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OBJECTIVES
The Law and Society Trust Fortnightly Review informed about the activities of the Trust, and associated with the Trust. Our publication is a concerning the legal rights of citizens, and at instrument for peaceful change.
In this issue we focus on Anti-Discrimination La the first piece Dharmananda and Williams disc equality of opportunity, including the use of cor They use as their base some of the jurisprudenc In the second article Tej Thapa analyses the rect factors which precipitated the elections and const of the new government is also examined.
EQUAL OPPORTUNITY
NEPAL ELECTIONS
 

A sor CA SYTYS O IN Syers
keeps the wider Law and Society community about important events and legal personalities imed at raising public awareness on all issues gaining wider recognition of law as society's
V and the 1994 General Elections in Nepal. In Iss som he approaches to the broad question of ciliation in resolving discrimination disputes. e and practice that has emerged in Australia. 2nt Nepali elections. She looks at some of the itutional crisis which followed. The formation

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Anti-Discrimination Legis
V. Dharmananda
... the right to equality of opportunit essence of equality of opportunity is th his or her capacities to the utmost, assumptions which are based on the pe her actual abilities (Justice Mathews,
Anti-discrimination legislation is designed underlying philosophy of such legislation com or groups are disadvantaged on the basis of cl and is encapsulated in legislation such as the C Kingdom's Sex Discrimination Act (1975), an and Racial Discrimination Act (1975).
What I propose to do in this paper is to b discrimination legislation. The Western Austr is used as the legislative model, and all referel Second, the characteristics of the conciliatio decade are discussed. Then the shortcomings of investigation and conciliation are considere the Tribunal in achieving the statutory objects
SCHEMA OF ANT-DSCRIMINATION
Discrimination, both direct and indirect, is on an area of public life specified by the Act.
The grounds enumerated in anti-discriminatio or age; or voluntary such as political and environmentally determined such as family re
Paper presented at a seminar held at t 1995
LAW & SOCIETY TRUST REVIEW - 16 N

lation : Law and Practice
and J. Williams
is but one of the basic human rights ... the ut each person should have the right to develop free of restrictions arising from stereotyped rson's status and which are irrelevant to his or New South Wales Supreme Court).
to promote equality of opportunity. The prises an explicit acceptance that some people aracteristics such as sex, race or impairment, anadian Human Rights Act (1985), the United the Australian Sex Discrimination Act (1986)
Iriefly delineate the general schema of antialian Equal Opportunity Act (WAEOA) (1984) nces to legislative provision are from this Act. in model which has evolved during the past and merits of both the Act and the processes 'd. Finally, the impact of recent decisions of
of the Act are analysed.
EGSLATION
y unlawful when it occurs on a ground and in
h legislation are immutable such as sex, race religious conviction; and those which are ponsibilities or nationality.
e International Centre for Ethnic Studies on 3 January
'WEMBER 1994 1.

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The arena in which such legislation operates c comprises employment, education, the pi accommodation and access to places and Vehi
Under the Acts a complaint of unlawful discri as sex or race, and an area such as employm an example of discrimination on the ground o which meets the requirements of the South A
Julie was referred by her doctor to as course of this procedure, the specialis, unrelated to the examination, mostly sexually transmittable diseases. Whe lesbian, he asked her to 'educate hi engage in sexual activity. Julie was examination was completed.
The specialist claimed that although sexual behaviour, it was necessary for, history and sexual practices to estab, environment and general health. He lesbian behaviour were inappropria discriminatory. The complaint was cor which the specialist apologised to he compensation of $200 for injured feel Opportunity 1992/93:43).
However, such a complaint does not fall with which does not include sexuality as a ground
As was noted earlier, both direct and indirec Direct discrimination is defined to mean less same or similar circumstances, and is illustra
A young Aboriginal woman, Marie lo in the area of goods, services and fac she shopped at a large supermarket/v
The complainant stated that on the fir her sister and a friend when they
2 LAW & SOCI

an be characterised as the public sphere which ovision of goods, services and facilities,
cles.
mination must encompass both a ground, such 2nt or education. The following case study is f sexuality in the area of provision of services ustralia Act.
pecialist for medical examination. During the asked her a range of questions which seemed about her marital status and contact with n Julie informed the specialist that she was a m about the manner in which lesbian women offended by these questions and left before the
his speciality had no direct connection with him to question his patients about their medical lish a comprehensive overview of their social admitted that his questions regarding Julie's fe and could have been both offensive and aciliated when Julie accepted a settlement under ir, waived his consultation fee, and paid her ings (South Australia Commissioner for Equal
in the provisions of the Western Australia Act
of discrimination.
t discrimination are covered by the provisions. favourable treatment than another person, in ited in the next example.
dged a complaint alleging race discrimination ilities after a series of incidents occurred when ariety store in a regional area.
st occasion she was browsing in the Store with noticed they were being followed and their
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movements watched by a female employ by the actions of the employee that the
One of the complainant's companions al The store manager told the group that i go elsewhere".
When Marie visited the store a week la at the entrance and told the complainar of other shoppers, "not to shop at the st humiliated at being spoken to like this a she was Aboriginal, she intended st Commissioner for Equal Opportunity 1
Indirect or systematic discrimination is wher appears neutral, but which in practice disadv factors such as their sex or family responsibili
Ted was employed by a manufacturing discrimination on the ground of his far, his employer that he was required to ch a rotating shift basis.
By way of background to the complain employment with the respondent, more with no dependents. At that time Ted required to meet production needs. children. The complaint's wife had par
from work (on permanent day shift) an
Ted alleged that a substantially higher family responsibilities than his were a rotating shifts. He further alleged th structure of the respondent organisatio Commissioner of Equal Opportunity 1"
Moreover, all such legislation in Australia col For example, the establishment of educational the provision of benefits, families or services b under statutory authority (section 69).
LAW & SOCIETY TRUST REVIEW - 16 N

