worth pondering.
Democracy under assault
First, a synopsis of what The Economist had to say about current setbacks in democracy. Two factors are pointed out to be responsible for democracy losing favour—one, the financial crisis of 2007-08 and two, the rise of China. If the financial crisis caused many to lose faith in the political system in the West, the rise of China, which is pointedly not a democracy, helped to instil the idea that economic progress does not need democracy. The China factor has been bolstered by setbacks in Russia, Iraq and Egypt. The idea that democracy is the least bad form of governance was supported by the fact that other forms of governance were basically tyrannical in nature. However, the environment within which democracy is expected to nurture and grow has dramatically changed.
There are primarily three forces assaulting democracy. The first is the forces of globalisation (top-down forces). Democracy is no longer exercised within the boundaries of a nation or a parliament. National politicians have to increasingly surrender their decision-making capacity to international forces and institutions. Second, pressure is exerted by would-be breakaway nations (bottom-up forces), NGOs and lobbyists. Third, pressure is exerted by the voters themselves (forces within). In the West, with the rise in the aging population, a clash is brewing between the past—old people demanding their inherited entitlements—and the future—the younger generation demanding future investments.
In its survey, The Economist is not all pessimistic. Quoting Alexis de Tocqueville, the newsmagazine writes, “Democracy might look weaker and confused at the surface but has lots of hidden strengths.” The strengths of democracy come from its ability to offer alternative leaders with alternative solutions to existing problems and challenges. However, democracy, to be sustainable, must be built on a strong foundation. “In order to harness human creativity but also to check human perversity, and then kept in good working order, democracy must be constantly oiled, adjusted and worked upon,” suggests the magazine.
A faltering democracy
This brief survey of democracy has many lessons for Nepal’s fledgling—some would say failing—democracy. When it comes to democracy, we are still driven by regular elections and majoritarian rule. We have ignored all other ingredients for a sustainable democracy, like a competent civil
service, guaranteed constitutional rights, checks and balances, rule of law and an independent judiciary. There is an inherent limit to majoritarian rule in a multi-ethnic country like Nepal, where, approximately, Bahun-Chhetris, Janajatis and Madhesis each constitute one-third of the populace. This underlying demographic feature makes majoritarian rule non-operative in Nepal. We harp on about decision by consensus but when situation suits our needs, we prefer majoritarian rule.
In all countries where democracy is in crisis, Nepal being no exception, the failure to address corruption is identified as a primary underlying factor. There is a kind of absurd relationship between democracy and corruption. In the long-run, democracy is expected to control corruption by installing checks and balances, by empowering people and requiring politicians to deliver what they have promised. The available empirical results put the time factor at around two decades.
However, in the short run, democracy, with its power play mechanisms, could very easily breed corruption. Nepal’s anti-graft agencies are currently busy fighting corruption only at the bureaucratic level. When it comes to fighting political corruption, they not only look timid but actually have nothing in their arsenal. Issues like campaign financing, political party finance, conflict of interests, state capture by elites, nepotism and patronage systems and corruption acting as ‘a revolving door’ between business and politics have never been a matter of concern for us. It is sickening to see a government secretary who retires and joins a political party preach anti-corruption lessons to the public. To add insult to injury, Nepal’s media keeps busy presenting these figures as national heroes.
Top-down, bottom-up
There are sea changes happening in the anti-corruption drive in both our northern and southern neighbours and we are virtually blind. In China, President Xi Jinping, with a five year anti-corruption plan to wipe out meat eating ‘tigers’ and low flying ‘flies’, is determined to fight corruption with a top-down approach (for example, party purges). Compared to this, India, with its Anna Hazare anti-corruption mass movement and the consequential Aam Aadmi Party, is determined to fight corruption through a bottom-up approach.
In the days to come, Nepal will be squeezed between these two bewildering approaches. With a Spartan figure like Sushil Koirala at the helm of the state, it is time for a now-or-never fight against corruption. There is a kind of paradox that operates in Nepal: capable persons are not honest and honest persons are not capable. It is time for Sushil Koirala to be both.
Manandhar is a freelance consultant with an interest in corruption and governance issues
5 It is make or break time for local government. If the leaders and Members of Parliament of the Nepali Congress and CPN-UML do not act immediately to announce the dates for local polls within the next couple of weeks, the window of opportunity for giving elected officials to the villages, municipalities and districts will be lost. If that happens, amidst the push-and-pull of constitution writing and consolidation of newly-defined federal structures, it is likely that the people will not get locally-elected representatives for another four-five years.
The commitment to holding local body elections by Spring 2014 was made by the four main political forces (the NC, UML, UPCN (Maoist) and Madhesbaadi parties) a year ago, at the time of the formation of the Khil Raj Regmi interim government. Added to the holding of national level Constituent Assembly polls in November 2013, local government elections would push Nepal energetically on the road to democratic consolidation and normalisation.
The absence of elected representatives in our district, municipal and village councils for 11 long years has created a void in government service delivery, retarded development programmes, promoted unprecedented corruption at the capillaries and affected the practice and evolution of democracy from the grassroots on up. Every aspect of life has been affected by the absence of accountable local governance—from the gouging of the Chure hills, to the urban chaos in Kathmandu Valley, the poor construction of district roads, the difficulty in managing inter-community fissures and the takeover of the public realm by private syndicates all over. The absence of elected local representatives has hurt the people incalculably.
All-party corruption
The late Elinor Ostrom, who received the 2009 Nobel Prize for Economics, built her main thesis on management of the commons after studying how Nepal’s mid-hill communities collaborated on the use of natural resources, from irrigation to woodlands. The community forestry movement of Nepal, which started towards the end of the Panchayat era, takes from this tradition of managing the commons. And one can say that the success of the local government, on the basis of the Local Self-Government Act of 1999, also derives from this energetic tradition at the grassroots.
While the ‘Panchayati Raj’ local government system of India has taken decades to take root, in Nepal, five years was enough for us to begin to evaluate for shortcomings. However, as per the national pastime of destroying what we create, the rug was pulled from under Nepal’s local government scheme. The Maoists, whose agenda was to control the population through commissars, saw local government officials as their primary enemy, terrorising them into submission or exile. The government of Sher Bahadur Deuba could have extended the life of local government by a year in the absence of elections but preferred to let it die in July 2002. This proved a bonanza for the Maoists, who spread countrywide in the resulting political vacuum.
The transitional period since 2006 was when the local governmental superstructure was undone completely. Cheating on their promise of peace and democracy, as enunciated in the 12-point agreement of November 2005, the Maoists were out to capture the state through alternative means. With Chairman Pushpa Kamal Dahal harbouring plans to emerge as a directly-elected president of a one-party state, his organisation was hardly friendly to the idea of local bodies. But a way had to be found to access the huge governmental outlay being directly sent to the local bodies, a positive legacy of the previous Congress and UML governments. The formula perfected was the ‘all-party mechanism’, where local politicos would divvy up the money being sent to the districts, municipalities and villages, in proportion to the win in the 2008 Constituent Assembly polls.
The all-party mechanism was a brazen call to corruption, with the Maoists making off with much of the hoard by cornering projects and programmes. The local-level Congress, UML and other party cadre may have received only the leavings but they too were compromised in the process. No one could have thought up a better formula to corrupt the base of the national political pyramid, at the level of the village and municipal wards.
The foot-draggers
The November elections, when the electorate put Nepal back on the democratic rails, also represented the people’s desire for local body elections as promised by the party leaders. Four months have elapsed since the elections, without the required alacrity being seen on the part of the NC and
UML. The leaders all mouth the need for local polls but no one lifts a finger. The unexpected dissonance between the two large parties after the election results were announced also took up crucial time that should have been used for planning local elections.
The willpower of the NC and UML seems wanting, perhaps because their cadre see it now as their turn to make hay, with the Maoists sidelined. Also, there may be some thought among the leaders that constitution writing will be affected, with the UCPN (Maoist) and Madhesbadi leaders having turned against local polls following their drubbing in November. The latters’ standard line of excuse, repeated by Baburam Bhattarai earlier this week at Simra, is “not to do anything that will distract from the constitution making”. The Big Two are also wary of the possible reaction from the identity-politics flank, whose activists argue that local elections will affect the debate on federalism. They maintain that demarcation of the new federal provinces is the main topic before the CA, and holding local elections under the old formula and demarcations will be counter-productive.
