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Nepal Update No. 14: Emergency and implications for India

 

Note No. 138                                                   27.11.2001

by Dr. S. Chandrasekharan

Nepal government surprised and shocked by worst ever incidents: In what could be described as the worst incident relating to insurgency, the Maoists struck simultaneously across the country after declaring "that the justification for the talks and the four months long cease fire were both over." Though this was not the first time that they had simultaneously attacked across the whole country, what is significant is that they had taken on the Army for the first time. By resorting to violence in a gigantic scale, the Maoist rebels virtually closed further talks though Prachanda their Chairman said that the doors are open for the talks under a "new process" without clarifying what he meant. Reports indicate that the casualty figures may exceed 140 or even more which included 18 soldiers and 34 policemen. A large number of policemen have also been taken as captives.

Emergency declared: An emergency has been declared throughout the country with effect from the evening of 26th November under Article 115 of the Constitution. Suspended provisions of the Constitution include sub clauses (a), (b), and (d) of clause (12) Article 12, Clause (1) of Article 13 and Articles 15,16,17,22 and 23 except the right to file habeas corpus. Details of the provisions are given in Appendix A.

Some significant developments that have taken place, could have a direct impact on Nepal’s security. These are:

* For the first time, the Maoists took on the Army in Dang district. In the massive attack on the Bhawani Prasad Gulma Barracks at Lamahi, in Dang 12 soldiers were killed on the spot while two others reportedly died in the hospital.

* In another attack on an army Barrack at Sellari subsequently on 25th night, the headquarters of Solukhumbu District, four other soldiers were killed. For the first time a chief representative of the government, the CDO (Buddhi Sagar Tripathi) was also killed. In this incident the Maoists suffered very heavy losses as the midnight attacks were repulsed by a combined force of Army and Police.

* The Maoists looted 99 self loading rifles and a few machine guns, a rich haul for an outfit that relied on bolt action 303 rifles of world war II vintage, captured from the police so far.

* Unlike the earlier major incidents that took place in inaccessible places, Dang, having the biggest valley in Nepal is easily accessible. Yet the Maoists had sufficient time to burn the army barracks and most of the district level buildings that included the District Administration Office, District Land revenue office, banks, District Forest Office, District Police Offices, the Quarters of the Superintendent of Police, District Jail and the residence of CDO. Throughout the day the Maoists managed to stay on at the District Capital Incidentally Dang district is adjacent to the Indian boundary.

* Simultaneously on the night of 23rd November, the Maoists struck at several police posts in Syangja district killing many policemen. Several policemen after running out of ammunition, surrendered to the Maoists. A large number of rifles were also looted.

* Coordinated attacks took place at several places at the same time, in Chitwan, Jumla, Parbat, Hetauda, Sindhuli, Dhankuta, Dhading, Lamjung, Guleriya, Siraha, Ramechap, Dhangadi and Inarwa.

* The two major attacks in Dang and Syangja and later in Solakhumbu took place in areas that were not considered to be too seriously affected by Maoists insurgency. Earlier attacks were concentrated in three regions- mid western region of Rolpa, Rukum, Salyan and Jajarkot, in the western region of Gorkha and Lamjung and in the central region of Sindhupalchok, Charikot and Ramechap districts. The attack at Solakhumbu district headquarters was a surprise, probably meant to kill the tourism industry which is the main foreign exchange earner for Nepal. See map.

* While the attacks would have been long in the planning, the government was taken completely by surprise. Intelligence at all levels failed. The third round of talks was said to have concluded in a "cordial atmosphere" in the second week of November. The Maoist Representative in the talks was said to have dropped the demand for "establishment of a Republic," but their central demand for a fresh constituent assembly to "further ensure people’s rights" was rejected. A softening of the position of the Maoists was seen and this made the government more confident. The Chief negotiator of the government Chiranjeev Wagle even went to the extent of saying that "since they (the Maoists) have dropped the demand for a republic state, the issue of Constituent Assembly has lost its meaning."

* The government took the inflexible position that since the Constitution had guaranteed multi party democracy, constitutional monarchy and fundamental human rights, there is nothing that a Constituent Assembly can do for the people.

The Prime minister convened an all party meeting on 24th night to discuss the situation arising out of the Maoist attacks. The PM was given the mandate to take all measures including declaring them as terrorists to restore peace and order. On 25th the Nepali Congress Party convened an emergency meeting of the central working committee which demanded that the government should take all provisions of the Constitution and mobilise the security forces to curb the Maoists. The Party did not specifically ask for declaring an "emergency," as there were differences within the party.

