Election, Rule of Law and Human Rights
Dr. Kundan Aryal
The trials and tribulations of Nepal over three decades of political and social changes have firmly established social justice as an inseparable part of human rights. After two elections of the Constituent Assembly, Nepal promulgated the Constitution of Nepal 2015 that upholds international human standards and concerns, and monitoring done across the country based on those standards by INSEC comprises the main source of facts and data used in this publication.
The elections of all three tiers of government – local, provincial and federal – were held in May and November 2022. They were the second elections after the promulgation of the Constitution of the federal democratic republic of Nepal. Based on monitoring and field observations, INSEC and other civil society organisations have said that the elections were generally fair, independent and peaceful. But we also believe it is important to continue drawing the state’s attention towards making the election process more transparent and credible, and to free elections from the influence of power and resources to ensure a level playing field for all. Particularly, there is need for increased deliberations on one trend observed in the recent elections, that of forming election alliances among political parties before the polls, which infringes the rights of people of being able to select candidates independently and also distorts the very notion of multiparty competition, an underlying character of a democracy. Issues of concern to the general population tend to be overshadowed when elections are intended to be used as tools by political parties to attain and cling to power, which ultimately affects the attainment of the goals of ensuring sound governance based on multiparty competition.
Assuring every citizen the right to be able to vote freely and to participate in governance through voting, and the rights of candidates the right compete in a fair competitive environment are basic human rights. This is why it is important for human rights defenders to continue campaigning for assuring free, fair and impartial elections even after one cycle, like the one in 2022, is over.
Inconsistencies were vivid between the commitments made by governments to implement the Constitutional provisions and the practice after the first election of all the three tiers of governments. The performance of both the political parties, and the three state organs – the executive, legislature and the judiciary – fell short and have caused people to doubt the intentions. The enthusiasm observed after the promulgation of the Constitution and the first election has dissipated following controversial decisions made by all three organs of state, and the inaction and inability of political parties that could have changed the outcomes.
Further, there is a danger that the accruing hopelessness could lead to more unexpected outcomes if political parties fail to take serious lessons from the mandate of the 2022 election. The hopelessness can be converted into hope and expectations, only if political parties are able to make the parliament an effective platform for resolving matters of public concern. This would require allowing the parliamentary committees to function without the influence of narrow political interests, and by not restricting important state processes such as parliamentary hearings to routine procedures for providing legitimacy 31th Edition’s Foreword to the decisions of the executive. The realization of human rights and social justice can be possible only when members of the parliament function effectively at both the federal and provincial levels to make the government accountable to deliver on their commitments.
It is also not unnatural for other organs of state to be ineffective, particularly when parliament – or the peoples’ representatives – strays away from the problems and concerns of citizens and fails to keep the government within the bounds of the Constitution by failing its responsibility to enact necessary laws. The ideological and organizational problems within political parties, their disconnect from matters affecting the people, and the effects of their internal conflicts affected all three state organs – the parliament, government and the judiciary – throughout 2022. Further, compliance with United Nations human rights treaties where Nepal is a state party has not been possible owing to political instability and lack of political will. As result, many commitments made by the government at international platforms now seemingly lack ownership. Even recommendations accepted by the government during the Universal Periodic Reviews (fist three cycles) on transitional justice, legal reforms to end inequalities in women’s rights, and independence of the National Human Rights Commission in accordance with the Paris Principles still remain to be implemented.
The internal conflicts and contradictions within the judiciary climaxed in interest-driven struggles in 2022. This has led to an erosion of public trust on the judiciary, which has also had a negative impact on rule of law. It is common knowledge that independence of the judiciary guranteed by the Constitution has remained extremely weak in practice.
Following the promulgation of the Constitution in 2015, Nepal had risen from 63 to 58 in terms of the global ranking for rule of law. In 2022 its rank dropped down to 59. The World Justice Project based in Washington D.C. measures rule of law using indicators based on commitments made and the policies put in place. The ranking is a combination of performance against specific indicators, including those related to access to justice by citizens and effectiveness in crime control.
This year too the political parties, parliament, government and the judiciary did not demonstrate adequate efforts towards operationalizing the fundamental rights of citizens guaranteed by the Constitution. Human rights can respected and realized only when these rights are assured and there is good governance. Effective functioning of institutions named above are indicators for an effective democracy, and without their effectiveness we can neither transform into a society heading towards socialism (an provided in the Constitution), nor can our path towards assuring human rights and social justice remain without obstacles. There was continuation of incidents associated with traditional beliefs and practices and the sufferings, even deaths caused by these practices in 2022. There were violations of rights of women to life in incidents associated with domestic violence and allegations of witchcraft. The killing of Bivha Majhi, 52, of Khandadevi Rural Municipality of Ramechhap District on the allegation of witchcraft suggests the need for raising awareness at the local level on the legal provisions against such atrocities. This year 23 women in different parts of the country were abused and beaten on the allegation of practicing witchcraft. There were also challenges in the effective enforcement of Allegation of Witchcraft Crime and Punishment, Act 2072; Caste-based Discrimination (Crime and Punishment) Act, 2068 and the National Criminal Code and other laws.
The complaints of human rights violations of people with weak socioeconomic backgrounds, women and people from marginalized communities and their investigations and sanctioning of those responsible continue to be influenced by power relations and other influences. People from such groups do not have equal access to justice owing to the associated discrimination that still remain deeply rooted in society, despite the sanctions provided by law for such actions. This year 332 people – both male and female – lost their lives and 1614 women and girls had become victims of rape. Similarly, 18 (women and children) were killed after rape and one woman was raped after being killed. The monitoring and data collected by INSEC show the difficulties faced by people from these groups in seeking and obtaining prompt justice, and the influences that interact to obstruct the delivery of justice.
The year 2022 will be remembered as as another year where all three organs of state failed to address the concerns of the people and deliver their responsibilities as outlined in the Constitution. The lack of political will in political parties, parliament and government, and political instability in general prevented the completion of tasks outlined in the Comprehensive Peace Agreement (CPA). Justice for conflict victims committed in the CPA of 21 November 2006 remains largely undelivered. In other words, we have not been able to establish a peaceful society, and the state’s responsibility in bringing about peaceful transformation of conflict through justice for conflict victims and reparations remains unaddressed.
Justice remained denied for conflict victims even after 16 years of the signing of the CPA. There have been many debates and discussions on making those responsible for conflict-period excesses accountable and reconciliation with the consent of the victims. But institutions established to take the work on transitional justice such as the commissions on truth and reconciliation, and investigation of those disappeared in the conflict were unable to produce results at the end of 2022. Nor were politicians – mainly former Maoist combatants – able to demonstrate the political will to facilitate truth and reconciliation. This inability to complete the peace process through justice and reparation has continued to weaken democratic institutions.
(From Nepal Human Rights Year Book 2023)
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