The energy of the people was expended on the November elections and they do not have the mechanism at hand to move the political class on local polls. The momentum of the erstwhile federations of municipalities, VDCs and DDCs, meanwhile, is down after years of shouting in the wilderness. While they do speak for the local inhabitants of the High Himal, mid-hills and Tarai-Madhes plains, these federations have not been able to organise even one modest-sized rally in Kathmandu to voice their demand for elections.
On the face of it, the NC and UML are for local elections in the Spring. At the first meeting of his Cabinet a month ago, PM Sushil Koirala gave directives for the same. Deputy PM Prakash Man Singh, in charge of local development, says they must be held, as does the UML Parliamentary Party Chief KP Oli and Deputy PM and Home Minister Bamdev Gautam. In the meantime, it is said that a Common Minimum Programme draft of the two large parties has local elections on the agenda. None of this means a thing if the Cabinet will not fix a date.
Interim local government
On Thursday, Dahal and Mohan Baidya signaled a move towards party unification by signing a two-point agreement, one of which was a warning to the Congress and UML to desist from holding local polls. The Big Two must of course reject this move by non-democratic elements, one of whom did not even participate in the November polls, to entrap the people at the grassroots in an unaccountable, representation-less desert.
However, the Congress and UML must also work to convince those who genuinely believe that the local government elections will sabotage the federalist agenda. They must confirm that any change of boundary of villages or districts in the federal delimitation would lead to re-election in the affected constituencies. Another means of reassurance would be to adjust the title of the upcoming polls itself, as being for an ‘interim local government’ for the municipalities, villages and districts.
Another concern also needs to be addressed in relation to the Local Self-Government Act (1999), which does not contain provisions on inclusive representation as per the Interim Constitution. Because amendment of the Act would ensure postponement of local elections to far beyond Spring 2014, a practical response would be for the government to instruct the Election Commission to ensure that the inclusion strictures of the Interim Constitution are applied in the interim local government elections.
5 Everyone must have played the game of musical chairs during their school days. If not, one should try it on some picnic day or a family gathering. It’s a simple game in which one has to grab an empty chair and sit on it when walking around a circle of chairs with a bunch of other players. If you cannot grab an empty chair when the music stops, you are out. Similar is the present condition of parking on the street in Kathmandu. One should just keep roaming around the parking area for a period of time just to find a space for parking. And when you find a vacant space, there is always some one else looking for the same space too. In fact, one should be faster and more tactful to get an empty space to park.
Last weekend, I was in the New Road area with some personal chores. Traffic congestion during the evening was at a peak level as always. As I left the main road and tried to park my motorbike, I couldn’t find any space for parking.
So I slowly went from one end of the parking lot to the other end hoping to find a space for parking, but there wasn’t any. I turned back to have a good view so that I could park as soon as some one left the spot. I noticed a few other motorcyclists waiting for a similar opportunity. After waiting for not less than 10 minutes, I finally got a space and parked my bike. When I returned in not more than an hour, I saw that my bike had been dragged out from the place where I had put it and was on the street. And a traffic police officer was standing beside it. As I tried to start my bike, he stopped me and pulled the key out.
“Why did you park outside the yellow line?” he asked angrily. I tried to explain, but he was in no mood to listen. Instead, he threatened to take my bike to Baggikhana. There wasn’t any point in arguing with him. He penalised me for an offence that I had never committed.
Kathmandu Metropolitan City made parking free, but do they know how unmanaged it is? This unsystematic parking has created more difficulties than facilities. As a civil engineering student, I see various options for parking management. Analysing volume-based data and fixing parking areas would be the simplest and fastest solution. A long-term plan would be to build a multi-storied parking building to manage future parking load.
Providing parking facilities outside the core part of the city and making it a “pedestrian zone” or “8 am to 8 pm” traffic-free zone would be the best option. Hence, if Kathmandu Metropolitan City wishes to make life easier for people in the city, now is the time for them to come up with a better idea for parking management.
6 Nepal is a country where virtually every political issue, sooner or later, turns into a judicial question. Usually, the Supreme Court (SC) invests a lot of time deciding upon political questions, which set the direction of the country. The SC’s verdict to limit the tenure of the first Constituent Assembly, which pushed back the process of change, was one of them. Post 1990, the SC has decided upon several such political questions.
In 1994, it gave a landmark verdict in favour of then Prime Minister Girija Prasad Koirala’s decision to dissolve the House of Representatives. Koirala had decided to dissolve the House after 36 lawmakers from his own party, who were close to KP Bhattarai, abstained from voting in the Parliament, thereby failing the government’s policy and programmes. In 1995, then Prime Minister Manmohan Adhikari of the CPN-UML also decided to dissolve the House, hoping that the precedent set in Koirala’s case would prevail. But the Court gave a verdict against Adhikari’s move. Most recently, the apex court has dealt with the requirement of citizenship certificates for the voters’ registration process.
Political questions
Unlike the previous cases, in a writ filed by advocate Om Prakash Aryal against the Office of the President, the Supreme Court, for the first time, refused to intervene in the matter. The court, in a way, put a brake on its judicial activism. On January 23, a single bench of Justice Girish Chandra Lal dismissed the writ petition during the very first hearing. This is perhaps the first time the apex court dismissed a public interest litigation (PIL) in the first hearing arguing that it was a political issue. The last paragraph of the verdict delivered by Justice Lal clearly mentions that the removal of the President is a political issue that has to be dealt by the Legislature Parliament itself. This is similar to the US Supreme Court position on the issue of treaty termination in the case of Goldwater v Carter (1979), in which the Court termed it a “non-judicial political question”. Then President Woodrow Wilson appreciated the court order, saying that the Constitution was more than “a mere lawyer’s document, it has been a vehicle of the nation’s life”.
In the US, the President appoints a justice who has to be confirmed by the Senate. However, in many instances, justices surprise their appointers. They vote against their own political views at times and this happens because they interpret the laws and the Constitution. The justices’ independent legal decision-making capacity is important to build public confidence as far as the judiciary is concerned. It is in this context that some US Supreme Court decisions are historical in terms of upholding social justice agendas, such as Brown v Board of Education (1954), which prohibited racial segregation in public schools and Snyder v Phelps (2011), which upheld the free speech of liars and boasters. In the case of USAID v. Alliance for Open Society International (2013), the Supreme Court ruled against government policy, which violated a private group’s right to espouse free speech.
Up to interpretation
Closer to home, rights to social justice are a crucial part of the Interim Constitution. However, when such cases reach the Court, decisions are often inconsistent with the spirit of the law. The verdicts often reflect the attitudes of the justices, which are shaped by their own social background. Often, a conservative or a liberal interpretation of the Constitution’s Articles contradicts its spirit.
The refusal of the Supreme Court to entertain the case of the President, however, is not new. On March 30, 1992, a special bench headed by then Chief Justice Bishwo Nath Upadhyay dismissed a petition that asked the Court to interfere in the appointment of an ambassador by King Birendra without consultation with the Council of Ministers. The Court maintained that it was a case of a political nature, on the modus operandi of the monarchy and parliamentary democracy. Thus, it could not be a subject of judicial review.
The removal of the President from the high office before a new constitution is promulgated is thus a political question. Therefore, the Legislature Parliament should decide it; this should not be subject to judicial debate. If a political question goes to the Court, what is the point of having political parties and a legislature? The Nepali Supreme Court should refrain from exercising an unlimited scope of judicial review, as enjoyed by the US Supreme Court. The UK model fits in the context of Nepal where the superiority of Parliament is accepted.
Judicial activism
In the last few years, the Supreme Court has gone beyond its role as an interpreter of the Constitution. It has shown excessive judicial activism in several political issues. The court decision that the date of the CA could not be extended beyond six months was one. But looking at the superiority of the Parliament in the UK, which is a role model for countries that have adopted common law systems and parliamentary democracy, the declaration of the death of CA was unacceptable. The separation of power between state organs should be maintained consistently. The Indian Supreme Court seems to be very conscious about not dealing with ‘political questions’. The position of the apex court in dealing with political disputes is always under public scrutiny.
