Government should not miss this opportunity to conclude Nepal’s transitional justice process under Nepal’s own leadership and ownership
During the decade-long armed conflict (1996-2006), 17,000 citizens of Nepal lost their lives due to serious violation of human rights and humanitarian laws by both sides to the conflict—the state and the rebels. Even after 12 years of signing of the Comprehensive Peace Accord (CPA), the whereabouts of disappeared persons remains unknown and thousands continue to endure the trauma of injury, torture, sexual violence, maiming, displacement and loss of family members.
Despite the written promise of the CPA that the state of disappearances would be made public within six months of the Agreement, this did not happen. Meanwhile, political calculations and conspiracies prolonged the establishment of the transitional justice commissions by nine years. Successive governments rejected the victims’ continuous movement for truth, justice and reparations. A dozen years after the CPA, the prospect of justice remains distant.
With these 12 years of injustice and the process of Transitional Justice eluding an acceptable conclusion, the government has entered into the process of amending transitional justice laws and restructuring the commissions. The process of reconstituting the commissions started as per the demands of Conflict Victims’ Common Platform (CVCP) and our larger movement, as the two commissions (Truth and Reconciliation Commission (TRC) and the Commission on the investigation of Enforced Disappeared Persons (CIEDP)) were assessed to have failed to discharge their duties in accordance with the principles of transitional justice (TJ), the goals of the CPA, and the sentiment of victims. Therefore, the CVCP’s demand was for collective reflection on the failures of the past to inform the next steps, one that would be agreeable to all sides and especially the victims. The forthcoming actions should be on the basis of TJ principles, CPA goals and the sentiment of the stakeholders, keeping the matters of truth, dignity and justice for conflict victims at the centre of focus.
The existing TJ laws were enacted in 2015 without taking into account the Supreme Court decisions including those in the cases of Suman Adhikari (one of the authors of this piece), Madhav Kumar Basnet, Rajendra Dhakal and others. The two commissions were formed to serve narrow political interest on the basis of seat-sharing by political parties, which naturally led to failure of the entire TJ process. It was clear to all of us what the commissions and the establishing TJ laws were inclined toward, and so it was no surprise that the TJ law, as well as the two commissions, were rejected by victims, national civil society and international community.
The appointed commissioners, despite the case being sub-judice in the Supreme Court against the amnesty-oriented provisions of the TJ law, took charge of their office and started working, claiming that they would drive the process through to its logical end. Given the intransigence of the government and the fait accompli of the commissions’ establishment, the CVCP made its concerns public but chose to extend ‘critical support’ to the commissions, while carefully watching whether relevant Supreme Court rulings would be honored. Trying as far as possible to be positive-minded, the CVCP regularly cautioned the wayward commissions to follow victim-centric approach, forge working alliance with stakeholders, and deliver justice. The CVCP knew the limitations inherent in the TJ law, but believed that honesty and integrity on the part of the commissioners could still produce good work. Unfortunately, good faith was lacking in the four-year term of the commissions, and precious time was lost and much money wasted.
Transitional justice is a technical and legal process but it is obviously much more than that. There are many facets related to the sentiment and psychology of conflict, hence requiring their participation in the process, to be completed while respecting their dignity and ownership. The commissioners, evidently incompetent of grasping these core values and without a sense of accountability to the victims and to society, worked mainly to save their jobs while regarding TJ as a legal-technical matter. It is no wonder that both commissions ended up sabotaging the TJ process, which was probably the idea behind those who appointed the commissioners. Meanwhile, the commissioners engaged in infighting, seeking publicity, and mobilizing themselves to attack and divide the victims’ movement.
If the government is to be honest to its commitments on transitional justice, it must review the process thus far in its entirety against the standard of victim-centricism and human rights. We recall out continuous position on transitional justice and demand that the commissions be filled by competent, independent, qualified, respected TJ experts who will not be held hostage to the narrow interest of political parties and their leaders.
The Recommendation Committee (RC), constituted by the government in April to suggest new names for chairs and commissioners to TRC and CIEDP, has started its selection process. This is incongruous, because the contested law governing the commissions and the controversial Work Procedure Directive (WPD) of the RC are intact under which the committee members are working. Immediately after the RC was formed, the CVCP registered its objections in writing as well as through several formal and informal meetings with the committee members. The CVCP insisted that the fresh recommendations should not be made hostage to political party interests and the seat-sharing approach should be abandoned. Further, the CVCP insisted that the recommended individuals should be from among reputed TJ experts in the country on whom the victims could repose their faith, who would be expected to follow the principles of transitional justice, and who are likely to remain impartial and dignified in the discharge of their duties.
We register our regret that the RC has not followed a transparent process and seems instead to be functioning under political party influence, even while working under the guidance of the unrevised WPD. We therefore call on the members of the RC to correct their course and urge the recommendation of competent, impartial, independent, relevant and respected experts. It is essential that the recommendation follow Supreme Court guidelines of 2015, according to which individuals involved in the conflict as a direct party or from the side of any of the parties involved, as well as those with negative human rights record, should not be recommended.
