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DAMAKANT JAYSHI
My Take
Cocking a snook


DAMAKANT JAYSHI


KIRAN PANDAY

Two recent events news items, one on 23 October and the other on 27 October, are indicative of the government's and the Maoists' total disrespect for the rule of law and the need to address human rights abuses. Yet again.

The first piece of news was about alleged human rights violator Colonel Raju Basnet of the Nepal Army. On 20 October the cabinet, on the recommendation of the Ministry of Defence (which in turn acted at the behest of Army Headquarters), handed Col. Basnet a two-year extension.

The second news item referred to the Maoist Party's 'taking action' against one of its Central Committee members, Kali Bahadur Kham. The latter, also one of the deputy commanders of the PLA, stands accused of murder and there is an arrest warrant out for him.

Basnet has earned a level of notoriety that few others in the Nepal Army can rival. He is implicated in the alleged arbitrary detention, torture and disappearance of 49 suspected Maoists at the Maharajganj barracks under the Bhairabnath Battalion between 2003 and 2004. The battalion was then led by Basnet, a lieutenant colonel at the time. Both the National Human Rights Commission (NHRC) and the UN's human rights body in Nepal, OHCHR, have recommended investigations against Basnet and a suspension until the investigations are completed.

The extension Basnet has just been granted is distasteful from whichever angle you look at it. Basnet should be facing a civilian court, not getting an extension. An ad hoc court of enquiry that the army formed under Brig. Gen. Sharad Neupane in 2006 actually found Lt. Col. Basnet guilty and ordered his detention. This much is known. What followed the recommendation is not.

The Maoists, on the other hand, have carried on with the farcical pretense that they are punishing Kham. The party has so far shielded him and prevented the police from arresting him. Kham, along with three other Maoist combatants, allegedly tortured a Kathmandu-based businessman, Ram Hari Shrestha, in Shaktikhor cantonment in Chitwan in 2008. Shrestha succumbed to his injuries.

In this case too, NHRC and OHCHR have called for an investigation. A court has ordered Kham's arrest. What did the party do in response? It gave him a berth in their expanded Central Committee. Now the party is talking of 'punishing' him.

While the army's and the Maoists' actions are nothing new (after all, they have prevented civilian court trials for the most heinous crimes), Prime Minister Madhav Kumar Nepal's remarks on Basnet have been the unkindest cut of all.
According to news reports, PM Nepal has already passed his verdict on Col Basnet: the officer is innocent. Nepal said that unless a Truth and Reconciliation Commission (TRC) rules Basnet to be otherwise, he is innocent. This is a joke.

The formation of the TRC is uncertain and given the mood in the Nepal Army and the Maoist Party, it is unlikely to see the light of day very soon. Even if it is formed, it will be ineffectual. A previous attempt to set up the commission failed in 2007 because both the government and the Maoists had agreed on a very weak commission. The terms of reference had effectively exonerated all accused of gross violations even before the commission came into existence.

Perhaps the prime minister meant the officer is innocent until proven guilty. However, by giving an extension to an army officer accused of the murder of nearly 50 people, the government has demonstrated its insensitivity. It was also the Nepal-led cabinet that announced the awarding of medals to senior police officers to mark Democracy Day early this year, officers who had implemented a shoot-to-kill policy while facing off with pro-democracy demonstrators in 2006. When a prime minister speaks the way Nepal has done, you know that justice for conflict-era victims will continue to be delayed.

The least the government and the army can do now is immediately withdraw the extension and hand Basnet over to the civilian authorities for investigation. The Maoists should do the same with Kham.

damakant@gmail.com

READ ALSO:
Corruption, Inc., EDITORIAL
We know what works, BIHARI K SHRESTHA
Festive fervour, RABI THAPA
Looking east, ARTHA BEED



1. Concerned citizen

There is no moral equivalency between Col. Basnet and Kham. Basnet is accused of over-stepping his authority as an army officer while waging a government-sanctioned war against Maoists (who were designated as terrorists at that time). Kham is a pure cold-blooded murderer who killed for his smuggling and extortion business in peace time (this may very well have been sanctioned by his party bosses, we don't know). I am not trying to codone Basnet for his alleged misuse of authority, but you can not write an article implying that both Kham and Basnet are guilty to a similary degree.