Mara Malagodi, in her book Constitutional Nationalism and Legal Exclusion, has argued that many of the Nepal SC’s past verdicts, particularly post 1990, reveals many inconsistencies. She has further argued that the Court’s interpretation is essential to protect fundamental rights. The Supreme Court, using legal tools, can give its decision on political questions. But going beyond legal and constitutional tools may jeopardise its public legitimacy. Problems arise when a lawyer, who has always done commercial litigation throughout his life, gets appointed as a Supreme Court Justice and then decides on a crucial constitutional question that involves politics. In that context, the background, political preferences and intellectual inclinations of the person might work more than judicial philosophy.
Jha is an advocate at the Supreme Court
5 There is a saying that if a hammer is the only tool you have, you see a nail everywhere. Reading the news recently about the Chitwan district traffic police prohibiting students in higher secondary schools from riding motorcycles reminded me of exactly that. To make up for their failure to make driving a safe experience for everyone, the cops resorted to the easiest option at hand—a ban, citing their ‘facts’ that Plus Two students cause accidents by their rash driving.
What the police officers seem to have forgotten is that not everyone hops on to their motorcycle for the thrill of it. Bikes are used as a mode of conveyance by many students to reach their place of study and come back home afterwards in comfort and without being constrained by the always-uncertain bus timings. The police also know that their action will most likely go unchallenged since the bike-riding, Plus Two students are probably the most unorganised of the lot. They would certainly not be part of the stone-throwing cadre of the political student unions who could be expected to create the kind of ruckus that the Capital witnessed a few days back, nor would they have the capacity to react like the fully organised but madcap microbus drivers would, were any kind of proscription on them introduced.
Faulty causality
The cause and effect scenario that the police in Chitwan are peddling is straightforward: Plus Two student + motorcycle = accident. Obviously, the police did not feel the need to provide evidence that their assumption is correct or that the causation is as linear as they think. Social scientists take years before they venture to offer their findings and then suggest tentative recommendations on issues they have a deep understanding of. But, here, an entire category of citizens is being penalised based on the mere say-so of some police officials.
There is the questionable legality of it all as well. Nepal’s laws allow anyone of age 16 and above to obtain a licence to drive both two- and four-wheelers. That begs the question why a group should be penalised just because they are students while those out of school can do as they please. Do our sociologist-cops believe there is some kind of correlation between educational attainment and accidents?
The Chitwan episode is not an isolated one. Far from it, there are been many instances in the past where all kinds of restrictions have been placed on young people. Even the government body, the Higher Secondary Education Board (HSEB), got itself involved and released a ‘code of conduct’ that specifies the cut of the uniform to be worn (pants legs not narrower than 16 inches and skirts having to extend two inches below the knee). Similarly, students in uniform are not to go to restaurants, cinemas, parks or shopping malls, on pain of being slapped a steep fine of Rs 3,000-5,000, not to mention disciplinary action from their schools. No motorcycles, mobiles and laptops are to be brought into the school either.
Students, whether in uniform or otherwise, have every right to enjoy all the benefits of a free and democratic society. If they feel like bunking classes and going for a ride or deciding to book a hall for a mid-day dance party or choosing to cuddle in a restaurant or frolic in a park, it is nobody’s business but theirs, and perhaps their families’. The strictures from the HSEB would have come following pressure from the colleges. If the latter or the Board were so concerned about the supposed waywardness of students, they should have explored other ways of ensuring compliance such as mandatory attendance in every class they take, barring illnesses or other emergency situations, and the extreme step of
expulsion.
The moral police
One of the reasons such episodes are being repeated again and again is because so far no one has challenged police officials who have taken similar individual initiatives ostensibly to bring law and order in society. Hence, long hair has long been a no-no as are earrings on male ears. Some police officers found mini-skirts irksome while the sight of dingo boots made others see red. Young men have also sometimes been banned from hanging out at local spots of their convenience. All in the name of controlling criminality in society.
One reads newspaper reports about how the police have been receiving kudos for their efforts. Whereas it should have been the duty of the police to inform parents, guardians and educators that it is illegal to prevent anyone from doing anything that is within the law and that includes all the activities mentioned above, they are found to be indulging in sanctimonious self-praise.
Such zeal is not only misplaced but outright illegal. It is a shame that not a single individual from our human rights community has yet to stand up for the right of our young folks to sport dreadlocks or a Mohawk, show off their legs or shake the same, go to the movies clad in anything they feel comfortable in, or simply ride a bike. Moral policing of the kind being tried out here is more suited to Saudi Arabia’s religious police, the mutaween, or the Revolutionary Guards of Iran, and have no place in a free society like ours.
A case in point
A European friend having once decided to buy a motorcycle here in Nepal was told by the concerned authorities that he would require among other documents a ‘No Objection Letter’ from his embassy or consulate. My friend promptly went to his consulate to get the said letter but the consular officer who dealt with him told him matter-of-factly that he should not be asking her but instead that is a conversation he should have with his mother. That, I think, was a most sensible response to an outdated requirement in which the state has no business interfering.
All of this reminds me of an incident from my school days. I had reached middle school at the height of the hippy era and the long hair generally associated with it. Our rector was a strict disciplinarian, unlike the more easy-going principal. The story passed down to us from our seniors was that during an argument between these two top officials of the school on whether long hair should be allowed or not for the effect it had on their academic performance, the principal pointed to a picture hanging on the wall of a famous man easily recognised by his long and wildly flying hair to drive home his point that there is no link. The rector was apparently rendered speechless; the man in the picture was Albert Einstein.
6 For the first time in nearly two years, Nepal has an elected government. The new government has many pressing tasks but providing justice for victims of conflict-related human rights abuses should rank high on its agenda. To date, beyond the provision of mainly financial relief to some victims, the five governments since the November 2006 peace accord have done little to address the rights of the many thousands of victims of abuses by state and Maoist forces during the ten-year armed conflict. Neither have they taken firm measures to prevent the repetition of abuses.
Justice delayed
Seven-and-a-half years is an eternity to wait to learn what has happened to a loved one who was disappeared or to know who killed your son, brother, father, wife or sister—and why. It is also far too long to wait for medical treatment for the physical and mental effects of torture or rape, or to get your basic economic needs met after losing the family’s breadwinner.
In its landmark judgment in January on the ordinance for the establishment of a Commission on Investigation of Disappeared Persons and Truth and Reconciliation (the TRC ordinance), Nepal’s Supreme Court sent a clear message to the government: victims should not have to wait any longer for justice. It also gave guidance on some of the most contested issues that have blocked progress to date, including that there can be no amnesties for serious crimes and that criminal investigations and prosecution must be free of executive interference.
In accordance with the court’s judgment, the government is required to review and revise the TRC ordinance, which was promulgated in March 2013 as part of a political deal to establish the Interim Election Council. Initiation of such a review should not depend on the outcome of the Constituent Assembly’s deliberations on the ordinance. Rather, the responsibility to act on the Supreme Court order rests with the government. But this time, as the court order requires, it must be done with the assistance of an expert team comprising victims, human rights experts and other stakeholders.
All inclusive
The Court’s emphasis on the process by which the ordinance is to be amended is significant. The TRC ordinance was drafted, and then revised, by a small group of representatives from four political parties. The result was a law that failed to comply with international standards or to reflect well-established practices regarding truth seeking. This had the effect of further eroding the confidence of the public and victims in the willingness and ability of the state to deliver on its commitments to address conflict-related crimes.
Carrying out a well-considered, genuinely consultative review of truth-seeking legislation is essential if strong, complementary mandates are to be achieved for the two court-ordered truth and disappearance commissions. Of equal importance, it is crucial to obtaining the confidence and support of victims. Experience shows that truth commissions that do not have buy-in from the very persons they are established to serve are unlikely to succeed.