ee. The complainant and her companions felt re was an inference they were going to steal.
pproached the store manager and complained. f they were not happy in the store "they could
iter a different female employee was standing it, in a loud voice and attracting the attention tore anymore". The complainant said she felt ind again there was an inference that because ealing from the store (Western Australian 993/94).
e there is a rule, criterion or policy which antages a group for reasons associated with
ties.
Company, and lodged a complaint of indirect mily responsibilities when he was informed by ange his working hours to include working on
it, Ted advised that when he had commenced than ten years previously, he was a single man had signed an agreement to work any shifts Subsequently, Ted had married and had two t-time employment at times when he was home dable to care for their children.
proportion of persons without or with different ble to comply with the requirement to work at it was not reasonable, given the size and n, that his needs be met (Western Australian 993/94).
ntains exceptions which allow discrimination. institutions for religious purposes (section 73); y voluntary bodies (section 71); and acts done
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In addition, some of the Acts provide that spec of a particular group are not unlawful. In We a characteristic such as sex or race is a ger circumstances. For example, in theatrical pro actor to play a female role.
At this juncture I would like to state that un agencies were established to administer the A. functions. These are the Commissioner fo Opportunity in Public Employment and the E
The powers and functions of the Commissione VII of the Act. Briefly, the Commissioner is complaint lodged by individuals who allege ul required also to investigate complaints lodgec members. Under section 80 of the Act, the disseminate information on matters relating to investigations, research and inquiries relating
The Director of Equal Opportunity in Public promote equal employment opportunity in the Y the effectiveness of programs and process opportunity.
The Equal Opportunity Tribunal is established endeavour to resolve by conciliation a comp Tribunal has the same powers and protection found to be substantiated, the Tribunal may a of compensation to the complainant.
THE MEANING OF CONCILIATION
The Commonwealth Government and all Au human rights and anti-discrimination laws. Th like many of its counterparts in other jurisdic conciliation or investigation. Definitions of directive form of mediation where a third pal to instances where the third party is a facilita has no authority to propose new solutions Constitutional Affairs 1991: 11-13).
4 LAVV & SOCI

al measures which seek to improve the status stern Australia it is not unlawful to state that uine occupational qualification in particular luctions employers can advertise for a female
ler the Western Australia Act three separate
:t, with each agency responsible for different Equal Opportunity, the Director of Equal
ual Opportunity Tribunal.
r for Equal Opportunity are stipulated in Part required under section 84 to investigate each lawful discrimination. The Commissioner is | by a trade union on behalf of a member or Commissioner is empowered to acquire and the elimination of discrimination, and conduct to discrimination.
Employment works with public authorities to Western Australian public sector, and evaluates es designed to achieve equal employment
under Part VIII of the Act. The Tribunal may laint that has been referred for inquiry. The 1 as a Royal Commission. If a complaint is ward damages not exceeding $40,000 by way
stralian States except Tasmania, have enacted e Equal Opportunity Act, in Western Australia ions does not stipulate what is meant by either conciliation range from viewing it as a more ty attempts to invent a solution to the dispute, or of negotiation between the two parties, but (Senate Standing Committee on Legal and
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At the same time, conciliation has been char Christine Chinkin in their analysis of dispu process where attempts at the resolution of the such as those contained in the Equal Opportur President of the Equal Opportunity Tribunal i be the "process of settling conflicts by br voluntary and mutually satisfactory agreemen
Within the framework of the legislation, con
process of settling disputes concerning dialogue between the two parties, but advocate for the principles of equal op an avenue whereby parties to a dispu. basis, and in a non-adversarial frame processes under the Western Australia
Characteristics of the conciliation model
Since the inception of anti-discrimination le processes for handling complaints have evolve upon the Commissioner by the Act, and by Tribunals, Supreme Courts and the Federal C
Characteristics of the model that have evolved include the following:
To advise the respondent of th a response to the allegations.
The complainant owns the co complaint at any stage during
The officer endeavouring to re either party, but seeks to fos opportunity.
The Commissioner and Comm
confidentiality and cannot divu
person.
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acterised by authors such as Hilory Astor and te resolution mechanisms in Australia, as a a dispute are affected by legislative provisions, hity Act (1992: 61-64). Nicholas Hasluck, the n Western Australia has defined conciliation to
inging disputing parties together to reach a t" (1994: 11).
ciliation is seen as a:
discrimination where a third party oversees the does not impose an agreement and acts as an portunity. Conciliation is a means of providing te may resolve matters on a without prejudice 2work (Report of the Steering Committee into in Equal Opportunity Act 1984 1994: 4).
gislation in Australia, various procedures and d. The model is informed by powers conferred judicial decisions made by Equal Opportunity lourt.
in Western Australia and in other jurisdictions
especific details of the complaint, and to seek
mplaint at all times, and many withdraw the the process.
ach agreement does not represent the views of
ster understanding of the principles of equal
ission officers are bound by the requirement of lge any detail concerning a complaint to a third
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Confidentiality is frequently complainant and respondent ( Opportunity 1993/94: 25-26).
It is noted that elements of the model are the
the Final Report of the Scrutiny of Acts and I of the Steering Committee into processes unde (1994). It has been argued, for instance, that discriminator" because the Commissioner a
substance and is withinjurisdiction (Report of posited, also, that a conflict of interest exists a the dual role of investigation and conciliati however, beyond the scope of this paper.
Processes of investigation and conciliation
From a broad perspective, the processes of in all of the following elements:
Under anti-discrimination legis allegedly unlawful act of discri the Commissioner (section 83 (
The Commissioner is required t determine in the first instanc
complaint of unlawful discrimi
AA Where, on the face of it, the informs the respondent of the a
After receipt of the respondent', attempts at conciliation comme are possible. These are descrit
A conciliation conference may matter. The WA Act provide represented during conference Commissioner.
6 LAW & SOCIE

