Transitional Justice A Difficult Road Ahead


Nepal's transitional justice process recently received renewed attention after the Supreme Court (SC), responding to a writ petition, ordered the defendant to provide clarification on the issues raised by petitioners. The SC had earlier refused to register the petition but it later accepted it in response to Prime Minister Pushpa Kamal Dahal Prachanda's remarks three years ago, in which he stated that he would take responsibility for the deaths of 5,000 people out of the 17,000 killed during the armed struggle waged between 1996 and 2006 by the then CPN-Maoist against the state. 

The court case against the Prime Minister has brought ten ruling coalition parties together to expedite and then support amendments to the transitional justice-related bill pertaining to the Investigation, Truth, and Reconciliation Act- 2015. Some say that elements opposed to the current government encouraged the filing of a writ against PM Prachanda after he abandoned the UML-led partnership to side with the Nepali Congress and other fringe parties to form another coalition. In the 17 years since the signing of the Comprehensive Peace Accord (CPA) in November 2006, the court has never sought such clarification from an incumbent PM on matters pertaining to transitional justice. Previously, the apex court would not hear cases seeking punishment for a prime minister on transitional justice issues. 

A bolt from the blue

It is, therefore, natural for many to raise their eyebrows after the SC issued its clarification notice to the incumbent PM over matters that have largely to do with the CPA and peace process. The petition against the chair of the CPN-Maoist Centre and PM Prachanda, nonetheless, acted as a catalyst for the different factions of Maoists, who had remained divided soon after they joined the mainstream of peaceful politics, to denounce the act of filing the writ petition, which was nothing short of a bolt from the blue to them. They stated that they would not yield to such pressure and that transitional justice applied to the peace process as well as the CPA, which the then-rebel Maoists had signed with the government.

The new bill, tabled on March 9 in the Lower House, included some amendments that drew criticism from conflict victims and human rights advocates. According to reports, the new amendments will not reconcile serious human rights violations such as cruel forms of murder, murder after torture, rape, enforced disappearances, and cruel forms of torture, whereas "murder" is a simple case of human rights violations and as such acts can be reconciled. When the bill relating to transitional justice was introduced in 2015, victims and rights groups filed complaints at the Supreme Court, stating that attempts to grant blanket amnesty for serious human rights violations committed during the insurgency period were unacceptable to them. 

The bill's provision stating that the SC’s decision would be final and that those affected would not be able to appeal to the apex court was also unacceptable to victims and rights supporters. The SC overturned these controversial provisions in the bill and issued a mandamus, ordering the government to categorise perpetrators of human rights violations and violence into different categories, such as serious and non-serious crimes. The latest bill has attempted to address such issues, but other contentious issues remain unchanged from the bill that was first introduced on June 15, last year, in response to pressure from several quarters.

The recent occurrence clearly indicates that the country's transitional justice process is complex and difficult. The Truth and Reconciliation Commission and the Commission to Investigate Enforced Disappearances, both part of the transitional justice process, reportedly received around 64,000 complaints of both serious and non-serious human rights violations committed by both insurgents and the state party during the insurgency. Meanwhile, prolonged political instability, a lack of political will among parties, opposition from security forces and other vested groups, a lack of resources and public support, and the complexity of a conflict involving multiple parties and grievances have all hampered the transitional justice process.

However, as leaders from the ruling alliance, particularly the Prime Minister and the Maoists, have begun to feel the heat of the current situation, in which a slew of insurgency victims are ready to knock on the court's door seeking justice, the ruling coalition has attempted to expedite the bill. According to the report, the government hopes to resolve the victims' justice issues within the next two years. Experts believe that given the volume of complaints and the complexities of the justice system in the country, the process could take more than two years to complete.

Victims’ grievances 

Having said that, no one should forget that the bill cannot be rushed through in order to achieve the desired outcome of the transitional justice process. If the victims' demands and grievances are not heard, and if the parties try to use the majority based on the parliamentary number, the process may suffer the same fate as it has in the previous 17 years. Human rights organisations and insurgency victims have expressed concerns about some of the provisions in the bill proposed for approval by the Commission for Investigation and Truth and Reconciliation Act-2015.

It is important to approach transitional justice with the utmost care, compassion, and understanding. Immunity for serious crimes cannot be accepted by rights groups or the international community, as the concept of absolving perpetrators from being held accountable for their actions give rise to impunity. Penalties should be imposed on those responsible, and in some cases, reduced sentences or other incentives might be offered as an encouragement to confess or provide information about their circumstances. Accountability must be enforced to rebuild trust between communities affected by these heinous acts. Finally, as it is a highly sensitive matter, the transitional justice process in the country must reach its logical conclusion with a win-win situation for all parties involved. No victim should be denied justice, which is at the heart of the country's transitional justice process. 

(Upadhyay is Managing Editor of this daily.)

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