Freedom House (Autor)
As of September 2003, democracy was in limbo in Nepal, with King Gyanendra ruling through an appointed prime minister. In sacking Prime Minister Deuba's elected government in October 2002 and postponing elections indefinitely, the king invoked a vaguely worded constitutional provision granting him the power to "issue necessary orders" to maintain constitutional rule.
Constitutional lawyers in Nepal noted, however, that this provision, Article 127, also requires that such orders be "laid before parliament," which the king did not do - and could not have done, given that he had dissolved parliament in May 2002 pending fresh elections. Article 53(4), moreover, requires elections to be held within six months after parliament is wound down, thereby establishing a deadline that has long since passed. In addition, the constitution does not provide for the king to appoint a prime minister.
Deep-rooted change will require curbing the overarching influence of King Gyanendra, who has proven more willing than the late King Birendra to push the limits of his constitutional powers. Nepal's current crisis has highlighted not only the problem of vague constitutional drafting but, more fundamentally, the king's still-formidable authority within a nominally democratic system. In addition to being army chief and enjoying the ill-defined powers of Article 127, the king can exercise emergency powers with parliament's approval during certain crises. Emergency powers in effect between November 2001 and September 2002 restricted freedoms of assembly and movement.
Moreover, the king also wields considerable behind-the-scenes political influence thanks to his ability to act with legal immunity. The palace, therefore, has every incentive to block reforms that would chip away at the king's immunity, place the army under civilian control, make government more transparent, increase citizens' access to information, and remove legal restrictions that prevent critical discussion of the proper role of the king in a democratic society.
Nepal's political parties, ranging from hard-line Marxist to staunch monarchist, also lack real incentives to promote change. The center-left Congress and other parties in Nepal are highly centralized, and their policies are crafted with little input from ordinary citizens. They serve mainly as vehicles to elect politicians and dole out patronage to key supporters. While this is true to some extent even in consolidated democracies, the lack of a middle class in Nepal, which could potentially nudge parties toward more reformist agendas or other democratic safeguards, has left parties in the hands of a corrupt, self-serving elite. Under these conditions, parties act more as obstacles to reform than as change agents.
Nepal's last elections, won by the Congress Party in 1999, were relatively free though not entirely fair due to irregularities and/or violence in some districts. Maoist attacks and inter-party clashes led to several election-related deaths and caused balloting for the 205-seat lower house to be postponed in dozens of districts.
Governance in Nepal has also been plagued by a civil service that is widely seen as corrupt, insular, sclerotic, and politicized. The government approved the elimination of 7,518 vacant civil service positions in September 2002 and has frozen the creation of new civil service posts. The Ministry of General Administration, moreover, computerized civil service personnel records in an effort to enhance transparency and accountability.
Nevertheless, "Progress in implementing civil service reforms has been slow and there have been few accomplishments" other than the program to eliminate vacant positions, according to the World Bank. Moreover, "There is an iron gate in the civil service, the military, and business which only Brahmins and Chetri can get past," the ICG's April 2003 report quoted an unidentified businessman as saying.
This insularity extends to Nepal's ruling class. Brahmins, Chhetris, and Newars make up 37 percent of Nepal's population but in 1999 held more than 80 percent of top posts in the judiciary, executive, and legislature, according to a 2002 article in the Nepali Journal of Contemporary Studies. The two largest parties, Congress and the CPN, are run almost exclusively by members of the Hindu high castes. At the same time, "members of other religious and social groups have in the past few years gained increasing influence in government, including senior leadership positions," according to the U.S. State Department human rights report.
Civil society groups have mushroomed since 1990, although many have only one or two staffers and nearly all depend on foreign aid. Few NGOs have tried to cultivate local income sources. Instead, many NGOs proclaim broad mandates designed to appeal to as many foreign donors as possible and create programs that reflect donor preferences, which at times differ from local needs.
In their advocacy work, NGOs frequently speak out on proposed government policies or legislation, although much of this dialogue takes place through the media. They generally lack the opportunity to testify or otherwise directly influence debates over governmental policy.
