Nepal’s TJ process: Paradox or a reality

The reduced sentencing claim contradicts the principles that criminal sanctions must be proportionate to the gravity of the crimes.

The diplomatic missions’ hurried approach to making it public demonstrated their priority over the passing of the TRC bill rather than judging its content, meeting international standards, undermining emotions and sentiments of the victims in the law-making process. 

A former child soldier (combatant) Lenin Bista, recruited by Maoist rebels and subsequently verified by UNMIN as ‘minor’, filed an additional writ petition at Supreme Court (SC) on September 10 for an identity, justice and reparation. The writ was followed by the enactment of the third amendment of the “Enforced Disappearances Enquiry and Truth and Reconciliation Act 2014” (TRC Act), abandoning a large section of conflict victims from truth seeking, justice and reparation, including the use of children in Nepal’s ten years violent conflict.

Having some positive changes in the amended Act, ‘serious human rights violations’ namely enforced rape or serious sexual abuses, and with twenty five percent sentencing claim on arbitrary or ill intended killings, cruel and inhuman torture and enforced disappearances are categorized as non-pardonable. The reduced sentencing claim while filing the case has intruded the authority and jurisdiction of the court and contradicts the principles that criminal sanctions must be proportionate to the gravity of the crimes. These lapses in the Act do not comply with the SC orders. 

Additionally, the Act has also failed to recognize ‘survived enforced disappeared persons’, torture perpetrated by non–state parties, war crimes committed by warring parties including engaging child soldiers, and crime against humanity falling on ‘serious crimes’ are made pardonable with the free consent of the victims, which are not in compliance with the international law and criminal accountability. This is a paradox of the ongoing transitional justice (TJ) process in Nepal.

The Comprehensive Peace Agreement (CPA) between the Maoist and State, in presence of UN representative Ian Martine on 21 November 2006, was signed, committing to adhere to the Universal Declaration of Human rights 1948, International Humanitarian Law, and the fundamental principles of human rights. Moreover, Nepal being a party to UN treaties including Geneva Convention, International Convention on Civil and Political rights (ICCPR), Convention on the Right of the Child (CRC), Convention against Torture (CAT), cannot ignore its international obligations.       

Irrespective of Nepal’s international obligations, some of the development partners, including ten counties, issued a joint press statement welcoming the passing of the TRC bill, prior to its maturity. The diplomatic missions’ hurried approach to making it public demonstrated their priority over the passing of the TRC bill rather than judging its content, meeting international standards, undermining emotions and sentiments of the victims in the law-making process. 

The United Nations Office of the High Commission of Human Rights (OHCHR) played, and perhaps will continue to play, a crucial role in putting Nepal’s TJ process on track. But surprisingly, following the passage of the bill from the Upper house of the parliament, it reacted in line with the other international agencies. The chief of OHCHR, Volker Truk published an official view stating, ‘My office stands ready to assist the government and people of Nepal taking this crucial phase of the peace process forward’. The UN position, categorically, contravened own official standing of technical note 10 issued on February 16, 2016, which stated ‘In absence of steps by the government of Nepal to ensure that enabling law and procedures of COIED and TRC are in compliance with the international legal obligation, the United Nations is unable to support these institutions’.

Following Truk's statement, OHCHR representative Rory Mungovan visited Nepal and met some of the victims and civil society groups, maintaining a formality. The unconditional support of the UN contradicting its own standing, compromising on victims’ rights and refraining from enforcing international standards, sadly, is a threat to weakening civil society's ongoing movement against impunity, strengthening rule of law and beholding an accountable government in Nepal.

The key drivers of the TJ process are the two TJ mechanisms namely, Commission of Inquiry on Enforced Disappearances (COIED) and Truth and Reconciliation Commission (TRC). Putting in place two consecutive officials for an eight-year period, however, neither body yielded any result. To fill the vacant positions for two years, a recommendation committee was constituted on 12th April 2024, under the chairmanship of the former chief justice Om Prakash Mishra, which unfortunately expired with the enactment of the amended Act. However, unlike the past, trustworthy, effective, victim-friendly and free-from-political-influence officials are expected to fill the positions soon, through a legitimate process.

However, in the given circumstances, the Maoists party doesn’t have the nerve to accept their wrongdoings. The obstruction of the House of representatives in recent days is a result of the use of the word ‘violence’, in the parliament, referring to their ten years of gory conflict. The ruling of the speaker couldn’t stop their protest being an ‘insult’ to their glorious ‘Peoples’ war’, in their terms. This act reflects their non- acceptance of the ‘truth’ about the past and a Nepali saying- hatkelale Surya chheke justo (like hiding the Sun by a palm). This kind of political mindset, without doubt, will affect the TJ process. Even a capable and trustworthy TRC body may not function, resulting in a high chance of failure. 

Notably, Nepal witnessed the death of Nanda Prasad Adhikary of Fugel, Gorkha district, seeking justice for the killing of his son Krishna Prasad, by the Maoists, in the year 2004. He died on his 334th day of the hunger strike in the year 2014. His wife Gangamaya continued the steadfast demand initiated by him. Following the arrest of one of the accused Ram Prasad Adhikary, a general strike was called by the Maoists completely shutting down Kathmandu and Chitwan districts. Former prime minister Dr. Baburam Bhattarai tweeted, challenging to arrest him, instead. Furthermore, Maoist leader deo Pushpa Kamal Dahal and Bhattarai attempted, an unsuccessful resistance to the then prime minister late Sushil Koirala, to block the case from filing in Chitwan district court. They also staged a mass demonstration in front of the district court during the hearing. Advocates Dinesh Tripathi and Pushpa Paudel narrowly escaped their lives, who pleaded Adhikary’s case.