Mishandling of transitional justice process

Kamal Dev Bhattarai

Kamal Dev Bhattarai

Mishandling of transitional justice process

The new government under Dahal is being pressed by the international community to take concrete steps to settle the war-era crimes and cases of human rights violation

Nepal’s political leadership pledging to conclude the long-drawn-out transitional justice process has just been about talking the talk. The Comprehensive Peace Agreement between the former rebel group, Maoists, and government was signed in 2006.

That was 17 years ago, and the victims of the decade-long armed insurgency waged by the Maoists against the state are still clamoring for justice. When Nepal reaffirmed its commitment to conclude the transitional justice process at the ongoing 52nd session of the UN Human Rights Council last week, it sounded disingenuous to many people, particularly conflict victims.

Then there was another glaring reason to look askance. The government of Nepal, led by Pushpa Kamal Dahal of the Maoist party, had sent Govinda Prasad Koirala to lead the Nepali delegation after barring Foreign Minister Bimala Rai Poudyal from attending the UN meet under way in Geneva.

With the CPN-UML’s decision to pull out of the coalition government, the prime minister thought it would be unwise to send Poudyal, a minister from UML, to represent his government at the UN council. This last-minute change of plans also starkly showed the world the fluid political situation in Nepal.

This incident came at a time when the international community is keenly watching the new government’s commitment to seeing through the transitional justice process. It didn’t help either that Prime Minister Dahal is one of the chief actors of the conflict in which more than 17,000 people were killed.

In his address to the UN Human Rights Council, Koirala reiterated Nepal’s commitment to conclude the transitional justice process and provide justice and reparations to the victims. He said the new government would be guided by the Comprehensive Peace Agreement, directives of the Supreme Court and in line with Nepal’s international commitment on human rights.

Koirala also informed the international community that the amendment proposal on Enforced Disappearance and Truth and Reconciliation Commission Act 2014 would soon be tabled in Parliament. It was noteworthy that Koirala, who previously served as minister of law during which he had made a tall claim of concluding transitional justice within six months, was trying to convince the UN member states that Nepal was on track to deliver justice to the conflict victims.

The story of transitional justice at home is very different. The two transitional justice mechanisms — Truth and Reconciliation Commission, and Commission of Investigation on Enforced Disappeared Persons—are without their heads and office-bearers for eight months now. Successive governments have been extending the term of both commissions that are essentially toothless, without office bearers and resources.

The new government under Dahal is being pressed by the international community to take concrete steps to settle the war-era crimes and cases of human rights violation. The Maoist prime minister also seems eager to conclude the peace process. But there is a distinct contrast in the way the two sides see the act of delivering justice.

The Maoists want a reconciliatory approach while settling most of the cases and prosecuting only those incidents that are serious in nature. But the international community as well as the conflict victims strongly oppose such a plan. They are in favor of thoroughly screening all incidents and prosecuting them based on the nature of seriousness.

Even Nepal’s Supreme Court is on the side of the victims on this one. The highest court in the land in its 2015 verdict has closed the door for blanket amnesty on serious cases and directed the government and political parties to accordingly amend the transitional justice act. The government in July last year came up with an amendment bill to the transitional justice act. While the proposed amendments were a slight improvement to the previous laws, they are still flawed in many ways.

The amendment bill registered in Parliament is yet to be presented. But it has already generated enough talking points. The international community has cited several flaws including the wordings that make it possible to grant amnesty for certain gross violations of human rights, crimes against humanity, and war crimes. There is also the provision where the verdicts handed down by a special tribunal for transitional justice would not be subject to judicial appeal, which is in violation of international fair trial guarantees.

Until major political parties of Nepal come together on the bill to amend the transitional justice act, it is unlikely to be endorsed by Parliament. And building a consensus on things that matter is an almost impossible task in Nepal. For the Nepali Congress and the UML, two other major political forces in Nepal, the transitional justice process has always been a bargaining chip to exploit the Maoists to serve their political interests. They are equally responsible for rendering the two transitional justice commissions powerless.

The long overdue transitional justice process cannot be concluded on the whims of political parties. The two transitional justice commissions have collected 66,000 complaints from the conflict victims, but only some of these cases have so far gone through the preliminary investigation round. Once the complaints are recorded, they should be thoroughly investigated to satisfy the victims, which has not happened so far.

Legal experts say it could take at least four to five years to conclude the transitional justice process, provided the two commissions are empowered with staff and resources. But Nepali political parties have always taken a wrong attitude to taking the peace process to its logical end. They think that with broad political consensus, the transitional justice process could be concluded overnight.

The reality is they have turned this issue into a political weapon for their gains. No wonder they did not hold wider public consultation while coming up with transitional justice laws and showed reluctance to follow the Supreme Court’s verdict. In his address to the UN council, Koirala, on behalf of the Dahal government, conveyed the message of Nepal’s transitional justice process making progress. But if you asked the conflict victims, it has barely moved an inch.

The longer the concerned parties and stakeholders delay the transitional justice process, things are likely to get more complicated. Take the latest Supreme Court’s direction concerning the prosecution of Prime Minister Dahal, for example. The court on Friday ordered its administration to register a writ petition against Dahal, who had claimed responsibility of 5,000 insurgency-related deaths at a public event some three years ago.

Hearing a case filed by two advocates against the decision of the Supreme Court administration to reject their petitions last November, a division bench of justices Ishwor Prasad Khatiwada and Hari Prasad Phuyal has ordered the court administration to register their suits.

Advocates Gyanendra Aaran and Kalyan Budhathoki, who are also conflict victims, had filed separate writ petitions to take legal action against Prime Minister Dahal, but the court administration had refused to do so, claiming that the issue was related to transitional justice.

The Supreme Court’s decision has rattled Prime Minister Dahal and his party. They are crying foul over what they say is a conspiracy to corner them by bringing up the conflict-era cases, which ought to be dealt by the transitional justice commissions.

But the Maoist party should know that they cannot forever hide behind the shield of transitional justice for their convenience whenever someone brings a case against them in the court of law. They have to put genuine commitment to empower the transitional justice mechanisms and respect their findings if they ever wish to put their violent history behind them. There is no two ways about it, the conflict victims deserve their long overdue closure. Or else, there will be more legal and political complications in the days to come.

icon close
News Roadblock Ad (Always Use This to Change News Block ad)News Roadblock Ad (Always Use This to Change News Block ad)