Please also don't forget that Prachanda, as a leader of Maoist Army, was directly supervising killing, maiming and torturing countless of so called class enemies during the period of war. I have seen many victims first-hand in hospitals with broken legs (victims said they were forced on the ground while Maoists stoned their lower leg), cut fingers, head injuries, etc. So, please do not put the Army and the Maoists at the same level.



2. K. K. Sharma
The rhetoric of Human Rights is a political tool. It is not called for uniformily among and within countries. Countries that displeases the West or where the West has nefarious designs, are the ones targeted, not the pro-West countries.2. The intensity, volume and frequency of alligations ( note not proof ) are not uniformily presented in all cases.3. These politically motivated Human Rights wallahs, seem to want to be accusers, judge, and executionars, with no heed to the due process of law. 4. There is the International Court of Justice in Hague, but these deceptive HR wallahs do not move the case there. Why ?

3. rita
Mr. Jyashi: Shame on you.   Before dumping it on the Nepal Army, bring Prachand and his blood stained hand to justice Mr. Human Right.  FYI Maoists have killed more than 1000 NC cadres and 200 UMLs and scores of innocents citizens: hacking teacher, hacking journalists, and shattering legs of a father when he refused to send his children to the PLA...  Tell your UNMIN to arrest Kham... and many more such extortionists, kidnappers, and murderers.  You write to make money in the name of human rights, and this country has gone to dogs because of the people like you who have no shame and integrity.


4. John
I think that the several earlier comments decrying the writer's thesis miss an important point.

Maj. Basnet's motivation can reasonably be presumed to have been patriotism, an Army officer serving during an internal conflict and trying to win. Mr. Kham's motivation appears to have been criminal. 

But what they are both accused of is complicity in murder. That's a crime for an Army officer just as much as for a civilian.

And both the Army and the Maoists have, as Mr Jayshi writes, promoted and protected their own, refusing to turn Maj. Basnet or Mr. Kham over to civilian authorities. 

There is indeed a large difference between the two mens' likely intent, but the crimes they are charged with are morally equivalent and so is the way they have been shielded from arrest in defiance of Nepal's courts.



5. Arthur
John #4, the comments #1 #3 understood perfectly well that Basnet and Kham are both accused of murder. They are outraged because they regard the torture and murder of 49 suspected Maoists as thoroughly praiseworthy and patriotic and the concept of any soldier that kills Maoists being answerable for crimes or indeed any soldier being answerable to courts for any reason at all is utterly alien to them.

For you and for the article, both the actual and notorious torture and murder of 49 and the alleged complicity in killing one as a result of brutality during interrogation are equivalent. That is more reasonable than #1 to #3 but most people do not regard deliberate torture and murder of 49 as equivalent to possible complicity in the unintended death of one.

More importantly there is no equivalence between an army refusing to hand over an accused soldier for trial by the courts and a political party failing to provide sufficient assistance for one of their members to be captured by the police.

Kham was not removed from the Maoist CC when he was first accused, presumably because the party did not find the accusations plausible and had not completed investigating them. Consequently he was routinely reappointed to the expanded CC. That was not some sort of response to the order for his arrest as suggested by the article, but simply a lack of response to it until the party had made its own enquiries.

Like it or not that is hardly surprising in circumstances where pretty well all Maoist CC members have been subject to arrest warrants from the same judges that still corruptly run the courts. Even if he was arrested and convicted and the party kept him on the CC while he served his sentence because they did not believe he was guilty, that would not be illegal.

Since then apparantly further inquiries have suggested that there may indeed be a case for Kham to answer. The Maoist party has suspended his membership, but he has still not been caught.

It would not be unreasonable for you or the article to suggest that former comrades may well be protecting him and that the Maoist party could be accused of not taking adequate measures to prevent this and to assist in his capture.

