Transitional Justice Gets A Boost

The major political parties - NC, CPN-UML and CPN-Maoist Centre - have sorted out their differences over the contents of the transitional justice bills, raising the hope that the prolonged stalemate constraining the peace process would be resolved soon. The pace with which the amendment bills have been rushed through the parliamentary committee indicates that the laws concerned will be enacted during the ongoing session of the parliament. In fact, the three-party panel comprising the influential leaders of the political parties that was formed to bridge the differences over the transitional justice bill forged consensus on the contentious issues, clearing the deck for endorsement. 

Three party accord pronounces that intentional and arbitrary killings would constitute the serious violations of human rights and sentence to the guilty in serious violations of human rights could be reduced by 75 per cent. Moreover, a victim who is unwilling to reconcile can move the court against the perpetrators of the violation of human rights. All the disqualified Maoist combatants along with the families of security personnel, who lost their lives or were injured during the insurgency, will get reparation and compensation as per the agreement. The parties that played the role to broker the accord have claimed that the tripartite agreement has opened door to deliver justice to the victims of the 1996-2006 Maoist-led conflict who have had to wait for it for around two decades. 

Inaction and apathy

Moreover, it needs to be mentioned that the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) - the bodies mandated to carry out tasks of concluding the peace process - have remained paralysed due to government inaction and apathy. Records show that as many as 3,223 complaints of enforced disappearances implicating either security forces or the Maoists have been lodged at the Disappearances Commission. Similarly, 63,718 complaints have been registered with TRC. TRC is mandated to inquire, ascertain and bring to fore the cases, events and incidences of the  violation of human rights committed in the course of the armed conflict between the State Party and the then Communist Party of Nepal (Maoist) from 13 February 1996 to 21 November 2006. 

Moreover, the commission is also mandated to recommend legal actions against those involved in the heinous offences and crimes amounting to gross violation of human rights. TRC's reconciliation functions are envisaged to be carried out with recourse to truth telling, forgiveness (amnesty), dialogue and trust building, reparation to the victims of the conflict, trauma healing and ending impunity and non-repetition of violence. Reconciliation function by its very nature has been an iterative bottom up dialogic process aimed at building harmony and peace in the society.

TRC had received 63,718 complaints and completed a preliminary investigation that involved the recording of statements from only 3,787 of the complainants. However, the Commission had not been able to carry out its mandate despite repeated extension of its term and change in its composition. The commission was reconstituted again but the reorganised body also failed to push the transitional justice forward. It needs to be mentioned that amending the existing laws related to transitional justice in line with the Supreme Court ruling had been a long standing demand of the conflict victims and stakeholders concerned. The Supreme Court in 2015 had directed the government to revise the amnesty provisions in the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act in compliance with Nepal's international obligations to human rights. 

However, successive governments had not adhered to the ruling, and failed to amend the Act as insisted by the victims and human rights organisations.  However, the proposed bill drafted and agreed recently in accordance with the terms of the major party agreement more or less addresses the concerns of the victim families and issues raised in the ruling. There is an international dimension to the issues of transitional justice which should not be ignored or underplayed. Until Nepal implements a transitional justice process that meets international standards, foreign governments and the United Nations would tighten vetting measures. 

Accountability

Accountability for serious crimes under international law is an essential component of any credible transitional justice process, but it is not the only element. Well accepted five pillars of a transitional justice process include truth, justice, reparation, memorialisation, and guarantees of non-recurrence. Under the provisions in the revised bill being deliberated in the ongoing session of the Parliament, the TRC and CIEDP would investigate alleged crimes committed during the conflict. Cases classified as “serious violations of human rights” could be referred to and prosecuted in a special court.

In particular, the definition of both “serious” violations and other violations of human rights stipulates that the offence was committed “in a targeted or planned manner against an unarmed individual or community.” However, the bill does not ensure the independent appointment of judges to the special court, nor the selection of qualified personnel to handle the complexities of serious crime investigations and prosecutions. As the bill was drafted providing greater care and attention in concurrence of major political parties, all the relevant issues would be sorted out to nudge the process forward.

To sum up, the government has to form the TRC and CIEDP commissions following the enactment of Act soon. This time, care needs to be taken to ensure that these two important bodies are headed by the people who command political clout and mobilise support of the apex level political stakeholders to access resources and facilitate process to resolve outstanding issues of the transitional justice.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)