'Amnesty cannot be granted

for torture, disappearances, extra-judicial killings'



Sandra Beidas, who has been working in the UN system in various countries for the last 13 years, is currently the Acting Representative of the UN High Commissioner for Human Rights for Nepal. Initially, she worked in Human Rights Mission in Haiti for eight years and joined the UN Peace Keeping Mission in Democratic Republic of Congo as a chief of Child Protection.

She joined the Office of the United Nations High Commissioner for Human Rights in
Nepal (OHCHR-Nepal) in January 2006 as a Head of Protection and Reporting Section. Before joining the UN, Beidas was working in Amnesty International Headquarters.


Beidas shared her views with Kamal Raj Sigdel of The Kathmandu Post on the government's efforts to establish a Truth and Reconciliation Commission (TRC), centering particularly on its recently unveiled draft TRC Bill. At a time when everyone has expressed disappointments over the TRC Bill, Beidas urges the government to act on the recommendations that OHCHR-Nepal and others have made.




Q: The government has recently unveiled its draft Bill on TRC. How OHCHR, as a UN agency with a mandate to play an advisory role to the interim government in setting up TRC, has observed it? Does this ensure that the government is committed to ending the culture of impunity?


Sandra Beidas: We very much welcome the government providing OHCHR-Nepal an opportunity to comment on the draft Truth and Reconciliation Commission Bill. The setting up of TRC was agreed by the parties as part of the Comprehensive Peace Agreement. The creation of TRC is a very important initiative that can assist a nation in building a culture of peace and reconciliation based on truth, justice and reparation. It should provide an opportunity for the people of Nepal to address the past so as to identify the root causes of the armed conflict, and also an opportunity for meaningful justice for the thousands of victims of the violence, and their families by bringing to account the perpetrators of serious human rights violations and violations of international humanitarian law.


The chronic failure to bring to account perpetrators of such violations will only undermine the chances for peace that is lasting. We do not believe that the Bill in its current form addresses these issues, and have conveyed our serious concerns about the Bill to the prime minister and to the minister of peace and reconstruction.


Q: How do you distinguish "human rights violations" from "violations of international humanitarian law"? Could you also explain the other types of violations that a typical TRC can deal with?


Beidas: In international law there are violations which fall under human rights law, for example those which fall under the International Covenant on Civil and Political Rights, the Convention against Torture and other treaties. Such violations can occur both during peace time and during conflict. And you have violations of international humanitarian law which are violations committed only during an armed conflict, whether it is of an international nature or of an internal nature. These fall under another body of law called the Geneva Convention which just relate to armed conflict. In Nepal, there was an internal armed conflict during which there were both violations of international human rights law and international humanitarian law. The violations and abuses included torture, disappearances, executions and other unlawful killings, sexual violence, recruitment and use of children in the armed-conflict.


A truth commission can also investigate other issues such as social, economic and cultural injustices, discrimination, internal displacement, destruction of property, for example the demolition of religious sites or schools. So, it involves addressing the most serious violations as well as looking into a broader array of injustices.


Q: OHCHR-Nepal has already expressed its disappointments over the TRC Bill through its August 4 press release. What are the main flaws in the Bill for which you are disappointed?


Beidas: The primary flaws of the Bill, which are also shared by civil society, are three-fold. First, contrary to international standards on the establishment of truth commission, the draft fails to ensure TRC is an independent, impartial and competent body, free of government interference. The draft provides for the government involvement in the selection of commissioners, the appointment of staff, funding of TRC, and the removal of commissioners.


Second, contrary to Nepal's international legal obligations, the Bill provides amnesty to perpetrators of gross violations of human rights and serious violations of international humanitarian law.


Third, rather than seeking truth, justice and reparations for victims, the Bill provides for TRC to be heavily involved in ensuring victims and perpetrators reconcile, but in a manner that is inconsistent with international standards for truth-seeking processes. Only victims who reconcile with perpetrators will be eligible for compensation. There are no other larger truth-seeking elements to the reconciliation process and little hope for justice since those perpetrators, who are reconciled with their victims or victims' families, will not be recommended for prosecution. This is the case even if perpetrators committed gross violations of human rights, including torture, extrajudicial killings and enforced disappearances.


Q: What should have been according to the international standard? I mean, what would have ensured that the TRC body is independent, impartial and competent, free of government interference?


Beidas: Truth commissions will garner the greatest public and international support if their members are selected through a consultative process. Such an
appointment process should include a representative selection panel,
appointed by a variety of sectors or societal groups (including civil
society), to vet the nominations, interview the candidates and then
recommend the final commissioners to the appointing authority. All efforts
should be made to ensure that Commissioners represent the diversity of
Nepali society, including based on ethnicity, gender, caste, geographic
region and religion.


Lessons learned from  looking at the experiences of other truth commissions which were set up in different countries around the world indicate that the selection process must first of all be transparent, involving a full array of actors, not only government but civil society, religious organizations, castes, ethnic groups, academics, lawyers, etc.


The intention is to have a body that can be considered credible. But if the body is too politicized, too close to the government or one of the groups involved in atrocities, this undermines its work and credibility.


Q: You said the Bill does not meet international obligations. What are Nepal's international obligations that particularly touch this TRC process?


Beidas: The obligations under the international law are the treaties that the country has signed and ratified. When a government ratifies an international treaty, the treaty supersedes anything the domestic law says; international law takes precedent over domestic law. So in the context of this country, the government has ratified most of the significant human rights treaties, including the International Covenant on Civil and Political Rights, as well as the Convention against Torture. These are among the legal obligations of the government of Nepal with regard to international law. Most important in terms of the current TRC Bill are provisions of international law and principles which relate to the fact that those responsible for serious human rights violations cannot be amnestied.