part of the agreement made between the Western Australian Commissioner for Equal
subject of some debate, and are discussed in Regulations Committee (1993) and the Report the Western Australia Equal Opportunity Act he "aggrieved person has more rights than the ccepts a complaint which appears to have the Steering Committee 1994:45). It has been s conciliation officers are required to perform on. Detained discussion of these issues is,
vestigation and conciliation comprise some or
slation individuals who are aggrieved by an mination may lodge a complaint in writing to of the WAEOA).
o investigate each complaint (section 84), and 2e whether the matters raised constitute a
nation within the ambit of the Act.
complaint has substance, the Commissioner legations and seeks a response.
S reply, discussions, further investigations and nce. At this stage, any one of five outcomes bed in the next section.
be convened in an attempt to resolve the s that complainants and respondents may be s only with the express permission of the
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I wish to emphasise that for the purposes of a been used to characterise the processes of in can be more accurately described as one C conclusion of one stage, the matter does not conciliation only commence when investigatic complaint has been lodged, either of the two
Outcomes of a complaint
A complaint is resolved when any one of the
The complainant and responder
Where the complaint appears t were unsuccessful, the Comm Opportunity Tribunal for inquir
The cońplainant withdraws the
The complaint is considered to


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These observations are evaluated in light effectiveness of dispute resolution mechanisms Resolution and Public Policy in its comprehe developed criteria against which the conciliati that dispute resolution mechanisms:
-- must be accessible to disputant
- must protect the rights of disp
should be efficient in terms of
should assure finality of decisi
- must be credible;
should give expression to the 1983)
With respect to the first criterion, it is questi in the Act are accessible to all potential disp
Analysis of complaints by ground received by the complaints pertain to the grounds of sex, s (Commissioner for Equal Opportunity 199 discrimination constitute less than a fifth (16
In the socio-political climate of contempor Toomelah Inquiry, The Racist Violence Enq Deaths in Custody it is acknowledged, all experienced by Aboriginal people in public goods and services is substantial. However, of race discrimination complaints lodged wit
At this juncture, I pause to add that while r Western Australian Commissioner, statistic Australian jurisdiction show a similar pattern. by Aboriginal people are not, therefore, spel
Low rates of complaints from Aboriginals requirement that the complaint be made in agencies and limited understanding of the Ac be contributing factors.
8 LAW & SOCII

of criteria generally used to ascertain the ... The United States' Ad Hoc Panel on Dispute lsive review of dispute resolution mechanisms on model may be evaluated. Major criteria are
S.
tantS, time and cost;
On;
community's sense of justice (Ad Hoc Panel:
onable whether the means of redress provided
tantS.
the Commissioner show that almost half (48%) exual harassment, marital status and pregnancy 3/94: 27). Conversely, complaints of race %) of all complaints.
ary Australia, further to the findings of The uiry and the Report of Royal Commission into beit to varying degrees, that discrimination ife, particularly in relation to the provision of the reality of this is not reflected in proportions h the Commissioner.
eference is made to the data published by the s from anti-discrimination agencies in other Trends in the proportion of complaints lodged cific to the WA Commission.
and other groups may be attributable to the writing. A general mistrust of government it, and the means of redress provided by it may
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One of the assumptions made by anti-disc experience discrimination are able to both a experiences to the relevantagency. The vali Kirsten Bumler, among others in a study w (1987), and is illustrated by the following ex
A Pakistani woman rents an apartmen Subsequently, she overhears comment from her flat. The comments grow m
When she discusses the matter with complaint of racial harassment, her re to me".
The second criterion refers to the protection o such as the relative parity between disputants been argued that:
in a world where power differentials counselling, mediation and conciliati detriment of the powerless (Scutt 1986
That power differentials exist between compla affects the agency's treatment of complainant
For example, in Matthews v Sheedy & Ors (1 Australia that the Human Rights and Equ complainant's correspondence to significantly and to disguise the existence of certain facts. page hand-written letter. Some months la correspondence, which was typed at the Huma The second letter substantially incorporated th included additional information.
In its decision, the Federal Court stated that there was no disguising of facts. While matte written letter were not referred to in the typed there was no change in either the intent and i held that:
LAW & SOCIETY TRUST REVIEW - 16 N.

