What has taken us aback lately is the Prime Minister Baburam Bhattarai’s menacing remarks and insensitivity toward cases of serious crime. If the head of the government is so irresponsible, who can we expect to be accountable? He has blatantly warned the media community not to rake up the issue of Dailekh-based journalist Dekendra Thapa’s cold-blooded murder. The hue and cry, especially from Maoist-affiliated political quarters, over the detention of those involved in the murder of journalist Thapa, and viral protests from journalists, rights activists and civil society leaders demanding stern action to the perpetrators have pushed the country into a new battle— impunity versus justice.
Not only the prime minister, but also the attorney general (picked by his party), who, as head of the Office of the Attorney General, shoulders the duty of providing justice to people, has been crying foul over the arrest of the accused. He even gave orders (breaching his authority) to delay the investigation process. In a step that could be called extreme, he directed police personnel to destroy all evidence recorded so far from the probe into one of the most notorious conflict-era crimes. Such objectionable statements and steps from a head of the government and a head of a constitutional body are against the very principles of natural justice system, and point towards a perilous path of impunity for Nepal. With these intolerable overtures, both these heads have projected themselves as harbingers of impunity in the new Nepal.[break]
This is not the first time that our impunity-savvy prime minister has been a strong votary of the ‘law of force’. His government has repeatedly made a mockery of the legal system and judicial verdict. For example, former lawmaker Bal Krishna Dhungel, a Maoist and a murder convict, is roaming free right under the nose of law enforcement agencies. None other than the prime minister himself, and his party, have sheltered him. The farce of our democratic polity is that when a sitting minister is convicted of corruption, he is immediately thrown behind bars, but when the same court convicts a lawmaker of crime, he walks scot-free.
This contradiction raises serious questions about the kind of legal system and jurisprudence that we are trying to promote. The government has withdrawn criminal cases involving 367 individuals, including serious cases of murder, abduction, and looting in the past. In yet another shameful act to promote impunity, as the media puts it, the government is also preparing to withdraw 109 cases and release 1,715 individuals convicted in those cases. This has raised a big question mark on the government’s commitment to promote rule of law, respect human rights, and provide justice to victims by bringing the perpetrators to book.
Transitional justice mechanisms
When there is widespread impunity all around, concluding the peace process alone will not ensure sustainable peace, unless conflict victims get the dividends of peace through the resolution of their wounds and injustices inflicted by conflict. The negotiators of our peace process should know that there cannot be peace and social harmony without justice for the families of the dead, the disappeared, and the wounded. Failure to provide “restorative justice”, and to satisfy victims’ expectations of justice through the Truth and Reconciliation Commission (TRC) will have long-term implications on Nepal’s transition to peace and democracy.
The recent detention of Nepal army Col Kumar Lama by the UK government in London for his extra-judicial torture during the time of conflict is a symptomatic manifestation of the institutionalized impunity at home, collectively promoted by the actors of Nepal’s peace process. Nepal’s inaction towards convicting and prosecuting those accused of rights violation subsequently opened the doors for the international community to prosecute them as part of their legal obligation under the UN convention, of which Nepal is also a state party. Col Lama’s arrest is just the beginning, many more might face a similar ordeal in the days ahead if Nepal government and political parties continue to put off the prosecution of grave cases of right violations committed during the decade-long conflict. The Office of the High Commissioner for Human Rights last year released its conflict report, which documents 9,000 serious cases of rights violations.
Beginning with Argentina in 1983, Chile in 1990, and most popularly, South Africa in 1995, Truth Commissions as a transitional justice mechanism have helped facilitate democratization and balance the moral and legal obligations of transitional civilian governments in countries of Latin America, Africa, Asia, and Eastern Europe in recent decades. Despite agreeing to end impunity through transitional justice mechanisms like TRC within 60 days from the signing of the Comprehensive Peace Agreement in November 2006, successive governments neither set up a robust TRC, nor prosecuted anyone involved in conflict-era crimes, even after six years of the end of the conflict.
A Truth Commission should not be perceived as a means of fixing the blame, but as a means of acknowledging the tragedy of the past.
Countries like Nepal emerging out of a conflict with records of grave human rights violations often face a complex challenge of effectively dealing with and healing the past wounds, until a mechanism like TRC is put in place. More than 30 countries in the last 25 years have established Truth Commissions as official, temporary, and non-judicial fact-finding bodies to investigate and prosecute rights abuses and war crimes to ensure victims’ right to truth and justice. A Truth Commission should not be perceived as a means of fixing the blame, but as a means of acknowledging the tragedy of the past, providing justice to the victims, closing the violent past for good, and moving together for a peaceful coexistence.
As our TRC bill has an a priori amnesty provision, the commission may appear like a “scarecrow”, without any punitive or restorative power. The provision of blanket amnesty in the proposed TRC bill must be taken out, as it will significantly undermine the commission’s effectiveness in ensuring the perpetrators’ accountability for past crimes. Giving comprehensive power to such mechanisms is very important. Of the successful models globally, the Truth and Reconciliation Commission of South Africa was given extensive power to avoid victor’s justice, because of which no side was exempt from appearing before the commission. The commission heard reports of human rights violations, and considered amnesty applications from all sides, from the apartheid state to the liberation forces, including the African National Congress. The commission refused amnesty to 5,392 people, out of 7,112 petitioners. Only 849 were granted amnesty.
Similarly, the Historical Clarification Commission in Guatemala was also comprehensive in its power, even interviewing former heads of state and ranking members of the armed forces, hearing testimonies from thousands of survivors and exhuming secret mass graves. Likewise, the National Commission on the Disappearance of Persons in Argentina comprehensively investigated and documented rights violations and forced disappearances committed during the military dictatorship from 1976 to 1983. The commission completed its task in 1984, virtually opening the doors for the trial of military juntas in the courts.
Therefore, effectively dealing with the violent past through transitional justice mechanisms is vital for a country’s transition to democracy from the ashes of conflict, and to pave the way for a peaceful coexistence and social harmony. As time passes on, it will be more and more difficult to establish the truth, deliver justice, and build peace. The urgency of such transitional justice mechanisms should never be underestimated, delayed or denied, because it will precariously undermine our efforts to strengthen rule of law, democratic polity and social harmony in Nepal’s post-conflict transition process.
pbhattarai2001@gmail.com
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