Q: You said there was little hope for justice since those perpetrators who are reconciled with their victims or victims' families, will not be recommended for prosecution. Does it mean that, according to the Bill, all the perpetrators—even if they have violated human rights, committed genocide, or any other form of serious crime—will be granted amnesty, if the victims are ready to reconcile with the perpetrators?


Beidas: Yes. The law says if the victims reconcile with the perpetrators then there is no prosecution even if s/he has committed rape and torture, and murder.


Q: Does reconciliation depend only on the victims' temperament or mood to reconcile with their torturers/enemies, or all the victims are counseled for adopting that process?


Beidas: This Bill has inbuilt coercive elements that unnecessarily put undue pressure on victims and their families to accept the apology. The victims have to accept the apology. The incentive, in a country which is poor, is significant. If you reconcile, you can compensate, if you don't you get nothing.


Q: Had the government consulted OHCHR-Nepal for technical inputs in preparing the draft TRC Bill?


Beidas: Yes, the government provided a copy of the Bill to OHCHR-Nepal and requested comments. Prior to receiving the Bill, OHCHR-Nepal representatives had a number of meetings with the Ministry to share international standards and best practices on the establishment of truth commissions.


Q: What sort of recommendations had you made to the government? 


Beidas: Our report to the government includes a long list of recommendations, particularly related to ensuring the independence of the commission and to removing provisions which grant amnesties for those who are involved in serious human rights violations. But most importantly we believe that before the TRC Bill is redrafted there should be very extensive, nationwide consultations with victims, civil society and other actors so that there is a broad consensus on what a TRC should look like for Nepal. Only then should a TRC Bill be drafted. As the High Commissioner for Human Rights indicated, the setting up of a TRC cannot be rushed—it is a unique opportunity to help a nation come to terms with its past and it needs to be done well.


Q: If OHCHR-Nepal thinks the government has not implemented its recommendations, does not it prove that the government has violated the agreement that it signed with OHCHR-Nepal? What would be your efforts in such a situation when you are not being cooperated by the government?


Beidas: The government has informed civil society organizations and OHCHR-Nepal that the Bill was a first draft and that there will be further revisions and meaningful and genuine consultations. OHCHR-Nepal is hopeful that the government will take into account the serious concerns expressed by civil society, by the European Union, by OHCHR-Nepal and others, the first step being to hold extensive consultations.


Q: Independent human rights observers have dubbed the Bill "Amnesty Bill" and warned that it would only promote the culture of impunity. Some have even said the government should start all over again to write a new draft bill. To what extent are these critics right?


Beidas: The Bill ensures continued impunity for gross violations of human rights and serious violations of international humanitarian law by providing for amnesty for such crimes. Such amnesties would place Nepal in violation of its treaty obligations and international human rights standards. Moreover, the Bill would deny victims their right to justice because many of the Bill's provisions prevent prosecutions.


Q: The draft seems to be much lenient towards the crimes meted out in course of fulfilling one's duty or under some political motives. What is OHCHR-Nepal's stand on Nepal's unique situation?


Beidas: OHCHR-Nepal is particularly concerned with provisions of the Bill that provide amnesty for serious violations of human rights and crimes against humanity if such crimes committed as part of 'one's duty or for political purposes.' This would seem to cover most of the serious crimes committed during the 10-year conflict. International law is quite clear that amnesties for such offences are not available. As the Nuremburg trials of Nazi officials made clear, political motivation or acting under orders are not defenses to such atrocities.


Q: If so, what sorts of crimes are amnestied as per the international standards?


Beidas: International law allows amnesty in certain circumstances. However, international law and UN principles state that amnesty cannot be granted for what are called gross violations of human rights: genocide, war crimes, crimes against humanity and other serious violations of human rights such as torture, disappearances, extra judicial killings.


Q: Have you worked for the preparation of TRC Bill of several other countries which went through conflict transformation?


Beidas: There is no one model for how a nation addresses mass crimes of the past, though there are best practices and principles that have been garnered from more than 30 truth commissions established since the 1980s. Any transitional justice process must be a national choice and not imposed from the outside, though it must not violate international standards and principles.


Secondly, the timing for a truth commission is key: the conflict must have ended. Addressing past crimes during conflict or in the early transition period after a conflict is not a conducive environment in which victims and their families can come forward and feel safe and secure to tell their stories and identify perpetrators.


Thirdly, there must be genuine political will from government to cooperate with an independent and impartial body like a truth commission.


Fourthly, such processes must be part of a multi-faceted and comprehensive transitional justice strategy in which truth commissions are complimentary to other transitional justice processes such as prosecutions, vetting and reparations.

Interview with Lena Sundh, Representative, UN OHCHR

Government fails to abide by its agreement

Lena Sundh is the representative of the UN High Commissioner for Human Rights in Nepal. Sundh, who replaced Ian Martin in November 2006, has been closely monitoring the human rights situation here as per the agreement signed between the government and the UN in 2004.

Sundh, in an exclusive interview with Ghanashyam Ojha and Kamal Raj Sigdel of The Kathmandu Post, said the Nepal government has neither sincerely followed the agreement nor has it cooperated with her office. She slams that the government hasn't provided a number of documents and reports on human rights to her office, which, she says, is a serious violation of the agreement.


Q: What is your assessment of the HR situation in Nepal, especially after the restoration of Parliament through the people's movement of April 2006? Are you satisfied with the current HR situation?