imination legislation is that individuals who equately perceive it as such and report their ity of this assumption has been challenged by nich comprised of semi-structured interviews mple:
from the landlord who lives on the premises. made about the cooking smells which emanate ore insistent and personal over time.
friend, and it is suggested that she lodge a sponse is "but it's not racist, he rented the flat
f the rights of disputants, and this raises issues in terms of resources and knowledge. It has
and inequality are real, with real detriments, on serve the interests of the powerful to the i: 203).
inants and respondents and that this necessarily s has been accepted by the courts.
93) it was argued before the Federal Court of al Opportunity Commission had edited the alter the intent and impact of the complaint, It was noted that the complaint was a three er the complainant signed another piece of n Rights and Equal Opportunity Commission. contents of the first correspondence, but also
a comparison of the two documents showed is referred to by the complainant in the handetter, scrutiny of the documents indicated that pact of either statement. The Federal Court
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If there are matters of further compla letter of complaint, that further letter communication by a complainant to th communication with any party to a mati that such omissions have been made (
Moreover, in O'Callaghan v Loder & Anor. accepted that the complainant may have difficu The Tribunal held that:
To amount to a complaint within the p must therefore allege the commissi contravention of the Act. The complai not allege the relevant facts with the p Some account must be taken of the fact have some difficulty in articulating suc
However, while the processes of investigatio legislation, is to remedy such power imbalanc one complaints. Matters of discrimination w. to the extent that these are not openly discuss use of confidentiality with respect to conciliate may continue to discriminate.
This assessment is qualified by two observat those who allege sexual harassment in the without assurance of confidentiality. Second anonymity, the organisation may modify or c accepted as being discriminatory. In Kemp subsequent to the Tribunal's findings, the Mi found that the use of seniority as a criterion
women whose employment continuity was br
Moreover, any consideration of the extent to addressed by the conciliation model must take the Commissioner.
The Western Australian Equal Opportunity Ac that the Commissioner must if requested prov their case to the Tribunal (section 93(2)). F
1o - LAW & SOCI

nt which come to light resulting in a further an be sent. If there are irrelevancies in any e Commission, they can be omitted from any er requiring investigation, it being made plain CCH, 1993, 92-504).
(1984) the NSW Equal Opportunity Tribunal lty formulating a complaint of discrimination.
rovisions of the Act, the written document ... pn by the other person or persons of a nt must identify that contravention but it need articularity of an indictment or of a pleading. that the complainant is a lay person who may ch a complaint (CCH, 1984, 92-022).
n and conciliation indeed the purpose of such ces, this is only tackled on the basis of one to hich affect a group of people are "privatised" ed in the public arena (Thornton 1990). The 'd complaints mean that individual respondents
ions. First, many complainants, particularly workplace are unlikely to lodge a complaint , while the respondent may retain a degree of change practices which were found to be or it v the Ministry of Education, for example, nistry introduced new policies. The Tribunal for promotion indirectly discriminated against oken by child bearing and rearing.
which power differentials between parties are account of the provision of legal assistance by
it is one of the few in Australia which provides ide the complainant with assistance to present or the most part such assistance has consisted
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of a legal officer who has represented the comp assistance, her jurisdiction in the complaint ce and she is not a party to the proceedings.
Examination of complaints referred to the Trib have the means to pay for legal representation, job was sexually harassed by a sole employ lodging a complaint of discrimination. In Ellio complained against a publican for differences In other instances, respondents' legal represent In City of Perth & Others v DL & Others, an and infected with the HIV--VIRUS claimed permission for a "drop in centre for people v ground of impairment in the provision of servi was challenged, and the matter appealed to t upheld.
Finally, I would like to consider decisions of beginning to consider matters such as sex disci in the workplace. Although the Tribunal is e rarely does. Public hearings can facilitate discu then, to changes in practice.
In Smith & Mitchell v Sandalwood Motel, the c were singing with a male keyboard player at a the barmaid deteriorated, and the complainants drew the attention of their employer to their ci no attempt to speak to the patrons involved. In or pack their bags. The Tribunal found that "brutal indifference", and required them to wo their sex. The difficulties faced by female mu hotels until this decision.
The second decision to which I refer is th Engineering Joint Venture & Metals and Engi Gail McIntosh worked as trade assistants w supervisor's hut, the union officials' hut, and 1 took their tea and lunch break. The crib hu posters depicting women with bare breasts and
LAW & SOCIETY TRUST REVIEW - 16 NO

ainant. Although the Commissioner provides ses once it has been referred to the Tribunal,
inal show that complainants frequently do not
In Lyons v Godley, a 17 year old in her first r, and she was subsequently dismissed for v Peorlon Holdings, tribal Aboriginal women in charges for alcohol to Aboriginal people. atives have raised significant legal challenges. on-profit organisation for persons affected by that the City of Perth's refusal of planning ho were HIV+" was discriminatory on the ces. In this matter the Tribunal's jurisdiction he Supreme Court where the complaint was
the Tribunal which show that the Tribunal is imination in pubs and pornographic material impowered to conduct hearings in private, it issions and lead, if not to changes in attitudes,
omplainants Shirley Smith and Josie Mitchell public bar. The behaviour of the patrons and found the atmosphere threatening. When they oncerns, he was abrupt, dismissive and made stead, he told the complainants to do their job the employer treated their complaints with rk in a hostile work environment because of sicians were largely ignored by managers of
at of Horne & McIntosh v Press Clough eering Workers Union. Heather Horne and here their duties consisted of cleaning the he crib huts where the blue-collar workforce s were decorated by the men with "girlie" occasionally fully nude.
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A few months after they had commenced wo showing a nude woman with her genitals exp supervisor about the poster, and in response : area. Two months later, a dozen pornogra displayed in one of the crib huts. The com believed to be responsible, and when no respo organiser of the situation and of their intentio
The removal of the posters led to an immedia women not to push the issue, and stated that if little support or sympathy for the women.
The complainants were then subject to innue posters on the site increased, and they wer concerning them which was displayed on the
Their complaints of sex discrimination and v employer were upheld by the Třibunal.
Both matters tackle, perhaps covertly, stere servility. For instance, it was assumed that f game". Decisions such as these question not women, and the treatment of women who wor concerning male sexuality rendered their behar were not raised in either decision, these issue letters to the editor in local and national new
Here the provision of legal assistance by th assistance, the complainants may not have pu
Future directions
Modern legislatures have expanded the numb of court annexed mediation, and processes o referral of matters to the Tribunal are situ mechanisms. Their effectiveness continues t
12 LAW & SOCII