But that is NOT morally equivalent to the situation with Basnet. Basnet is NOT on the run, with former colleagues in the army suspected of assisting him to avoid capture. He is openly being protected by the army itself refusing to hand him over to the courts.

Contrary to #2, international human rights activists do tend to treat the violations on both sides as equivalent. They are trying to be "neutral" so they have to pretend that torture and murder of 49 is the same as suspected complicity in death of one, so that they can accuse  both sides equally.

But everyone in Nepal knows who has most to fear from justice - including #3 who mentions 1200 anti-Maoist party supporters killed as informers etc during the civil war but doesn't mention more than 10,000 "suspected" Maoists murdered by security forces.



6. Slarti
An excellent comment John #4, really good.

7. rishav
This Maoist Insurgency,  to most Nepali people, was never a "civil war, " this is some claim Maoists and there supporters have inorder to give them some sort of significance. Basically, as all Nepali's know, it was a self declared war wth the objective to disrupt and terrorize the Nepali people inorder to submit to the will of these militarized Looney left individuals.

Yes people who commit crimes against others be it Military or looney left terrorist PLA should be tried. These Military Individulas were tried by the Militiary courts, an institution, even if the verdict was palatable or not. Unfortunately the terrorist PLA haven't even been tried who are subject to civilian court rule(an institution), not their kangaroo looney left court which has NO statutory rights.

However, due to the nature of the conflict and interest from many outside agency the question of accountability has been brought forward. As seen by the events recently in Iraq of how American troops ignored the violence by Iraqi security forces on Iraqi citizens which has brought the atttention of the World media for accountability by Wikilinks. The same level of standard 21st level accountability should be brought upon the Nepal Army, who are accountable for their actions but then what about the Terrorist PLA whose crimes and violence against the Nepali people still remain untried, vastly superior and unaccountable.

The Maoists and many foreign HR organisations want a 21st century accountability for a Nepal Army but fail to recognise the untried and vastly outnumbered crimes commited by the Maoists. One standard for one group and another for the other group an example of modern justice.

The Military men have been tried by Military courts, these Maoist need to be tried by the civilian courts first as they are definatley not soldiers.

At the end of the day it was the Maoist's who created the Insurgency bringing misery, pain and suffering on the Nepali populace. They need to be brought into question by the Nepali people for their actions.

Foreign HR should start bringing out cases caused by Maoists as well, inorder to at least appear impartial.




8. adarsha
i agree that basnet and kham should be bought under civilian court.but that will not suffice. to follow a due process,  the instigators of the order to heinous act involves the the chain of command. so the higher-ups too ought to be brought to justice.
 


9. saru
Why everybody is going after small timers, go after main perpetrator of war like Prachanda,Baburam and Deuba and Koiralas who actually moblized the army but I will not think that will happen because first of so called human right and UN bodies work under their foreign masters and do not have balls to catch big fish and other reason is Nepali Kanoon deva lai janoon and Nirdha lai Ain baliyo lai chain is thumb rule of the day.

10. Dipak
Well, until very recently, the ones who attack the army were mostly well-funded sycophants who sold their conscience for a few dollars, NGOs like Advocacy Forum for example. Damakant Jayshi is a respected journalist, but that should not give him the license to equate a band of criminals and murderers like Maoists to a national army. 

11. Jeev
The issue here is a lack of statute to decide what is right or wrong. Both the Maoists and the Army are doing things their way and the rest of us expressing our views to suit our inclinations. A better solution would be to put a system in place and then let it decide on what is right and what is not. In the mean time... do nothing... certainly not promote or appoint responsibilities to dubious characters... and both the characters in this case if not anything are certainly dubious



12. Darcy Kingston
Well Prachanda should be tried in International Tribunal Court for the crime against humanity. Under his orders his fighters committed atrocities in many parts of Nepal during the insurgency years that are too gory and sadistic by any normal standards.

What if I do the same? What if I terrorize local populace, extort or kill, with dozens of well armed cohorts, then call myself a leader of a political party? And I will say that I am doing for a right cause driven by absurd ideology?