Lena Sundh: Well, first I must say that there have been significant improvements in the human rights situation, and this was not at least immediately after the establishment of the new government in 2006. I have a paper here because we have just made documents where we are summing up [the progress made so far]. For example, the political detainees were released; the right to freedom of association, expression and assembly was restored. And then, of course, also what we've been saying, when the armed conflict ended the conflict related violations also ended. So, that is, of course, very important. I think not least for the people in their daily lives that they have found the situation much more secure. Those who were held in preventive detention were resealed. So, there are lots of improvements.

Well, am I satisfied? I think no matter what country one lives in one should probably never be fully satisfied because, if you regard to human rights, it is always right. And here in Nepal there are many challenges. I think one should not forget that in a country that comes out of a very long armed conflict and also which comes out from a situation where there was the king's rule, which was not certainly a democratic rule, and a country which really does not have strong democratic tradition--even now when there is a government, they think, on the mandate of the people and it has all intentions to consolidate peace and democracy--the institutions are not democratic. And I think that this is very important.

It's not a matter really of being critical; it's just the fact. And I think that moving ahead this is what has to be addressed. And, for example, what we still note and we have just reports from last week--actually, all allegations of ill treatment and torture of detainees, for example. So, that is something like old habit diehard.

So, there are lots of things when it comes to law enforcement, access to justice and impunity, accountability and of course more deeper problems in the way of discrimination.

Q: How is OHCHR exercising its mandate to improve HR situation in Nepal?

Sundh: Our primary task, until the elections to the constituent assembly are held, is to monitor the human rights situation, to monitor the human rights provisions of the agreement. And we have interpreted our task, in that sense, in regard to the Comprehensive Peace Agreement that our monitoring will be there to access and also to monitor whether there is an environment conducive to fair and free elections. So, the human rights monitoring that we are doing has also an objective.
But in addition to the monitoring we have also said that law enforcement or access to justice is one priority. Impunity and accountability, obviously, is next priority and then the third one is ending discrimination. Obviously, what can we do? I mean, we are not the ones to solve it. But our ambition is at least to contribute to improvements in these areas.

Q: The government, as per the agreement, has committed to implement the recommendations of OHCHR. Is the government implementing the recommendations you have made so far?

Sundh: Well, you know every government is sovereign, and they answer to their own citizens, of course. So, we are trying also to make our recommendations from the point of view of what a government has declared itself really about democracy and respect for human rights putting human rights in the forefront. But when one looks at these recommendations that we are making, one should not forget that we are not only giving recommendations or talking or giving suggestions at the national level, we are also very actively engaged in discussions with police, with CDOs, and with other important stakeholders at VDC and district level. And I believe that in those discussions we do actually see quite a lot of researches. Not obviously all the time, but there is an ongoing dialogue and we feel that we can be helpful.
When it comes to the national level, well, yes, sometimes we are disappointed and frustrated. But we will just have to continue and there also, I think, it's very important that the Nepali civil society became very active on these issues. I think some issues I recognize are very difficult. Impunity, accountability etc, they are not the questions, particularly after the conflict. But as we say, you know, still if one doesn't deal with them, they will come back and haunt you later. I think we are coming to that perspective.
Q: As per the agreement with OHCHR, the government has agreed to give OHCHR full access to its documents except a few secret ones. Is OHCHR enjoying that access to documents? How much the government is cooperating with you in this regard?
Sundh: No we don't. Actually, that is one of the questions that we are raising. There has been a long list of documents that we have not been receiving. And I think, maybe in a certain way, the government does not want to give us informal or non public documents maybe because they feel that it is stepping on or infringing on sovereignty or so. But it is not of course because in the agreement we have with the government it has agreed that we should have access [to documents]. So it's something that the government has chosen to agree to. It's nothing that we have forced. But in spite of these agreements we don't get documents we are still hoping that the government will sincerely listen to our requests and make available all those documents.

Q: Could you be more specific?

Sundh: It's the reports of the commissions. We still have not got any copy of the [report of] Ramayaji Commission, for example, we just would like to take a look at them and see if there is something we can do and so on.

Q: What have you been doing to have access to those documents?
Sundh: We normally try to talk to the authority concerned but we have also written to the foreign minister because since she is the minister that sector like our minister in a way for overall issues so that is hopefully what we have been doing. But we have been calling on this on many occasions and talking to different ministers and civil servants.
I am not saying that we are not getting anything. We are not getting all those important documents.

Q: What will you do to get those documents?
Sundh: I think we'll do that when we are making the report. I think that might me mentioned, if it is not solved, but [we're] still hoping that we can get access.
And sometimes we do get documents but very late or after a lot of efforts. So, it is a pity I think. I think we can be helpful. Sometimes it is not bad to have a neutral eye looking at things little bit from the outside. So, we are continuing but we are disappointed.

Q: Do you relate this act of government with 49 alleged Maoists who were allegedly killed or made to disappear in Bhairabnath Barrack?
Sundh: No. It's much broader than that. It's general. There are lots of documents that we have not been given when we have asked. So, it's a broader issue than that.

Q: How do you evaluate the role of the government and the Maoists in the promotion of HR situation in Nepal?

Sundh: Well, I think that again what we do see in the country is actually quite difficult for a country in a post-conflict situation. So, there are basically two parties to the peace agreement. It is the Maoists and the SPA government. So, I find it a little bit difficult to evaluate them as such. I think that a lot of what is happening seems to me to be are unresolved political issues, which obviously need to be solved for the process to move foreword.

Q: Do you think the government is making initiatives to ensure transitional justice to its people? To your knowledge, what is the progress towards setting up a Truth and Reconciliation Commission, as agreed in the Comprehensive Peace Agreement?

