In April 2017, Dipendra Jha (pictured above with lawyer, Courtenay Barklem), a Nepalese Human Rights lawyer visited the UK. We spoke to him about the human rights situation in Nepal. Dipendra Jha has been working as a human rights and constitutional lawyer since 2007 working on cases of human rights abuses in the Terai region including cases of torture, arbitrary arrests, and threats to human rights defenders. He leads the Terai Human Rights Defenders Alliance (THRDA) and the Terai Justice Centre (TJC).
In September 2015 Nepal approved its new Constitution using a fast-track system which left only three days for discussion on the subject and no time for public consultation. This new Constitution did not bring an end to the political stalemate and instability in Nepal. The adoption of the new constitution resulted in months of violent protests over the failure to address demands for greater inclusion by minority and marginalised groups such as the Madhesi, Dalits, and women.
The passing of this Constitution resulted in several protests across the Terai region, which in several cases were met with unnecessary and disproportionate force from police personnel. In 2015, approximately 45 people were killed after police opened fire on protests staged over Nepal’s new constitution. On the 6th of March 2017, seven Madhesi were killed when police again opened fire on a protest. The Terai Human Rights Defenders Alliance (THRDA) showed that not only have none of the police involved been brought to justice, but there are no open investigations into the killings. Following these findings, the report called for the government to investigate the killings. Although a commission has now been set up by the government, no cases have been investigated yet.
Torture is not a criminal offence in Nepal, but a civil offence, meaning those charged with committing torture are just required to pay compensation to victims. Despite having ratified the Convention Against Torture - which legally obliges states to pass domestic legislation criminalising torture – Nepal has shown no advancements on this front since the drafting of a torture bill in 2009. The use of torture in Nepal is widespread, with recent THRDA research showing that it occurs in 23.76% of arrests across the country.
The Terai district covers only 17 per cent of the country’s territory but holds fifty per cent of Nepal’s population. However, the new Constitution, considers geography and population equally as the basis for representation, stating that only 40% per cent of membership of both constituent assemblies are elected through proportional representation and 60% are elected according to the size of constituencies, regardless of their population. This method is a significant disadvantage for the Terai district. Furthermore, under the new constitution, all ethnic representation are equal in the Upper House, despite the existence of different population sizes.
Statelessness, marginalization and Gender issues
The prevalent citizenship law within the new constitution does not allow a woman to pass citizenship by descent to her child. Instead, citizenship must be gained through naturalisation. This is not the case for their Nepalese male counterparts who, when married to a foreigner, can pass citizenship by descent to their children. This law promotes social disparity particularly in neighbouring borders to India where matrimonial relations with neighbouring Indians is common place.
In addition, Article 289 of the Constitution states that naturalised citizens cannot hold key constitutional posts. In practice, this means that Nepalese citizens with fathers without the Nepalese nationality are excluded from politics. Furthermore, none of the communities other than the Khas Arya, a group that is overwhelmingly represented in all state structures, has been defined under the new constitution. The more marginalised communities remain undefined, and are lost in a long list of undefined categories.
Transitional justice in Nepal
A Truth and Reconciliation Commission was set up as part of the 2006 peace agreement. Despite having received nearly 60,000 complaints by August 2016, it has failed to provide justice for the victims of the civil war. Prosecutions in civilian courts have been stalled, and compensation has not been provided. Although the mandate of the commission has recently been extended by one year, Dipendra Jha has little hope that improvements will be made and affirms that the Government has a complete culture of impunity. He believes that the current political climate will only obstruct the transitional justice system.
Closing Space of Civil Society
There is a global trend on the closing space of civil society which also affects Nepal. Nepal is experiencing a growing nationalism which is strongly affecting marginalised communities and non-citizens. In addition, defamation and stigmatisation of HRDs is common in Nepal. According to Dipendra, anyone who seeks to make a change suffers and has to overcome the same pattern of intimidation.
Recommendations for the international community
Following the points Dipendra Jha made in relation to the new constitution and the current political situation in Nepal, he urges the international community to:
1. Recognise the problem of impunity in Nepal. There needs to be acceptance at an international level that there is a serious problem in Nepal.
2. Support human rights defenders. The international community needs to understand the credibility of HRDs at an earlier stage, so that when instances of defamation occur, they can take action.
3. Take an intersectional approach into the issues of discrimination. In Nepal, layers of discrimination exist. Dipendra Jha argues that issues of caste, gender, minority and religion need to be considered simultaneously when addressing identity. Taking an isolated approach to marginalisation does not work in this context.