If the former TRC and CIEDP commissioners (who themselves were responsible for the failure of the two commissions) are reappointed, the conflict victims will reject the commissions outright. We reiterate that the repetition of the same commissioners will force us to boycott the commissions. We have been closely watching events and are aware of the desire of certain commissioners of the two commissions to be reappointed. It is a tragic irony that those of proven incompetency want to come back to serve as commissioners and give victims more cause for grief.
In view of the fact that the TRC and CIEDP will not be able to begin work until the TJ law is amended, we request the government to postpone the recommendation process and start consultation on law amendment. Until such time, we also recommend that the National Human Rights Commission recall its representative from the Recommendation Committee.
In 2015, the Supreme Court issued a mandamus curtailing the free hand of the Attorney General on transitional justice and quashing the provision of the TJ Act which could impose reconciliation without informed consent of the victims. The TJ Act was required to be immediately amended after that, but it was only in June 2018 that the government informally proposed an amendment draft which, in a roundabout language, sought to provide general amnesty to perpetrators of conflict era human rights violations. The controversial draft was challenged from several quarters, after which it was learnt that the government was stepping back.
In February 2019, the Minister for Foreign Affairs formally reiterated commitment to amend the TJ Act so as not to provide general amnesty to perpetrators. Four months after those reiterations, the government has neither consulted conflict victims for the amendment of the TJ Act nor has introduced its own plans for amendment. Past experiences sufficiently alerts us to the fact that political party interest has once again come up as impediment to a victim-friendly TJ process. Continuing with the old law without sagacious amendment will once again cheat the victims, and the mere formation of the commissions without touching the TJ law will only take us deeper into the quagmire. The CVCP believes that process of selecting new commissioners is a part of the conspiracy to divert attention from the need for amendment of the TJ Act. The conflict victims will not accept this attempt at obfuscation.
The proof of government’s commitment to the TJ process will be seen not in a hasty appointment of new commissioners but the start of consultations on amendment of the TJ Act. The amendment must be based on the Constitution of Nepal, the CPA, the mandamuses of the Supreme Court, United Nations guidelines, and international conventions and agreements to which Nepal is a party. The TJ Act through its amendment must be made friendly and responsive to the needs of the victims. Further, the formulation of a national reparations policy and national reconciliation policy must take into account the Supreme Court rulings and UN guidelines. If the TJ process does not accept victims as the main stakeholders and does not consult them in the matter of amendment as well as membership of the commissions, the CVCP and our broader victims’ community will be forced to look to international processes for the sake of justice. The government should not miss the last opportunity to conclude Nepal’s transitional justice process under Nepal’s own leadership and ownership.
Together for justice
The coming together of the victims of the erstwhile rebels and victims of the state to form the Conflict Victims Common Platform has been a unique aspect of Nepal’s peace process. There are few instances internationally of victims of the two warring sides coming together in this fashion. Indeed, this is a bright feature of Nepal’s peace process.
After the CVCP held its National Conference and adopted the Conflict Victims’ Charter on November 21 2018, demanding a high level mechanism to ensure victims’ participation in the entire process of transitional justice, one section of ‘conflict entrepreneurs’ within Nepal indulged in defaming the CVCP, and concocted the myth of a division within the network. Some self-appointed international consultants, who seem to want to return to the Nepal TJ scene as a means of employment, seem keen to peddle the falsity. The ‘split’ within the CVCP is but the figment of the mind of propagandists, whereas the victims within the CVCP umbrella remain more united than before, with an even broader footprint across the country and member organizations now covering 54 districts. We urge the human rights community in Nepal and beyond to understand that propagation of the myth of a split among victims benefits none other than the perpetrators of grave human rights abuse during the conflict.
Much has been made of the Charter’s demand for a ‘high level mechanism’ (not a ‘political mechanism’ as propagandized), which was suggested to be a representative body inclusive of victims and human rights defenders to help draft the reparations policy, collect data on missing victims and carry forward the consultative process to resolve disputes. Such a mechanism was never envisaged as an alternative of the commissions, for that would have required amendment of the CPA itself. Here, the CVPC reaffirms its position that an independent committee would not only provide space for victims, but also be a space to discuss pending issues of Nepal’s TJ process, which ultimately has to be concluded through the two independent and impartial commissions.
Since its founding, the Common Platform’s single minded campaign has been to ensure that Nepal’s transitional justice process focuses on truth-seeking, reparations, justice and non-recurrence through institutional reform. We will continue on this path till the peace process is concluded to the satisfaction of the victims of conflict.
We will firmly reject any attempt to undermine the core principles of transitional justice as propounded by the Supreme Court of Nepal and by international norms and practice. The Victims’ Charter unveiled in November provides the complete position of the victims of Nepal’s conflict on the matter of transitional justice. Our position on these matters is unwavering. Human rights community, international community and all justice loving-people should support the cause of the victims of conflict so that they and the society-at-large can see justice and accountability done.
Chaudhary is current President of Conflict Victims’ Common Platform, Adhikari is its founding chairperson