Sundh: Yes, transitional justice is a concept that has been created because many countries have gone through this kind of transition, either from an authoritarian system to democracy or from, say, an armed conflict to peace. And obviously, a very important element in that is truth and reconciliation commission. I think it is very very important before launching a truth and reconciliation commission that [we] conducted, very extensively, consultations with all stakeholders, with civil society, for example, and with the victims. Because the idea of truth and reconciliation commission has many things that it should address, it actually should provide the history, an agreed upon history of the conflict. So, if this is going to be something the people really accept and buy into, they have to be consulted. I think this is very important point.
Another important point is the political will. Truth and reconciliation commission is a lengthy process and it is also fairly costly one. So, there has to be financial resources and facilities. And that takes political will to do it. Also the government must be open to providing all the information--you cannot say this is a secret document or so on; everything will have to be put on the table. So, this is why in a way TRC in comparison with other issues in a transition is not really the most urgent. Because what is also necessary is that the conflict must really have ended and the post conflict situation, like you are in now, you see still, is not totally settled. So, it would be important to start consultations and proceed with caution. But it is, I think, very very important for reconciliation, healing and note for victims to have their grievances recognized.

Q: The minister for peace and reconstruction has revealed that he is working on TRC. Has the ministry consulted with OHCHR regarding TRC?

Sundh: Well, they have asked for some inputs from us. There are different ways of doing it but I think what we are stressing is not to rush and to make sure that there are proper consultations first. So that has been our one major recommendation, but we have given broad recommendations also.

Q: Though there is a people's government in place, and the Maoists are in the interim government, instances of human rights violations are on the rise. For instance, terai is still tense. How do you assess these developments in terai?

Sundh: As you probably have noticed we look primarily at how law enforcement is being done and I think that sometimes the police probably think that we are little bit offensive but that is the wrong of human rights organizations to a very high extent because there is an obligation for the state to secure security for its citizens. That is why we have been looking at police, whether it is acting when it should but also when it acts that it does so in compliance with the international standards etc.
Then yes, the broader issue of the violence in terai. I mean if you go back to December in Nepalgunj, when we saw the first time eruption of serious violence, it became clear that the peace agreement and particularly the decision to hold constituent assembly elections and to write a new constitution was like lifting a lid of a pot that is boiling and so it all comes up.
We always stress that there is a right to demonstrations and manifestations but they have to be peaceful. And of course, this has very often not been the case. That is why we are really appealing also to allow recognized freedom of assembly but also from those who are protesting, asking that they fulfill their obligations, which is peaceful protest. And I think in the terai you have also a group which I think is of very great concern and where the government has offered dialogue and I hope that would work out. It is very unfortunate, of course, what is happening now in terai and it puts also a lot of stress on the peace process.

Q: The High Commissioner, during her visit in January, had highlighted the need to end the culture of impunity. What progress have you noticed on this front?
Sundh: Well not that much actually. I think there has been some but not that much progress. I would say in the Maina Sunuwar case, the exhumation, the fact that we have been given more information etc. So, there we have seen some progress but obviously the case is not finished. It is not closed.
From the side of the government, well, I think in a way what is happening in the Supreme Court on the disappearances is also at least promising that there have been some cases. So certain things are happening but we believe that there is still far to go. Think also now that the bill to amend the civil court to include enforced disappearances and to criminalize them. This, of course, is also important. There we will be presenting some proposals but we welcome the fact that this is criminalized. So that is also a step in the right direction.

Right to information is vital for common citizens: Arvind Kejriwal

Right to information is vital for common citizens: Arvind Kejriwal

Arvind Kejriwal, 39, launched the movement for the right to information in India. Recipient of prestigious Ramon Magsaysay Award for Emergent Leadership and the Ashoka Fellowship for his contribution to India's right-to-information movement and empowering poor citizens to fight corruption, Kejriwal also founded Parivartan, an organization which works for democracy, transparency and accountability in India. A strong advocate for the right to information, he says right to information is important for common citizens to make the government bodies more accountable and transparent. He also strongly holds the view that Nepal has huge potentiality in driving the movement for the right to information. He was also surprised to find that majority people in Nepal think the right to information is for journalists.

During his brief visit to Nepal last week, the former Indian civil servant, now a social activist, Kejriwal shared his experiences with Ghanashaym Ojha and Kamal Raj Sigdel of The Kathmandu Post.


TKP: You received the prestigious Magsaysay Award for your right-to-information movement in India. Please share with us, how you started the movement.

Kejriwal: Constitutional basis of the right to information (RTI) goes back to 1976 when for the first time the Supreme Court of India said in a case that RTI is a part of our fundamental rights. Now unlike Nepal, where RTI is specifically mentioned as a fundamental right, it is just a part of the rights in India. In India, we've freedom of speech and expression and the Supreme Court said that a person cannot speak or express himself unless he knows. Therefore, the right to know or RTI is a part of our fundamental rights. But just having RTI in constitution is not sufficient. RTI was declared as a part of fundamental rights but people could not exercise that right because there was no legal machinery available, which they could use to exercise the right. So, there was a need for a law, a law which could say that this would be the office of concern; you go to the office; this will be the form' you fill it up; and in 30 days information has to be given. All this process or the machinery had to be provided by the law for the exercise of the RTI.

The movement for enactment of this law started in the state of Rajasthan by Mrs Aruna Roy's Majdur Krishak Shakti Sangathan (MKSS). It was started by the poorest people there--farmers, laborers--where they started demanding minimum wages. They'd not been paid minimum wages. They were paid Rs 11 a day whereas the minimum wage at that time used to be Rs 22. And they said that if you are paying us Rs 11 you show us the pay roll, how much you have entered in the roll. Similarly, they started demanding information from Panchayat -- how much money is coming on their name and how much money is actually being spent in Panchayat records. So, this movement actually was started by MKSS in 1990 which slowly snowballed into a full RTI movement across the country. Many people joined in. And finally there was an RTI Act which was passed by the Parliament in 2005.