UNMIN in Nepal is a sham and completely biased


13. Concerned citizen
Response to Arthur and John: I don't disagree that murder is a murder and I don't even disagree that both Basnet and Kham should be appropriately punished. But, I don't think murder during war is equal to murder during peace time. I don't think murder by a soldier carrying out his duties (you can argue and say Basnet was heavyhanded and should be punished and I am fine with that) is equal to murder by a party leader for money/smuggling/extortion business (and, I don't think Kham is just complicit in murder by the way). I don't think army's refusal to hand over an officer who followed their established chain of command is equal to the decision by Maoists to protect/promote/use someone who even murdered his own party man. Equating the two is like our know-it-all naive UNMIN equating all actions of Nepal Army to that of Maoists mafia. Wake up people!

14. who cares
you be the judge;

1: kham murdered unarmed civilians for personal benefit and to make prachanda new king of new nepal, basnet did it for the country and for promotion by making gyn bahadur happy.

2: all kham murdered were unarmed civilians but it turned out that all those RNA killed were those who had been killing unarmed civilians, extorting them, threatening them.

3: the job of RNA was to kill those who took up arms against the nation or should i say shahs at that time, but maoist took up arms to make prachana new king to replace old one.

4: there was a judiciary in RNA even though it was not independent, where as there was no existence of judiciary.

5: maosit used to hang people in the name of justice, they were cold blooded terrorists, so how do we expect army to fight with those cold blooded.



everyone should remember that, RNA started extra judicial killing, raping after gyn bahadur took over, at least openly, so whom do you think could be the biggest HR violator and even some generals and shah's close aides were saying that then democratic govt. did not let RNA work freely.

and on the other hand, just listen to the audio, videos of prachanda, as well as other maoist leaders where they promote violence, murdering, threatening, looting of civilians and add with what maoist have been involved in till date..... ................. then you will be able to guess the big bosses of terror. 

i think, these are enough to drag prachanda and co. to international court.




and its stupid of RNA generals to kill prisoners, raping, threatening public for paying ransom. 


from now on Nepal ARmy should follow following rules:

1: to prevent foreign intervention: no killing of prisoners, kill unarmed enemy only from distance, no raping.

2: to prevent alienation of public: no raping, no threatening to public.



and always follow dibya upadesh while in war with maoist like enemy: NEVER TAKE NO PRISONER. 





15. jange
This is a poor article, far, far, below the usual level of writing and journalism for the NT.

The two cases are hardly comparable. Col. Basnet is alleged to have done wrong. There is an arrest warrant, issued by a court, for the arrest of Mr. Kham.


A court of enquiry of the Nepal Army is not in a position to find anyone guilty or innocent. Please re-read the Nepal Army Regulations and bye-laws.

Why should Col. Basnet be facing a civilian court? Because the author feels like it? It would have been better if the author had explained the relevant laws relating to the Nepal Army regarding this. You have obviously read it in order to write this article so why should we not have the benefit of your efforts?

According to news reports, PM Nepal has already passed his verdict on Col Basnet: the officer is innocent. Nepal said that unless a Truth and Reconciliation Commission (TRC) rules Basnet to be otherwise, he is innocent. This is a joke.

According to news reports??? Why rely on hearsay? Is it really so difficult for a journalist at NT to ring up the PM's office and verify it and to find out EXACTLY what was said or not said? And you have the temerity to pass judgement and call it a joke?

When a prime minister speaks the way Nepal has done, you know that justice for conflict-era victims will continue to be delayed.

There were thousands of murders, lakhs of extortions and lootings carried out by the Maoists.  Most of the victims will never get justice.

The least the government and the army can do now is immediately withdraw the extension and hand Basnet over to the civilian authorities for investigation. The Maoists should do the same with Kham.

So, you are saying that the Maoists are harbouring a person for whom there is an extant arrest warrant for MURDER. And your response is a few measly words begging the Maoists to hand him over to the authorities!! Would you have the same response if I was harbouring a person for whom there was an arrest warrant for murder and the police were unable/unwilling to take any action against me?






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(11 JAN 2013 - 17 JAN 2013)


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