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Ballot boxes in legal black hole

October 13, 2010

TibetInfoNet
October 7, 2010
ISSN: 1864-1407

Nepali police on Sunday 03 October 2010 disrupted the primary polls
organised in Kathmandu by Tibetan refugees to nominate candidates for
the post of Kalon Tripa, the head of the Central Tibetan
Administration (CTA) in Dharamsala, India, and members of the
assembly which acts as a legislative chamber for the Tibetan
community in exile. The legality of the move, which occurred as a
result of pressure from the Chinese embassy in Nepal, is being
questioned. The move also potentially threatens the legitimacy of the
future leadership of the Tibetan exile community in general.

The Tibetan ballot boxes in Boudha

Hundreds of Tibetan refugees living in Nepal had gathered at the
three main Tibetan locations in Kathmandu Valley: Swayambhu, Boudhha
and Jawalakhel. The voting was to take place from 9am to 5pm. Nepali
police seized the ballot boxes at the first two former locathere is
conflicting information as to the exact number of boxes
confiscatedtding to police officials, ten were removed from Boudha
and eight from Swayambhu. But according to the International Campaign
for Tibet (ICT) fifteen ballot boxes were removed in Boudha and
sixteen in Swayambhu.

Tibetan exiles living in Kathmandu had advised Nepal's Home Ministry
about the election days ahead of it taking place. They had pledged to
keep the procedure discrete and to minimise the visibility of the
actual voting. Under these conditions, the ministry raised no
objections to the plan. Police had been ordered around the polling
stations to make sure that no untoward incidents would occur. The
atmosphere was friendly and relaxed. Some voters, however, objected
to the presence of electoral electioneers around and inside the
polling stations that displayed maps of Tibet and the Tibetan flag,
together with slogans in the English language. They were seen as as
"too aggressive unwise". They were also unhappy about the
distribution of leaflets advertising some of the candidates, both
within the polling stations and in front of them on the streets(1).
Apart from unnecessarily pricking the sensitivities of the Nepali
authorities, advertisements for candidates in or around election
premises areis prohibited in most docracies.

The Chinese embassy, although informed about the exiles' plan to hold
their poll on that day, do not seem to have taken any step to
forestall the election. However, according to sources in touch with
the relevant Nepali authorities, around one or two o'clock in the
afternoon of Sunday 03 October, possibly taking exception to the high
visibility of the posters, the Chinese ambassador in Kathmandu called
up Nepali Prime Minister Madhav Kumar Nepal. The Nepali PM is said to
have been "very upset" about the call. He quickly contacted the Home
Minister. Some confusion ensued as to what steps could be taken.
Finally, Tibetan community leaders were contacted and asked to stop
the election process. Messages were sent out and the polling in
Jawalakhel was stopped. It continued however, despite the warnings
from community leaders, at the poll stations in Bouddha and
Swayambhu. Subsequently, around 4pm, small units of riot police were
dispatched to these two poll stations where they confiscated the
ballot boxes. There were some protests, but no major scuffles and no
arrests were made.

Legality and legitimacy

According to Republica newspaper, Kathmandu, officials at the Home
Ministry said police personnel were mobilised to prevented the voting
as: "It violated Nepal's foreign policy and existing laws of the host
country". The ministry had consequently "instructed local
administrations to take action as per the laws of the land against
those engaged in such activities".

The legalistic legitimisation presented by the ministry is, however,
at best questionable. It clearly illustrates the fuzziness on the
part of Nepal's authorities in their conception of the rule of law
that is at the heart of many problems in the country. The most
obvious weakness of the Home Ministry's statement is its confusion
between laws and policies. Although the implementation of a country's
policy, foreign or otherwise, can lead to the promulgation of a set
of laws, a policy as such does not have the force of a law, as it is
nothing more than the expression of the will and intention of a given
party. This is also the case when the party in question is a
government legitimised democratically by parliament. Though there is
a limited space for ordinances and regulations to be made by the
executive, even these ought to be formalised and based on existing
laws. This in fact is the crucial difference between a system
governed by the rule of law and one governed by the arbitrary whims
of those who in effect control it.

It is not apparent which Nepali law the Tibetan poll could have
contravened. As Tibetan exiles' structures do not have any formal
status in Nepal, they are the private matter of those involved. The
whole election process was informal and thus a private event
organised by private individuals and in which people participated
without compulsion and at privately owned premises. With that, the
event itself can hardly be regarded as having been illegal, which is
probably the reason the Nepali authorities originally did not object
to it. Nor did the event pose a threat to public safety or threaten
to lead to disorder.