TKP: How did you involve yourself in the movement? Was it you who initiated the movement?

Kejriwal: The movement was simultaneously initiated by many people in many parts of the country. For example, Anna Hajare in Maharashtra started the move and it got State RTI Act in 2002 because of the movement. Similarly, in many other states, citizens stood and started demanding. It became a citizen's movement. So, it is really owned by the citizens of India.

Indian movement is unique in the sense that it was started by the poorest people in the country. In that sense, they've demonstrated that the RTI is equal to 'rights to live' and that without it no government program functions well. RTI makes government transparent. It improves the efficacy of the government programs and, therefore, it is much interlinked to the lives of the ordinary people. And secondly, it has also proved that RTI is most critical for existence of democracy […] also critical for participatory democracy. Because I don't think democracy really means that you go once in five years and vote. Democracy really means that I, as a citizen should have the right to participate in governance in a day-to-day basis. And how do I participate if I don't know how much money is coming in my name, in my area? So unless I have information, I will not be able to participate in democracy.

TKP: You received the Magsaysay Award and the Ashoka Fellowship for your contribution on RTI. How did you contribute to that movement?

Kejriwal: Our role in RTI has been twofold. We got involved in RTI when Delhi RTI Act was passed in the year 2001. Since then, it is the implementation of RTI Act where we've been playing a major role in Delhi. Three, four things came out in huge shape.

One is that; earlier when people used to go to the government departments to get their day-to-day work done, they were forced to pay bribes. But now, when they use RTI Act, you find that the government officials do your work easily. Second thing that came out was that the ordinary people started demanding the government documents and keeping a check on the government works. So, they started demanding contracts and it had a great impact on the quality of works done by the government.

Then, we learnt how to do social audit. There is a concept of social audit that the society does the audit of the government works …. For instance, the first urban social audit was done by us in Delhi in which we obtained copies of 182 government contracts which were carried out by the Municipal Corporation of Delhi. We verified these contracts, we went to the sites, and we found out that more than 50 percent of the money had been siphoned off. So, when people started doing social audit, the government officials came to know that the people have become aware and now they cannot take things for granted.

Two more interesting things happened [when RTI Act started getting implemented]. The public distribution system, through which the government provides subsidized food to the poorest of the poor in India, was in complete shamble. In most of the places in Delhi, the people had been given to understand that there is no PDA and that the government stopped sending supplies for the poor people and the shops hadn't opened for several years. What was actually happening was the supply was coming and it was being skimmed off to the black market. When records were obtained by us under the RTI Act and made public, the people, for the first time, came to know that actually the food was coming. And just because of that many stalls and shops started opening up.

So, it is this one area, the uses of the RTI the way we used it, shaped awareness of the people. And we ran a national campaign called "drive against bribes." The campaign made a call to the entire nation that now if you have a legitimate pending work in any government departments, you don't need to pay bribes in India. Use RTI, it works more effectively than bribery. This campaign was done in 55 cities in association with almost 700 organizations, and all eight mainstream media houses participated in this campaign wherein help centers were set up in 55 cities. So, this awareness was one.

TKP: How many countries in the world have such RTI Act?

Kejriwal: There are 68 countries which have RTI Act. Indian law is said to be the best and the most effective one.

TKP: In what sense could you say so?

Kejriwal: First, it was drafted by the people and given to the government. Definition of RTI is quite vast in Indian Act. Normally, in many other countries you will find three provisions: you can ask for information, you can ask for inspection of documents and you can ask for photocopies of documents. Indian Act has two more components: you can ask for inspection of the government works and you can ask for sample of the materials used in any government works.

Second, India has a very strong panel clause -- which is not there in many countries -- that if an official doesn't give information in 30 days' time, the salary of the concerned officer shall be deducted at the rate of Rs 250 per day for the delay up to a maximum of Rs 25,000 or if he provides you incomplete, misleading and incorrect information, his salary can be deducted up to a maximum of Rs 25,000. This is unique to India. Thirdly, the list of exclusions is very small, and therefore, the scope of information is very vast in India.

TKP: How do you think this idea can be implemented in Nepal?

Kejriwal: You see, you are very fortunate in that; your constitution already has 'right to information' as a fundamental right. So, the foundation is very strong but to implement that, you need a strong law to be in place. I'm told there is a law which is pending in the Parliament. I've taken a look at the law but, I think, that needs to be strengthened further. There are best practices available across the world; especially in India we have a strong RTI Act.

I should say that for any good RTI Act there should be strong law. First, there should be a strong penalty clause. Second, there should be an independent appellate body which listens to the appeals of the people who don't get satisfactory information. The body should comprise of retired judges, advocates, journalists, and eminent citizens. Third, the list of exclusions should be as small as possible.

When I've been speaking to people here in Nepal, I've been given to understand that in some government circles, RTI is treated as some kind of a press freedom, which is wrong information. In this particular sense, RTI is not linked to the citizens' rights. Of course, it benefits press freedom but more than that it is intricately related to the existence of democracy, and to the empowerment of the poorest people in the country.

TKP: What should be the measures you suggest Nepal should take to replicate the Indian best practices?

Kejriwal: First, this bill should be strengthened in the light of best practices across the world, and Nepal should have a good RTI law, which should be made by the government in consultation with the people, the civil societies. Once there is law, then there is the need for strong awareness to be spread across the country so that a large number of people start using RTI.

Many people feel that RTI is about witch-hunting, about finding faults with the government and, therefore, many governments become skeptical about it. That is wrong information. It is about citizens holding their government accountable not only through parliamentary basis but on a day-to-day basis through the use of RTI Act.