G.P.Koirala though not present in the working committee meeting was against declaring an emergency throughout the country. Other senior leaders were also not for an emergency. Their fear was that declaring emergency could be the first step for the King to revert back to the sixties when democracy gave place to direct rule by the King. In the end, Deuba’s insistence carried the day.

The National Defence Council comprising the Prime minister and the Defence Minister (now the PM himself) and the Chief of the Army met and formally recommended declaration of an emergency and for a joint operation. On the recommendation of the Cabinet , the King declared an emergency. It was learnt that it was the King who took the initiative privately for the decision to declare an emergency.

For the present crisis, the Nepali Congress and the late King are themselves to blame. Initially when the Maoist insurgency started, it was dismissed as sporadic robberies in the name of ideology. Later the Police, untrained in countering insurgency dealt with a heavy hand. Operations like "Kilo Sierra" only alienated the people particularly those in the remote villages of mid western region. The Nepali Congress was too busy in fighting among themselves and Sher Bahadur Deuba (now the Prime minister) was made to negotiate with the Maoist rebels with practically no support from the government. The late King all the while was watching and made no move to approve using the Army in tackling the insurgency. There were many incidents where the army never came to the rescue of the hapless policemen in spite of being in a position to do so. The incident at Dunai in Dolpa district is one example. Too late in the day special armed Police units were created.

Implications for India: India is bound by the provision of 1950 treaty wherein it has to come to the aid of Nepal. The danger is that India may get sucked into another "Sri Lanka."

There is no love lost between the Maoists and India though the Chairman of the Maoists Prachanda is believed to be residing in Siliguri and is said to be patronised by the Chief Minister of Sikkim. In one of the statements of Prachanda (Janadesh, October 9), he accused the rulers of Nepal of resorting to conspiracy to suppress the will of the people with the backing of US imperialism and Indian expansionism. One of the demands of the Maoists in three rounds of talks with the governments was the abolition of the 1950 treaty with India.

It looks that the Maoists are proceeding according to a plan to finally involve India. The official spokesman of the party had once said that while they are dealing with Police in Nepal, they may have to confront the Nepal’s army in the next stage and finally the Indian troops.

The worst affected areas are that of the districts of Rukum, Rolpa, Jajarkot, Salyan and the southern portion of the district of Dolpa and to some extent Gorkha. Except Gorkha all other districts are remote and inaccessible. The terrain is tough and the people are not sympathetic with the government in Nepal. In fact a parallel administration has been going on for the last three to four years. It is an ideal situation for an insurgency where the insurgents have all the advantages. It will be foolish to involve foreign troops.

It is our view that Nepal itself has to deal with the problem. A beginning was made by the Army by building roads in those areas. Under the Integrated Security and Development Plan (ISDP), the army proposes to construct roads in thirteen districts. The region is the most backward and many proposals to improve the economic condition of the people in such places have not been implemented due to internal bickering within the party. The Police needs training and special equipment to deal with an organised and highly motivated Maoists. India with its vast experience in tackling insurgencies could perhaps help. Short of getting involved on the ground, India could do whatever that is possible to tackle the menace the Maoists in the interest of stability of the region. Elsewhere in another paper, the involvement of other countries has been mentioned.

Appendix B contains details of incidents recorded upto November 6, 2001.

Appendix A

Constitutional provision for Emergency

(Part 18 and Clause 115 of the Constitution of the Kingdom of Nepal, 1990)

Emergency Power:

  1. If a grave emergency arises in regard to the sovereignty or integrity of the Kingdom of Nepal or the security of any part thereof, whether by war, external aggression, armed rebellion, or extreme economic disarray, His Majesty may, by Proclamation, declare or order a State of Emergency in respect of the whole of the Kingdom or of any specified part thereof.
  2. Every Proclamation or order issued under clause (1) above shall be laid before a meeting of the House of Representatives for approval within three months from the date of issuance.
  3. If a Proclamation or order laid for approval pursuant to clause (2) is approved by a two-thirds majority of the House of Representatives present at the meeting, such Proclamation or Order shall continue in force for a period of six months from the date of issuance.
  4. If a Proclamation or Order laid before a meeting of the House of Representatives pursuant to clause (2) is not approved pursuant to Clause (3), such Proclamation or Order shall be deemed ipso facto to cease to operate.
  5. Before the expiration of the period referred to in Clause (3), if a meeting of the House of Representatives, by a majority of two-thirds of the members present, passes a resolution to the effect that circumstances referred to in Clause (1) of the Proclamation or Order of the State of Emergency for one other period, not exceeding six months as specified in such resolution, and the Speaker shall inform His Majesty of such extension.
  6. During a dissolution of the House of Representatives, the National Assembly shall exercise the powers of the House of Representatives for the purpose of Clauses (2), (3), (4) and (5) above.
  7. After the State of Emergency has been declared pursuant to Clause (1), His Majesty may issue such orders as are necessary to meet the exigencies. Orders so issued shall be operative with the same force and effect as law so long as the State of Emergency is sin operation.
  8. His Majesty may, at the time of making a proclamation or Order of a State of Emergency pursuant to Clause (1), suspend sub-clauses (a), (b), (d) and (e) of Clause (2) of Article 12, Clause (1) of Article 13 and Article 15, 16, 17, 22 and 23 of this Constitution for as long as the Proclamation is in operation.  

