Raju Prasad Chapagai is a constitutional & human rights lawyer based in Kathmandu, Nepal. Mr. Chapagai previously served Amnesty International as its South Asia Researcher and advised the United Nation’s Human Rights Office in Nepal (OHCHR-Nepal) He co-founded and chaired Justice and Rights Institute (JuRI-Nepal) and Constitutional Lawyers’ Forum (CLaF). In an interview with South Asia Perspectives’ (SAP) associate editor Sultan Mohammed Zakaria, Mr. Chapagai talks about the democracy and human rights situation in Nepal.
SAP: Give us an overview of the current state of democracy in Nepal, and how it has evolved in recent years?
Chapagai: Emerging from a decade-long armed conflict (1996-2006), Nepal is still going through a post-conflict democratization process. We wrote a new constitution in 2015 through a rigorous constituent assembly process as agreed in the Comprehensive Peace Agreement (CPA) 2006 and as prescribed by the Interim Constitution, 2007. Constitutionally speaking, Nepal is currently a ‘federal democratic republican state’, meaning that we abolished the monarchy and converted the unitary governance system into a federal one. The federal system was chosen ambitiously as a solution to long-standing social, economic, and political problems that had fueled the Maoists conflict and other political, social, and regional movements in Nepal. Federalism was meant for bringing people closer to the governance system and thereby better facilitate the process of creating conducive environment for greater equality and fairness in society.
Let me reiterate that the sovereign Nepali people have chosen democracy not only as a political system but an ideal that aims at preserving and promoting human dignity for all, upholding fundamental rights, achieving social justice, equitable prosperity, and sustainable peace. However, there is a long way to go to turn the ideal into a reality.
SAP: Tell us about some of the key human rights issues facing Nepal today, and how they are impacting Nepali society and politics.
Chapagai: Regarding the overall human rights situation, I think a culture of entrenched impunity for conflict-era violations remains the key. The transitional justice continues to remain unfulfilled commitment. Those responsible for serious violations committed during the conflict are still enjoying immunities through continued impunity. The fate of most of those who were forcibly disappeared during the armed conflict remained unknown.
However, the culture of impunity is not confined to past atrocities. The lack of accountability persists human rights violations, for example, extra-judicial killings, gender-based violence, and caste discrimination. Similarly, the dynamics of inequalities on the basis of gender, caste ethnicity, disability and sexual orientation remain enduring human rights issues.
Mindful of this fact that extreme poverty resulting in denial of core elements (access to basic necessities) of economic, social and cultural rights (ESCR) was root cause of the decade-long armed conflict, the Constitution recognizes most of the elements of ESCR as fundamental rights.
Unfortunately, none of the governments (federal, provincial, and local) are genuinely working for their implementation. Even progress has been reversed in some respects. The repeated cases of forced evictions of landless settlers and removal of street venders without offering appropriate alternatives are illustrative of the gap between ‘rights in book’ and ‘rights in action’. The persistent failure to formulate a regulation necessary to operationalize food and housing rights related laws adopted in 2018 is also a profound example in this regard.
The worrying scenario is the marginalized and excluded groups who had enormous expectations from frequent political changes are extremely frustrated at the lack of substantive progress, meaning that future conflicts are becoming imminent.
SAP: Nepal has undergone significant political and social changes in the last decade, including the adoption of a new constitution in 2015. How have these changes affected the country’s democratic journey and human rights landscape?
Chapagai: Yes, we have gone through frequent political changes in the last three decades. The constitution of Nepal has not only legitimized such political changes but also opened the door to greater protection and promotion of human rights for all. Of course, the electoral democracy is not new to Nepal as we have been intermittently exercising it for decades. Most importantly, the Constitution has given a socio-economic spin to democracy.
It aims at establishing democratic socialism. It gives a home to unfulfilled aspirations of extremely heterogeneous society for inclusivity, social justice, equitable prosperity, and sustainable peace. Historically speaking, the fundamental rights were confined to civil and political rights. The ESCRs have now gained constitutional prominence, which is an obvious manifestation of such aspirations of Nepali people. The constitution has also created a system of independent check and balance to ensure peaceful settlement of disputes and safeguard fundamental freedoms and rights. The need of the time is not to think of another political change but of making the existing political system relevant to entire population through yielding fruits.
SAP: How do you assess the overall post-Maoist conflict democratization process in Nepal?
Chapagai: From an overall perspective, we have achieved a lot on the hardware side. But the software part still remains the same. There is a huge deficit in terms of internalizing democratic culture, value-based politics, sense of tolerance and co-existence, which is sine qua non for fruitful operationalization of the democratic system that we have chosen.
The political parties, who are supposed to be a major vehicle for democracy, lack intra-party democracy. They practice tyranny within the party. I am sorry to say that I have not seen our top-level political leaders talking of issues (e.g. food security, food sovereignty, access to land, climate change, migrant workers’ right) that common Nepali people care about. Almost all parliamentary parties appear to have strived to grab a share in the Council of Ministers by any means. None of them is interested in performing the role of constructive opposition.
They commit to one thing but do exactly another. They lack power of tolerance towards their opponents and power of patience for legitimate political opportunities. They often demonstrate hypocritical attitudes. The constitutional and judicial appointment system is highly politicized for petty political interests. Most of the public institutions are therefore losing public confidence and faith. Constitutionalism and rule of law are often disregarded as they tend to frequently exercise ‘ordinance making power’ bypassing the accountability to the parliament. The parliament is being converted as one of the figurative institutions given the partition politics.