TKP: As Nepal has a huge number of illiterate people, how do you think RTI can be exercised here?

Kejriwal: Two things are there. In India RTI is being used by a large number of people in rural areas. Citizens' groups and NGOs have played an important role here. NGOs have reached far and wide and they have taught how to use RTI to the people. So, first is its fellow citizens who are helping each other.

Second, Bihar has recently done a very interesting experiment. This issue [illiteracy] came up. Is this RTI going to remain outside the reach of so many people? Bihar has given a telephone number. So, you don't need to draft your RTI application. You can ask for information by phone which is recorded on the other side. And after 30 days, the same call center, who is taking that call, can provide that information to that person on phone. So, through phone also you can use RTI. Government can accept application and it can provide information on phone for which the applicant will receive Rs 10 on his/her telephone bill as the application fee.

TKP: What do you think can be the role of NGOs when most of them in Nepal are donor-funded and not transparent?

Kejriwal: First, RTI is not just about seeking information from the government. It has to be seen in the context of ethical governance. We are demanding that the truth should be in the public domain, but this cannot be a one-way process. It has to be a two-way process -- when we are asking for information from the government, we ourselves, whether it is an individual, an NGO or any entity, should be willing to be transparent and truthful to the rest of the society. It is a process of introspection.

Especially in India, NGOs who receive funds from the government are also covered in the RTI Act. They also have to appoint an officer within their NGO to provide information. So, NGOs are also, to a great extent, in the RTI Act in India.

So, first, NGOs need to do homework and prepare themselves. Second, NGOs also have to play an important role in engaging with the government and they should try to get a good law. Third, when the law is there, they have a major role to play in creating awareness, in doing experiments with RTI, and in trying to find out how RTI can be linked to a life of a common man.

TKP: What obstacles did you come across while bringing this whole movement to this point?

Kejriwal: The biggest obstacle is to overcome the cynicism of the society. Society in India has become very cynical. When you say to the people, "look RTI has come; use it", many people would say "oh, it is just another law; it does not work." So it is very difficult to overcome this cynicism.

The second is to overcome the bureaucratic obstacles. Many bureaucrats are not willing to give information not because they want to hide something but because of a cultural problem that they are not used to answering questions to the public. This is a kind of feudal mindset within bureaucracy that the public or juniors cannot question the seniors.

The third obstacle is there from vested interest groups, vested interests both within the bureaucracy and outside it. RTI exposes wrongdoings within the government and when that is exposed, the people who were benefited start reacting. When they react, at times, they can be violent also. So, that is the third challenge.

And the fourth challenge that we are facing today, which Nepal can take care of while enacting the RTI is, that many information commissions in the appellate body under RTI Act are not the right kind of people. Many people with doubtful integrity have also been put up in the body and are adjudicating appeals on RTI. So, here Nepal can draw lessons.

Politics of Look and Gaze

Look and Gaze

[Reserach on Look and Gaze by Kamal Raj Sigdel]
[This research was awarded Martin Chauthary Media Fellowship in 2006 and a full text of the report was published in the journal, Media Studies Vol. 1 (Nepali version). A copy of the journal can be found at Martin Chautary Library, Thapathali, Kathmandu. If you have any questions regarding the research, don't hesitate to contact the researcher (blogger) at kamal.sigdel [at] ] [Copyright: Kamal Raj Sigdel]

This is an article I just cut pest

Politics of snow leopard by Abhi Subedi (Published in The Kathmandu Post)

Six mountaineers announced that they would hoist eight-party flags on top of Mt Everest in their historical Loktantra II expedition in April 2007. 'Snow leopard', the 60-year old Ang Rita Sherpa will be a member of the team. They will call this venture "Democratic Everest Expedition". I would like to call them 'snowmen' with respect and love.

Besides the eight-party flags, the snowmen will also hoist flags and probably put mementos there of the Amnesty International, different human rights organisations, Janaandolan II martyrs, the UN and other peace societies. That means the Madheshi Sadbhavana party's flag will be hoisted on Mt Everest by the Sherpas for the first time.

Symbolically, this will be a very important reversal of the Pahadi dominated perception of Nepali nationalism and deconstruction of Nepali state's mountain geographic logocentrism. The metaphor "horizontal comradeship" that Benedict Anderson uses for nationalism will be reflected in the vertical movement of the snowmen, mostly the great Sherpa explorers who are the most accommodative people in the world. Instead of putting forth slogans like the Everest region for the Sherpas only, the Sherpas have invited the flags and signifiers of diverse groups and nationalities to put on the Everest summit.

This news has drawn some flak. Apologists of the 'leave Mt Everest alone' say this is a politicisation of Mt Everest. But interestingly, this statement is 'always already deconstructed' because the name Everest itself has political genesis. Anyone little familiar with colonial history of this region must know that this highest peak of the world was named by Colonel Andrew Waugh after Colonel George Everest ignoring the happy note of discovery by an obscure chief Bengali computing officer Radhanath Sickdhar who wrote to him, "Sir, I have discovered the highest mountain in the world". A certain 'Brian Hodgson', who was a political officer of the Raj in India at that time objected to the naming. He advocated for the continuity of the native names that were used then.

Everest was considered the third pole. Since north and south poles were conquered by Robert Peary in 1909 and 1911 respectively, Everest remained to be conquered. And the British undertook the mission. Death of George Mallory and Andrew Irvine on June 8th, 1924, was the anticlimax of imperial 'noble desire'. Mallory's letter written to Rupert Thompson on 12 July 1921 speaks of the irony. He wrote, "I sometimes think of this expedition as a fraud from beginning to end, invented by the wild enthusiasm of one man, Young husband; … and imposed upon the youthful ardour of your humble servant....The prospect of ascent in any direction is almost nil, and our present job is to rub our noses against the impossible in such a way as to persuade mankind that some noble heroism has failed once again." Mallory later saw the absurdity of the political imaginary of the empire.