 Provided that the right to the remedy of habeas corpus under Article 23 shall not be suspended.

  1. In circumstances where His Majesty has suspended any Article of this Constitution pursuant to Clause (8), no petition may lie, nor question be raised in any court for the enforcement of the fundamental rights conferred by such Article.
  2. If, during the continuance of a Proclamation or Order under Clause (1), any damage is inflicted upon any person by an act of any official which was done in contravention of law or in bad faith, the affected person may, within three months from the date of termination of the Proclamation or order, file a petition for compensation for the said damage and if the court finds the claim valid, it shall cause compensation to be delivered.
  3. A Proclamation or Order of a State of Emergency issued pursuant to Clause (1) may be revoked by His Majesty at any time during its continuance.

The Articles mentioned in Clause 8 of Article 115 —Emergency Power—are as follows:

Sub Clauses a, b, d, e of Article 12 refer to: Freedom of Opinion and expression, Freedom to assemble peacefully and without arms, Freedom to move throughout the Kingdom and reside in any part thereof, Freedom to practise any profession, or to carry on any occupation, industry or trade;

Clause (1) of Article 13 refers to: Press and Publication Right;

Article 15 refers to Right against Preventive Detention; Article 16 refers to Right to Information; Article 17 refers to Right to Property; Article 22 refers to Right to Privacy; and Article 23 refers to Right to Constitutional Remedy)  

Fundamental rights suspended during Emergency

Article 12. Right to Freedom

Article 12.2 (a) – freedom of opinion and expression;
Article 12.2 (b) – freedom to assemble peaceably and without arms;
Article 12.2 (d) – freedom to move throughout the Kingdom and reside in any part thereof;

Article 13. Press and Publication Right

Article 13 .1 – No news item, article or any other reading material shall be censored.

Provided that nothing shall prevent the making of laws to impose reasonable restrictions on any act which may undermine the sovereignty and integrity of the Kingdom of Nepal, or which may jeopardise the harmonious relations subsisting among the peoples of various castes, tribes or communities; or on any act of sedition, defamation, contempt of court or incitement to an offence; or on any act against which may be contrary to decent public behaviour or morality.

Article 15. Right Against Preventive Detention

Article 15.1 – No person shall be held under preventive detention unless there is a sufficient ground of existence of an immediate threat to the sovereignty, integrity or law and order situation of the Kingdom of Nepal.

Article 15.2 – Any person held under preventive detention shall, if his detention was contrary to law or in bad faith, have the right to be compensated in a manner as prescribed by law.

Article 16. Right to Information

Every citizen shall have the right to demand and receive information on any matter of public importance;

Article 17. Right to Property

Article 17.1 – All citizens shall, subject to the existing laws, have the right to acquire, own, sell and otherwise dispose of, property.

Article 17.2 – The State shall not, except in the public interest, requisition, acquire or create any encumbrance on, the property of any person.

Article 17.3 – The basis of compensation and procedure for giving compensation for any property requisitioned, acquired or encumbered by the State for in the public interest, shall be as prescribed by law.

Article 22. Right to Privacy

Except as provided by law, the privacy of the person, house, property, document, correspondence or information of anyone is inviolable.

Article 23. Right to Constitutional Remedy

The right to proceed in the manner set forth in Article 88 for the enforcement of the rights conferred by this Part is guaranteed.

(Article 88 deals with protection of fundamental rights to be safeguarded by the Supreme Court.)

However, the right to the remedy of habeas corpus under Article 23 has not been suspended.

Appendix B

Date:   Incidents

October:

3    In Siraha, At least four people, including a woman, were injured when a home-made bomb went-off in a radio repairing store at Betaha village of the Bhavanipur Kalabanjar VDC.

In Dhanagadhi, the Maoist insurgents looted some guns from the municipal area.