Conditions for journalists have worsened considerably since the Maoist insurgency began. The government has used the insurgency to justify a broad crackdown on press freedom. During the state of emergency, the government detained roughly 100 reporters and editors of mainstream publications and Maoist-linked newspapers, according to the U.S. State Department report. Attacks against journalists mounted after the ceasefire collapsed in August 2003. In September, suspected Maoist rebels publicly executed a reporter for the state news service, and police detained or threatened several journalists. As of late September, at least three journalists were being detained by Nepalese authorities, according to the Committee to Protect Journalists. The government also influences journalists by requiring them to be licensed under the Press and Publications Act.
Despite the risks, many of Nepal's hundreds of independent newspapers and magazines vigorously criticize governmental policies. The editorial pages of the private press span the political gamut from hard-line Communist to diehard monarchist, while news coverage often includes views of human rights groups and statements by Maoist leaders.
Nevertheless, some journalists with private papers, and those at state-run papers, practice self-censorship, according to the U.S. State Department report. Moreover, successive governments have directly influenced editorial policy at state-run papers. Nepal's 20-odd private radio stations can air their own news broadcasts, but they must also broadcast Radio Nepal news at least once daily.
While Nepal's overall human rights record has improved since the absolute monarchy was toppled in 1990, security forces continue to commit grave human rights abuses. The most serious occur during counterinsurgency operations. Roughly 3,040 suspected Maoists were killed by security forces in 2002 and "some of the deaths were believed to have been extrajudicial killings," according to the U.S. State Department's human rights report for 2002. Western policy and watchdog groups have been far blunter in accusing security forces of unlawful killings. "Upwards of 70 percent of the more recent deaths have been direct results of often-indiscriminate [army] counter-insurgency operations," the ICG estimated in its April 2003 report. Similarly, Amnesty International suggested in a December 2002 report that at least half of the killings may have been unlawful. "The vast majority of the victims were civilians targeted for their real or perceived support to the Communist Party of Nepal (CPN; Maoist); others were Maoists deliberately killed after they were taken prisoner or killed instead of being arrested."
In a widely publicized incident, the army in August allegedly shot dead one person and summarily killed 19 others in Doramba village after taking them into custody. The army's version - that its soldiers were retaliating after being attacked first by rebels - was contradicted by an investigation carried out by Nepal's National Human Rights Commission.
Besides confirmed killings, Nepal had 28 disappearances in 2002, the most in the world and twice as many as number-two Colombia, according to the United Nations Working Group on Enforced or Involuntary Disappearances.
A senior police superintendent admitted to Amnesty International that the security forces deliberately kill Maoists, allegedly because Nepal's terrain and lack of detention facilities make it tough to transfer captured insurgents to hospitals or prisons. Moreover, army commanders told Amnesty that the army considers any civilian to be a Maoist who gives shelter, food, or money to the insurgents. Ordinary civilians are therefore whipsawed between the armed rebels' frequent demands for money or goods and the army's bare-knuckle counterinsurgency tactics.
Security forces are also blamed for routinely torturing suspects during counterinsurgency operations. According to Amnesty International, torture by the army, the paramilitary Armed Police Force, and police is reported almost daily.
The government has done relatively little to protect civilians from security force abuses. "Members of the security forces feel entirely shielded from outside scrutiny for their actions," the Amnesty report said, given that "[t]he heaviest sanction they face is an internal inquiry." In a positive step, the government now provides human rights education for police and soldiers. But this training is fairly rudimentary and has done little to alter the culture of impunity that pervades the security forces.
Nepalese forces also frequently detain suspects illegally, most often as a counterinsurgency tactic. Despite army denials, "there is overwhelming evidence of people being held for long periods incommunicado in army barracks," the Amnesty report said.
For many criminal offenses, the case must be filed in court within seven days of arrest. If the court upholds the detention, the law authorizes police to hold the suspect for 25 days to complete their investigation, with a 7-day extension possible. Police, however, occasionally violate these provisions and hold detainees longer. Police at times also violate a constitutional provision requiring officials to arraign or release a suspect within 24 hours of arrest.
