Abhishek Jha
Professor Walter Maier of LudwigsburgUniversity of Applied Scince argues that duty bearers are accountable for fulfilling the responsibility towards the right holder. If responsibilities are not fulfilled, a participating right holder can always claim rights from the duty bearers. According to him, this reciprocal relationship shows the leveling of human rights. To maintain the action or influence, a right holder must justify and assert the rights. Subsequently, a duty bearer must protect the asserted rights. This notion sets out the friendly footing of the democracy. A rule by the people, for the people and to the people, can only be maintained if the bearer is accountable towards the people. I juxtaposed this touchstone with the current human rights crisis in Nepal and sought to illustrate how the reciprocal relationship between the state and the subject has been ruptured time and again.
Analyzing the political backdrop of Nepal, Human Rights Watch (HRW) has acknowledged that state has a long-standing history of discrimination by successive governments, which remains dominated by traditional social elites from Nepal’s hill regions, against marginalized groups including Madhesis, Dalits and Tharus. This analysis is a self-evident that marginalized groups were excluded from the enjoyment of their inherent rights. These groups of reasonable classification were politically excluded and were underrepresented in government and public employment. There are official figures that show; they had average lower economic, health and education indicators. The uprising for demand by these excluded groups is the part of the reciprocal relationship by which the state and the people is abided by.
Unrealized Responsibilities
Duty bearers of the state should know that the powers they exercise are a trust reposed by the general public on them. Being cognizant to this, state is duty-bound to omission of hurting rights. Incidents that took place in four month long and still ongoing Terai unrest, explicitly revealed the malicious motive of the government to falsely defend human rights violations. The conducts were intentional because the consequences were desired. The officials appeared improperly motivated to intrude the witnessed peaceful assemblies.
Human Rights Watch, in ‘Like We Are Not Nepalese’ reported how the state and its officials busted the humanitarian values during the unrest in Terai (Southern Plain of Nepal). Here are some highlights cited from the report.
- More than 45 extra judicial killings.
- HRW found no evidence that any of these victims was posing threat to another at the time s/he was killed.
- Nitu Yadav (14 yrs) was shot dead in the face at point-blank range.
- Ram Bibek Yadav in Jaleshwar and Hifajat Miya in Kalaiya, were deliberately killed by the police on ground, in spite having in knowledge that they were injured.
- 12 yr old Bikash Yadav, shot while he attempted to give water to an injured man.
Unaccountable Responsibility
The ‘State Action’ is a necessary element to claim the violation of Human Rights, or to make the state responsible of protecting of such rights. The claimants take it as a wrongful action of the state to provide Armed Police Force (APF) with enhanced powers to use lethal force. APF of the state is a paramilitary force, trained for confronting tempestuous armed unrests. Few months earlier to the proclamation of the constitution, the government of Nepal enhanced the powers of APF. It was anticipated that the new regulation for APF was a precautionary step to take in control the possible agitations against the new constitution. Instead of addressing the resentments of the dissenting voices, government geared up for confrontation. Cases reported by the human rights organizations claims that major and serious physical violations were actioned by the APF officials.
Unheeded Claims
In defense to the alleged claims of human rights violations, government clarifies that the extent of violence by protesters left police with no option but to resort to lethal force. Whereas HRW reports that circumstantial evidences indicate this was not the case. The unilateral defense of the state and verified claims of the witnesses stands in opposite poles. It appears that government unnecessarily extended its ambit of power in the mere name of combating the impunities. Inactivity of the government pretermitted the attempt to protect people’s right. Government in its cognitive sense disguised its role of imposing reasonable limitation while granting the police power in excessive manner. Exemption of limitation to excessive power resorted to following upshots:
- It transgressed the innate right to live with dignity. Torture of police intruded the degree of dignity. Norms and modalities of directive principles of the state to protect and promote just and human condition of life is disrespected.
- In constitutional terms, it violated the right to opinion and expression and right to assembly. The protesters were on the road to get their demands addressed by the government. These rights are to be protected by the state in all conditions. Therefore, states failure to ensure these rights while in exercise of the policing power was unconstitutional in principle.
- Country Code, Civil Rights Act, Nepal Police Act, APF Regulation and other different scattered acts are there to prescribe on the degree of use of force by the security officials. The reporting agencies and the supporting evidences establish that the use of force by the state while handling the unrest was excessive. The amplified leverage to go beyond its jurisdiction by the police was illegal in practice.
- The state didn’t take in concern the requirements of the due process of law while stipulating its stance to maintain law and order. On the ground, the police forces are found to have been using live bullets on the protesters. Evidences show that situation could have been ameliorated even in a liberal way with much less repression. Government’s justifications of depriving the protesters of their civil liberties are not justifiable as it ran afoul the due process of law pragmatically.
State is the only institution which has the sole obligation to look into the issues of human rights. All other organizations are to check the accountability of the states’ action. Ongoing human rights violations and flamed crisis has been closely monitored by the accountability checks. Government and its delegated mechanisms are held responsible for the juncture. Abrupt action in concert of the officials neither respected the values in reorganization, nor implied the principles in deeds. Clearly exposed ambivalent nature of the state to protect and to appear as a protector of human rights, lead to the disruption in implication of humanitarian values and principles. Tough Nepal is a signatory to multiple abiding human rights treaties and conventions, on the field it appears that government has failed to comply with any of those. Insurrection of basic right to live and express opinion by the state has raised a question of accountability.
(Student of Law @ Kathmandu University School of Law, Dhulikhel)
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