This dream culminated in the conquest of Everest by Edmund Hillary and Tenzing Norgay on 29 May 1953. The victory was dedicated to Queen Elizabeth on her coronation four days after on 2nd June. Tenzing Norgay making a grand victory tour was photographed in London folding hands in namaste wearing watches on both wrists. Clash of Mallory's personal aspirations with those of the British Raj was the climax of the imperial dream. Since then climbing Everest never saw the irony resulting out of a clash between personal aspirations and statism. But one thing is certain. Climbing Everest has always represented covert political desires.

Scaling mountains, covering miles on the ground and crossing seas and rivers are the familiar tropes of the politics of colonialism. The Himalayas, especially Mt Everest, has drawn the attention of the British, Chinese, Nepalis, Indians and others. But it was the British who held on to the history of the peak metaphor and associated it with imperial nostalgia. Others shared their nostalgia with fun and textual indifference. In the imperial and nationalistic imaginary Everest became the signifier of an invincible and inaccessible altitude that should be explored, touched and walked upon. The three nation Japanese led crowded and visual media savvy expedition in 1988 turned it into a postmodernist mountain exercise.

The snowmen's humble expedition, though it appears like a postmodernist game of littering the highest mountain with festoons, is at heart a symbolic journey of a 'New' democratic Nepal. The snowmen's excitement is a very meaningful historical phenomenon. To rush up to the summit with flags by these snowmen is to deconstruct the grand Everest narration, the grande récit used by both the British Empire and the Nepali feudal history. This "Democratic Everest Expedition" will give a new meaning to the history.

The snowmen's projection of Everest metaphor at a time when all the other metaphors of Nepali "horizontal comradeship" are sustaining cut injuries like the broken finger of Prithwinarayan Shah's statue is a very important reminder of the Hamletian dilemma of to be or not to be or to keep or not to keep Nepal as an independent nation. I personally consider the snowmen's decision to take eight-party and other flags to the Everest summit now as a powerful call for a democratic restructuring of the "horizontal comradeship" of New Nepali state. (TKP, March 21, 2007)

INTERVIEW WITH OM GURUNG: 'We must keep our integrity intact'

Dr Om Gurung, who heads the Napal Federation of Indigenous Nationalities (NFIN), is an assistant professor of Central Department of Anthropology, Tribhuwan University. Dr Gurung holds PhD degree from Cornell University and loves to call himself a social activist, rather than assistant professor of TU. NFIN has begun to stage a peaceful protest since Saturday to exert pressure on the government for granting autonomy on the bases of language, ethnicity and geography. He says that this protest should not affect the holding of constituent assembly polls. Dr Gurung spoke with Puran P Bista of The Kathmandu Post, shedding light on how the state should be restructured and ethnic groups and subgroups be empowered in this country.


Q: Why has your organization been fighting for ethnic rights when the interim parliament?

Dr Om Gurung: In the current political process, we have given priority to ethnic rights. The rationale is that in the last 238-year long history, the rights of the ethnic groups have been denied by the state. The state never tried to address the problems of the ethnic groups. For example, tribes such as Tharu, Magar, Gurung, Rai, etc are the indigenous people but their stakes in state administration, judiciary and armed forces, as per the population, have been minimum. They have been suppressed, oppressed and marginalized. The state has limited their growth because of the denial of the socio-economic and political rights. The state continues to exclude them from all kinds of state welfare schemes. The state benefits directly go into the pockets of those who are in power. And I think you know who are benefiting from such state-run programs.

The ethnic groups became poorer. Their languages have been pushed toward extinction. The indigenous groups have endured the state suppression for long. We can no longer tolerate such practices. We want our rights to be guaranteed in the constitution to be drafted after the constituent assembly polls. The first thing is, the state must acknowledge this fact and restructure it to ensure the rights of indigenous communities. To do so, we must have stakes in all the decision-making bodies. In other words, our representation must be granted on the basis of population.

And we have adopted a peaceful means to exert pressure on the government.

Q: Could you be more specific on your demands?

Dr Gurung: The reality is that the state has failed to accommodate us and recognize our languages, culture and tradition. This is very clear. So long as the current policy of exclusion or discrimination lasts, the indigenous communities will continue to suffer. We think that the three aspects should be taken into account before we restructure the state: Language, communities and geography. Distinct communities settled in particular geographical areas have distinct languages. The state should be restructured on these bases. The theoretical objective is to have provisions of self-determination. We have been claiming "along with the provision of self-determination", which means that an ethnic community does not enjoy the right to determine the fate of the area it dominates. There are differences between the "along with self-determination and the provision of self-determination".

Q: What are the differences between "the along with self-determination and self-determination".

Dr Durung: If we say the provision of self-determination, it can go to the extent of having a separate state. "Along with self-determination" means the autonomy granted to a unit that does not enjoy the right to be a separate state.

Q: Does your version of self-determination mean that any ethnic group enjoys no right to hold plebiscite on whether or not a unit can be part of Nepal?

Dr Gurung: "Along with self-determination" cannot be equated with the demand made by the Sri Lankan Tamils who have been fighting for a separate Tamil state. "Along with self-determination" means a separate geographical unit within the country. We have to take into account the country's integrity and social structure before restructuring it. We have stayed together for so long. Now, we cannot demand for a separate state. Secondly, if we look at the geo-political situation, it is very fragile. Our country has been wedged between two Asian giant countries—China and India. We have to learn from them and live together. If we demand separate states, there are chances of swallowing these states by either of these two Asian giants. So, we have to be careful and should not let the separatist groups have upper hands in deciding the fate of this country. We do need self-determination but not to the extent of granting the ethnic groups to opt for a separate state. It is impossible to think so both in theory and practice.