Several thousand suspected Maoists have also been formally detained under the Terrorist and Disruptive Activities Act (TADA), introduced for two years in April 2002. TADA allows the government to hold suspects in preventive detention for up to 90 days and in detention for the purpose of investigation for 60 days. Even these lengthy periods are often breached. Hundreds of suspected Maoists have spent more than a year in detention without being taken to court, with security forces apparently using a loophole in TADA to issue repeated new detention orders.
Authorities said in 2002 that, overall, 6,075 suspected Maoists were arrested during the year and that the government planned to file cases against 5,465 of them, with the other 610 still under investigation.
The government has also used TADA to undermine the judiciary. Special committees set up under TADA at the regional or district levels to coordinate local counterinsurgency efforts play a key role in deciding who should be arrested, detained, or released. Chaired by regional administrators or chief district officers, these so-called coordinating committees effectively bypass the normal judicial process. Maoist abuses include summary killings, torture, kidnapping, using captured civilians as human shields, and recruitment of child soldiers. The rebels killed 518 civilians in 2002 alone and have abducted 968 civilians, by official count, since 1996, many of whom remain missing. Suspected Maoist rebels were also blamed for a series of bombings of government buildings in the Kathmandu Valley on September 8, 2003, that killed a 10-year-old boy and injured several other people.
Beyond the conflict, security forces have also committed abuses such as using excessive force to quell protests. The head of the Nepal Progressive Students Union, Devi Ram Poudel, was shot and killed by police during an April 2003 anti-government demonstration. The demonstration was one of several often-violent student protests held in the weeks prior to the May resignation of Prime Minister Lokendra Bahadur Chand. As protests mounted, the mutilated bodies of two other student leaders, both associated with an allegedly Maoist-linked student group, were found. The government denied involvement in their killings.
Nepalese have fairly limited means of gaining redress when their rights are violated by state authorities. Most lack the resources or even basic awareness of their rights to pursue court cases. Moreover, the widely used TADA grants immunity from prosecution to security force members "or any other person" for "any act or work performed or attempted to be performed by him in good faith under the Act."
In a positive development, Nepal's Torture Compensation Act has allowed some torture victims to apply for compensation. Despite reports that torture is fairly widespread, however, in 2002 only seven people applied for and only one person actually received compensation, according to the Center for Victims of Torture in Kathmandu.
Prison conditions are "poor," according to the U.S. State Department report, with many jails overcrowded and officials sometimes handcuffing or fettering detainees. Amid a shortage of adequate facilities, officials sometimes jail mentally ill inmates under inhumane conditions. In two positive developments, prison officials are increasingly transferring sick prisoners to hospitals and incarcerated children to residential facilities.
Successive governments have also been unwilling or unable to protect tens of thousands of Nepalese bonded laborers, mainly in the southern lowlands known as the Terai. The government banned bonded labor in 2000 and released traditional bonded agricultural laborers, known as Kamaiyas, in the western Terai from their debts. Some Kamaiyas have been provided with land, although forced or bonded labor reportedly persists, according to the U.S. State Department report.
The International Labor Organization estimated in 2000 that 33,000 Kamaiyas and other children work as bonded laborers, although more recent figures are unavailable. In addition to bonded labor, some 2.6 million Nepalese children, mostly girls, work in some capacity, 1.7 million of them full time.
Despite some gains for women in recent decades, successive Nepalese governments have not ensured that women enjoy the same rights as men. "Women face systematic discrimination, particularly in rural areas, where religious and cultural tradition, lack of education, and ignorance of the law remain severe impediments to their exercise of basic rights," the U.S. State Department report said. Women hold no more than 8 percent of civil service and elected government positions and have little input into local program and expenditure decisions.
Violence against women, moreover, is a "serious problem," in a society where doctors, politicians, and police are largely unwilling to condemn such abuses. Particular problems include rape, incest, and violence related to dowry payments.
Despite legal safeguards and government initiatives, trafficking in women and girls remains an active concern in a number of the country's poorest areas, and border guards and immigration officials often accept bribes from traffickers. Most victims are trafficked to India for sexual exploitation, although some are trafficked to be domestic servants or for bonded labor.
