First, an old query. Is the Millennium Challenge Corporation (MCC) part of the Indo-Pacific Strategy (IPS)?

The IPS report was unveiled last June when the Shangri-La Dialogue was underway in Singapore. Unveiled by the US Department of Defense, it included many military components. The document speaks for itself. The same November, the US unveiled its foreign policy which stipulated that the IPS would be a part of the US foreign policy.  

Now, there are debates on whether the MCC is a part of the IPS. When we initiated the process for the MCC, Baburam Bhattarai was the prime minister and Barsha Man Pun the finance minister. They formally requested the US government to make Nepal part of the MCC. On the basis of the request, the American government began to assess if the MCC could be implemented in Nepal. They accessed things like Nepal’s human rights situation, and freedom of speech and expression. In the end, Nepal qualified for the grant.

At the same time, Nepal is in a sensitive place. In terms of both economic and military power, the US and China are competing with each other. We have seen the disputes of South China Sea and Middle East where two countries are competing, and the IPS orientation also demonstrates that competition. China has invested massively in infrastructures of neighboring countries through the BRI.  Therefore, whether we want it or not, whether the Americans accept it or not, the MCC has tried to address the larger geopolitics of this region. That said, the BRI’s objective is to support infrastructure development, and the objective of the MCC is also to help Nepal’s infrastructure development. Therefore, whether it is a part of the IPS should not make huge difference.

Would you say it was an intellectual dishonesty on the part of the US to retrospectively lump the MCC under the IPS?

By denying it is a part of the IPS, the US is becoming too defensive on the MCC. There was no need for that. They are saying that the IPS is their approach in this region. Similarly, the American state minister during his Nepal visit has clearly said that the MCC is a part of the IPS. They have mentioned the IPS as a foreign policy goal of the US government. So there is lack of consistency. They are becoming defensive just to placate public opinion on the MCC in Nepal. They should have clearly said that it is our foreign policy component and the MCC is focused on infrastructure development. From the start, the BRI narrative has been that it is a support for infrastructure development, which has been established as well. The MCC narrative could have been developed in a similar way. 

How do you evaluate the divisions in the ruling party over the MCC grant? Are these divisions based on ideology or have they more to do with intra-party dynamics?

There are two sides to it. Let’s look at our recent political history. Nepali Congress formed majority government in 1990 under Girija Prasad Koirala. For some months, the government ran smoothly but after that a dissatisfied group within the party, under the leadership of Ganesh Man Singh, started protesting against it. The size of the power pie is small and there are limited opportunities for leaders and cadres. More than that, right now, there is a constitutional cap on the number of ministers. In the past, there was a trend of appointing government critics as ministers. PM Oli’s dispensation does not allow for that. Our politics is filled with opportunism over money, power and prestige. Some people outside are always clamoring for their day in the sun.

Next, there could be ideological reasons. NCP leader Bhim Rawal has come up with some points, for instance he has objected to the provision of parliamentary endorsement of the MCC. Like former speaker Krishna Bahadur Mahara, a large group of former Maoists are against it. Among former UML leaders, Rawal has been very vocal. So the current divisions over the MCC are partly a clamor for opportunity, and are partly based on ideology.

Is it the case that PM Oli and Foreign Minister Pradeep Gyawali, as government representatives, feel a kind of pressure from the Americans to endorse the MCC compact?

Successive governments after 2012 have signed to pass the MCC proposal and they all have accepted its conditions.  So if you think responsibly, you cannot backtrack from it. It is also directly related to a superpower. Therefore, we should have had a long and intense discussion before signing it. Yet this discussion is taking place after it has already been signed.  I am saying that this should be seen as one-time exception and be endorsed by the parliament. In the future, if we renew the MCC, there should be renegotiations on some points.

Do you see Chinese pressure behind the opposition to the MCC in Nepal?

I do not think the Chinese have lobbied with the Nepal Communist Party. There is a lot of space to do politics on the MCC. Some are trying to project themselves as nationalists. There is competition inside the party to be seen as nationalists and create space for themselves in politics. But I do not believe that the Chinese have come in a systematic way on this issue.

Coming back to the parliamentary endorsement of the MCC, do you support it?

The most unjustifiable condition of MCC is the parliamentary endorsement. Our constitution clearly lays out two legislative functions of parliament: endorsing bills to make them laws and endorsing treaties and conventions. Either you have to present the MCC accord as bilateral treaty, like the Mahakali Treaty, but it is not a treaty. Now, it is in the form of a bill. There is vast difference between treaties/conventions and bills. In conventions, state party or the government is responsible, but in case of bills, they are applicable to all citizens of Nepal once endorsed.

A safe way for the government is to present it as a treaty and endorse it with two-third votes. There are technical problems and there are big political implications as well. That is why parliamentary endorsement is not right. If we had not signed up for the MCC accord, I would have objected to its parliamentary endorsement. As we have already signed it, we can perhaps renegotiate. But I am not sure the US would be ready to drop parliamentary endorsement.

Would it be right to say that accepting the MCC is tantamount to accepting the IPS? There is also a kind of conspiracy thinking in some quarters that if we endorse the MCC accord, it will allow the Americans to station its army in Nepal.

