The issue of transitional justice is, in essence, part of a larger political process that started with the signing of the Comprehensive Peace Agreement (CPA) in 2006. With the promulgation of new constitution, the bulk of the peace and constitutional process was completed. Now if the issue of transitional justice can somehow be settled as well, the political actors in Nepal can credibly claim that they have achieved something remarkable: successfully mainstreaming a potent military outfit that had set out to establish ‘the dictatorship of the proletariat’. But the remaining business of transitional justice is proving to be a tricky knot to untie. National and international rights watchdogs as well as the apex court of Nepal have repeatedly criticized first the process of formation and then the modus operandi of the two transitional justice bodies: the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP). They are particularly troubled by what they see as legal provisions for ‘blanket amnesty’ for war-time human rights violations. There cannot be amnesty for grave rights violations, they contend, nor can the consent of victims for amnesty in such cases be assumed.
This is why the statement of Prime Minister Pushpa Kamal Dahal that neither the government nor his party seeks blanket amnesty in conflict-era cases is encouraging. It would have been better still if the prime minister had also clarified what kind of cases would not be liable for amnesty.
Nonetheless PM Dahal has started his new tenure as PM on a positive note. We hope that his government will now amend the TRC and CIEDP Acts to make them more compatible with the periodic recommendations of rights bodies and the Supreme Court. The other area of concern is the two-year tenure of the two transitional justice bodies, which ends in another six months. The government, apparently, is thinking of extending their terms by a year, as provided in the twin Acts. But given the sheer volume of the work—53,000 complaints have been filed with TRC while another 26,000 have been filed with CIEDP—a year’s extension may not be enough. The appropriate extensions as well as the resources to be availed to the two commissions should be worked out based on consultations with the two sets of commissioners, conflict victims and the human rights community.
The reason transitional justice in Nepal has proved so tricky is that the two sides in this debate—the mother Maoist party and security agencies on one hand and conflict victims and rights bodies on the other—seemed to have different sets of assumptions on transitional justice. While one wanted all conflict-era cases to be ‘forgiven and forgotten’, the other side was as adamant that most conflict cases be treated like crimes committed during a state of normalcy. Both these positions, in our view, are unreasonable and risky. Again, we cannot ever overlook the fact that transitional justice is part of the broader peace and constitution process and hence liable to be settled on the basis of political negotiations. But the goal is to do so with consent of conflict victims so that they can finally close that ignominious chapter in their life. This means punishing the most egregious cases of human rights violations. It could also entail providing reparations, when appropriate. But the inconvenient truth about transitional justice mechanisms, wherever they have been tried—South Africa, Cambodia, Sierra Leon—is that they involve pardons in most conflict-era cases. For the goal in each case was not retribution but reconciliation.