On the positive side, a 2002 law for the first time allows unmarried, widowed, or divorced women to inherit property. Nevertheless, property law still favors men in inheritance, land tenancy, and the division of family property. The government, moreover, has taken few steps to implement constitutional provisions requiring equal pay for equal work, even in state industries.
Also facing entrenched discrimination are many of Nepal's 75 ethnic groups. Members of just three groups - Brahmins (known locally as Bahuns), Chhetris, and Newaris - dominate politics and senior administrative and military positions, as well as controlling the majority of natural resources in their territories. However, improved education and greater prosperity have gradually begun to reduce caste distinctions and enhance opportunities for lower socioeconomic groups, especially in the Kathmandu Valley. Nevertheless, members of low-caste ethnic groups continue to face acute discrimination. As veteran Asia journalist Bertil Lintner noted in the Hong Kong-based Far Eastern Economic Review in 2002, "The higher castes have traditionally treated both lower-caste and tribal peoples as second-class citizens." Dalits, formerly known as "untouchables," face particularly severe discrimination and exploitation despite a constitutional provision outlawing discrimination on grounds of caste.
Religious freedom is generally respected in this Hindu-majority society, although Christians and other members of minority religious groups occasionally complain of police harassment and restrictions on proselytizing. In another concern, Kathmandu officials have at times prevented the capital's Tibetan community from holding public religious celebrations, apparently in deference to China.
Nepalese generally enjoy freedom of association. However, in a major exception, the constitution prohibits political parties based on "religion, community, caste, tribe, or region." Freedom of assembly deteriorated in September after the government detained hundreds of people who defied a ban on demonstrations in Kathmandu that was announced after the Maoists called off the ceasefire.
Trade unions are free of government control. Roughly 10 to 12 percent of wage-earning workers are unionized. Still, labor authorities enforce safety standards poorly and have not created the necessary regulatory or administrative structures to enforce many labor law provisions. Human rights groups, business associations, and political parties generally have a free hand to operate. During a nine-month state of emergency that began in November 2001, however, the government detained several human rights activists suspected of Maoist links.
Nepal's judiciary often fails to hand down fair and timely justice. While the Supreme Court is generally seen as free of government influence, lower courts are rife with corruption, and courts at all levels are heavily backlogged. Successive governments have woefully under-funded the judiciary to the point of raising questions about whether they are purposely keeping the judiciary weak to prevent it from becoming a check on state power. Some judges even lack access to proper legal texts.
The Supreme Court developed a reputation for independence in recent years by striking down as unconstitutional provisions of the labor and citizenship acts as well as the government's 2001 decision to freeze land sales. In 1995, the court declared unconstitutional a request by then-Prime Minister Man Mohan Adhikari for the king to dissolve parliament, and the body remained in session.
More recently, however, Nepal's top court showed little stomach for questioning the king's dismissal of the elected government in 2002 and indefinite postponement of elections. The court in May 2003 denied a writ seeking immediate elections. It said that the king's existing order to the government, which he had appointed, to hold elections was constitutionally sufficient, despite the absence of any deadline for a vote to be held. The ruling effectively gave legal sanction to the king's de facto rule through his hand-picked government, thereby reinforcing the widespread belief that the king wields decisive power in Nepal.
Meanwhile, lower-level courts are vulnerable to political pressure, and there is widespread bribery of judges and court staff. Nevertheless, appellate and district courts have become more and more independent. Beyond the question of judicial independence, poor Nepalese generally lack access to the courts and have few means of gaining redress for corruption or abuse of power.
In criminal cases, heavy backlogs force many detainees to wait lengthy periods before their trials. Roughly half of the 6,877 people behind bars in 2002 were awaiting trial, by official count. The Supreme Court's backlog exceeds 16,000 cases, the appellate courts' 11,000, and the district courts' 31,000, according to statistics released in 2000.