I am saying that the IPS is a military strategy but the MCC is not. The IPS is part of the US foreign policy, so is the MCC. However, we have already entered the broader US foreign policy umbrella. As far as US military presence is concerned, we need a separate agreement for that. There is no military or security component in the MCC.

What do you make of the rumor that part of the reason Krishna Bahadur Mahara was removed from the speaker’s post was his resistance to the MCC accord?

I am not convinced Mahara stopped the MCC proposal. As finance minister, Mahara was involved in the MCC process. What I say is that there was bargaining inside the ruling party on the MCC issue. There was bargaining on who gets what with the passage of the MCC. Some are using it as a tool to boost their nationalistic credentials and strengthen their political position. On the other hand, they could also jeopardize the country’s relations with the US. Agni Sapkota has publicly said he is against the MCC. If he becomes the new speaker, it will be interesting to see how he behaves. If he passes the MCC bill, we should understand that his opposition was part of his bargaining tactic.

Let’s move to transitional justice. How do you see the appointment of new office-bearers in the two transitional justice bodies?

In April last year, the tenure of previous office bearers ended. The government then formed a committee led by former chief justice Om Prakash Mishra to recommend new names.  In this period, conflict victims and national and international stakeholders continued to argue that previous laws were insufficient, and they should be amended. They said appointments should be made only after the amendment in order to make the process more trustworthy. They were also saying conflict victims should be consulted and have a say in the overall process. Taking conflict victims into confidence was the right idea. But the committee took 11 months to make its recommendations. By the time it made the recommendations, even the tenure of the committee had expired.  

What would you say has been the major failing of our transitional justice process?

A major problem of our transitional justice process is absence of trust. The government takes human rights defenders and civil society members as spoilers of the process. In the eyes of conflict victims, both the civil society and the government work for their own interests. Therefore, until these three forces come together and an environment of trust is built, this process cannot move ahead in a consensual way, which is mandatory to reach to a logical conclusion. So the government should have worked on confidence building measures with all stakeholders. After that the role of commissions should have been defined and the role of conflict victims in the overall process identified. Similarly, there should have been work to segregate judicial and non-judicial components of transitional justice.

Government and opposition parties agreed to form the two commissions amid a climate of mistrust. They just concluded consultations in all provinces. For the same purpose, they had prepared a questionnaire. When victims entered the hall, they were given those questionnaires, which were to be filled within three hours, as if it was a university exam. There were loaded legal and constitutional terms in there. People from rural areas did not understand those terms.  The language of healing that the state was supposed to speak was missing. It is also a national healing process. We have a huge trust deficit and the current working style cannot bridge that gap. 

But haven’t the major parties vowed to amend the laws in line with the recommendation of the Supreme Court and international practices?

To amend the law, you need to build certain confidence. The problem is that the government is yet to recognize conflict victims as stakeholders in this process. For example, a family breadwinner is still declared as disappeared. All properties are under his name. He had taken out a loan on the basis of those properties. The bank has been publishing notices with the photo of the disappeared person, asking him to pay the money back. His wife wants to pay the loan by selling the property but the cabinet has not taken any decision to transfer the property in her name. So she is helpless.

As per existing laws, if a person goes missing for 12 years, family members can declare him or her dead and you can transfer property to the rightful heir.  But allowing this will be tantamount to allowing the issue of disappearance to be diverted. The government wants to reach that point. The government wants the duration of disappearance to cross 12 years so that the family would register the death certificate and claim the property. It will dilute the issue of disappearance. That is why there is still no law to criminalize enforced disappearance. There is still no law to criminalize torture because torture of conflict era cannot be proven as all evidences have gone. This is not a healing language. These are delaying tactics.

Don’t you think the two transitional justice commissions, now that they have office-bearers, will be able to resolve the remaining tasks of transitional justice?

The transitional justice process has three main components: judicial, political, and administrative. The judicial component can be addressed through commissions. The political and administrative components should be addressed by the government of the day. Truth seeking is a judicial component. For example, there are around 40,000 conflict-era cases in my calculation. Each and every one of them should be classified. You have to establish truth in every case. Some cases could be settled through reconciliation, which is a major part of the peace process. Serious human rights violations should be categorized as such and cases filed through the special court. There would be reparation in remaining cases.

Political component entails reconciliation. You can bring local government and provincial government on board in this process.  Additionally, we have a Supreme Court verdict that you can go for reconciliation only after the consent and informed participation of conflict victims. Next, the government has to take decision to transfer the property of disappeared people to their rightful owners, which helps keep the issue of disappearance alive. The government declared the security personnel killed in insurgency martyrs but not others who died back then. Reparation is another political and administrative part of the peace process. There are several issues which need to be addressed by the political leadership as the commissions on their own cannot resolve them.

So you don’t see much hope of timely justice for conflict victims.

Yes, I can say that. I wish for the success of those who got appointed to the two commissions. But do the people appointed to the commissions have any knowledge about transitional justice? Have they worked with conflict victims? Not even one of them, I am afraid. 

Agni Sapkota has been implicated in a war-time murder. Can he become the next speaker?

His murder case is pending at the Supreme Court. Kavre district court has issued an arrest warrant against him. If it is an ethical issue, he cannot be elected the speaker. The main qualification for speakership is having high moral ground.