South Asian News Network

How would you analyze the Gen Z movement in Nepal from the perspective of a legal expert?

The movement of the September 8 was an expression of the anger arising of the Gen Z youth (born between 1997 and 2012). The Gen Z youth protested against the government’s closure of social media, the rampant corruption in the country, nepotism, favoritism, and money-laundering. The youth had protested in favor of good governance. This protest was legitimate, but on the September 9, the protest that Gen Z spontaneously organized with a sacred purpose was infiltrated by suspicious individuals and parties.

They hijacked Gen Z’s protest.

That means that the Gen Z movement was infiltrated on September 8 and the movement was hijacked by others, resulting in the current situation?

You are absolutely right. The Gen Z movement was infiltrated on September 8. Suspicious people and various parties infiltrated the movement carried out by Gen Z with good intentions and hijacked Gen Z’s movement, which turned it into something else than what Gen Z longed for.

Who infiltrated the movement, what kind of force, domestic or foreign?

Who infiltrated the movement and how, whether they were domestic or foreign, the report of the High-Level Investigation Commission will bring out.  If the report is not published, time will show. But what can be said is that the Gen Z youth movement was infiltrated and the movement was hijacked by others, which resulted in an attack on the Executive, Legislature and Judiciary of the country at once, bringing the country to a standstill. Simultaneously, There are many elements in the beginning of the Gen Z movement. Whether you call it the rebellion in Sri Lanka or the Bangladesh, the Arab Spring uprisings or colour revolutions from where it ignited. Recently, it happened in Indonesia. I think that the infiltration into the movement was done according to a pre-planned conspiracy. Otherwise, it would not have been possible to attack the Executive, Legislature and Judiciary, the entire police force of the country at the same time and bring the country to a standstill.

There is also an analysis that the forces that did not like Prime Minister KP Sharma Oli participating in this conference The Shanghai Cooperation Organization (SCO). You are such a person who has expertise not only on International Law, but also in international relations, diplomacy and foreign policy. What is your analysis on this issue?

The question you asked is a very important question, indeed. The Shanghai Cooperation Organization is a very meaningful organization formed under the leadership of China. First of all, before KP Sharma Oli became Prime Minister in BS 2072, S. Jaishankar, who was the Foreign Secretary of India at that time and later became the Foreign Minister, from our southern neighbor India had visited Nepal as a special envoy of PM Modi and held extensive meetings with key Nepali leaders in an effort to persuade them for ‘widest possible agreement’ on new constitution. That time we had also read in the newspapers that he had conveyed India’s concerns about the constitution, particularly regarding the exclusion of Madheshi community and other marginalized groups and urged Nepal to address those issues before the promulgation of the new constitution. However, KP Oli perceived Jaishankar’s message as a form of pressure and Oli later claimed that Jaishankar had warned that the constitution would not be accepted if it was promulgated without incorporating India’s suggestions. After that in 2016, when K.P Oli officially visited China and Nepal and China signed a significant Transit and Transport Agreement (TTA) that paved the way for Nepal’s foreign trade policy by granting Nepal’s access to Chinese ports, thereby reducing its historical dependency on India. Simultaneously, KP Oli recently participated in the Shanghai Cooperation Organization that has wider implications for regional and global diplomacy notably concerning with Global Security Initiative (GSI). There was a need to be well-prepared as to what message is to be delivered to the world community prior to attending the SCO summit and the optional military parade. He also raised the issue of Limpiyadhura, Kalapani and Lipulekh. Then he participated in a military parade. It might have caused resentment for Europe and America and Japan. It was an anti-Japanese parade. Japan had requested not to participate in it. Indian Prime Minister Modi tactfully did not participate in the anti-Japan military parade. The summit and the parade in a sense highlighted a counter-bloc to western institutions like NATO and G7. Too much visible alignment with SCO could strain Nepal’s relations with the U.S., E.U., Japan-major aid and development partners. The social media ban was only an immediate cause. After the Prime Minister participated in the military parade in China, a message was sent to Europe and America. A serious question arises as to whether this is in line with Nepal’s non-aligned foreign policy. What is our foreign policy? Is it consistent with the statement that we are adopting the principles of neutrality, non-alignment with the international community and equi-proximity notably in the case of immediate neighbors like India and China being mindful of our geopolitical situation. The question arises as to whether we have acted in accordance with our guiding principles of international relations. Neighboring countries have become suspicious of whether we are more inclined towards China. By saying this, I am not trying to doubt KP Oli’s commitment to nationalism. Personally, I neither know him nor he knows me. But in the matter of nationalism, I think him a hero. Whether his stance was right time or not is a different matter. But I have doubts in my mind that the current situation has come about because of his nationalist stance. Because this country is cursed by Sati after punishing Kaji Bhim Malla who came back from the war after winning. It is a country that suffered the destruction of its dynasty when King Birendra was a nationalist. KP Oli may have had 99 percent of his shortcomings, but his nationalist stance remains overtly and historically justified.