Further undermining the rule of law, security forces at times ignore court directives. For example, according to the Amnesty International report, they often ignore district court orders to take prisoners for medical exams and at times deny to the Supreme Court that they are detaining particular suspects, even as they quietly allow relatives to visit the suspects.
Judges are appointed by the king on the recommendation of the Judicial Council, a constitutional body headed by Nepal's chief justice. Given that King Gyanendra faces few real checks on those powers that he wields, his role in appointing judges raises questions of undue influence over the judiciary. Once judges are appointed, however, the Judicial Council, not the king, is responsible for assigning and, if necessary, disciplining them.
Criminal suspects have a constitutional right to legal representation and to a court-appointed lawyer when necessary. In practice, however, a government lawyer or access to private attorneys is often provided only upon request; in a society where many Nepalese are unaware of their rights, this means that many go without representation. Suspected Maoists are often denied access to lawyers.
The 2002 TADA allows security forces to conduct searches without warrants in security cases as long as they inform the suspect in advance, a vague rule that seems to give the green light for such searches. By contrast, in non-security cases police must obtain warrants before carrying out searches.
Nepal's army is not under civilian control but instead is commanded by the king. This vestige of the absolute monarchy makes reform of the army more difficult and gives the king leverage in dealing with the country's political parties. The constitution makes the king supreme commander of the army and gives him the power to appoint the commander-in-chief upon the recommendation of the prime minister. In an apparent check on the king's influence in this respect, Article 18 of the constitution nominally puts the army under the overall control of a National Defense Council chaired by the prime minister and including the defense minister and the royally appointed commander-in-chief.
Nevertheless, King Gyanendra's influence over the army is widely believed to run even deeper than his constitutional powers suggest. The king's practice of determining the commissioning of officers early in their careers helps build loyalty between himself and the officer corps, the ICG's June 2003 report said, citing a constitutional lawyer. The senior ranks of the Royal Nepal Army, moreover, continue to be filled with loyalists from the pro-monarchy Rana family, which dominated Nepalese politics between 1846 and 1950.
In another concern, international human rights groups accused Kathmandu of violating international law in May when it forcibly handed over 18 Tibetan asylum-seekers to Chinese officials, who drove them across the border back to Tibet. Amnesty International and other groups also accused the governments of Nepal and Bhutan of conducting an opaque, unfair screening process that will apparently allow only a handful of the more than 100,000 Bhutanese refugees living in southeastern Nepal since the early 1990s to return to Bhutan with full citizenship rights.
Corruption is widely believed to be rife in Nepal, with successive governments failing to take decisive anti-graft measures. "The image of parties as tools of a high-caste, corrupt and nepotistic Kathmandu elite has become endemic," the ICG's April 2003 report said.
The World Bank assessment team in September 2002 found a general perception among the population that national-level politicians are corrupt. Many felt that corruption was institutionalized, with officials delivering poor services while spending money in unauthorized ways.
While ordinary Nepalese widely suspect elites of amassing wealth beyond their means, their more direct experience is often with street-level bureaucrats who supplement their meager incomes by extracting bribes for routine services. Nepal is "deeply bureaucratic," according to the ICG's April 2003 report, and this red tape undoubtedly increases opportunities for corruption. The bureaucracy is enhanced by the presence of a highly centralized government. Less than 4 percent of the national budget goes directly to local governments.
"During the [absolute monarchy] you had to bribe to get a driver's license; you still have to bribe to get a driver's license," the ICG quoted a local nongovernmental organization (NGO) official as saying in its April 2003 report. Nepalese frequently must pay bribes for admission to universities or to get good grades, for admission or access to medicine in state hospitals, for electricity connection and service, for proper land surveying, and to register a complaint with the police. Government offices dealing with land administration are seen by Nepalese as the worst offenders, followed by customs bureaucrats, the police, and the judiciary, according to public opinion surveys by Transparency International.