As a first step, the government should agree on the scope and timing of this review with representatives of political parties, national human rights institutions, victims and civil society. Defining and agreeing on the mandates of these commissions will be a complex process that cannot be rushed. All necessary steps must be taken to avoid duplication and inconsistencies, as well as to ensure protection for victims, including from having to testify to two separate bodies.
Great care must be taken in formulating the objectives of the two commissions, their respective jurisdictions, procedures and how they will cooperate. They must not be burdened with unrealistic expectations. Transparency and consultation will not guarantee success but it will significantly increase the likelihood that this time around consensual instruments are agreed on, and that these bodies are finally created.
Immediate measures
At the same time, however, debate over their shape and form must not prevent the government from taking action on other transitional justice measures, like reparations or finding the disappeared. Recent research among more than 400 conflict victims shows that many of their needs are still acute and unmet. Ethically and morally, they must not be made to wait for a truth commission to complete its work before they receive the reparations to which they have a right. Likewise, the families of the disappeared should not be expected to wait for a disappearance commission before the search begins to establish the fate and whereabouts of their relatives. And as the Supreme Court ordered, other measures, like the criminalisation of enforced disappearances, torture and other serious crimes can and should proceed immediately.
Justice for victims of the conflict is long overdue. By acting promptly, the new government can begin to make amends for the failure of its predecessors to advance transitional justice and help to restore confidence in Nepal’s commitment to human rights.
Sigdel is Senior Program Officer at the International Center for Transitional Justice
7 Nepal has seen several political changes but each change has only been the transfer of power within the same elite community. The Madhes Movement, in this sense, is perhaps the most significant political movement because for the first time a group not belonging to the traditional elite challenged the power at the centre. Similarly, the Maoist movement too managed to increase political awareness in rural areas and among marginalised communities, though this did not end up being reflected in the party leadership. It is no surprise then that the elites want to picture both these movements in a negative light. The Maoist insurgency pushed the country back by 16 years at the cost of 17,000 lives, they argue, believing that Nepal was smoothly set on the path to prosperity
following the political developments of the 1990s. The Madhes Movement, for its part, is painted as dangerous to the very sovereignty and territorial integrity of Nepal as a nation state.
The deep state
It is thus only natural that the elites would join hands to thwart the efforts by newer parties to radically restructure the state and the redefine the relationship between different segments of society. The status quoist forces, by definition, consist of the powerful sectors that control a state—the security apparatus, the political class, the bureaucracy, the financial sector and the media. Together, they form the Deep State, and when they march in lockstep, any effort to transform society is an uphill task. Since 2006, the deep state has worked relentlessly to undermine the transformation process.
The results of the second Constituent Assembly elections show that they have succeeded to a large extent. With the Nepali Congress (NC) and CPN-UML, along with the two Rastriya Prajantantra Parties, having won a two-thirds majority in the CA, it looks increasingly likely that the aspirations raised in Janaandolan II will be put on hold. The early indications of the post election politics point to this. The pettiness of the struggle between the NC and UML during government formation, the fight for the Home Ministry portfolio and the lack of inclusiveness and youthful faces in the Cabinet are all reminiscent of the deformed democracy of the post 1990 period.
Decentralisation and devolution
To take an example, let us look at how the discourse around federalism was framed. When the Interim Constitution was amended to include federalism, the notion behind it was very clear. It was born out of the Madhes movement and supported by janajati activists. The Bahun-Chettri-dominated Girija Prasad Koirala government resisted the movement for as long as they could, killing almost 50 protestors, more than twice the number martyred by the tyrant Gyanendra. Clearly then, when federalism was promised to allay the protestors, it was an ethnicity-based federalism that was envisioned. But as years passed and conferences dominated by the same traditional elite were held, federalism gradually came to be understood more as decentralisation rather than devolution of power. The media started portraying the debate as between ‘ekal jatiya’ and ‘bahu jaitya’, ‘single identity’ and ‘multiple identity’ federalism, clearly implying that the federal units would be discriminatory against members of other ethnicities.
With the narrative under their control, it became increasingly difficult for parties championing ethnic federalism to reach out to voters with the issue. On the other hand, the traditional parties advocated for both ethnicity and non-ethnicity-based federalism, depending on the community the voters belonged to. By having Madhesi and janajati candidates, they signaled that they were willing to accept the demands of ethnic activists but, on the other hand, sent mixed signals to Pahadi communities. In this way, they managed to garner votes from both supporters and opponents of ethnic federalism. Opponents of ethnic federalism also voted en bloc, either for NC or UML depending on which party looked stronger in the given constituency.
When the results of the elections were tallied, supporters of ethnic federalism were clearly rattled, even as the UCPN (Maoist) cried foul. In trying to make sense of the defeat, many are now reconsidering the entire ethnic agenda. There are reports that a certain segment of the UCPN (Maoist) now believes that it was a mistake to advocate for identity-based federalism, and not just a tactical mistake at that but an ideological one. If that is true, it is indeed unfortunate. As for the Madhesi parties, since their very raison d’être is ethnic federalism, they cannot rescind from their agenda. Still, their zeal in pushing the agenda can be measured by their inability to coalesce around it.
A sense of purpose
Despite all this, it would be stupid to think that the ethnic agenda has been successfully tamed because the CA is but one forum where people’s aspirations are expressed. Both the UCPN (Maoist) and the Madhesi parties are very clear that they will resort to the streets if any attempt is made by the traditional parties to forego ethnic federalism. Not only would this provide the former with a clear sense of purpose but it would also reenergise their base.
For now though, these are lean times for those who had hoped for a radical transformation of the state and advocated for ethnic federalism. Civil society leaders and commentators have routinely voiced their disappointment over the acts of the government and the overtures of the traditional parties, such as the UML’s edict to its CA members to be dressed in daura suruwal during oath taking. The lack of inclusiveness or
youth in the Cabinet has failed to inspire optimism among even the supporters of NC and UML. If this nation is on autopilot, as a prominent commentator recently put it, then by all appearances it looks as if the direction we are headed towards is backwards, not forward.
Jha has worked for various international and national organisations supporting
the peace process in Nepal and can be reached at DAULAT JHA @daulatjha
Defying the popular trend where the wife has to compromise her career after marriage to move in with her husband, the first place we chose to settle in right after marriage was Pokhara, where she was working. We are now in Kathmandu because it meets both our interests and our children’s too, we hope. In the course of our work, we have had to be away from home, for months sometimes, but that has never been a problem because one of us is there to look after the children and take care of the home.
Breaking ground
The important thing is that this is not a portrayal of our individual lives alone but a tiny microcosm of the emerging generation of men and women who are challenging conventional male-centric power-dynamics in marriage. We have many of these inspirational couples within our own family and friends, and beyond, who practice a fairly unbiased division of labour where both spouses share the responsibilities of the ‘provider’ and the ‘caretaker’. We know of men who have readily invested money for their wives’ education to empower them. Such efforts are enabling couples to enjoy comparatively more balanced power and privileges in marriage.
Coming to the point: the relationship between a husband and wife, or a man and a woman, is not only about the ‘chemistry’ between the two—it is also about the straightforward ‘mathematics’ of marriage. A distinct analogy can be drawn with ‘set theory’ in mathematics, which says A equals B only when there is a ‘two-way inclusion’. Let us go a little further to explain this: ‘A’ is a subset of ‘B’, is one-way inclusion. When ‘B’ is also a subset of ‘A’, it is two-way inclusion: and only in this condition is ‘A’ equal to ‘B’. To site an example, women’s engagement in ‘paid work’ (traditionally considered the man’s domain) is one-way inclusion. Men’s engagement in ‘unpaid work’ to fill the gap that arises as a result is two way inclusion. ‘Equality’ is when both these conditions are achieved simultaneously.
Partners for progress
What is even more promising is that today’s couples are seeking equality not only as two separate individuals but as important ‘partners’, who support each other to fulfill their personal and professional goals. They are enjoying their individual spaces but are also meaningfully engaged in each other’s lives. This is definitely a significant achievement away from the traditional norm in families where the men’s world and the women’s world were so distinctly separated that there was no place for mutual involvement.