5     In Sunsari, the insurgents fired at a group of persons collecting firewood in a forest at the Panchakanya VDC, killing one of them.

7     In Udayapur, the insurgents looted documents and goods worth Rs 400,000 from Matrika Pokharel, a resident of the Rupatar VDC.

8    In Jumla, the insurgents were reported to have locked 28 out of 30 VDC in the district.

In Jajarkot, insurgents destroyed a police post at Dashera Badaban.

In Damauli, insurgents abducted Dr. Chandra Bahadur Thapa, Principal of the Brighter Future Boarding School and Chairman of the Negotiating Team of the Private School Managing Committees, and released him after 22 hours.

9     In Udayapur, the insurgents abducted the Vice-Chairman of the Jogidaha VDC.

10   In Nawalparasi, the Maoist insurgents destroyed the vacant Dhobadi Area Police Office through bombs attacks.

In Khotang, the insurgents abducted three persons, including a headmaster, from the Nerpa VDC.

11   In Bhaktapur, Maoists looted four houses in the Dadhikot VDC.

In Kathmandu, Maoists looted a house in Baneshwor.

12   In Taplejung, the Maoists abducted Tek Bahadur Sanwa, a NC activist.

13    In Dang, three persons were injured when the Maoists resorted to firing in the course of a clash with the local people of the Baise Gawanti VDC.

14    In Bardiya, the insurgents vandalized the house of the UML MP Rang Nath Joshi.

In Hetauda, the Maoist insurgents abducted Mandav Raj Karki, a rebel Maoist and General Secretary of the NCP Maoists(Center).

15    In Dailekh, a Maoist insurgent beat to death Man Bahudur Bistha of the Dandaparajul VDC.

In Doti, the insurgents abducted Chhabilal Bhatta, Chairman of the Basudevi VDC.

16   In Sindhuli and Syangja, the insurgents were reported to have intensified their campaign of extortion.

17   In Sunsari, Maoists fired four rounds and injured three persons in the Amahibelas VDC, and looted 22 tolas of gold and 35 tolas of silver from a house in Inaruwa.

18    Three prisoners, including two Maoists insurgents, escaped from the district jail in Rolpa by digging a 12m long tunnel.

19    In Syangja, the insurgents abducted Chhabilal Pokharel, an NC worker, from the Putlibazar Municipality.

Maoists abducted Surya Prasad Poudel, Secretary of the Kichnis VDC unit of the UML, and headmaster of the local school in Waling.

21    In Banke and Bardiya districts, the insurgents looted arms from several villages.

22    The insurgents beat up Zit Bahudur Ghale, Secretary of the local unit of the UML in the Bageshwari VDC of Nuwakot, accusing him of being engaged in anti-Maoist campaign.

28   In Nawalparasi, the insurgents abducted Khadga Bahadur Kumal, Assistant District Education Officer of Tanahu, from the Bulingtar VDC.

29    In Kabhre, the insurgents destroyed a vacant police post in Baluwa VDC.

31    In Jajarkot, the Maoist insurgents abducted two persons, including a teacher, from the Khalanga VDC

In Nuwakot, the insurgents declared Bir Bahadur Tamang, Deputy Chief of the People’s government in the Betini VDC who was killed by the local people recently, a martyr.

November:

1    The insurgents set fire to the office of the Betini VDC and disconnected the telephone line of the VDC.

The insurgents also vandalized the house of the VDC Chairman.

In Kalikot, the insurgents abducted four persons, including the Office Secretary of the district unit of the UML.

2    In Dolakha, the insurgents abducted Mahendra Upreti, a farmer of the Pabati VDC.

In Jumla, the insurgents abducted four UML workers, including ex-MP Dilli Bahadur Mahat, Chairman of Jumla DDC Tirtha Bahadur Budha, DDC member Dhirendra Raj, and NDC Chairman Govinda Adhikari, from the Garjyangkot Khallabada VDC.

3    In Syangja, the Maoists killed one UML activist and injured two other at Chapakot Suntalitar.

The insurgents also beat up and abducted three NC activists.

4     In Kalaiya, the insurgents beat up Tulasi Neupane, Secretary of Nijgadh village unit of UML.

6    In Simikot, the insurgents attacked the Raya VDC and injured 30 persons.

In Sankhuwasabha, the insurgents destroyed all the documents of the Kimathanka customs office and took away the office furniture. They also looted some goods belonging to Makalu-Barun National Park.

The insurgents released Khadka Bahadur Kumal, section officer of the Tanahu District Education Office, whom they had abducted from Nawalparasi last week.

In Lalitpur, the insurgents looted the house of a resident of the Sunakhoti VDC. 

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