With the Maoist insurgency coming to an end in 2006 through the Comprehensive Peace Accord (CPA) signed between the then seven-party alliance and the CPN-Maoist, the people had hoped that the situation would change for the better. At the time, there was talk of forming a transitional justice mechanism, which elated the conflict victims and their families. But their elation turned out to be short-lived.
It took another eight years just for the enactment of the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014. In according with the Act, the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) were formed with a mandate to investigate gross violations of human rights and crimes against humanity perpetrated during the decade-long Maoist insurgency and to create an environment conducive to reconciliation and harmony in society.
In 2013, there was a political deal between the major political parties regarding granting an amnesty to the perpetrators for gross human rights violations and crimes against humanity. Accordingly, the amnesty provision was included in the ordinance on the formation of the Truth and Reconciliation Commission in 2013 as well as in the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act, 2014. It was mentioned that an amnesty would not be applicable to serious crimes. But the term was not properly defined, making it easy to get the perpetrators off the hook.
The amnesty provision was not acceptable to the international community. In 2014, the Supreme Court directed the government to ensure that any new laws unequivocally rule out the possibility of granting an amnesty to the perpetrators of human rights violations and crimes against humanity. Despite the ruling, the amnesty provision encapsulated in the TRC has not been amended. Until such an amendment is effected, there will be apprehensions that the TRC and CIEDP may promote impunity in the transitional justice mechanism. In 2018, a draft amendment was made. The draft amendment proposed withdrawing 350 conflict-related cases and establishing a special court with powers to hand down non-custodial sentences in some cases and commute sentences in as much as 75 per cent of the cases. This was viewed by human rights activists as equivalent to complete or partial impunity.
The terms of the TRC and CIEDP were initially set at two years from February 2015 to February 2017. During the period, they remained idle, being unable to collect any complaints. Their terms were then extended by another two years till February 2019. During the period, the TRC collected as many as 63,718 complaints from the conflict victims and their families and also completed preliminary investigations, recording statements from 3,787 complainants. On the other hand, the CIEDP collected 3,223 complaints but it validated only 2,506, arguing that the remaining complaints did not fall under their jurisdiction.
The Maoist insurgency raged from 1996 to 2006. Around 17,000 people were killed during the conflict. And around 1,300 people went missing. The fate of these people is still unknown. There are reports of violence (for example, sexual violence and torture) at the hands of both sides to the conflict – government forces and Maoist insurgents.
Appointments to the TRC and CIEDP are considered politically biased. Political parties appoint officials loyal to them to the commissions. With the signing of the CPA, the Maoists have joined the mainstream of politics. They have reached top echelons. Pushpa Kamal Dahal Prachanda and Baburam Bhattarai have even become the prime minister. Other leaders have also occupied top positions in the government. On the other hand, perpetrators from the state side have also reached top positions.
The terms of the commissions are extended repeatedly for a short period. Once the terms expire, the cabinet can appoint new commissioners. Now, the commissions are almost inactive. This has engendered fears among the conflict victims and their families that they will not easily get justice.
It seems the transitional justice mechanism has been created just to show to the world community that the country is serious about giving justice to the conflict victims and their families. The leaders from both state and rebel sides fear that they will have to face sentences for serious crimes committed during the conflict. That is why they tried to grant an amnesty to the perpetrators of serious crimes – gross human rights violations and crimes against humanity- although they knew that such a provision was against international law and the constitution.
The transitional justice mechanism has been protracted ad nauseam. The conflict victims and their families have been despondent for years. But there is no initiative on the part of the government to speed up the transitional justice delivery process. The local elections have just concluded. The ruling coalition and other political parties are not interested in the transitional justice mechanism now; they are focusing on the forthcoming federal and state elections. They are formulating strategies for winning the upcoming elections.
Putting the transitional justice mechanism on the backburner for years is a gross injustice to those who should already have been given justice. The post-conflict scenario is bleak for the conflict victims and their families. But they are helpless. They can do nothing except wait for justice to be given to them. There is no possibility for the transitional justice mechanism to move ahead till the upcoming elections. If the government and political leaders are really responsible for the welfare of the people, justice must be given to the conflict victims and their families. This is the need of the hour.
(Maharjan has been regularly writing on contemporary issues for this daily since 2000. firstname.lastname@example.org)