But things have changed for the better. A husband who wants to attain a higher degree does not have to worry as much about financial matters because the family has the wife’s income as an alternative source. Women are not only looking after their children and home but are also taking charge of economic and public responsibilities while their husbands are away working in foreign lands. Similarly, husbands are taking the turn to look after the children and household work when their wives are away from home—improving intimacy between the father and the children. In the process, both husband and wife realise the value of each other’s contributions and also enjoy the benefits brought on by such an exchange of roles.
Yes, couples today have truly become the ‘two wheels’ of the proverbial chariot.
Closing the gap
But one important reality is that the speed with which women are entering the public world has not been met by a similar degree of men’s involvement in the private sphere; and it is essential to check this widening gap before it is too late. Because of the inadequate involvement of men in the private sphere, the issue of a ‘double burden’ for women is already a serious concern. Similarly, what is also true is that there may be men who are already working too hard to provide for the family and one cannot expect them to work as much at home.
It is, therefore, important to strike a balance here. If you are willing to or able to hire paid help or help from families, this is one solution, but still, considering the current scenario, it is necessary for men to reduce the amount of time they spend outside to fill this gap and create an encouraging environment for women to go out and work too. A woman, a mother, who is active in the public sphere, is not about money alone, it is also about setting ground for a fair, progressive and happy society.
Coming back to where we started, marriages are about unconditional love and sacrifice, where husbands and wives are active ‘partners for progressi.
Parajuli is associated with the Nepal Youth Foundation and Kattel is a lecturer of mathematics at Trichandra Multiple Campus
2 A six-page essay in a recent issue of The Economist (1-7 March), called “What’s gone wrong with democracy?”, reflects on the setbacks democracy has faced in various parts of the world. The news magazine has assessed impediments to democracy in the 21st century, compared to its surge in the 20th century.
Democracy is often defined as the least bad form of governance. Are we still stuck with this ‘lesser evil’ definition of democracy and thus, supposed to expect not much good from democracy? Are all democracies destined to fail? Is democracy all about the messy, zigzag road? The Economist has sought to unravel and answer questions like these. Given Nepal’s political situation—prolonged transition, drafting a new constitution and, moreover, a resurgence of some ultra-left and ultra-right political parties—the questions raised and the answers found by The Economist are worth pondering.
Democracy under assault
First, a synopsis of what The Economist had to say about current setbacks in democracy. Two factors are pointed out to be responsible for democracy losing favour—one, the financial crisis of 2007-08 and two, the rise of China. If the financial crisis caused many to lose faith in the political system in the West, the rise of China, which is pointedly not a democracy, helped to instil the idea that economic progress does not need democracy. The China factor has been bolstered by setbacks in Russia, Iraq and Egypt. The idea that democracy is the least bad form of governance was supported by the fact that other forms of governance were basically tyrannical in nature. However, the environment within which democracy is expected to nurture and grow has dramatically changed.
There are primarily three forces assaulting democracy. The first is the forces of globalisation (top-down forces). Democracy is no longer exercised within the boundaries of a nation or a parliament. National politicians have to increasingly surrender their decision-making capacity to international forces and institutions. Second, pressure is exerted by would-be breakaway nations (bottom-up forces), NGOs and lobbyists. Third, pressure is exerted by the voters themselves (forces within). In the West, with the rise in the aging population, a clash is brewing between the past—old people demanding their inherited entitlements—and the future—the younger generation demanding future investments.
In its survey, The Economist is not all pessimistic. Quoting Alexis de Tocqueville, the newsmagazine writes, “Democracy might look weaker and confused at the surface but has lots of hidden strengths.” The strengths of democracy come from its ability to offer alternative leaders with alternative solutions to existing problems and challenges. However, democracy, to be sustainable, must be built on a strong foundation. “In order to harness human creativity but also to check human perversity, and then kept in good working order, democracy must be constantly oiled, adjusted and worked upon,” suggests the magazine.
A faltering democracy
This brief survey of democracy has many lessons for Nepal’s fledgling—some would say failing—democracy. When it comes to democracy, we are still driven by regular elections and majoritarian rule. We have ignored all other ingredients for a sustainable democracy, like a competent civil
service, guaranteed constitutional rights, checks and balances, rule of law and an independent judiciary. There is an inherent limit to majoritarian rule in a multi-ethnic country like Nepal, where, approximately, Bahun-Chhetris, Janajatis and Madhesis each constitute one-third of the populace. This underlying demographic feature makes majoritarian rule non-operative in Nepal. We harp on about decision by consensus but when situation suits our needs, we prefer majoritarian rule.
In all countries where democracy is in crisis, Nepal being no exception, the failure to address corruption is identified as a primary underlying factor. There is a kind of absurd relationship between democracy and corruption. In the long-run, democracy is expected to control corruption by installing checks and balances, by empowering people and requiring politicians to deliver what they have promised. The available empirical results put the time factor at around two decades.
However, in the short run, democracy, with its power play mechanisms, could very easily breed corruption. Nepal’s anti-graft agencies are currently busy fighting corruption only at the bureaucratic level. When it comes to fighting political corruption, they not only look timid but actually have nothing in their arsenal. Issues like campaign financing, political party finance, conflict of interests, state capture by elites, nepotism and patronage systems and corruption acting as ‘a revolving door’ between business and politics have never been a matter of concern for us. It is sickening to see a government secretary who retires and joins a political party preach anti-corruption lessons to the public. To add insult to injury, Nepal’s media keeps busy presenting these figures as national heroes.
Top-down, bottom-up
There are sea changes happening in the anti-corruption drive in both our northern and southern neighbours and we are virtually blind. In China, President Xi Jinping, with a five year anti-corruption plan to wipe out meat eating ‘tigers’ and low flying ‘flies’, is determined to fight corruption with a top-down approach (for example, party purges). Compared to this, India, with its Anna Hazare anti-corruption mass movement and the consequential Aam Aadmi Party, is determined to fight corruption through a bottom-up approach.
In the days to come, Nepal will be squeezed between these two bewildering approaches. With a Spartan figure like Sushil Koirala at the helm of the state, it is time for a now-or-never fight against corruption. There is a kind of paradox that operates in Nepal: capable persons are not honest and honest persons are not capable. It is time for Sushil Koirala to be both.
Manandhar is a freelance consultant with an interest in corruption and governance issues
5 It is make or break time for local government. If the leaders and Members of Parliament of the Nepali Congress and CPN-UML do not act immediately to announce the dates for local polls within the next couple of weeks, the window of opportunity for giving elected officials to the villages, municipalities and districts will be lost. If that happens, amidst the push-and-pull of constitution writing and consolidation of newly-defined federal structures, it is likely that the people will not get locally-elected representatives for another four-five years.
The commitment to holding local body elections by Spring 2014 was made by the four main political forces (the NC, UML, UPCN (Maoist) and Madhesbaadi parties) a year ago, at the time of the formation of the Khil Raj Regmi interim government. Added to the holding of national level Constituent Assembly polls in November 2013, local government elections would push Nepal energetically on the road to democratic consolidation and normalisation.
The absence of elected representatives in our district, municipal and village councils for 11 long years has created a void in government service delivery, retarded development programmes, promoted unprecedented corruption at the capillaries and affected the practice and evolution of democracy from the grassroots on up. Every aspect of life has been affected by the absence of accountable local governance—from the gouging of the Chure hills, to the urban chaos in Kathmandu Valley, the poor construction of district roads, the difficulty in managing inter-community fissures and the takeover of the public realm by private syndicates all over. The absence of elected local representatives has hurt the people incalculably.
All-party corruption
The late Elinor Ostrom, who received the 2009 Nobel Prize for Economics, built her main thesis on management of the commons after studying how Nepal’s mid-hill communities collaborated on the use of natural resources, from irrigation to woodlands. The community forestry movement of Nepal, which started towards the end of the Panchayat era, takes from this tradition of managing the commons. And one can say that the success of the local government, on the basis of the Local Self-Government Act of 1999, also derives from this energetic tradition at the grassroots.
