Nepal’s success in writing a new constitution will largely depend on how it handles the issue of providing justice for war-era victims through a Truth and Reconciliation Commission (TRC) and a Commission on Enforced Disappearance (CED).
The Comprehensive Peace Agreement (CPA) signed by the government in 2006 with the rebel Communist Party of Nepal (Maoist), or CPN(M), which ended the Nepalese Civil War, envisaged the formation of transitional justice mechanisms. The thrust of these mechanisms is to investigate war-era crimes and punish the perpetrators. The Maoist insurgency claimed 13,000 lives, with 1,300 missing.
Eight years after signing the CPA, and progress in setting up the TRC has been difficult to achieve. Since 2006, successive governments have attempted to pass the legislation, either through executive ordinance or parliament, but have stumbled on internal disputes and pressure from international rights groups.
With a new Constituent Assembly beginning work to draft a new constitution, which it is hoped will finally usher in a period of stability, the transitional justice issue is once again at the center of national politics in Nepal.
Under pressure from national and international rights groups, opposition parties Unified Communist Party of Nepal (Maoist), or UCPN(M), and CPN(M), as well as the victims themselves, the government tabled a bill that would authorize the creation of the TRC and CED. Nonetheless, it remains uncertain when the Commission will actually be formed.
The primary reason for the delay is the need to balance the claims and interests of varied stakeholders.
Take, for instance, the question of dealing with serious violations of human rights. Some cases involving human rights violations during the war have been brought before Nepal’s regular courts. The country’s two Maoist parties UCPN(M) and CPN(M)—which both descend from the same wartime party—are united in their argument that all war-era cases and human rights violations should be dealt with by the TRC.
However, the legislation covering the TRC and CED has been criticized by national and international rights groups. Following pressure by the UCPN(M) and the Nepal Army, the government agreed to grant amnesty to serious human rights violators, including those who committed murder and torture. Only rape has been excluded. Rights groups want this provision amended, arguing that those involved in serious violations should be prosecuted once the truth is established by the TRC. Their position is that the victims of the violations deserve justice.
In contrast, the two Maoist parties want to pardon those involved in human rights violations, on the grounds that all war-era cases were political in nature and that punishing perpetrators would hinder the process of reconciliation. Speaking with The Diplomat, Maoist leader Agni Prasad Sapkota says, “The TRC is a part of peace process, there should be a provision for reconciliation not prosecution, because prosecution would not help maintain peace in society.”
Top Maoist leaders, among them former Prime Minister Pushpa Kamal Dahal and Baburam Bhattarai, are publicly challenging the government to arrest them on war-era human rights violations while freeing cadres who are detained in connection to war-era cases. The courts have ruled recently that in the absence of a TRC, cases related to the TRC can be tried in regular court proceedings.
Meanwhile, the Nepal Army favors a reconciliation approach. In fact, the Army has been accused of its own human rights violations, stemming from its involvement in combating the Maoist insurgency.
Nepal’s National Human Rights Commission (NHRC), a constitutional body mandated to supervise the country’s human rights index, has called on the government to ensure that the TRC bill meets international standards. It argues that victims of the conflict should receive justice through the TRC.
This is not the first time Nepal has attempted to form a TRC. Earlier efforts similarly stumbled on an inability to ensure that the commission was at an international standard.
On March 14 last year, Nepalese President Ram Baran Yadav endorsed an executive ordinance paving the way for the formation of a transitional justice mechanism. It was subsequently rejected by the Supreme Court, on the grounds that it would not meet international standards.
That earlier ordinance was criticized for not incorporating any input from victims or human rights organizations. International rights groups also pointed out flaws in the ordinance, saying that it would provide amnesty to those involved in serious violations.
In response, this year the Nepalese government formed an expert panel to incorporate the voices of victims. After this failed, a cross-party mechanism was created instead.
In the meantime, war-era victims continue to demand justice. The United Nations Office of the High Commissioner for Human Rights reports that at least 9,000 violations of international human rights law occurred during the Maoist insurgency. The UN Human Rights Council in Geneva last week noted that there has been no progress on tackling human rights violations committed during the insurgency period.
In the previous Constituent Assembly, the issue of integrating and rehabilitating Maoist combatants served as a roadblock in the constitution drafting process. This time again, if the TRC issue is not immediately settled, the drafting of the constitution will stall. The integration of Maoist combatants into the Army, the TRC and relief to victims are all key components of a peace process that began in 2006.
The UCPN(M) has already made it clear that it would not allow a new constitution to be drafted if the TRC remains unsettled. The CPN(M), which boycotted the November 19 election, is also saying that the TRC should be formed as soon as possible, warning that it would take to the streets otherwise.
Pressure from victims and international human rights organizations must also be taken into consideration. Nepal’s government had expressed a commitment to deliver a new constitution within a year of the Constituent Assembly elections. That, in turn, is going to require a resolution on the TRC.
Kamal Dev Bhattarai is a Kathmandu-based journalist who is following the drafting of Nepal’s new constitution. He can be reached at [email protected]