Corruption remains pervasive at all three levels – political, bureaucratic, and corporate sectors. Nepal was ranked 110th of 180 countries according to the 2022 Corruption Perceptions Index reported by Transparency International. Criminalization of politics as well as politicization of crime in Nepal has become phenomenal. People who indulge in violence use unhealthy, undemocratic methods to win elections are awarded in politics. The political actors must seriously revisit the democratization process and fix the flaws in practice.
SAP: Nepal has a diverse population, with different ethnic and religious groups. How do the country’s democratic institutions respond to this diversity? What are the challenges to promote greater inclusivity and equality?
Chapagai: It is certainly a matter of pride for all Nepalese people that Nepal has its unique diversity. It is a home of at least 125 caste/ethnic groups and 123 languages. Mindful of this fact, the constitution has also envisioned an egalitarian society founded on the “proportional inclusive and participatory principles”. This is for ensuring the goals of economic equality, prosperity, and social justice. The constitution also commits to eliminating discrimination based on class, caste, region, language, religion and gender and all forms of caste-based untouchability.
Giving effect to this vision, inclusion has also been a part of the fundamental rights and directive principles. However, there is a gap in terms of translating such a vision if inclusivity into a reality by adopting concrete steps. In some respects, a kind of retrogression is noticeable. The proportional representation system has been misused to benefit those closer to top-political leaders. The marginalized and excluded groups including women and Dalits were not given a priority in terms of providing tickets for candidacy. There is a problem in terms of internalizing the constitutional spirit of inclusion in terms of political inclusion. There should be a thorough assessment on whether Nepal is moving towards the right direction in terms of inclusion.
SAP: Nepal has experienced a significant rise in civil society organizations and movements in recent years. How have these organizations impacted democracy and human rights in Nepal, and what role can they play in promoting positive change?
Chapagai: Of course, the civil society organization in Nepal were part and parcel of every democratic and human rights initiative in Nepal. In fact, they created a climate for political changes including through educating peoples on democratic freedoms, human rights, equality, and inclusivity. The role of civil society is must to turn the constitutional promises into a reality. As there is no strong parliamentary opposition at present, there is an apparent role of civil society as a part of an extra parliamentary opposition. Such a gap can only be filled by vibrant civil society and media.
However, they civil society organizations in Nepal are increasingly facing a number of challenges. The democratic space for this is gradually shrinking. Over-regulation of civil society organizations including through putting in place restrictions on their funding, taxing, membership, registration has been criticized for the shrinking space.
There appears arbitrariness of local government in terms of allowing them to work at local level. The governments are reported to have welcomed the civil society engagement in terms of welfare-based service delivery but becoming increasingly intolerant towards civil society’s role for policy advocacy on violations of civil political rights.
SAP: The international community has played an important role in supporting Nepal’s democratic transition and human rights efforts. How can international actors best support these efforts, and what challenges do they face in doing so?
Chapagai: I agree that the international community is credited for its longstanding support to democracy and human rights agenda in Nepal. As human rights challenges persist, the international community should continue keeping its eye open on human rights performance of the government. Their support should be continued.
It is important for the international community to base its development cooperation on the human rights benchmarks. For instance, it is important to ensure that the development support doesn’t undermine human rights including by causing or legitimizing forced evictions, dissociation of indigenous communities from natural resources, impunity to those responsible for serious human rights violations and desertification of agricultural land. Compliance with the duty to respect human rights should be a bottom line.
Youth unemployment is a massive problem in Nepal. As stated by ILO in its report, the unemployment rate for Nepali youths between aged 15 to 29 is 19.2 per cent. The lack of job opportunities within the country is forcing young Nepali to seek jobs including in Middle East countries. It is estimated that on an average around 2500 persons leave Nepal each day in search of employment abroad.
If international community can do something about Nepal, it should extend its wholehearted support to generate job opportunities and promote small-scale entrepreneurship so as to change young peoples’ perception that they can purse their happiness even within the country.
SAP: Looking to the future, what do you see as the key priorities for Nepal’s democracy and human rights agenda, and how can progress be sustained over the long term?
Chapagai: Democracy and human rights should go hand in hand. No democracy is possible without human rights and vice versa. I think there can’t be a distinct set of priorities for democracy and human rights. The success of any democracy lies in the degree to which it succeeds in delivering human rights of all regardless of their identities (gender, caste, religion, language, social origin etc.)
Let me reinforce that there are twin human rights priorities: a) closure of the past with due respect to the victims of the armed conflict; b) addressing the root causes of the conflict namely multi-dimensional poverty, discrimination, exclusion and denial of economic social and cultural rights.
The textual guarantees and commitments towards that must be translated into a reality. Otherwise, talking of democracy without bringing tangible change in peoples’ lives would be meaningless. The political system, no matter how democratic it is in paper, will lose its legitimacy.
There is a saying in the rural communities of Nepal that “bebastha paribartan vayera ke garne, hamro abastha jahako tehi cha” (what to do with the change of the system while our situation remains the same). It illustrates the increasing frustration among peoples at the lack of progress in terms of socio-economic democracy. This is therefore high time to take thought-through measures and bring about change in the peoples’ lives within the framework of human rights and democracy.
SAP: Thank you for sharing your thoughts with us.
Chapagain: Thank you. g