While the ‘Panchayati Raj’ local government system of India has taken decades to take root, in Nepal, five years was enough for us to begin to evaluate for shortcomings. However, as per the national pastime of destroying what we create, the rug was pulled from under Nepal’s local government scheme. The Maoists, whose agenda was to control the population through commissars, saw local government officials as their primary enemy, terrorising them into submission or exile. The government of Sher Bahadur Deuba could have extended the life of local government by a year in the absence of elections but preferred to let it die in July 2002. This proved a bonanza for the Maoists, who spread countrywide in the resulting political vacuum.
The transitional period since 2006 was when the local governmental superstructure was undone completely. Cheating on their promise of peace and democracy, as enunciated in the 12-point agreement of November 2005, the Maoists were out to capture the state through alternative means. With Chairman Pushpa Kamal Dahal harbouring plans to emerge as a directly-elected president of a one-party state, his organisation was hardly friendly to the idea of local bodies. But a way had to be found to access the huge governmental outlay being directly sent to the local bodies, a positive legacy of the previous Congress and UML governments. The formula perfected was the ‘all-party mechanism’, where local politicos would divvy up the money being sent to the districts, municipalities and villages, in proportion to the win in the 2008 Constituent Assembly polls.
The all-party mechanism was a brazen call to corruption, with the Maoists making off with much of the hoard by cornering projects and programmes. The local-level Congress, UML and other party cadre may have received only the leavings but they too were compromised in the process. No one could have thought up a better formula to corrupt the base of the national political pyramid, at the level of the village and municipal wards.
The foot-draggers
The November elections, when the electorate put Nepal back on the democratic rails, also represented the people’s desire for local body elections as promised by the party leaders. Four months have elapsed since the elections, without the required alacrity being seen on the part of the NC and
UML. The leaders all mouth the need for local polls but no one lifts a finger. The unexpected dissonance between the two large parties after the election results were announced also took up crucial time that should have been used for planning local elections.
The willpower of the NC and UML seems wanting, perhaps because their cadre see it now as their turn to make hay, with the Maoists sidelined. Also, there may be some thought among the leaders that constitution writing will be affected, with the UCPN (Maoist) and Madhesbadi leaders having turned against local polls following their drubbing in November. The latters’ standard line of excuse, repeated by Baburam Bhattarai earlier this week at Simra, is “not to do anything that will distract from the constitution making”. The Big Two are also wary of the possible reaction from the identity-politics flank, whose activists argue that local elections will affect the debate on federalism. They maintain that demarcation of the new federal provinces is the main topic before the CA, and holding local elections under the old formula and demarcations will be counter-productive.
The energy of the people was expended on the November elections and they do not have the mechanism at hand to move the political class on local polls. The momentum of the erstwhile federations of municipalities, VDCs and DDCs, meanwhile, is down after years of shouting in the wilderness. While they do speak for the local inhabitants of the High Himal, mid-hills and Tarai-Madhes plains, these federations have not been able to organise even one modest-sized rally in Kathmandu to voice their demand for elections.
On the face of it, the NC and UML are for local elections in the Spring. At the first meeting of his Cabinet a month ago, PM Sushil Koirala gave directives for the same. Deputy PM Prakash Man Singh, in charge of local development, says they must be held, as does the UML Parliamentary Party Chief KP Oli and Deputy PM and Home Minister Bamdev Gautam. In the meantime, it is said that a Common Minimum Programme draft of the two large parties has local elections on the agenda. None of this means a thing if the Cabinet will not fix a date.
Interim local government
On Thursday, Dahal and Mohan Baidya signaled a move towards party unification by signing a two-point agreement, one of which was a warning to the Congress and UML to desist from holding local polls. The Big Two must of course reject this move by non-democratic elements, one of whom did not even participate in the November polls, to entrap the people at the grassroots in an unaccountable, representation-less desert.
However, the Congress and UML must also work to convince those who genuinely believe that the local government elections will sabotage the federalist agenda. They must confirm that any change of boundary of villages or districts in the federal delimitation would lead to re-election in the affected constituencies. Another means of reassurance would be to adjust the title of the upcoming polls itself, as being for an ‘interim local government’ for the municipalities, villages and districts.
Another concern also needs to be addressed in relation to the Local Self-Government Act (1999), which does not contain provisions on inclusive representation as per the Interim Constitution. Because amendment of the Act would ensure postponement of local elections to far beyond Spring 2014, a practical response would be for the government to instruct the Election Commission to ensure that the inclusion strictures of the Interim Constitution are applied in the interim local government elections.
5 Everyone must have played the game of musical chairs during their school days. If not, one should try it on some picnic day or a family gathering. It’s a simple game in which one has to grab an empty chair and sit on it when walking around a circle of chairs with a bunch of other players. If you cannot grab an empty chair when the music stops, you are out. Similar is the present condition of parking on the street in Kathmandu. One should just keep roaming around the parking area for a period of time just to find a space for parking. And when you find a vacant space, there is always some one else looking for the same space too. In fact, one should be faster and more tactful to get an empty space to park.
Last weekend, I was in the New Road area with some personal chores. Traffic congestion during the evening was at a peak level as always. As I left the main road and tried to park my motorbike, I couldn’t find any space for parking.
So I slowly went from one end of the parking lot to the other end hoping to find a space for parking, but there wasn’t any. I turned back to have a good view so that I could park as soon as some one left the spot. I noticed a few other motorcyclists waiting for a similar opportunity. After waiting for not less than 10 minutes, I finally got a space and parked my bike. When I returned in not more than an hour, I saw that my bike had been dragged out from the place where I had put it and was on the street. And a traffic police officer was standing beside it. As I tried to start my bike, he stopped me and pulled the key out.
“Why did you park outside the yellow line?” he asked angrily. I tried to explain, but he was in no mood to listen. Instead, he threatened to take my bike to Baggikhana. There wasn’t any point in arguing with him. He penalised me for an offence that I had never committed.
Kathmandu Metropolitan City made parking free, but do they know how unmanaged it is? This unsystematic parking has created more difficulties than facilities. As a civil engineering student, I see various options for parking management. Analysing volume-based data and fixing parking areas would be the simplest and fastest solution. A long-term plan would be to build a multi-storied parking building to manage future parking load.
Providing parking facilities outside the core part of the city and making it a “pedestrian zone” or “8 am to 8 pm” traffic-free zone would be the best option. Hence, if Kathmandu Metropolitan City wishes to make life easier for people in the city, now is the time for them to come up with a better idea for parking management.
6 Nepal is a country where virtually every political issue, sooner or later, turns into a judicial question. Usually, the Supreme Court (SC) invests a lot of time deciding upon political questions, which set the direction of the country. The SC’s verdict to limit the tenure of the first Constituent Assembly, which pushed back the process of change, was one of them. Post 1990, the SC has decided upon several such political questions.
In 1994, it gave a landmark verdict in favour of then Prime Minister Girija Prasad Koirala’s decision to dissolve the House of Representatives. Koirala had decided to dissolve the House after 36 lawmakers from his own party, who were close to KP Bhattarai, abstained from voting in the Parliament, thereby failing the government’s policy and programmes. In 1995, then Prime Minister Manmohan Adhikari of the CPN-UML also decided to dissolve the House, hoping that the precedent set in Koirala’s case would prevail. But the Court gave a verdict against Adhikari’s move. Most recently, the apex court has dealt with the requirement of citizenship certificates for the voters’ registration process.
Political questions
Unlike the previous cases, in a writ filed by advocate Om Prakash Aryal against the Office of the President, the Supreme Court, for the first time, refused to intervene in the matter. The court, in a way, put a brake on its judicial activism. On January 23, a single bench of Justice Girish Chandra Lal dismissed the writ petition during the very first hearing. This is perhaps the first time the apex court dismissed a public interest litigation (PIL) in the first hearing arguing that it was a political issue. The last paragraph of the verdict delivered by Justice Lal clearly mentions that the removal of the President is a political issue that has to be dealt by the Legislature Parliament itself. This is similar to the US Supreme Court position on the issue of treaty termination in the case of Goldwater v Carter (1979), in which the Court termed it a “non-judicial political question”. Then President Woodrow Wilson appreciated the court order, saying that the Constitution was more than “a mere lawyer’s document, it has been a vehicle of the nation’s life”.
