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ASHUTOSH TIWARI
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ASHUTOSH TIWARI


Two days ago, relatives and neighbours of Giri Prasad Timilsina, a civil servant, set up roadblocks and stopped traffic for hours in front of the Lalitpur Forest Office in Hattiban. Timilsina was accused of smuggling wood by Forest Minister Matrika Yadav. The Maoist Minister took the law into his own hands, detained Timilsina and got his ministry to throw him into a cell at Nakkhu jail. Earlier, Minister Yadav locked up LDO Danduraj Ghimire in his office toilet for alleged insubordination.

Last month, relatives and friends of Ram Hari Shrestha, a restaurant owner and community leader in Koteswor, called for a Kathmandu-wide strike to protest against Shrestha's abduction and murder by Maoist cadres. With few vehicles plying the roads and few firms open for business, the strike turned what would have been an ordinary working day into New Nepal's first day of complete shutdown in this valley of about four million people.

Similarly, last year, journalists were riled up when one of their own, Birendra Sah, was killed in Bara by Maoist cadres, apparently on charges of reporting stories on illegal logging. The ensuing protests went on for days, only to taper off after the government promised to provide one million rupees to Sah's widow.

Drawn from the headlines, these three events give out two signals. First, they continue to remind us of the shocking atrocities that Nepal's Maoist party is capable of committing time and again, despite numerous silver-tongued assurances to the contrary. Second, they make clear that when trouble occurs in some sections of our society, the courts, lawyers, and any notion of due process and the rule of law all take a distant backseat as the victims' friends see no alternative path to justice but to vent their rage on the street for days on end, thereby affecting the day-to-day lives of many others.

To be sure, both are worrying signs for the world's youngest democratic republic. But the second in particular tells us that unless we work hard to create and sustain institutions that run the hardware of democracy through the software of rule of law, no matter who we elect to represent us, ours will remain a regime marked by arbitrary abuses of power.And when that's the case, those in power are likely to continue to kill, kidnap and harass without ever being challenged to first adhere to the legal norms that are there to protect ordinary citizens against the excesses of others.

There are several reasons why Nepalis prefer the street to the courts when their individual freedoms are under attack.

Newspapers routinely report how corrupt the courts are. The Nepali judicial system is arguably the least ethnically inclusive wing of the state. Until recently, any negative report about the judicial system was treated as a matter of contempt, with reporters hauled up in front of a judge to be fined and even imprisoned. Almost 90 per cent of the thousands of cases pending in the courts involve multi-year and multi-generational disputes over family and property ownership. Nepal's donor-savvy human rights communities are good at raising general platitudinous awareness about rights through workshops and seminars, but remain inhospitable to iconoclastic lawyers who can pursue justice on behalf of the wronged with bulldog-like persistence.

The best and brightest college graduates rarely think about attending law school in Nepal. And donor agencies offer short-term scholarships abroad on academically wishy-washy subjects such as peace studies and conflict studies without first helping to upgrade Nepali lawyers' skills on the nuts and bolts of contract, criminal, public and constitutional law. After all, who can really work to promote peace or reduce conflicts when one is hard-pressed to use what's available within the Nepali legal system to fight and win for individual rights under attack?

The result of all this is that we have a legal system, inherited and pretty much unchanged from the Panchayat days, to which hardly anyone turns for solutions when liberties are taken away. Is it any wonder that when problems arise, people either take matters into their own hands or launch street protests by burning tyres, throwing stones at moving vehicles, forcing highways and shops to close down, and then calling their shutdowns a success?

Recently, two Nepal-loving American lawyers successfully fought a case in an American court against their government. As a result of their legal victory, the US government was compelled to provide compensation to the poor families of murdered Nepalis who worked for the Americans at the wrong time in the wrong place-in Iraq in 2004.

Likewise, two years ago, a Nepali lawyer filed charges against the British government in London and won overdue compensation for ex-Gurkha soldiers. In both cases, the lawyers used the existing laws of the respective countries to argue for the rights of those hurt or neglected by the actions of those in power.

It was not seminars and talk fests that helped restore the rights and the dignity of the victims. It was the mundane but necessarily patient process of studying the relevant laws, filing lawsuits, and then doggedly following them through the processes of the legal system that helped.

How long do we have to wait in Nepal to see the day when we value the rule of law to such an extent that those whose rights are trampled rush not to the streets to burn tyres but to the courts to fight to get what they are owed to as per the law?

Democracy is always an unfinished business. Thumping our chests about how democratic we are, or taking part in one street protest after another, hardly builds up the software for democracy.

Taking a hard look at Nepal's legal regime, improving it by filing cases that argue for the protection of individual rights, and then patiently if doggedly pursuing the cases to the finish would go a long way in restoring people's confidence in the hardware of democracy.

In future, the families of Timilsina, Shrestha and Sah should not have to take matters into their own hands, but be able to act in the belief that no one is above the law in Nepal. In our republic, let the rule of law be the new king.



LATEST ISSUE
638
(11 JAN 2013 - 17 JAN 2013)


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