What are the main sticking points of the bill?
There are two perspectives to consider when evaluating this bill. While many of us tend to focus solely on its content and compare it to the ‘Enforced Disappearances Inquiry, Truth and Reconciliation Commission Act, 2014’ (TRC Act), a more accurate approach would be to examine it in light of the Supreme Court’s judgment, from where the very obligation of this amendment origins. However, regardless of the approach, the bill contains several flaws outlined into five areas. The first is related to the security and privacy of cases. The bill fails to include provisions that ensure witness protection, nor does it guarantee the safety of plaintiffs. Without security, witnesses and victims could be intimidated and silenced during the truth-finding process. The second area of concern is gender sensitivity. Any inquiry or investigation into serious human rights violations must take into account the needs of victims of rape and sexual violence. These crimes cannot be forgiven, and it is also important to protect the privacy of the victims. But in a clear violation of the Supreme Court’s rulings, the amendment bill fails to address these issues. The third issue is about the definition of crimes. The bill attempts to classify conflict-era criminalities under two categories: human rights violation and serious violation of human rights. The nine types of crimes listed in the first group are made amnestiable, including murder, torture, sexual violence, and hostage-taking. Crimes in the second group are unamnestiable. The group include four types of crimes: merciless killing of an individual after cruel and inhuman torture, rape, enforced disappearance, and inhuman and cruel torture. This is unacceptable, as it essentially makes some murders pardonable and says only select types of murders may be prosecuted. This amendment proposal sends the message that many of the murders during the Maoist conflict were justifiable. Furthermore, the section of the definition of enforced disappearance has been removed from the TRC Act, making any investigation impossible. The fourth issue is related to the formation of the transitional justice commissions. Lessons learned from the failure of the past commissions should be taken into account. A more transparent and vettable appointment process should be adopted. And finally, the law must not discriminate against the victims, including former child soldiers and the families of affected security personnel. The Maoist party is fearful of any mention of 'child soldiers' used in its rebel armed units. For this, the law may use less contentious terminology as used in United Nations Mission in Nepal’s verification documents, such as 'combatants who were late recruits and minors.' A more holistic view of the law should address the four pillars of transitional justice: truth, justice, reparations, and guarantee of non-recurrence. Could you please elaborate on the international dimensions of Nepal’s transitional justice process? Article 7 of the Comprehensive Peace Agreement mandates that the Maoist party fully adhere to the ‘basic principles and values of the Universal Declaration of Human Rights, International Humanitarian Law, and Human Rights Law.’ Hence, any transitional justice law created today will be evaluated against this provision of the peace agreement. The Article 7 validates the voice of the international community on our transitional justice process. In the recent times, our weaknesses hitherto have been picked up by the geopolitical actors to influence our domestic politics from making or breaking the coalition to the formation of the governments. As someone who has worked in this field for several years and someone who comes from a family of martyrs, I believe that gaining the trust of the democratic world, particularly India, is crucial for our transitional justice efforts. After all, the legitimacy of the Nepali Peace Process in 2005-2006 was achieved through India's support and facilitation. Global recognition of a successful transitional justice process, which is also the final stage of the peace process, depends quite largely on the backing of the democratic world. However, we must remain vigilant against any attempts, domestic or external, of geopolitically weaponizing this process. How do you see the commitment of major political parties? The Maoist party, which has once again taken the reins of government after the peace process for the third time, has consistently disregarded transitional justice, primarily out of fear of potential prosecution of its leaders. The Nepali Congress is no different. The party is shamelessly putting their political interests ahead of justice. And let's not forget the CPN-UML, who tried to push the process forward by reforming the commissions in 2020, which failed miserably. It is high time the major political parties reeducated themselves on transitional justice and rose above the interests of individual leaders. So what is the way forward for our transitional justice process? Moving forward, the amendment bill must be referred to the ‘Committee on Law, Justice, and Human Rights’ of Parliament. This will create space for a broad reevaluation and consultation with the victim community and other stakeholders. The law must be informed by a comprehensive assessment of the peace process. In upgrading the content of the bill, all past judgments of the Supreme Court must be evaluated. By doing so, the House committee will be in a position to correct both the process and the content of the bill. Drafting a competent law will require at least three to four months of honest work. We should be able to afford a few months to repair a process that has been delayed for 16 years. To successfully conclude any transitional justice process in the world, a law must be drafted that provides an unquestionable framework for the commissions to balance judicial aspects through collective measures of reparations, truth-seeking, and institutional reforms. However, our government is attempting the opposite: drafting a seriously compromised law and forcing it through the majority. This approach is a recipe for disaster. Politically, an agreement based on democratic ethics among the three major political parties—CPN UML, NC, and Maoists—is crucial for the successful conclusion of this process. One could argue that the ruling coalition has a majority and may pass the flawed law. The principal opposition UML's role becomes critical in this scenario. As a signatory of the Comprehensive Peace Agreement, an isolated CPN-UML may declare in the House that it would reopen all conflict-era cases as soon as it comes to power. At this point, the entire transitional justice process would suffer a huge setback, leading to a deeper crisis of confidence. We should be prepared for a situation like in Argentina, where the transitional justice process had to be restarted with a prosecutorial approach from scratch within five years of introducing the Full Stop Law in 1998. UML’s position should, therefore, deter the ruling coalition from moving unilaterally. Nepal's transitional justice process will move towards resolution as soon as these three major political parties express a collective commitment in the parliament.