k, a poster appeared in the supervisor's hut sed. The complainants spoke to the senior pair of panties were drawn over the genital phic posters depicting female genitals were plainants approached the worker whom they nse was forthcoming, informed the union site
to remove the posters.
e backlash. The union organiser advised the the men took industrial action there would be
indoes and intimidating behaviour. "Girlie" e taunted by offensive and obscene graffiti walls of the toilets.
ictimisation against both their union and the
otypical assumptions about male and female emale musicians, like bar attendants are "fair ions concerning what jobs are appropriate for k in particular jobs. In both situations, myths viour as "normal". While these broader issues s were repeatedly raised in media reports and
spaperS.
e Commissioner was pivotal. Without such rsued their complaint.
er and variety of disciplinary bodies, systems f mediation and arbitration. Conciliation and ated within this range of dispute resolution ) be the subject of debate.
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REFERENCES
Astor, Hilary and Christine M. Chinkin. 1992. Disput
Bumiller, Kristin. 1987. "Victims in the Shadow of the Signs: Journal of Women in Culture and Society 12, 3
Commissioner for Equal Opportunity. 1993/94. Annua
Gaze, Beth and Melinda Jones. 1990. Law, Liberty Company Limited.
House of Representatives Standing Committee on Legal Report of the Inquiry into Equal Opportunity and Equa Government Publishing Service.
New South Wales Law Reform Commission. 1993. Re Paper 30. Sydney.
Scrutiny of Acts and Regulations Committee, Parliam Opportunity Act 1984 - Final Report. Melbourne: Gov
Scutt, Dr. Jocelynne A. 1986. "The Privatisation of Jus of Counselling and Mediation". In Alternative Dispute Canberra: Australian Institute of Criminology.
Senate Standing Committee on Legal and Constitutiona Discussion Paper 4 - Methods of Dispute Resolution. (
Sex Discrimination Commissioner. 1993. Sex Discrin Canberra: Australian Government Publishing Service.
Thornton, Margaret. 1990. The Liberal Promise -- An Oxford University Press.
LAW & SOCIETY TRUST REVIEW - 16 N

Resolution in Australia. Sydney: Butterworths.
: Law: A Critique of the Model of Legal Protection".
421-439.
Report.
and Australian Democracy. Sydney: The Law Book
and Constitutional Affairs. 1992. Half Way to Equal. l Status for Women in Australia. Canberra: Australian
view of the Anti-Discrimination Act 1977. Discussion
ent of Victoria. 1993. Review of the Victorian Equal ernment Printer.
stice: Power Differentials, Inequality and the Palliative Resolution: Seminar Proceedings, Jane Mugford, ed.
Affairs. 1991. Cost of Legal Services and Litigation.
Canberra.
nination Act 1984. Future Directions and Strategies.
ti-Discrimination Legislation in Australia. Melbourne:
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GENERAL ELECT
Tej T
BACKGROUND
Thirty-two members of the ruling Nepali Con independence, cast decisive votes against their Parliament in June, 1994. This marked the p had been rumored to have been brewing form (literally, opposition Congress), as the thirty-t they could not accept the then Prime Ministel vowed to vote against the party in all further V but not without taking his revenge. Instead of another Prime Minister, Koirala asked the elections within the constitutionally mandated
A constitutional crisis followed: did the King Parliament to vote in another Prime Minister a he then have to appoint as caretaker governme ask Parliament to convene a neutral caretaker Party of Nepal United Marxist Leninists (CPN for a new caretaker government which would b free elections. Public sympathy was on the sic time was riddled with charges of corruption gri In addition, the Congress Party was accuratel perceived as Indian at that time.'
Caretaker governments do not represent the it conducting fair and free elections. Nonet government would ensure a greater likelihoo
The Congress Party made a critical mistake in r that UML took advantage of the Tanakpur da Nepali sovereignty to India. However, the fac Party should not detract from the weak-mind neither should it detract from the outrageous officers to search a Nepali house in Kathmand by Nepali police officers. These two events Congress Party in the eyes of the intensely natic issue of Sovereignty in any event.
14 LAW & SOCIE

