New TRC Panel Must Meet Challenges

The amended version of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014), among others, had been enacted a few months especially after the present coalition government composed of Nepali Congress and UML took over the reins of the government.  As there has been a larger consensus on the contents of the Act, it looks like that the long stalemated process would go on. Moreover, the government has also proceeded ahead with the process of reconstituting the commission through open selection process which is a very good starter. The panel that was tasked to select the chairpersons and members of the commission have shortlisted the names and made them public for feedback and inputs. However, there has been a huge disenchantment over the nominees as it has been alleged that the list of the persons that has been made public will not be able to deliver to meet the expectations of the conflict victims and other stakeholders. 

As commented in the media, the persons proposed for chairpersons are closer to one or the other political parties who would not be competent enough to undertake the onerous challenges of the transitional justice processes. It is therefore important that the TRC that is being reconstituted should be composed of independent and competent persons who can inspire and command trust of the across the divides. In the past, the commissions failed to deliver because of the bickering and divisions within the bodies and also for want of support of the government as well.

 The first chairperson of the commission Surya Kiran Gurung could not deliver as expected due to two reasons. First, the party loyalist in the commission did not lend needed support to him. Second, the government was not responsive enough to provide basic resources and logistics to the body. The second commission headed by advocate Ganesh Dutta Bhatta also did not produce results because of one or the other reasons.

TRC concept 

To look back, the notion of Truth and Reconciliation Commission (TRC) was proposed in 2006 in Nepal following the signing of Comprehensive Peace Accord between the state and Maoist rebels. The notion was attempted to translate into a reality in 2013 when the law for the same was endorsed by the then Constituent Assembly that was also mandated to Act as the national legislature apart from carrying out the responsibility of authoring the new democratic federal constitution. Accordingly, new act that had envisaged the roles and mandates of the TRC was passed. The statute was heavily scrutinised considering the major flaws associated with possibility of amnesty for those alleged of having committed the heinous crimes amounting to gross violation of human rights. 

Eventually, the Supreme Court (SC) had struck down the certain provisions of the law and gave its verdict that the impugned statutory arrangements be reformed to comply with international human rights standards. Though the government constituted and reconstituted the commission at least twice in the past, both of the commissions formed have yet far failed to take the imperatives of transitional justice to their logical end. In fact, the concept transitional justice subscribes to the values of restorative justice in sharp contrast to retributive and vengeful approach of punishing the criminals and wrongdoers. The amended Act draws partly from South African experimentation that was based on the principle of restorative justice, participation and reparation. 

The TRC in South Africa was born of a spirit of public participation, as the new government headed by Nelson Mandela solicited the opinions of South Africans and the international community regarding the issue of amnesty as well as the issue of accountability in respect to past violations of human rights and reparations for victims. This consultative process culminated in the formulation of the Act. Accordingly, TRC was formed and tasked with investigating human rights abuses committed from 1960 to 1994, including the circumstances, factors, and context of such violations, allowing victims and perpetrators the opportunity to tell their story. The commission dwelt around granting amnesty, constructing an impartial historical record of the past, and drafting a reparations policy.

Nonetheless, the South African TRC was confronted by a number of challenges, as it was not accepted like in Nepal by all parties to the conflict. According to the reports, the top echelons of the military did not cooperate with the commission. Senior politicians in the former government and senior leaders in the security forces did not show their willingness to cooperate with the commission. In the case of the leaders of liberation participating in movements against the apartheid regime, they argued that as they had conducted a “just war,” and their actions did not constitute gross violations of human rights. 

National unity

Nevertheless, the hearings of the TRC attracted global attention, as it was the first commission to hold public hearings in which both victims and perpetrators were heard. At the same time, it laid the foundation for building reconciliation among all South Africans. Like in South Africa, Nepal should set an example for the world ensuring that impunity will not tolerated and those charged with the gross violations human rights including killing of the innocent citizens, rape, and torture and so on are brought to justice. The perpetrators should definitely be held responsible for their criminal acts and wrongdoings. 

However, as in South Africa, the utmost care needs to be taken to ensure that the retributive approach to inflict punishment on the perpetrators need to be shunned for the sake of national unity and reconciliation. The retributive and punitive approach may trigger a new round of conflicts putting all the gains of democratic stability and peace at the abeyance. It is therefore required that the new commission to be constituted soon should be independent and competent enough to handle the challenging responsibilities and contribute to resolve long pending transition justice related issues in Nepal.

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