The first Nepal-Bhutan Ministerial Joint Committee (MJC) meeting for a resolution of the Bhutanese refugee problem was held from 4-7 October 1993. It was a step towards deciding the future of the tens of thousands of Bhutanese citizens of Nepali origin who were forced out of the country, and arrived in Nepal mainly between 1991 and 1993. They have lived in camps administered by the United Nations High Commissioner for Refugees (UNHCR) in east Nepal ever since.
Subsequently, the Nepal-Bhutan Joint Verification Team (JVT) was formed to authenticate the bona fides of the refugees. It started its work in Khudunabari camp, Jhapa district, one of the smaller and better organised of the seven refugee camps, which in 1993 received the most recent wave of refugees. The verification process of checking documents and interviewing refugees lasted from 26 March 2001 till 15 December 2001. Following this there was a hiatus of one and a half years until the 12th MJC meeting held on 6 February 2003 directed the JVT to undertake the categorisation of the verified refugees. The JVT completed the categorisation of 70 percent of the verified refugees by the first week of May 2003, and the unresolved cases were left for the MJC to decide politically. It submitted the report to the MJC, which adopted and considered it, and categorised the unresolved cases.
The 14th MJC meeting was held from 19-22 May recently in Kathmandu. It was expected to declare the results of the Khudunabari verification; instead it concluded by issuing a press communiqué and a statement of Agreed Position on the Four Categories (APFC). Until now, the disagreement on categorisation deadlocked every MJC meeting. The 'harmonisation' of the Bhutanese and Nepali positions on the four categories of Bhutanese refugees means that the categories proposed by the Bhutanese side at the first MJC, so far unacceptable to the government of Nepal, will be applied to the nearly 110,000 Bhutanese refugees in Nepal's camps, as they have been in Khudunabari. Thus, even as no more than 11 percent of the refugees have been categorised, the Nepali government has committed itself to these categories: 1) bona fide Bhutanese, if they have been evicted forcefully, 2) Bhutanese who emigrated, 3) non-Bhutanese people, and 4) Bhutanese who have committed criminal acts.
The 14th MJC also directed the JVT to complete the verification and categorisation of about 600 people who were absent during the verification at the Khudunabari camp within two weeks. Upon its completion, the JVT will officially release and make public the results of the Khudunabari camp verification. The MJC directed the JVT to inform the camp residents about the terms, procedures and facilities regarding voluntary repatriation or reapplication and similar information to those seeking to remain in Nepal simultaneously. The MJC also reached an agreement on the implementation schedule of the outcome of categorisation. Refugees may appeal against their or their family's categorisation within 15 days after the release of the categorisation results. However, 'appeals will be considered only upon the presentation of new material evidence or determination of clear error in this process'. The MJC will hold its next meeting in Thimphu from 11-14 August 2003.
Slotted to lose
The following is the position of the MJC on the four categories of refugees.
The first category is that of "bona fide Bhutanese, if [they] have been evicted forcefully". The statement says, "The Royal Government of Bhutan will take full responsibility for any Bhutanese found to have been forcefully evicted from Bhutan. People under this category shall be repatriated to Bhutan". According to reports in the Nepali media quoting unnamed official sources (The Kathmandu Post, 22 May 2003), only three percent (360) of 12,000 refugees at Khudunabari are deemed to have the papers that allow them to fall under this category and return home as bona fide Bhutanese citizens.
The very basis for de-categorising from this category is called to question by refugee leaders who are deeply dissatisfied with process for its opacity, secrecy and for not involving either them or international monitors. The international human rights and refugee rights community is aware that officials of the Royal Government of Bhutan (RGOB) confiscated original documents of the fleeing or forcefully evicted refugees. In any case, the negligible number of people that has been categorised as bona fide Bhutanese would indicate that the JVT did not recognise even those documents, such as the citizenship card and other documents issued by the RGOB, which the RGOB has since disowned on the grounds that they are easily duplicable.
The Nepali government, the only hope for the refugees in this strictly bilateral agreement, it seems was bent on achieving a breakthrough at any cost to cater to a domestic constituency disappointed by its dismal performance on various fronts.
The second category of "Bhutanese who emigrated" is a contentious section of four subcategories. The APFC statement envisages that " … people falling under this category and desiring to return, will be given the option to re-apply for citizenship". This means that the refugees that have been deemed as having "emigrated", a term which implies a departure from the home country through an exercise of choice, will have to reapply for citizenship as per the naturalisation procedures in Article 4 of the draconian Bhutan Citizenship Act, 1985, as fresh immigrants like aliens. This act envisages, inter alia, that "A person desiring to apply for Bhutanese citizenship to the Ministry of Home Affairs must fulfil all the following conditions to be eligible for naturalisation: The applicant must have resided in Bhutan for 15 years in the case of Government employees and also in the case of applicants, either of whose parents is a citizen of Bhutan, and 20 years in all other cases, and this period of residence must be registered in the records of the Department of Immigration and Census; the applicant must be able to speak, read and write Dzongkha proficiently; the applicant must have good knowledge of the culture, customs, traditions and history of Bhutan; the applicant must have no record of having spoken or acted against the King, Country and People of Bhutan in any manner whatsoever". The implication of this is that the Bhutanese refugees will be in a state of statelessness for 20 years before they can claim citizenship; at the same time, there are some reports that the RGOB will re-assimilate people in this category by special arrangement in two years.
