When justice fails

Published On: September 10, 2019 01:00 AM NPT By: Charan Prasai

As justice has been endlessly deferred, the conflict victims will be left with no option but to seek justice outside of the country

Colonel Kumar Lama of Nepal Army was arrested in January 2013, while he was visiting his family in London.  Lama was accused of committing torture during armed conflict in Gorusinghe barrack of Kapilbastu district. His arrest in the foreign land under universal jurisdiction and court trail outside the country is the first case against the human rights violation committed during the armed conflict (1996-2006). 

His arrest raised serious national debate on foreign intervention over internal matters. In one of the televised interviews, then Foreign Minister Narayankaji Shrestha reacted by saying that filing the case against Nepali officials in foreign land is inappropriate. The victims should have used all means of pressure tactics at home rather than going outside for justice, he argued. His argument sounds logical but does not take into account the ground reality. As things stand, internal pressure by the stakeholders, including the conflict victims, has failed to make the government address their demands. Even the Supreme Court judgment on the convicted perpetrators has not been executed and they are walking freely under political protection. 

The demand of the civil society and victim groups to put the transitional justice (TJ) process back on track and implement the judgment of apex court, including the technical note of UN and to amend the faulty TRC Act, has been ignored. The TJ lies in limbo 13 years after the conflict. The state of impunity is rampant. This is the result of the political actors not heeding to the internal pressures.

Deferring justice  
Before leaving for Singapore in August for treatment Prime Minister KP Sharma Oli had told the parliament that officials at Truth and Reconciliation Commission (TRC) and Commission of Inquiry on Enforced Disappearances Persons (CIEDP) would be appointed within a week. He mentioned nothing about long pending issue of amending the TRC Act. This is another example of his insensitivity toward the call of victims for justice.

First, the PM’s announcement to appoint officials in TRC and CIEDP is the act of intervention in the jurisdiction of the Recommendation Committee (RC) constituted by his government in March under the coordination of former chief justice Om Prakash Mishra.  The Supreme Court verdict on TJ Act amendment has been either forgotten or ignored. The government has also undermined the call of the conflict victims, national and international human rights groups and the UN to adopt the due process by amending the TRC Act followed by a transparent and independent selection of officials in TJ bodies.

Recently, the Prime Minister called an all-party meeting in Baluwatar and apparently recommended Raman Shrestha as TRC chair. This can also be taken as the direct interference on jurisdiction of Recommendation Committee. NHRC, Conflict Victims Common Platform and Accountability Watch Committee have issued strong statements against this move. 

Conflict victims and civil society have been suspicious that the government will adopt transparent process in appointment of new officials in TRC and CIEDP. These suspicions are turning into reality now. It should be noted that TRC and CIEDP failed to deliver the desired results because the officials of these bodies were picked based on political affiliation and given the limited mandate to work under faulty law. It’s worrying that the government is repeating the same mistake instead of correcting it. This also shows how unwilling political leadership is in resolving TJ process and deliver justice to the victims. This has rightly alarmed the international rights bodies. 

This is why Amnesty International, Human Rights Watch, International Commission of Jurists and Trial International issued a joint statement accusing the government of not fulfilling its commitment to deliver justice to the victims of conflict. It underlined the failure of the government to ensure truth, justice and reparation. It also called on the government to suspend the current process and initiate a transparent and consultative process for the appointment of the commissioners by ensuring legal framework in line with the international human rights standards and ruling of the Supreme Court. 

In April, five UN special rapporteurs wrote a joint letter to Foreign Minister reminding the government of its commitment to amend the TJ law and called for a transparent process of appointment of new commissioners. The government responded by saying that a committee has been formed under the Ministry of Law to amend the TJ Act and it will finalize the law after wider consultation with the stakeholders. There has been no progress in this direction.  

UN office in Nepal and other nine embassies issued a press statement in January, 2019 reminding the government that ‘without broad-based public trust, Nepal will not be able to bring closure to the wounds and grievances that persist from the conflict era, nor be able to complete the peace process.’ They suggested for meaningful wider consultations with victims, civil society and broader stakeholders.

Desperate victims
Conflict victims and rights groups have been calling the government to refrain from appointing the commissioners without legal framework and without  criminalizing serious crimes such as arbitrary killings, enforced disappearances, rape, torture including war crimes and crimes against humanity as recommended by the Supreme Court. They are also continuously reminding the authorities that the commissions formed without transparent process and wider consultation won’t be effective, trustworthy, victim-friendly, credible and acceptable.

Further delay in transitional justice process will make it even more complicated. It has already caused multiple negative effects in Nepal. Alleged perpetrators are promoted to higher posts. This has further abetted impunity and criminalization of politics. Justice has been endlessly deferred. In this situation, the victims will be left with no option but to seek justice outside the country. This is because transitional Justice (TJ) has been hijacked by the then warring parties. Even the judiciary is under heavy political influence. Call for justice has not been heard. The concerns raised by the international community have not been properly responded. Commitments made at various forums remain unfulfilled. Rule of law is undermined.
In this situation, what will the victims do?

The author is the coordinator of Accountability Watch Committee (AWC)



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