The country suffered due to Prime Minister KP Oli. If the government had addressed the demands of the movement on the September 8, this situation would not have come to this. KP Oli should take moral responsibility for this loss, right?

Gauri Bahadur Karki’s investigation commission will speak up who is to blame and how much. As far as why the youth were shot, the investigation commission will investigate it. The demand of the Gen Z brothers and sisters is genuine that state had violated freedom of expression, freedom of information, the right to entertainment, and the right to employment by closing down social media. Social harmony would not have been possible, perhaps he and his security agencies and intelligence agencies did not seem to have anticipated that such a situation would come to this. This is the sad part.

Now, is the Constitution of Nepal alive or dead? And some lawyers are saying that the formation of the government and the dissolution of the parliament were not in accordance with the constitution. What do you say?

The constitution is not dead; it is just in a coma or in the ICU. As far as the formation of the government is concerned, the question is whether it was in accordance with the constitution. If we look at the articles and sub-articles of the constitution, even a common man can say that it is not in accordance with the constitution, but this government is more a product of the movement than a product of the constitution. The current government was formed in accordance with the demands of the agitators after the Gen Z movement. Article 132 of the constitution states that a person who is the Chief Justice cannot be appointed to any other place except the place recommended by the government. Article 248 (6) has made it clear that even those appointed by the government can be appointed to the National Human Rights Commission. If we look at it this way, there is no idea in the constitution that a retired Chief Justice can become the Prime Minister. But the demand of the movement is above the constitution. As the cliché goes “necessity knows no law”. This is a government formed according to the principle of necessity. On the second day of the September 9, Gen Z movement was used to infiltrate and in the name of the Gen Z movement, properties costing billions of rupees like government, private public property, cultural and archaeological heritage, and the homes and industries of individuals and entrepreneurs were vandalized and set on fire. This made the situation dire. The Prime Minister had to resign under pressure from the movement. In such a situation, the main political parties representing the dissolved parliament, including the Nepal Bar Association, say that the formation of a new government should be done from within the constitution as much as possible. The current constitution is the constitution made by the Constituent Assembly. It is one of the best constitutions in the world.

Of course, the first best way was as the parties said. But after the agitating party did not accept this path, the second option was to form an interim government under the leadership of Sushila Karki and dissolve the parliament. There are many examples in the world where the movement changed the system and took it forward legally by making laws. Now, the demand of the Gen Z agitators has been fulfilled rather than by articles and sub-articles. Now the election date has also been announced to hold elections in six months. It would be appropriate if all political parties focused on the elections with fresh mandates. Otherwise, foreign manipulations will occur and foreigners will move towards fulfilling their own interests in the name of reconciliation. If we do not solve our own problems, it is like the story of a clever jackal mediating in a monkey fight. In the story, two monkeys were sitting on the road after fighting with each other over the issue of who was to eat Kuraauni (milk solid) they had stolen. A clever jackal was walking along the same road and asked the monkeys why they were fighting. They told him they stole Kuraauni together and began divided equally but one takes more. The sly jackal said, “Shut up, I will give you equally divided.” When he put the food on the scale, the scale leaned more to one side. He said he would straighten the scale. He pulled it out from the side that was leaning more. The scale leaned back to the other side. He pulled it out from the side and ate it. He pulled it out from the right and then from the left and ate it to his stomach. If you look at the monkeys, there is a danger that foreigners will come and fix the scale in Nepal. Everyone should be aware of this and solve their problems themselves. No foreigner should be a mediator, otherwise they will have to suffer the fate of the monkeys who fought and got nothing at last. But make sure that put your home in order before you blame your neigbours.

