Friday, 21 January, 2022

Whither Transitional Justice?

Uttam Maharjan


It has been fifteen years since the Comprehensive Peace Accord (CPA) was inked between the government and the ex-Maoist rebels in 2006 AD. The CPA was the result of the realisation by both the government and Maoist rebels that no side could win the nip-and-tuck war that had been running for the last ten years from 1996 to 2006. The CPA also showed the Maoist rebels’ strong desire to come back to the mainstream of politics and the government’s leniency towards them. One of the hallmarks of the CPA was to augment the peace process, including transitional justice, within a short span of time.

Although most of the peace process, including adjustment of ex-Maoist combatants in civilian life or in the national army, has been concluded, transitional justice is yet to be delivered to insurgency victims or their families. Transitional justice is required for the consolidation of democratic values for a state transitioning from conflict-hit conditions. It contributes to maintaining sustainable peace in society. Effective delivery of transitional justice depends on the democratic values a state holds, the robust legislative mechanism and observance of the rule of law. It also depends on the honesty and impartiality of a government and its leaders.

When the government and the ex-Maoist rebels buried the hatchet in 2006, with the latter expressing their desire to come back to mainstream politics, the people were excited that the country, which had plunged into a state of chaos and underdevelopment for years, would make progress towards development. Moreover, the mention of the provision of truth and reconciliation in the CPA enraptured the conflict victims or their families.
There was much delay in constituting the relevant commissions. It was only in 2015 that the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) were set up to bring to justice the violators of human rights and the perpetrators of crimes against humanity during the Maoist insurgency and to deliver justice to the conflict victims or their families. The tenures of these commissions were two years.

Ironically, the commissions could not collect complaints, let alone settle them, during the mandated period of two years. The two years literally went down the plughole. So the tenures of the commissions were extended by another two years. During the four-year period, the TRC collected 63,718 complaints and completed a preliminary investigation by recording statements from 3,787 complainants. On the other hand, the CIEDP collected 3,223 complaints, out of which 2,506 were validated, reasoning that the remaining complaints did not fall under their jurisdiction.

The work on transitional justice was moving at a snail’s pace when the tenures of the commissions were again extended till April 15, 2019. In 2020, new office-bearers were appointed to the commissions despite an outcry from the conflict victims or their families, human rights advocates and national and international human rights organisations. Their main concern was that the appointments were made on a bureaucratic model and lacked

transparency and impartiality
The Enforced Disappearances Inquiry, Truth and Reconciliation Commission Act 2014, in accordance with which the TRC and the CIEDP were established, has a provision of blanket amnesties. The UN Human Rights Council examined the Act and found that the provision was against the country’s constitution and international law. Amid overwhelming pressure, the Supreme Court revoked the provision. But no amendment has been made to the Act accordingly.

What has gone wrong in the transitional justice delivery mechanism? In the first place, the TRC and the CIEDP should be transparent and unbiased. The commissioners should have an expert knowledge about the transitional justice mechanism. The commissioners are appointed on the spoils system of major political parties. There is a lack of political will to settle the cases. Political leaders are not interested in the case. Those who are parties to the Maoist insurgency are now in top echelons. The CPN-Maoist Centre is in the government now. In a nutshell, the leaders are not committed to delivering transitional justice to the conflict victims or their families.

Political leaders have their own axe to grind. They are concerned about how to cling on to power. Political squabbles are the hallmark of the country’s politics. Now, their attention is on the forthcoming elections. So as long as there is no political will, it may be hard for the peace process to get completed.
It may be noted that a commission was set up in 1990 to investigate the cases of killings and damage to property during the anti-Panchayat movement. The Malik Commission completed and submitted the report to the government in the same year. The report held police officers, local administrators and even the members of the Council of Ministers liable for the crimes committed during the movement. Forty-five people were killed and as many as around 23,000 people were injured during the movement. However, the report was not implemented, allowing the perpetrators to go scot-free.

There are apprehensions that the TRC and the CIEDP might also meet the same fate as the Malik Commission. The commissioners of the TRC and the CIEDP have met the conflict victims or their families and stakeholders. They know the sufferings the conflict victims or their families have been through. Still, there is no willingness on the part of the commissioners to settle the cases. This has left the conflict victims or their families disappointed. They have lost hope that they will get justice any time soon. Just extending the tenures of the commissions time and again has added insult to injury. The government should take the initiative in creating an enabling environment for the transitional justice mechanism to materialise at the earliest.

(Maharjan has been regularly writing on contemporary issues for this daily since 2000.