ONS: NEPAL, 1994
hapa
gress Party, in a remarkable show of will and
own party in a perfunctory vote of thanks in ublic acknowledgement of a private feud that onths within the party. The Bidrohi Congress wo came to be known, announced further that , Girija Prasad Koirala, as party leader, and otes unless he stepped down. Koirala obliged, resigning and allowing Parliament to vote in &ing to dissolve Parliament and to call for period of six months.
have to dissolve Parliament or could he ask nd Cabinet? If Parliament was dissolved, did nt the existing government, og did he have to government? The bravely -UML, or even more succinctly, U L) called be more likely to lead the country into fair and le of this position. The Congress Party at that 2ater than those levelled against prior regimes. y perceived as pro-Indian and exaggeratedly
leal or permanent solution to the problem of heless, at a minimum, a neutral caretaker d than not of neutral administration, police,
ot camouflaging its links to India. It must be conceded m affair to recast the Congress Party as betrayers of it that UML has been adept at maligning the Congress ed manhandling of Tanakpur by the Congress Party; lecision by the Congress Party to allow Indian police without a search warrant and without accompaniment , with or without UML malignment, discredited the nal minded Nepalis, who tend towards paranoia on the
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security forces and the Election Commission.
the lack of credibility of the Congress Party neutral caretaker government to lead the coul Despite many UML initiated bandhs, incluc attended public rallies and marches calling f established, the King (apparently in consultatic Parliament was dissolved, and that the Congre of Koirala, would lead the country into its sel announced that elections would be held in No one of the most auspicious days for Nepali Hi
The climate leading into the election was th stranded and threatened now by the sudden cal declared all prior misgivings forgotten Koi. Parliament, but then trucked in thousands of vi declared that he could not let these people do against his own will. The farce fooled none, a of the elections. There was also a strong belie the nature of the deal was not specified in the it that the King had managed to create a new patriotic and well-funded group which took as Nepal from India. Anti-Indian sentiment, con a very heavy hand in the campaign, which e disregard to the large groups of Nepali-Indian
* A bandh is the equivalent of a hartal in Sri Lan
of closing down the city or country as the case compliance. News of an impending bandh is transport and business would come to a stands
The Supreme Court upheld the King's decision: to decide either way. This holding of discretio) since then.
The election as originally scheduled fell on a This would, as a matter of common sense, ha because of the length of the walk for most peo
The anti-Indian sentiment in Nepal deserves so crudely and without disguise, even among edu always been present, and probably always will fear today contains (although not necessarily) near future.
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Given the pre-election climate in Nepal, and at that time, the decision to not convene a ntry into elections is difficult to understand. ling multiple day bandhs, as well as wellor an impartial caretaker government to be n with constitutional experts) announced that ss Party government, under the guiding hand cond general elections since 1990. He also vember, scarcely over four months away, on ndus.“
us highly charged. The Bidrohi Congress, l for elections, shook hands with Koirala and rala himself vowed not to run for a seat in llagers who begged him to run. He promptly wn; he announced his candidacy, apparently nd increased public anxiety about the fairness f that Koirala had struck a deal with the King; rumours that flew around. Rumour also had v political party called "Save the Nation", a its principal political stance the need to save hbined with a frightening nationalism, played very political party exploited with complete s resident in Nepal.
ka. A strategy adopted from India which has the effect may be through threats of violence in the event of non
spread through word of mouth; on the appointed day till.
six weeks later, holding that the King had the discretion n retained by the King has created considerable anxiety
day requiring fasting and praying for devout Hindus. lve discouraged many people from casting their votes ple to the voting stations.
me attention. The hatred against Indians is expressed Icated urban populations. While the fear of India has be present in Nepal, the particular articulation of this the seeds of communal violence against Indians in the
OVEMBER 1994 15


Page 18
There was wide consensus prior to the election in Parliament. The BBC had, in an uncharac UML would receive 115 seats in Parliam government. UML's campaign, with the help symbol, was well-crafted. It proactively c identity. Banners proclaimed that UML bel hinder the exercise of the right to worship any was stressed only to distance itself from Ind voiced their belief in the need for a free
investments. Perhaps the only truly comm pledging a 75%-25% distribution to tillers."
untarnished image, although no one doubted th An aesthetic factor, maybe induced by the imag UML leaders and workers, it was said, looke this is not the look of those who have been f
ELECTIONS
The results of the elections were in one sense, was asked by the King to form the next gover won only 88 seats, not enough to form a majc with 20 seats. Charges of election rigging ubiquitous; nonetheless, the charge must be desperation and arrogance, used every possi Areas where the Congress Party won registere 60% national average (which average is, in Kathmandu, where all seven seats were swep by and large fair, voter turn-out was registe voting booth, and even this figure is considerg
Congress and the Rastriya Prajatantra Party distribution basis.
An interesting debate, meanwhile, was being fortunately never gathered the sought after m is almost without exception Brahmin. The Kshaitriya. The Congress Party and UML, attempt by Brahmins to dominate Kshaitriyas
Congress was estimated to win, optimisticall
One must concede that all parties engaged in a
The international group of observers noted ti ballots had been stuffed the night before with
16 LAW & SOCII

that UML would clear a majority of the seats eristically unguarded statement, declared that int, twelve more than required to form a of the bright red sun which was its campaign eflated fears associated with its communist eved in freedom of religion, and would not god of any denomination. Its link with China a; at the same time UML leaders repeatedly market and the need to encourage foreign unist stance they took was on land reform, The principal factor in their favour was their at power was all it would take to tarnish them. gination, helped sustain this untarnished image: i gaunt and starved. The implication is clear: 'd on bribes."
therefore, not surprising. The UML won and nment. The surprise came in the fact that they brity; Congress took 83 seats and RPP came in g, certainly in the South Asian context, are made that the Congress Party, revealing its ble tactic to win as many seats as possible. :d 85%-95% voter turn-outs, as opposed to the turn skewed upwards by such figures). In it by UML and where polling was considered :red as between 47%-56%, depending on the :dunnaturally high by observers. Areas where
had both pledged land reform also, but on a 50%-50%
stirred by the Rastriya Prajatantra Party (RPP), which omentum. The UML and the Congress Party leadership RPP, on the other hand, is almost without exception it was urged, represented nothing more than a sinister
1, 50 seats prior to, the election.
certain amount of election rigging and booth capturing.
at in one case involving the Majdoor Kisan Party, the
the consent of the voters.
ETY TRUST REVIEW - 16 NOVEMBER 1994