In the US, the President appoints a justice who has to be confirmed by the Senate. However, in many instances, justices surprise their appointers. They vote against their own political views at times and this happens because they interpret the laws and the Constitution. The justices’ independent legal decision-making capacity is important to build public confidence as far as the judiciary is concerned. It is in this context that some US Supreme Court decisions are historical in terms of upholding social justice agendas, such as Brown v Board of Education (1954), which prohibited racial segregation in public schools and Snyder v Phelps (2011), which upheld the free speech of liars and boasters. In the case of USAID v. Alliance for Open Society International (2013), the Supreme Court ruled against government policy, which violated a private group’s right to espouse free speech.
Up to interpretation
Closer to home, rights to social justice are a crucial part of the Interim Constitution. However, when such cases reach the Court, decisions are often inconsistent with the spirit of the law. The verdicts often reflect the attitudes of the justices, which are shaped by their own social background. Often, a conservative or a liberal interpretation of the Constitution’s Articles contradicts its spirit.
The refusal of the Supreme Court to entertain the case of the President, however, is not new. On March 30, 1992, a special bench headed by then Chief Justice Bishwo Nath Upadhyay dismissed a petition that asked the Court to interfere in the appointment of an ambassador by King Birendra without consultation with the Council of Ministers. The Court maintained that it was a case of a political nature, on the modus operandi of the monarchy and parliamentary democracy. Thus, it could not be a subject of judicial review.
The removal of the President from the high office before a new constitution is promulgated is thus a political question. Therefore, the Legislature Parliament should decide it; this should not be subject to judicial debate. If a political question goes to the Court, what is the point of having political parties and a legislature? The Nepali Supreme Court should refrain from exercising an unlimited scope of judicial review, as enjoyed by the US Supreme Court. The UK model fits in the context of Nepal where the superiority of Parliament is accepted.
Judicial activism
In the last few years, the Supreme Court has gone beyond its role as an interpreter of the Constitution. It has shown excessive judicial activism in several political issues. The court decision that the date of the CA could not be extended beyond six months was one. But looking at the superiority of the Parliament in the UK, which is a role model for countries that have adopted common law systems and parliamentary democracy, the declaration of the death of CA was unacceptable. The separation of power between state organs should be maintained consistently. The Indian Supreme Court seems to be very conscious about not dealing with ‘political questions’. The position of the apex court in dealing with political disputes is always under public scrutiny.
Mara Malagodi, in her book Constitutional Nationalism and Legal Exclusion, has argued that many of the Nepal SC’s past verdicts, particularly post 1990, reveals many inconsistencies. She has further argued that the Court’s interpretation is essential to protect fundamental rights. The Supreme Court, using legal tools, can give its decision on political questions. But going beyond legal and constitutional tools may jeopardise its public legitimacy. Problems arise when a lawyer, who has always done commercial litigation throughout his life, gets appointed as a Supreme Court Justice and then decides on a crucial constitutional question that involves politics. In that context, the background, political preferences and intellectual inclinations of the person might work more than judicial philosophy.
Jha is an advocate at the Supreme Court
5 There is a saying that if a hammer is the only tool you have, you see a nail everywhere. Reading the news recently about the Chitwan district traffic police prohibiting students in higher secondary schools from riding motorcycles reminded me of exactly that. To make up for their failure to make driving a safe experience for everyone, the cops resorted to the easiest option at hand—a ban, citing their ‘facts’ that Plus Two students cause accidents by their rash driving.
What the police officers seem to have forgotten is that not everyone hops on to their motorcycle for the thrill of it. Bikes are used as a mode of conveyance by many students to reach their place of study and come back home afterwards in comfort and without being constrained by the always-uncertain bus timings. The police also know that their action will most likely go unchallenged since the bike-riding, Plus Two students are probably the most unorganised of the lot. They would certainly not be part of the stone-throwing cadre of the political student unions who could be expected to create the kind of ruckus that the Capital witnessed a few days back, nor would they have the capacity to react like the fully organised but madcap microbus drivers would, were any kind of proscription on them introduced.
Faulty causality
The cause and effect scenario that the police in Chitwan are peddling is straightforward: Plus Two student + motorcycle = accident. Obviously, the police did not feel the need to provide evidence that their assumption is correct or that the causation is as linear as they think. Social scientists take years before they venture to offer their findings and then suggest tentative recommendations on issues they have a deep understanding of. But, here, an entire category of citizens is being penalised based on the mere say-so of some police officials.
There is the questionable legality of it all as well. Nepal’s laws allow anyone of age 16 and above to obtain a licence to drive both two- and four-wheelers. That begs the question why a group should be penalised just because they are students while those out of school can do as they please. Do our sociologist-cops believe there is some kind of correlation between educational attainment and accidents?
The Chitwan episode is not an isolated one. Far from it, there are been many instances in the past where all kinds of restrictions have been placed on young people. Even the government body, the Higher Secondary Education Board (HSEB), got itself involved and released a ‘code of conduct’ that specifies the cut of the uniform to be worn (pants legs not narrower than 16 inches and skirts having to extend two inches below the knee). Similarly, students in uniform are not to go to restaurants, cinemas, parks or shopping malls, on pain of being slapped a steep fine of Rs 3,000-5,000, not to mention disciplinary action from their schools. No motorcycles, mobiles and laptops are to be brought into the school either.
Students, whether in uniform or otherwise, have every right to enjoy all the benefits of a free and democratic society. If they feel like bunking classes and going for a ride or deciding to book a hall for a mid-day dance party or choosing to cuddle in a restaurant or frolic in a park, it is nobody’s business but theirs, and perhaps their families’. The strictures from the HSEB would have come following pressure from the colleges. If the latter or the Board were so concerned about the supposed waywardness of students, they should have explored other ways of ensuring compliance such as mandatory attendance in every class they take, barring illnesses or other emergency situations, and the extreme step of
expulsion.
The moral police
One of the reasons such episodes are being repeated again and again is because so far no one has challenged police officials who have taken similar individual initiatives ostensibly to bring law and order in society. Hence, long hair has long been a no-no as are earrings on male ears. Some police officers found mini-skirts irksome while the sight of dingo boots made others see red. Young men have also sometimes been banned from hanging out at local spots of their convenience. All in the name of controlling criminality in society.
One reads newspaper reports about how the police have been receiving kudos for their efforts. Whereas it should have been the duty of the police to inform parents, guardians and educators that it is illegal to prevent anyone from doing anything that is within the law and that includes all the activities mentioned above, they are found to be indulging in sanctimonious self-praise.
Such zeal is not only misplaced but outright illegal. It is a shame that not a single individual from our human rights community has yet to stand up for the right of our young folks to sport dreadlocks or a Mohawk, show off their legs or shake the same, go to the movies clad in anything they feel comfortable in, or simply ride a bike. Moral policing of the kind being tried out here is more suited to Saudi Arabia’s religious police, the mutaween, or the Revolutionary Guards of Iran, and have no place in a free society like ours.
A case in point
A European friend having once decided to buy a motorcycle here in Nepal was told by the concerned authorities that he would require among other documents a ‘No Objection Letter’ from his embassy or consulate. My friend promptly went to his consulate to get the said letter but the consular officer who dealt with him told him matter-of-factly that he should not be asking her but instead that is a conversation he should have with his mother. That, I think, was a most sensible response to an outdated requirement in which the state has no business interfering.
All of this reminds me of an incident from my school days. I had reached middle school at the height of the hippy era and the long hair generally associated with it. Our rector was a strict disciplinarian, unlike the more easy-going principal. The story passed down to us from our seniors was that during an argument between these two top officials of the school on whether long hair should be allowed or not for the effect it had on their academic performance, the principal pointed to a picture hanging on the wall of a famous man easily recognised by his long and wildly flying hair to drive home his point that there is no link. The rector was apparently rendered speechless; the man in the picture was Albert Einstein.
6 For the first time in nearly two years, Nepal has an elected government. The new government has many pressing tasks but providing justice for victims of conflict-related human rights abuses should rank high on its agenda. To date, beyond the provision of mainly financial relief to some victims, the five governments since the November 2006 peace accord have done little to address the rights of the many thousands of victims of abuses by state and Maoist forces during the ten-year armed conflict. Neither have they taken firm measures to prevent the repetition of abuses.