75 percent of the verified refugees (9000) reportedly fall under this category. The refugees contend that once they are inside Bhutan, the RGOB will apply its discriminatory citizenship laws, and they will have no legal citizenship rights. They will not be able to claim naturalisation – the documents that prove their citizenship have already been rejected by the JVT. Going by the experience of how the RGOB summarily and without just cause evicted the Lhotshampas, there is no guarantee that they will be given citizenship after 20 years either. The majority of refugees cannot speak Dzongkha anymore as a result of the exile, and most refugees have spoken against the king and his government, participated in public demonstrations for their human rights inside and out of Bhutan.
The agreed position on this category is not a realistic resolution of the refugee issue. The criteria used to bring as large a number as 75 percent of the verified refugees under this category is questionable and unacceptable to the refugees. They were forcefully driven away from their homes and as such should be placed under category one. Refugees ask the basic question: why should Bhutanese people migrate voluntarily to a relatively poor country like Nepal when Bhutan had or has better living conditions and better economic opportunities. Normally emigration is towards rich countries from the poor.
Point (d) in the second category is perhaps the most insidious part of the agreement. It states that "… people under this category, who do not wish to return to Bhutan, will be given the option to apply for Nepalese citizenship in accordance with laws of the Kingdom of Nepal". This provision has been included at the insistence of Bhutan to discourage the return of refugees. The Lhotshampas were driven from their homes by human rights abuses. The history behind the refugee situation is of persecution, indiscriminate arrest, torture, killings, discrimination, amounting to what was practically 'ethnic cleansing'. The political conditions back in Bhutan have not improved and the northern Bhutanese elite is still hostile to Lhotshampas, as is apparent from reports of debates in the national assembly over the construction of camps for returning refugees in Bhutan. Lhotshampa homes and lands have been resettled. Several thousand Lhotshampas in Bhutan, who have relatives in the camps have been denationalised by the RGOB recently.
The majority of refugees, if given the option of Nepali citizenship will not return to Bhutan under present conditions and terms of reference for repatriation and their settlement in Bhutan. Few will choose to remain stateless for another 20 years and uproot themselves again not to return to their homes and society but to live in transit camps inside Bhutan. The legal responsibility of granting citizenship to Bhutanese refugees has now shifted to Nepal from Bhutan. This will create enormous legal problems for the host country. Can Nepal afford to grant the citizenship to 100,000-odd Bhutanese refugees without any national or regional consequences – especially when the citizenship of tens of thousands of inhabitants in southern Nepal is still unresolved?
The third category applies to "non-Bhutanese people". The APFC states, "Those persons found to be citizens of countries other than Bhutan and found to have come from other countries must return to their respective countries". What criteria were applied to denationalise such a high – 20 percent – of the refugee population and place them under the category of non-Bhutanese no one outside the establishment can be certain of. These refugees originated from Bhutan and were genuine citizens inside Bhutan prior to their exodus. They are now arbitrarily deprived of their nationality because the RGOB has an interest in reducing the number of those it is willing to recognise as refugees. These so-called non-Bhutanese lived in Bhutan for years, owned houses and property, paid taxes to the government and contributed to the nation building of Bhutan. Some of them served in high government offices, armed forces and the police and studied abroad under government sponsorship. The question begs to be asked: how could illegal immigrants acquire land in a small country like Bhutan and remain undetected for 30-40 years?
The fourth category refers to "Bhutanese, who have committed criminal acts", and states, "Repatriation of people under this category shall be in keeping with the laws of the two countries. These people will have full opportunity to prove their innocence in the court of law in Bhutan". This is the same law that by international standards would be judged, at the least, as regressive. Bhutan's National Security Act (NSA) and the Law of Thrimsung (penal code) severely restrict the rights of the Bhutanese people. The penal code declares any act of "making conversation and correspondence" criticising the king and his government by Bhutanese citizens as treasonable offence. The NSA imprisons any person whose "words, either spoken or written, or by any means, create misunderstanding between the government and people of Bhutan".
Dissident activism, literature (articles, reports etc) exposing the abuses of human rights by the RGOB are deemed as "waging a war against the Royal Government of Bhutan", inviting imprisonment of at least five years. These acts are regarded as legitimate conduct in democratic countries such as India and Nepal. Tek Nath Rizal, once a member of the national assembly and a Royal Advisory Councillor who even went abroad to study on a government scholarship, was arrested and given life sentence for his criticism of government policies, which he was invited to present to the king. He served 10 years of his sentence before he was allowed to leave prison and had to leave Bhutan. Given contexts such as this, the criminality of Bhutanese refugees must be established in an international tribunal. Of the categorised Khudunabari refugees, a reported two percent fall under this category.
If the Khudunabari results are any indication, it is evident that Bhutan is looking at absolute numbers; it wants to take back less than 5000 refugees. As per the APFC, only five percent of the refugees are bona fide Bhutanese citizens. (Those that fall under the fourth category are evidently Bhutanese citizens since they have been deemed fit to be tried under Bhutanese law.)
The APFC has also created a dangerous precedence for the host country, which is now forced to grant citizenship to asylum seekers who were forced out of their homes. This example will discourage other countries from granting asylum to refugees, putting them at the mercy of perpetrator states.
The situation needs to be reversed. There is a need for reworking the entire process of verification and categorisation. The Lhotshampa refugees want verification against the categories 'Bhutanese' and 'non- Bhutanese'; other categorisations are not acceptable to them. There must be an international tribunal for the appeal, which is neither the JVT nor the MJC. The UNHCR and the international community, kept out of the talks so far, must play an active role in helping the statelessness of Bhutanese citizens in and outside Bhutan.
The 14th MJC was expected to offer a breakthrough in the resolution of the Bhutanese refugee problem. Instead, matters have come to a more contentious pass, with legal implications of regional and international dimension. As for the Bhutanese refugees in Nepal, as things stand, they can expect to be rendered into a state of perpetual statelessness, even if repatriated.