Page 19
the Congress Party stood no chance, due to hist went to the Congress Party.'
The Election Commissioner's local offices, ir Congress Party petitions for re-polling -- refu parties which would generate no necessary obli but which letter was procedurally required, a protest with the national office of the Election
require each party's representatives, at the appc to their acceptance of fair polling at the bootl In the 'absence of the seals from all parti Commission is mandated to conclude that ther that booth. Hundreds of party representative protest at the blatant unfairness of the potling; Nonetheless, the Election Commission accepte party representatives abandoned the stations be booth. Whether that charge is true or not -- : instances, it was not true -- the Election C completely in contravention of the procedures
Reports of police and army complicity in booth rampant. The army, by law, is not allowed to so by the police. The police, on the other hand because they themselves had been threatened c shortage of trained police officers to guard all the stations had been hired at short notice fro Such people, living as they do within the sa workers, are much more susceptible to emotior no connections to the area.
The Election Commission, additionally, appea fulfilling its mandate. The Commission hac represent it at the polling stations. The fe: Commission took out a life insurance policy on stations. Beyond this gesture, however, the
One example of this is Mustang, an isolated,
which has traditionally been a monarchist strong the RPP in this area was UML, and even then were shocked when the results announcing Cor
LAW & SOCIETY TRUST REVIEW - 16 NO

orical, social and ethnic reasons, unbelievably
numerous instances, refused to accept noned to accept, that is, a letter signed by other gation on the part of the Election Commission s an initial matter, to subsequently register Commission. Moreover, election procedures inted hour, to seal the ballot box as testimony l, or to abandon the booth in public protest. es represented at that booth, the Election is dispute as to the fairness of the polling at s at their booths abandoned their stations in hey were not present to seal the ballot boxes. il the ballot boxes, claiming unbelievably that cause their party was losing at that particular and one must conclude that, at least in some ommission was delivering pronouncements it was mandated to follow.
capturing and election related violence were intervene unless specifically requested to do l, chose to see no evil and hear no evil, either r because they had been bought. Due to the the booths, most police officers who manned m Villages neighbouring the polling stations. me group of villages as the voters or party |al or physical blackmail than those who have
red disorganised and uninterested in actively a great deal of trouble finding people to ur of violence was so pronounced that the each of the representatives sent to the polling ommission took no measures to ensure the
semi-autonomous region near the border with Tibet, hold. The only other party which could compete with as a distant second. Even Congress Party members gress victory in Mustang were broadcast.
VEMBER 1994 17


Page 20
safety and independence of its representatives The Commission should bear the responsibilit if it can realistically do very little if its w appearance of concern on the part of the Com its mandate, there is very little incentive for th of abstract notions such as fair elections.
Additionally, the Election Commission announ to operate on election day itself. Each candi only the candidate himself could be present i was ostensibly to prohibit the transportation of their votes in another district, or to prevent p large groups to capture booths or intimidate v( its implementation. Roads are few and far bet removed from easy road access. In the even did voters or party representatives have to trek still had to walk to the nearest Election Comn several hours. This was especially burdensom Election Commission did not have the foresigh which could then transport persons to and fro foresight to provide or arrange for radio trans intervention in problematic polling stations.
The presence of the Election Commission was apathy exhibited by the Commission derives Commission is not, for example, empowered for polling malpractice. It cannot, that is to wrongdoing. The Election Commission offic called much sooner than anticipated, they had reforms suggested by prior experience. Ti elections, and there is no organisational stru changes which should be made to the electic explanation.' It does not explain why no ef institute a better system of voter registratio) pronounced problem in the last general electio
' The Chief Election Commissioner (CEC),
particularly immune to concerns about free an and after the elections, and generally did ve importance of appointing as CEC someone wh Sources cannot be stressed adequately.
18 LAW & SOCII

once they were stationed at the polling booths. 7 of extending protection to its workers, even orkers are threatened. Without at least an mission towards those assigned to help fulfill representatives to risk their lives for the sake
ed that no unauthorised vehicles were allowed late was allowed to operate one vehicle, and the vehicle. The purpose of this restriction persons from one district to fraudulently cast arty workers from mobilising themselves in pters. The problem with this restriction lay in ween in Nepal; most polling stations are wellE of violence or polling malpractice, not only down to the roads, but once on the roads they hission office. This often involved a delay of e in the case of those who were injured. The ht to station vehicles at appropriate road points for legitimate purposes. Nor did it have the mittals of messages to expedite the process of
s barely evident on election day. Perhaps the from the limited scope of its powers. The to take action against any party or individual say, even levy a fine upon a determination of itself argues that, because the elections were not had time to draft election laws based upon he Commissioners are disbanded soon after icture which remains to consider substantive n laws. This amounts, at most, to a partial ort was made by the Election Commission to h and voter identification. This had been a ns, and one which has been a problem region
who is a political appointee, revealed himself to be d fair polling. He kept a very low profile, both during ry little to inspire confidence in his judgement. The 0 immediately commands respect and authority from all
TY TRUST REVIEV. 16 NOVEMBER 1994


