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Nepal: Elusive Consensus and Supreme Court Ruling on Amnesty: Update No. 309

Note No. 736                                                 Dated 10-Apr-2015

By Dr. S. Chandrasekharan

Two major issues continued to dominate the political scene in Nepal.  First of course is the elusive consensus in drafting the new constitution and the second was the annulling of discretionary powers of the Truth and Reconciliation Commission (TRC) and the Commission on Inquiry into enforced Disappearance Act (CIED) by the Supreme Court..

When the Maoists joined the Madhesi and the Janajathi groups for the massive protests, it was not clear whether they were genuinely concerned about the configuration of the provinces on ethnic lines or on the Supreme Court judgement that ruled out general amnesty for serious rights violations.  My suspicion is that they were more concerned about the judgement than on the consensus.  They are going along with the Madhesis and the Janajathi groups because politically it suits them and not that they genuinely believe that the hitherto marginalised groups should be empowered under the new set up.

First on the Supreme Court Judgement on Amnesty:

It appears that  altogether 234 victims of the armed conflict between the Maoists and the government had filed writ petitions on June 3 last year challenging the discretionary powers given to the TRC and the government..

The Special Bench of the Supreme court, annulled two controversial provisions of the TRC and the CIED Acts that gave discretionary powers to the transitional justice mechanisms for amnesty and prosecution of human rights violators.  More important, the Special Bench also directed that the victim’s consent should be made mandatory for reconciliation.  It also declared that cases that are sub judice at various courts cannot be transferred to the Commissions.

The discretionary powers given to the commission on the provision that it cannot recommend amnesty for perpetrators involved in cases of serious human rights violation that are found to lack sufficient reasons and grounds for amnesty were also taken away in this judgement. In the court’s view it is the duty of the commission to look for reasons and grounds to bring such perpetrators under legal review.

The Special bench had also directed that the transitional mechanisms and the government not to act against the previous verdicts of the apex courts in the related cases.

This judgement has enraged all the six Maoists parties, particularly the two major ones led by Dahal and Mohan Baidya.  The present government has been placed in a very tight and embarrassing position as the peace process cannot be considered complete without the pending cases before the TRC and the CIED being cleared.

The Elusive Consensus:

Ever since January 25 when the Speaker announced that he would form a Questionnaire Committee and go ahead with the voting on the contentious issues of the new constitution, the opposition parties have been boycotting the Constituent Assembly.

On a request from a group of leaders of the civil society, the CA plenary was deferred on Feb 12 to enable them to help the parties to reach a consensus on the disputed issues of statute writing.  After many meetings with the leaders of all the parties failed to produce the desired consensus, the civil society leaders formally met the Speaker and told him that their efforts to help the parties to reach a consensus failed.

Thereupon the Speaker wanted to convene the assembly on April 6.  The opposition 30 Party Alliance led by the Maoists and the two major Madhesi Groups declared a three-day strike and closure throughout the country starting from 6th.

The agitation on the first day left 19 vehicles vandalised in Kathmandu valley and there were damages to public vehicles in other places too.  In the city 11 people including the security personnel sustained injuries.  Four persons were critically injured in Bhojpur.  Full reports on the destruction of public property and injuries to the people are yet to be received.

Realising the consequences of the “bandas” and on the specific appeals from the public, the 30 party alliance decided to withdraw the strike scheduled for the 7th and 8th of April.  It appears that the Maoists were playing up the two groups of the Madhesis with the Upendra Yadav’s groups wishing to continue and the Gachhadar group opting to withdraw the agitation.

Meanwhile the Speaker as well as the Ruling parties have given themselves a deadline of May 29  to get the draft of the new constitution ready.

If one is to go by past experience there is very little chance of the contending parties coming to any consensus before the deadline. The present “unsettled situation” is likely to continue with the Maoists making the most out of the political impasse that is seen today.

There have been two “out of the box suggestions” that have recently come out and both are worth considering.

In the configuration of the provinces the disputed districts are only Jhapa, Biratnagar, Sunsari in the east and Kalilali and Kanchanpur in the west.  Whey not then go for a referendum in these five districts and let the people from the five districts decide where they want to be?  This would help the Federal system to be retained and at the same time the peoples’ wishes from the five districts would also have been taken into account.

The second suggestion is- Why not delete the word “interim” from the Constitution and continue with the present constitution along with provisions that have been agreed to among the parties?  This suggestion made in an editorial of Nepal Times is said to be “least disruptive and most forward looking way” to end this “debilitating deadlock.” 

While the former provision may be acceptable to the Terains, the latter one will be opposed tooth and nail by them as this will perpetuate the present discrimination against the Terai indefinitely.

Indian Foreign Secretary’s visit:

In the course of SAARC Yatra, the Indian Foreign secretary made a two day visit to Nepal and met almost all the stake holders both in the government and outside.  He urged the political leaders to come up with a constitution at the earliest and help end the current protracted transition.

He also added that it is in the larger interest of Nepal to bring a new constitution and through the broadest possible compromise.  In the same breath, he also reiterated that “India does not want to interfere in Nepal’s internal affairs.” 

There are suggestions in the Press that India should intervene.  It is best left to the Nepalese to decide on the type of constitution and the mechanism through which it is done. Nepal is quite capable of deciding on such issues.