Justice delayed
Seven-and-a-half years is an eternity to wait to learn what has happened to a loved one who was disappeared or to know who killed your son, brother, father, wife or sister—and why. It is also far too long to wait for medical treatment for the physical and mental effects of torture or rape, or to get your basic economic needs met after losing the family’s breadwinner.
In its landmark judgment in January on the ordinance for the establishment of a Commission on Investigation of Disappeared Persons and Truth and Reconciliation (the TRC ordinance), Nepal’s Supreme Court sent a clear message to the government: victims should not have to wait any longer for justice. It also gave guidance on some of the most contested issues that have blocked progress to date, including that there can be no amnesties for serious crimes and that criminal investigations and prosecution must be free of executive interference.
In accordance with the court’s judgment, the government is required to review and revise the TRC ordinance, which was promulgated in March 2013 as part of a political deal to establish the Interim Election Council. Initiation of such a review should not depend on the outcome of the Constituent Assembly’s deliberations on the ordinance. Rather, the responsibility to act on the Supreme Court order rests with the government. But this time, as the court order requires, it must be done with the assistance of an expert team comprising victims, human rights experts and other stakeholders.
All inclusive
The Court’s emphasis on the process by which the ordinance is to be amended is significant. The TRC ordinance was drafted, and then revised, by a small group of representatives from four political parties. The result was a law that failed to comply with international standards or to reflect well-established practices regarding truth seeking. This had the effect of further eroding the confidence of the public and victims in the willingness and ability of the state to deliver on its commitments to address conflict-related crimes.
Carrying out a well-considered, genuinely consultative review of truth-seeking legislation is essential if strong, complementary mandates are to be achieved for the two court-ordered truth and disappearance commissions. Of equal importance, it is crucial to obtaining the confidence and support of victims. Experience shows that truth commissions that do not have buy-in from the very persons they are established to serve are unlikely to succeed.
As a first step, the government should agree on the scope and timing of this review with representatives of political parties, national human rights institutions, victims and civil society. Defining and agreeing on the mandates of these commissions will be a complex process that cannot be rushed. All necessary steps must be taken to avoid duplication and inconsistencies, as well as to ensure protection for victims, including from having to testify to two separate bodies.
Great care must be taken in formulating the objectives of the two commissions, their respective jurisdictions, procedures and how they will cooperate. They must not be burdened with unrealistic expectations. Transparency and consultation will not guarantee success but it will significantly increase the likelihood that this time around consensual instruments are agreed on, and that these bodies are finally created.
Immediate measures
At the same time, however, debate over their shape and form must not prevent the government from taking action on other transitional justice measures, like reparations or finding the disappeared. Recent research among more than 400 conflict victims shows that many of their needs are still acute and unmet. Ethically and morally, they must not be made to wait for a truth commission to complete its work before they receive the reparations to which they have a right. Likewise, the families of the disappeared should not be expected to wait for a disappearance commission before the search begins to establish the fate and whereabouts of their relatives. And as the Supreme Court ordered, other measures, like the criminalisation of enforced disappearances, torture and other serious crimes can and should proceed immediately.
Justice for victims of the conflict is long overdue. By acting promptly, the new government can begin to make amends for the failure of its predecessors to advance transitional justice and help to restore confidence in Nepal’s commitment to human rights.
Sigdel is Senior Program Officer at the International Center for Transitional Justice
7 Nepal has seen several political changes but each change has only been the transfer of power within the same elite community. The Madhes Movement, in this sense, is perhaps the most significant political movement because for the first time a group not belonging to the traditional elite challenged the power at the centre. Similarly, the Maoist movement too managed to increase political awareness in rural areas and among marginalised communities, though this did not end up being reflected in the party leadership. It is no surprise then that the elites want to picture both these movements in a negative light. The Maoist insurgency pushed the country back by 16 years at the cost of 17,000 lives, they argue, believing that Nepal was smoothly set on the path to prosperity
following the political developments of the 1990s. The Madhes Movement, for its part, is painted as dangerous to the very sovereignty and territorial integrity of Nepal as a nation state.
The deep state
It is thus only natural that the elites would join hands to thwart the efforts by newer parties to radically restructure the state and the redefine the relationship between different segments of society. The status quoist forces, by definition, consist of the powerful sectors that control a state—the security apparatus, the political class, the bureaucracy, the financial sector and the media. Together, they form the Deep State, and when they march in lockstep, any effort to transform society is an uphill task. Since 2006, the deep state has worked relentlessly to undermine the transformation process.
The results of the second Constituent Assembly elections show that they have succeeded to a large extent. With the Nepali Congress (NC) and CPN-UML, along with the two Rastriya Prajantantra Parties, having won a two-thirds majority in the CA, it looks increasingly likely that the aspirations raised in Janaandolan II will be put on hold. The early indications of the post election politics point to this. The pettiness of the struggle between the NC and UML during government formation, the fight for the Home Ministry portfolio and the lack of inclusiveness and youthful faces in the Cabinet are all reminiscent of the deformed democracy of the post 1990 period.
Decentralisation and devolution
To take an example, let us look at how the discourse around federalism was framed. When the Interim Constitution was amended to include federalism, the notion behind it was very clear. It was born out of the Madhes movement and supported by janajati activists. The Bahun-Chettri-dominated Girija Prasad Koirala government resisted the movement for as long as they could, killing almost 50 protestors, more than twice the number martyred by the tyrant Gyanendra. Clearly then, when federalism was promised to allay the protestors, it was an ethnicity-based federalism that was envisioned. But as years passed and conferences dominated by the same traditional elite were held, federalism gradually came to be understood more as decentralisation rather than devolution of power. The media started portraying the debate as between ‘ekal jatiya’ and ‘bahu jaitya’, ‘single identity’ and ‘multiple identity’ federalism, clearly implying that the federal units would be discriminatory against members of other ethnicities.
With the narrative under their control, it became increasingly difficult for parties championing ethnic federalism to reach out to voters with the issue. On the other hand, the traditional parties advocated for both ethnicity and non-ethnicity-based federalism, depending on the community the voters belonged to. By having Madhesi and janajati candidates, they signaled that they were willing to accept the demands of ethnic activists but, on the other hand, sent mixed signals to Pahadi communities. In this way, they managed to garner votes from both supporters and opponents of ethnic federalism. Opponents of ethnic federalism also voted en bloc, either for NC or UML depending on which party looked stronger in the given constituency.
When the results of the elections were tallied, supporters of ethnic federalism were clearly rattled, even as the UCPN (Maoist) cried foul. In trying to make sense of the defeat, many are now reconsidering the entire ethnic agenda. There are reports that a certain segment of the UCPN (Maoist) now believes that it was a mistake to advocate for identity-based federalism, and not just a tactical mistake at that but an ideological one. If that is true, it is indeed unfortunate. As for the Madhesi parties, since their very raison d’être is ethnic federalism, they cannot rescind from their agenda. Still, their zeal in pushing the agenda can be measured by their inability to coalesce around it.
A sense of purpose
Despite all this, it would be stupid to think that the ethnic agenda has been successfully tamed because the CA is but one forum where people’s aspirations are expressed. Both the UCPN (Maoist) and the Madhesi parties are very clear that they will resort to the streets if any attempt is made by the traditional parties to forego ethnic federalism. Not only would this provide the former with a clear sense of purpose but it would also reenergise their base.
For now though, these are lean times for those who had hoped for a radical transformation of the state and advocated for ethnic federalism. Civil society leaders and commentators have routinely voiced their disappointment over the acts of the government and the overtures of the traditional parties, such as the UML’s edict to its CA members to be dressed in daura suruwal during oath taking. The lack of inclusiveness or
youth in the Cabinet has failed to inspire optimism among even the supporters of NC and UML. If this nation is on autopilot, as a prominent commentator recently put it, then by all appearances it looks as if the direction we are headed towards is backwards, not forward.
Jha has worked for various international and national organisations supporting
the peace process in Nepal and can be reached at DAULAT JHA @daulatjha