Q: But one of the demands made by Madhesi People's Rights Forum and Terai Janatrantric Mukti Morka is of provision for self-determination. Don't you think so?

Dr Gurung: We, too, have demanded self-determination. But it is absolutely different from that of MPRF or TJMM. We differ on this count with MPRF. MPRF wants a separate terai state stretching from Jhapa to Kanchanpur, where over a dozen ethnic communities are living. They speak different languages, practice different cultures and traditions. We never let terai be in the hands of a few feudal lords who want to rule the weak and poor.

A few groups want self-determination for a separate state. We have to grant autonomy on the basis of language, community and geography. It empowers every community and provides an opportunity to develop this country.

Q: That means the country does not need to be federalized. There are other political mechanisms as well, to empower the indigenous communities.

Dr Gurung: No, we are very much for federalism. The structure of the country should be federal.

Q: What kind of federalism you think will be suitable to this country? Do you see India as the best example?

Dr Gurung: Again, we define it on the basis of how we draw provisions for self-determination. We are not looking for a union sort of federalism as the Soviet Union had, nor a confederation. Grant autonomy to the unit and empower the local people. We need a loose and indivisible federal structure, where our sovereignty is kept intact.

Q: Don't you think that we got to look into the economic aspect as well, while federalizing this country? Is it possible to grant your kind of self- determination to 90 ethnic communities?

Dr Gurung: It should be based on ethnicity. The separate regions are dominated by separate ethnic communities. For example, Solukhumbu is dominated by Sherpas. If you visit Manang, you find Manages. In terai, Maithelis, Bhojpuris, Awadis, Tharus etc speak different languages. So, if it is possible to grant autonomy on the basis of language, then let us do so. But take for granted that it is not applicable to all parts of the country. Terai cannot be made a single unit citing Hindi as a binding language. We can grant autonomy to western and far-western regions on the basis of geography. Whether you call it Karnali Pradesh or Western Pradesh, we have to make it a separate unit on the basis of region rather than language. The rest can be split into different units on the basis of ethnicity. For example, Gandagi Pradesh is dominated by Gurungs, it should be made a separate unit. Similarly, let us have Magarat Pradesh for Magars.

Q: Economically, the curving of such Pradesh may not be possible as some of them, you just mentioned, lack adequate resource for sustaining themselves as separate units of this country.

Dr Gurung: Yes, we have to see into economic aspect as well. But how are you going to protect language, preserve culture and practice tradition? Many units could sustain and revenues generated by some of the units should be allocated to the weaker units.

Q: You have discussed on three aspects—language, ethnicity and geography. Granting autonomy or self-determination on these aspects may lead to ethnic cleansing as there would be several minorities living within each unit, and they may face the same sort of exclusion.

Dr Gurung: All forms of exploitation should not be based on ethnicity. Let us say that there are several subgroups within the group. The majority represents the unit but the minorities should also find space in decision-making bodies.

Q: How is it possible?

Dr Gurung: We have to make special arrangements for the subgroups to ensure that they find voice in all decision-making bodies.

Q: You mean introducing a reservation system as India has done so?

Dr Gurung: Yes, we can go for that. And let us not take only the backward and poor communities. Within the unit, there could be other communities as well, provided they fall in the category of minority groups. So, there is no question of ethnic cleansing. We must accommodate all the communities into the unit to address common problems. We cannot deny the basic rights and displace them simply because they happen to be subgroups living in a particular region.

Q: Such ethnic cleansing may not take place in Limbuwan, Khumbuwan or Gandak region. Can you rule out such possibility in other parts of the country?

Dr Gurung: I have a special reservation. I call it an ethnic violence. We have to dissociate from such ethnic division and those who promote violence. What is happening in terai is dangerous. It is gradually taking a shape of ethnic violence whatsoever the leaders of terai claim it.

Q: Why do you support MPRF then?

Dr Gurung: We have supported on certain issues only. The state exploited the Madhesi community. It suppressed the rights of the Madhesis for long. We support the organization that is genuinely fighting for the political rights. We have been unable to reach an understanding with MPRF because of this reason. First, MPRF talks of federal structure but on the basis of geography only. They want to have three federal units—terai, hills and mountains. How can the entire terai be a single unit only? At the most, they can compromise on a vertical division of the country into 14 zones and 54 districts only. We do not agree with such political agenda. Don't take that only Madhesis are in terai. Second, our interpretation of Madhes is different from that of Madhesis. We want to know where Madhes is. We indigenous communities think that Madhesis are there in this country but there is no land called Madhes in Nepal. These Madhesis have come from Madhyadesh. It is a place between India's Bihar and Uttar Pradesh. So, we call them Madhesis. The rulers of this country brought them into Nepal. Now they are demanding a separate Madhes.

The third thing is that the Madhesis want the entire terai to be a separate state. There are several ethnic communities living in terai. MPRF must acknowledge this fact and seek our cooperation. Otherwise, we are not going to back the movement, no matter what they claim and demand.

MPRF talks of proportional representation of total terai. We have told them that proportional representation should be based on the population of ethnic communities. The intention of MPRF is to deny the rights of Tharus, Rajbansi, Shanthal and other minority groups living in terai. It will be dominated by Yadavs, Jhas, Shahs, Mishras, etc who have been wielding power. (TKP, March 19, 2007)

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