You have been continuously raising your voice that Nepal should become a state party to the International Criminal Court (ICC), will the International Criminal Court be involved in this incident or not?

In the current incident, it is not involved because Nepal has not ratified the statute of International Criminal Court. The ICC assumes its jurisdiction in three ways. One is a signatory to the Rome Statute or a state party to it. The second is if the UN Security Council recommends action for serious human rights violations like Crimes Against Humanity, War Crimes or Genocide as you asked. However, this is a political issue. If another country concerned requests it, then the ICC does not decide who will commit the crime and prosecute in Hague. It is the court of the country concerned that will prosecute and punish. However, Article 13(b) of the Rome Statue of ICC allows the UN Security Council (UNSC) to refer a situation to the ICC Prosecutor even if the country concerned is not a party the Rome Statute on the case of systematic attacks on civilians considering as Crimes Against Humanity. Muammar Gaddafi in Libya is the example.

No law is retrospective, so it is easier to prosecute those who are guilty of serious human rights violations, war crimes or heinous crimes that may occur in the future than those who have committed heinous crimes in the past, so I have filed a case at the Supreme Court of Nepal that Nepal should sign the Rome Statute which is under sub judice. So far, 124 countries in the world have signed it. It specifically covers genocide, which includes five types of crimes, crimes against humanity, which includes 15 types, and war crimes, which include about 50 types. It is attracted to three.

It has been 10 years since the constitution was promulgated. Looking at the practice of 10 years, how does a legal practitioner review whether the constitution has been able to address the public sentiment and the needs of the country?

It is early to review how successful or unsuccessful the constitution has been in ten years. However, it’s the best constitution so far that contains all most all components of constitutionalism and rule of law. Nepal has been recognized a multi-cultural, multi- ethnic, multi-lingual and multi-religious country ensuring the existence of the marginalized groups like Women, Dalits, Janajaatis, Madheshi, Muslims Tharus etc. for the first time. Republicanism, secularism, federalism, positive discrimination, inclusiveness and proportional representation etc. are the salient features of this constitution. You just take a look at the preamble of it. This constitution is the best constitution among the constitutions so far. It is also possible to say that it has become a factory to produce federal ministers, but it cannot be said that it is not fully implemented in accordance with the spirit and spirit of the constitution.

Has the issue of amending the constitution also been raised?

The constitution is a paper document. Those who implemented it did not do it in accordance with its spirit. It is not the fault of the constitution but the fault of those who implemented it. Yes, the introduction of the Western-style parliamentary system has led to more instability. With a directly elected executive head, there is more stability and development. Now, everyone has been demanding to have an elected executive head, but this is a discussion to be held when amending the constitution. This government’s job is to hold elections, so it shouldn’t get distracted elsewhere.

Many courts in the country, including the Supreme Court, have been burned, and there are also legal practitioners here. If the courts are not functioning, how will the work proceed now? The documents have been burned, how will the work proceed?

Of course, you have asked a very important question here. How many records have been burned now, how many are left? The courts will make the details public. Some records will also be saved on computers. The documents related to the case may also be with the parties to the case. As far as work is concerned, work including habeas corpus has started from Sunday 29 Bhadra. Now the work has gradually picked up pace. Similarly, some prisoners have been released or run away from jail. I have personally asked the prisoners or my clients who have been in jail to return to jail. Four of them have been able to return. If they do not return, further action will be taken according to the Prison Act.

Finally, what do you want to say?

Finally, my heartfelt tribute to the martyrs, I request the government to provide free treatment to all those injured, disabled, and undergoing treatment during the movement, to provide appropriate compensation to all, and to declare all those who lost their lives during the movement as martyrs. I wish the injured a speedy recovery. I also express my heartfelt condolences to the bereaved family.