On paper, Nepal has a fairly impressive array of anticorruption bodies and initiatives. The constitution guarantees the auditor general complete legal and professional independence and creates a Commission for the Investigation of Abuse of Authority (CIAA) to investigate and prosecute corrupt officials. Parliament passed four anticorruption bills in April 2002, including one that established the legal framework for the CIAA to operate. Meanwhile, the 1999 Financial Procedures Act and the 1999 Financial Administration Regulations (FAR) contain detailed provisions for: budget preparation and approval; accounting and reporting on budget implementation; reporting, under Schedule 2 of the FAR, of both expenditures and results; procurement and internal control procedures and audits; and a consolidated financial statement for the government. Other accountability institutions include the ministry of finance, the public accounts committee, and the financial comptroller general office.
The public accounts committee and the office of the attorney general have earned praise from the World Bank for their scrutiny of public-sector financial management, identification of weaknesses, and advocacy of remedies. However, compliance by government officials with anticorruption regulations is generally so poor as to "make a mockery of an exemplary legal and regulatory framework," according to a 2002 World Bank report. Reports under FAR Schedule 2 are almost never monitored with an eye toward better financial management, and penalties authorized by the FAR for non-compliance with reporting or other requirements are almost never imposed. Moreover, state auditors generally lack sufficient expertise in project accounting and financial management, and internal auditing is "ineffective at all levels," the report added.
This culture of non-compliance is reinforced by a lack of prosecutions of high-profile officials for corruption. The press regularly reports on investigations, charges, and punishments of Nepalese suspected of corruption. But most of those ensnared in the anticorruption net appear to be either relatively low-level officials or other civil servants. Given the widespread view that corruption reaches into the highest ranks of government and politics, this focus on prosecuting ordinary Nepalese suggests that the Kathmandu elite has rigged the system to ensure itself virtual immunity.
The CIAA, Nepal's top anti-graft body, has been dogged both by criticism of its failure to prosecute top officials and by allegations that its one real initiative against senior officials was politically motivated. This initiative came in May 2003 when the CIAA summoned more than 40 people, reaching all the way up to former prime minister Girija Prasad Koirala, for questioning on suspicion of corruption. Critics alleged that the CIAA's investigation was a politically motivated attempt by the royal-appointed government to discredit mainstream politicians. In addition to a chorus of complaints from the parties themselves, the respected Kathmandu Post said that the "opaque nature" of the government and CIAA's use of the [Judicial Investigation and Probe Commission (JICP)] report had "generated more doubts" rather than increasing public confidence that authorities were serious about pursuing corruption investigations. "In the past, the [CIAA] has come under sharp criticism for its high-handed and seemingly vindictive approach towards many individuals and institutions," the Post wrote. "Its latest action only added credence to that apprehension."
The CIAA said that it acted in response to an investigation by the JICP - which was set up by the Deuba government in 2002 to probe official corruption - that reportedly found that the properties of some 2,000 Nepalese politicians and officials, out of 30,000 investigated, did not match their known income sources. The full JICP report has not been released. The work of the JICP, headed by Supreme Court Justice Bhairav Prasad Lamsal, was hampered by the fact that, by May 2003, more than 11,000 persons had not complied with requests to submit their asset information.
Besides the May inquiries, the CIAA also raided the houses of five senior police officials in Kathmandu in March 2003 on suspicion of corruption and raided the homes of, and filed charges against, some two dozen revenue officials in 2002.
These investigations have led to some prosecutions, although mainly of low-ranking officials, including civil servants, policemen, employees of companies, a teacher, and an employee of the National Investigation Department. As of July 2003, the CIAA was pursuing 130 cases in the courts, having already won or achieved partial success in 38 cases and lost 41.
The Kathmandu Post and other papers report frequently on official efforts to investigate and prosecute corruption. Meetings of the Public Accounts Committee, for example, receive widespread press coverage. Anecdotal evidence suggests that government bodies in Nepal act with relatively little transparency, however, which not only facilitates corruption but also stunts democracy by making it hard for watchdog groups and ordinary citizens to get basic government information. The World Bank's September 2002 assessment team found that key government documents such as the Red Book - the government's annual budget - or district spending plans are difficult to obtain.
The government places few restrictions on the administration and distribution of foreign aid. Overseas assistance makes up around 40 percent of the government's own budget and funds many development and social welfare programs run by nongovernmental groups.
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