As world remains occupied in the fight against the COVID-19 pandemic and Nepal’s civil society remains polarized, the country’s transitional justice process currently stands at crossroads. The victims of the 10-year long Maoist insurgency are gradually losing hope of getting justice.
Nine years after the signing of the Comprehensive Peace Agreement, the Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP) were formed in 2015. However, there hasn’t been any substantial progress in addressing the issues they have been tasked with. On January 13 this year, the government conducted province-level consultations with the victims and civil society organizations about amending the transitional justice law. New office bearers of the TRC and CIEDP were appointed on January 18.
Both processes have been challenged by victims and civil society groups, as well as international organizations, as being insufficient and ineffective in the past. Then on April 26 this year, a full bench of the Supreme Court rejected the government’s petition to review the 2015 verdict, which bars authorities from granting amnesty in cases related to serious human rights violations. The United Nations High Commissioner for Human Rights welcomed this decision of the Court to stand by its ruling.
The Supreme Court Verdict
The current approach to transitional justice in Nepal is not holistic. The expert Tika Dhakal says: “Approved by the United Nations Human Rights Commission in 1997, the holistic approach to combat impunity, also known as Joinet/Orentlicher principles (because they were developed by Loius Joinet, who was the UN Special Rapporteur and Diane Orentlicher, a Professor of Law) consists of four basic components: Right to Know the Truth, Right to Reparation, Right to Justice, and Guarantee of Non-recurrence through a set of institutional reforms.”
Since the signing of the peace process, a section of politicians, rights activists, and conflict victims continue to focus on prosecution, while others– including former Maoists — stand in favor of blanket amnesty. Transitional justice is caught between these two opposing sides, pushing the discussion on a holistic approach far into the distance. The process can move ahead smoothly if all stakeholders converge on it. In order for that to happen, there is a clear need to amend the law in line with Supreme Court’s verdict, and to make clear how the government plans to address all issues guided by the Court’s ruling.
Beyond this, there are areas where even the Supreme Court’s verdict is insufficient. Section 16 of The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014) says: “Notwithstanding anything contained in Section 25, if it is found reasonable to grant amnesty to any perpetrator on the basis of the criteria and conditions as referred to in sub-sections (4), (5) and (6) while conducting investigation pursuant to this Act, the Commission may make recommendation to the Government of Nepal setting out sufficient ground thereof.”
The same section stipulates that the commissions may not recommend amnesty in case the perpetrator was involved in rape or another offense of grave nature, if the commission’s investigation does not find sufficient ground and reason to do so. The Supreme Court interprets this provision as the commission’s ability to grant amnesty even in cases of serious human rights violations if it wishes so. It has therefore found this clause objectionable. The court has ordered the government to replace this provision with: “The commission cannot recommend amnesty in the rape and other serious human rights cases.” In other minor cases, according to the existing law, commission can recommend amnesty.
Section 26(5) of the The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act says: “If an application is submitted to the Commission for amnesty pursuant to sub-section (3), the Commission must decide to make recommendation for amnesty upon considering agreement and disagreement of the victim as well as the gravity of the incident for granting amnesty to that perpetrator.” The Supreme Court has found this clause problematic, stating that the word “disagreement” mentioned here may allow the commission to grant amnesty if even the victims disagree. The Court wants to change this provision to state that there would be no amnesty in serious cases of human rights violations and if there is no consent from the victim.
The Court also wants to change the current provision to ensure that cases currently filed in the regular court system will not be transferred to commissions. Maoist leaders have serious objections over this existing provision. They are of the view that all the war-era cases should be dealt with by the commissions. The Supreme Court has also outlined the need for clear jurisdictions of the attorney general when it comes to filing cases related to serious human-rights violations.
Another issue that needs addressing while amending the law is related to the investigation of rapes. Per existing law, First Information Reports of rape cases should be registered within six months of the incident. There are no provisions on how to take up the cases of sexual violence beyond this time frame. There have been new appointments in the TRC and CIDEP but they has not resulted in substantial outcomes when it comes to these heinous crimes. “Frankly speaking, we cannot do anything substantial without amending the law in line with the Supreme Court ruling,” a high-level official at the TRC told The Diplomat. “We are trying to expedite the investigation of complaints filed by the victims. The previous commissions have conducted preliminary investigation on 3,787 cases and we are making efforts to make further progress on it,” he said.
Lack of political will and divergent views on the part of — and within — different political parties are one of the major reasons behind the sluggish progress in transitional justice process. Political parties do not have a clear stand and position on how to address the cases; neither do they seem to have taken the matter seriously. There are also intra-party differences over the issue. At the same time, parties are divided on how to deal with the war-era cases.
After the signing of the peace deal in 2006, they seriously discussed other aspects of the peace process — such as the integration of Maoist combatants and drafting of the new constitution — but there was never any serious negotiation on the modality of the transitional justice process. Since then, the Maoist party — a major stakeholder — took the position that as per the spirit of the Comprehensive Peace Agreement, there should be general political amnesty for war-era cases.
The TRC and CIEDP have done little in the past four years save for collecting nearly 66,000 complaints from conflict victims. To yield concrete results, present and former members and officials of both commissions confess that there is a need to improve the appointment processes for both. One of them noted that as members of political parties, commission officeholders take stances along party lines on most issues. “So, along with legal amendment, there is a need to change the pattern of appointments,” the official noted. The current office bearers have a one-year term but they have not made any substantial progress so far. With less than five months are remaining, it is unlikely that they will be able to complete their work.
As the transitional justice process stalls in Nepal, all stakeholders must be mindful of the fact that if they fail to set up a credible domestic mechanism to look after the insurgency-era human rights issues, it will be internationalized following their universal scope and legal ambit. Already certain human rights violation cases have become so: the arrest of Nepal Army Colonel Kumar Lama on war-era cases in the United Kingdom serves as an example.
Ultimately, it is not only about setting up commissions; it is upon all stakeholders to ensure their success. Experiences of other countries show that a legal framework is not sufficient to settle the cases at hand. Therefore, the immediate priority of the Nepal government should be amending the law in line with the Supreme Court verdict; rethinking the appointments process in the transitional justice mechanisms; following the holistic approach; and securing full support from all political parties for the commissions.
Otherwise, there is a high risk of failure of the transitional justice process in Nepal.