Fine balance

Transitional justice

Nearly two weeks after the Supreme Court verdict curtailing discretionary powers of the twin transitional justice bodies—the Truth and Reconciliation Commission (TRC) and the Commission on Enforced Disappearances (CED)—UCPN (Maoist) and CPN-Maoist on Tuesday came out with a rather long-winded joint statement.

In it, they condemned the court verdict which prohibits the transitional justice bodies from taking up conflict-era cases already being handled by regular courts. The verdict also makes it impossible for the two commissions to grant amnesty to rights violators without victims’ consent.

Predictably, the UN High Commissioner for Human Rights and many rights activists in Nepal rejoiced. Just like them, we, too, believe that there can be no justice by bypassing victims. Thanks to the apex court verdict, the victims are now rightfully at the center of the whole process.

But the concerns of the two Maoist parties are valid as well. One reason there could be no headway inthe first four years of the peace process was that the Maoist leadership feared that if they completely relinquished control of PLA and their other coercive instruments, the mainstream parties would try to corner them on ‘crimes’ from conflict period. In this situation, it could not have been easy on Maoist leadership to hand PLA cantonments over to Nepal Army. This had followed a political agreement that recognized the centrality of transitional justice bodies, rather than the regular justice system, in handling of conflict-era cases. But lack of clarity between ‘war crimes’ and ‘rights abuse’ has since spooked not just the Maoists; Nepal Army leadership is as bothered at the prospect of its personnel being implicated in conflict-time rights violations. And so are the leaders from Nepali Congress and CPN-UML who were in power during the conflict period and ordered questionable anti-Maoist security operations. The two commissions, we should not forget, became viable only after a painstaking process whereby all these parties to the conflict had to be taken into confidence.

This political component of the peace process must not be forgotten. Insisting on black and white definition of human rights (which a section of the human rights community seems to be doing) could be counterproductive, even for conflict victims. The loved ones of those unlawfully killed, handicapped or forcibly disappeared during the ten years of civil war have already waited for a decade for justice. Following the latest apex court intervention, there is now a risk that the process would grind on for years. The hard reality is that without first gaining the confidence of the various Maoist parties, the Nepal Army and other political parties, the two commissions would not be able to undertake any meaningful investigation. The conflict victims deserve proper hearing; also compensations whenever appropriate. It is also true that they were not consulted during the finalization of the two commissions. In this aspect, the Supreme Court verdict is well placed. But it is vital that stakeholders in the peace process work out a middle-way solution that balances the need for justice and political settlement of the armed conflict.