Page 21
wide. At the polling booths, voters were names.' A familiar argument against requiri cards is cumbersome, especially given the ge and that identity cards, in themselves, do no that issuing identity cards is cumbersome Commission is unwilling to require the prod it must assume the burden of devising an alter to cast one vote. Additionally, the experi countries, suggests that identity cards can g Voting.
The reactions of various groups to the overt Party was interesting. The UML, betraying public protest for a few days. The leadership a they would win with a solid majority; they we would retaliate by calling for repolling in UM The UML protested only when the vote coun Congress was so great that Congress stood a They lodged a suit against the Election Com threatened to take violently to the streets if approach damaged their credibility considerab
Another interesting reaction came from middl believe that any untoward behaviour had
following UML’s lead, had not reported on ele team of observers released their report -- w numerous incidents and recommended repollin Kathmandu dailies claimed that the internation and free. Perhaps this lack of publicity acco there had been any rigging during the election: was the malaise and ennui exhibited by Kathm the concern in other urban centres and towns.
The only other precaution taken by the polling voter, which was easily wiped or scraped off. which are reputed to be the most effective me
The American Embassy, following this anno prepared to leave the country immediately if
It should be added that many people in Kathm the fact that all seven seats in Kathmandu wer
LAW & SOCIETY TRUST REVIEW - 16 N

simply asked their names and their fathers' g identity cards is that the issuance of identity graphical and economic conditions in Nepal, guarantee free and fair polling. But the fact is hardly excuse enough; if the Election ction of identity cards at polling booths, then lative which would ensure that one person gets nce of some Indian states, as well as other ) a long way towards combatting fraudulent
rigging and booth capturing by the Congress an arrogant confidence, did not register any pparently determined that, despite the rigging, 'e also worried that if they protested, Congress L constituencies in order to subvert the results. ting revealed that the extent of the rigging by good chance of forming the next government. mission and against the Congress Party, and Congress actually won.' This unprincipled
bly.
e-class Kathmandu, which basically refused to occurred during the polling.' The press, ction related violence. When the international hich categorically stated that there had been g in many constituencies -- the headlines in the al observers had found the elections to be fair unted for Kathmandu's refusal to believe that . More distressing than this denial, however, andu, which appeared particularly stark given
agents was to rub Some dye onto the finger nail of the groups of voters came armed with onions or Coca Cola ns of removing the dye.
uncement by UML, advised American citizens to be ML did not form the government.
indu expressed great surprise that UML won -- despite
to the UML.
VEMBER 1994 19


Page 22
THE NEW GOVERNMENT
It must be assumed, therefore, that populars seats they secured suggests. Voters by and government, and the fact that UML could not cynicism. Voters, in their own wisdom, agre from Congress once power had been tasted, chance. A discouraging statement repeatedl UML victory was no longer guaranteed due under the Panchayati system.
Two weeks after the elections, UML formed : month it had to survive a vote of confidence i both pledged to give UML the vote of confide to face the prospect of another election so soc Parliament, delivered a stern message to UM member of the Congress Party. The message v Congress to oust UML when itsenses that the
One of the striking aspects of the government of women and minorities from its Cabinet. Th to actively advocate on behalf of women's rig principal foci the issue of a woman's right to
the most prominent women in politics in Nepal in Parliament during these elections. The ab Cabinet was noticeable. While their exclusion signify a lack of honest commitment to wom perception generated by their exclusion has be
Foreign papers meanwhile proclaimed the vic resurrected from pure fossil. The Indian pres: accurately. This was not the beginning of Ch along the lines of Jyoti Basu peppered with st form of the World Bank and the IMF) to confo government went to great lengths early in its
agencies of its commitment to a market econc
UML did, in fact, survive the vote of confide
20 LAW & SOCIE

pport for UML was much greater than the 88 arge wanted UML to form a strong majority lo so has led to a debilitating voter fatigue and 2d that UML would probably not be different but there was a strong desire to give UML a made by voters after election day, when a to rigging, was that politics had been better
minority government, knowing that within a n Parliament.' The Congress Party and RPP nce for the simple reason that no one wanted in. They also, however, at the first sitting of L by voting in, as Speaker of the House, a vas clear: RPP, with its twenty votes, will join
time is ripe.
formed by UML was the remarkable absence e UML had been the only major political party hts during the campaign, taking as one of its inherit paternal property. In addition, two of were from UML, both of whom secured seats sence of either of these two women from the from the Cabinet in itself does not necessarily en's issues on the part of UML, the public en detrimental to the UML.
tory of UML as though a dinosaur had been were perhaps the only ones to read the signs airman Mao's long march, but social reform ong international pressure (noticeably in the m to changing market conditions. The UML enure to assure foreign investors and donor
my.
ce at the end of December.
"Y TRUST REVIEW - 16 NOVEMBER 1994


Page 23
How long the UML government will last depen from the other, basically hostile, parties. A understanding between the various parties that no one. In the last few weeks, a growing disse the organisation and structure of the UML l politics, more than any other factor, may dete. its tenure. Both the Congress Party and the redefinition, the former trying to distance itself from its historical and potentially fatal conn monarchy. As soon as either party determing government will surely fall, over some other p
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