Nepal’s peace process has often been touted as a political feat but inordinate delay in ensuring transitional justice (TJ) exposes its inherent flaws and long-running discordance among the major actors in resolving the residues of armed conflict. Now the issue of transitional justice has become so thorny that its repercussions are seen in the domestic politics while drawing criticisms from international rights organisations. It has been not only politicised but also internationalised, posing a question to the competency and legal sovereignty of the state to formulate appropriate law to punish the perpetrators of grave human rights violations and address the plight of victims.
The transitional justice process has been in limbo for the last 16 years. The Comprehensive Peace Agreement (CPA), signed between the then government and CPN-Maoist in 2006, states that both sides agree to set up a High-level Truth and Reconciliation Commission through mutual agreement to investigate truth about people seriously violating human rights and involved in crimes against humanity, and to create an environment of reconciliations in the society. They also decided ‘to make public within 60 days of signing of the agreement information about the real name, caste and address of the people 'disappeared' or killed during war and to inform the family about it.’
But it took eight years to form the Truth and Reconciliation Commission (TRC) and Commission for the Investigation of Enforced Disappeared Persons (CIEP). It is the Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act-2014 that triggered uproar from the victims. The Act, according to them, seeks to give amnesty to the perpetrators of grave human rights violations that occurred during the decade-long insurgency. In response to a writ, filed by 234 conflict victims, the SC quashed a provision of blanket amnesty to the offenders and asked the government to revise it as per international standards, constitution, CPA and other precedents. The major political parties have been split over the definition of the nature of crimes and the amount of the punishment to the perpetrators. Moreover, political instability and inter- and intra-party bickering have also overshadowed and delayed the TJ process.
The ruling coalition has sprung into action to expedite the TJ process after the SC accepted a writ, demanding that CPN-Maoist Centre chair and Prime Minister Pushpa Kamal Dahal Prachanda be brought to book as he has taken the responsibility for the death of 5,000 persons during the insurgency. The apex court has noted that the issue of transitional justice could not be prolonged for an infinite period under any pretext. This ruffled the feathers of the leaders of the Maoist Centre and its numerous splinter groups. Earlier, the SC used to turn down such writs as there was general agreement that war-era cases would be dealt through the two commissions created as per the CPA.
Now various Maoist leaders have banded together to castigate the SC for accepting the writ. On the other hand, the conflict victims have been elated and said that the SC has finally listened to their weal and woe. Furnishing his 13-point reply to the court, PM Prachanda said that the petition should be scrapped since it had no constitutional ground and reason. It is against the spirit of the CPA to take the moral responsibility of all persons killed by the rebels and my statement is of political nature and needs to be understood beyond the judicial process, said PM Prachanda.
Nonetheless, the court’s show cause notice has impelled the government to register an amendment Bill on the Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act, 2071 (2014) in the House of Representatives (HoR) on March 9. The amendment Bill has fallen into controversy before the lawmakers are to hold clause-wise discussions on it. The victims and rights activists have strongly protested it, citing that its provisions will let the offenders off scot-free. Altogether 32 lawmakers have registered 186 amendment proposals on it, which has dampened the government’s bid to endorse it from the parliament through a fast track process.
The bone of contention lies in the definition of phrases - ‘violation of human rights’ and ‘serious violation of human rights’ as they are related to general pardon. Under the category of ‘human rights violations' fall the nine crimes committed during the armed conflict in a targeted or planned manner against an unarmed individual or community, which include 'murder, sexual violence, physical or mental torture, abduction and hostage taking, illegal detention, beating, maiming and causing physical disability, looting, capture, destruction or arson of private and public property, forced eviction from one's residence or displacement by any other means, or any inhuman act that are against international human rights and humanitarian law'.
Likewise, 'serious violations of human rights' include the acts such as killing of somebody after cruel torture or killing of somebody in a brutal manner, rape, enforced disappearances and cruel or inhuman torture. The perpetrators can’t get amnesty for committing the grave HR offences. But they can be pardoned on the HR violation. Amendment Bill states that ‘if the perpetrator or victim submits an application to the Commission for reconciliation, the Commission may cause, in free consent of the victim, reconciliation between the victim and perpetrator of human rights violation'.
If the Bill is approved as it is, it will be difficult for victims to prove a murder of those who are not involved in the conflict as a grave right violation, according to the rights activists. The Bill has also incorporated a new provision in which a victim can go to the SC if they are not satisfied with the verdict of Special Court. Although it stipulates that the Commission must perform its functions in a transparent, victim-centric, gender-friendly and disability-friendly manner, the faulty definition of the ‘human rights violation’ has made the victims cringe.
In its Common Minimum Programme, the ruling coalition has promised to end all remaining tasks of the peace process and transitional justice within two years and provide compensation, rehabilitation and reparation to the victims' families. But, the given contention over it for the parliamentary approval, it is an uphill task to finalise the TJ process within given timeframe. The political parties must rise above their partisan interest to conclude the TJ process in a way that gives justice to the victims. If they fail to forge consensus on it, it becomes a geopolitical weapon for the outsiders who can easily snatch the state's legal autonomy to foist their agenda on divided parties and the government.
(The author is Deputy Executive Editor of this daily.)