In the hypothetical case that the display of electoral materials,
which even raised concerns amongst some Tibetans, could have
constituted a violation of Nepali laws and regulations, which some
Nepali jurists say is fairly unlikely, then the police would indeed
have had the authority to remove these materials from the public
space. However, the same jurists point to the fact, even in this
case, police should not have been able to extend this authority to
justify penetrating private premises and confiscating ballot boxes,
which were carrying no displays of illegal material.

A legal basis for seizing and holding the ballot boxes does not
appear to exist either. In all countries where the rule of law
prevails, police or other executive authorities are allowed to seize
objects or materials that may present an immediate danger to the
general public. The danger can be physical - typically weapons,
serious pollutants or perhaps a dangerous vehicle - or the danger can
pose a threat to the social environment, for instance pornographic
material or anything inciting racial hatred. A box containing voting
slips cannot be considered to be a danger according to these
definitions. It is also possible that the confiscation of the boxes
constitutes a breach of data protection regulations, even if Nepal's
law cannot recognise internal Tibetan polling as a legally valid
political action.

The move by Nepal's highest executive power appears in this light to
be nothing short of arbitrary and raises serious questions about the
state of the rule of law in Nepal. Because of this, it is probable
that it would be dismissed as unlawful by Nepal's own judiciary. For
the time being though, there does not appear to be any intention on
the part of the Tibetan community in Nepal to raise the legal aspects
of this issue. Instead, efforts were focused on practical steps
towards the restitution of the ballot boxes. Letters to this end were
sent on 04 October to the Home Minister of Nepal as well as to the
United Nations High-Commission for Refugees (UNHCR) and the Office of
the High-Commissioner for Human Rights (OHCHR).

The Nepali executive has taken other legally questionable measures
against Tibetans recently. For instance, prominent Tibetans, in an
attempt to pre-empt any demonstrations, were taken into custody in
March 2010 ahead of the sensitive 10 March date, when Tibetans
commemorate the anniversary of the Lhasa uprising of 1959. Nepal's
Supreme Court later dismissed the preventive detentions as unlawful.
In early July 2010, on the birthday of the Dalai Lama, Tibetan or
Nepali citizen who looked like Tibetans, a description that matches a
large number of Nepali citizens, in particular Buddhists(2), had
their access to Buddhist monasteries hindered. Although clearly a
breach of the right to free movement to which all, including
non-Nepali citizens, are in principle entitled, and effectively an
act of religious, even possibly racial, discrimination which is
clearly outlawed in Nepal, these acts have so far not the been the
subject of any legal challenges.

Despite this, the Nepali government's move found approval in some
sections of the Nepali public. The otherwise politically liberal
Republica on 05 October ran an unsigned editorial in which the
government's decision to stop the voting was labelled: "Quie
appropriate". By putting a stop to the voting, the government had
"upheld our commitment to [the] one-China policy", the editorial
said, adding that "certain outside powers and their agencies (...)
should not make Nepal a [sic] ground to foster their anti-China
agenda". The repeated demonstrations by Tibetan exiles during spring
2008 in front of the Chinese embassy in Kathmandu, which are
generally banned at this location and clearly ilnot le have
exasperated many in Nepal's capital.

The implications for the Tibetan exile polling process following
Nepal's actions are potentially significant. The 8 or 9,000
registered voters based in Nepal make up more than 10% of the total
exile electorate. If these votes remain uncounted, it could represent
a serious distortion of the election's results, particularly because
the sociological composition of the Tibetan exile community in Nepal
is different to other Tibetan exile communities, and people there may
vote very differently to others within the diaspora. Even in the
event that the Nepali authorities restore the ballot boxes, the fact
that they were outside the hands of the Tibetan election commission
for a considerable length of time might lead to accusations of
tampering. With that, the legitimacy of the elected candidate might
be challenged, especially if the final result turns out to be tight.

Notes:
1: Pictures that were made available to TibetInfoNet confirm the
display of posters and the distribution of pamphlets inside and
outside the polling stations.

2: For a number of historical reasons, Nepal's law enforcement
officers are largely recruited from among high caste Hindus, and the
higher ranks almost exclusively.
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