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Nepal: Delaying and Obstructive Tactics in Transitional Justice:

Paper No.6528              Dated 21-April-2019

By S. Chandrasekharan

In the Human Rights Council at Geneva last month, Pradip Gyawali the Foreign Minister of Nepal made a grandiose statement that the transitional justice laws of Nepal will be amended as guided by the CPA (Comprehensive Peace Agreement), the Supreme Court Directives and international Commitments.  He also gave an assurance to the Council that there will be no blanket amnesty.

I had earlier in paper 6493 dated 18th Feb. 2019 pointed out the lack of good faith of Nepal Government as it had continued to drag its feet on the issue of transitional justice. It is more than 13  years since the civil war ended and all the 63,000 petitions from the victims to the Commission are still gathering dust. For the last two months, due to delay in forming the two commissions have fresh, the petitions have all been bundled up and kept for the perusal of the new members of the Commission!  

In this connection, it is suggested that one should go through the detailed judgement of the Supreme Court on 2nd Jan. 2014, reproduced in parts in a paper as Special Brief in Advocating Forum- year 4 Vol 1titled Nepal – transitional Justice at the cross roads.

It was in the Comprehensive Peace Agreement between the then Government and the Maoist Rebels on November 21, 2006 that committed the two sides to resolve the cases of gross violation of human rights within six months.

Nothing has been done till date and the members of the two Commissions have been given extensions periodically in appreciation of what they failed to do!

It took the Government eight years to formulate a weak Truth and Reconciliation Act in pursuance of the CPA.  Since February this year the two commissions one- on Truth and Reconciliation and the other -the Commission for disappearances are defunct and the Government has just formed a five member Committee under the former Chief Justice Om Prakash Mishra to select chair persons and members for the two commissions. This process did not involve either the victims or the human rights activists as had been promised by the Government in Geneva. International norms were totally ignored.

It was at this juncture that four Special Rapporteurs of the United Nations High Commission for Human Rights along with working Group on Enforced or Involuntary Disappearances have written a strong letter to the Nepal Government seeking transparency and proper consultation before selecting members and Chairpersons of the TRC and the Commission for the Investigation of Enforced disappearances.

It also pointed out that the existing selection procedures lacked impartiality, independence and transparency. The letter also reminded the Government of the promise made by its Foreign Minister in Geneva of its commitment to the CPA, Supreme Court directives and international commitments.

This is not the first time that the Government has received such letters.  The earlier protests of UN Rapporteurs in the functioning of both the commissions have been systematically ignored and even the Supreme Court directives in 2014 and 2105 have been ignored. 

The reasons for such defiance are not far to seek.  Those who were responsible for serious crimes are now in very high positions enjoying the fruits of power. It is said that the former Maoist Chief Dahal had in his mind to selectively take a few cases and punish the culprits and take no action against the rest.  Some senior leaders had proffered the idea that it is time to forgive and forget.  The 63000 petitions now in the hands of the Commission cannot be wished and will have to be disposed of after due investigations.  Nothing has been done so far.

 The Supreme Court directive in 2014 has specifically pointed out that the  proposed bill on TRC bill does not address the question of “ Command and Superior responsibility” for such crimes.

Nepal’s political leaders- the likes of Dahal, Baburam Bhattarai, Ram Bahadur Thapa have all obfuscated the issue of accountability. Some day or other they will have to come to terms with the crimes committed against innocent people.

It will be interesting to see what  Nepal’s Supreme Court had said in its landmark judgement of 2nd Jan. 2014.  Briefly the points were

  1. Amnesty for gross violations are impermissible and vesting the Commission with wide discretionary powers is also not acceptable.
  2. Participation of Victims is mandatory in the amnesty and reconciliation process.
  3. The Two commissions should not be merged.
  4. Existing Criminal laws should address criminal offences committed during the conflict.  Equating criminal acts by deliberately equating with politically motivated crimes is not acceptable.
  5. In management of the TRC, serious crimes should be treated as criminal offences, provide adequate reparations to the victims, ensure autonomy and impartiality to the Commission.
  6. Most importantly, all stake holders, victims, human rights activists and Specialists should be consulted before finalizing the laws.

Unfortunately, none of the directives have been followed so far.

The cease fire process cannot be said to have been completed unless the voices of the victims are heard and the present leaders who were responsible for the  loss of over 20,000 innocent lives are made accountable.  This may take a long time but the Government cannot ignore the cries of the victims.

It is said that the Government is yet to acknowledge the receipt of the letter from the UN though the contents are known by now. Certainly it cannot continue to ignore, delay, defy and obfuscate its responsibility on the issue of human rights. Or is it too thick skinned to ignore international criticism?