Nepal: Mirage Of Justice – Analysis
By SATP
By S. Binodkumar Singh*
On May 2, 2019, at a press meet in Kathmandu, a group of conflict victims expressed their concerns over the Government’s ongoing appointment process of commissioners and members of the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP). The conflict victims demanded that the Government first amend the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act) before appointing members and chairpersons. The Commissions are presently vacant, as their members retired on April 13, 2019.
On March 25, 2019, the Government formed a five-member Recommendation Committee to nominate candidates for the chairpersons and members of the two transitional justice bodies (TRC and CIEDP). The Committee, led by former Chief Justice Om Prakash Mishra, is to recommend names of 10 persons – five each for TRC and CIEDP – including a chairperson each for the two Commissions. The Committee has extended the deadline for submission of applications three times so far (the latest deadline was May 12, but there was no further information available in thia regard at the time of writing) in view of the demands of the conflict victims.
TRC and CIEDP were constituted on February 10, 2015, in accordance with the TRC Act, to probe instances of serious violations of human rights and to determine the status of those who disappeared in the course of the armed conflict between the State and the then Communist Party of Nepal–Maoist (CPN-Maoist), between February 13, 1996, and November 21, 2006, the day of the signing of the Comprehensive Peace Agreement 2006. Despite the tenures of the TRC and CIEDP having been extended twice, the TRC has barely completed preliminary investigations into some 2,800 among the 63,000 cases filed, and is yet to complete a detailed probe into a single case. CIEDP, which received some 3,000 complaints, has completed preliminary investigation into just about 500, but has failed to launch a single detailed investigation.
Moreover, TRC and CIEDP have fallen short of international standards, both in their constitution and operation, despite repeated orders by the Supreme Court of Nepal. On January 2, 2014, the Supreme Court ruled unconstitutional the TRC Ordinance adopted in 2013 by the Maoist-led Government, which provides for amnesties to persons deemed responsible for serious human rights abuses during the country’s civil war of 1996-2006. However, the Government effectively ignored the Court order and promulgated the TRC Act into law on May 11, 2014. Once again, on February 26, 2015, the Supreme Court struck down the amnesty provision in the TRC Act.
Demanding reforms in the existing TRC and CIEDP, on November 21, 2018, the Conflict Victims Common Platform (CVCP), an umbrella body of 13 organizations advocating justice for war-era victims, adopted a 23-point Charter of Conflict Victims calling for meaningful participation of the victims themselves in the overall transitional justice process and related mechanisms. Further, on April 29, 2019, conflict victims and civil society members staged a demonstration at Maitighar Mandala in Kathmandu demanding amendments to the TRC Act, in line with the verdicts issued by the Supreme Court at different times. They also urged the Government to equip TRC and CIEDP with necessary resources — human and financial. The conflict victims also demanded that the members and chairpersons of both transitional justice bodies be appointed only after amending the Act.
Of late, pressure from the international community has also been mounting on the Nepal Government to ensure transparency and proper consultation before selecting officials for the two transitional commissions. Urging the Government to publicly clarify its plans to take the transitional justice process forward in 2019, Kathmandu-based diplomatic missions of Australia, Germany, the European Union, Finland, France, Norway, Switzerland, the United Kingdom, the United States of America, and the United Nations, in a Press release on January 24, 2019, observed
| Noting the looming expiration of the mandates of the TRC and the CIEDP, as well as the upcoming fourth anniversary of the 2015 Supreme Court ruling that affirmed certain requirements for transitional justice processes, we encourage the government to clarify to the public its plans to take the transitional justice process forward in 2019. |
Similarly, on February 11, 2019, the International Commission of Jurists (ICJ), Amnesty International (AI) and TRIAL International called on the Nepal Government to commit to a transparent and consultative transitional justice process that complied with international law and the judgments of the Supreme Court. Expressing serious concern over the selection process of the new leadership in the two transitional justice commissions and the delay in amending the TRC Act, five United Nations special rapporteurs sent a letter addressed to Minister of Foreign Affairs Pradeep Kumar Gyawali on April 12, 2019. In the 10-page letter, sent through Nepal’s Permanent Mission to the United Nations in Geneva, the rapporteurs stated that the existing selection procedure lacks impartiality, independence and transparency.
Meanwhile, making it clear that the Government had not felt necessary any external assistance in concluding the home-grown and nationally-led transnational justice process, Minister of Foreign Affairs Pradeep Kumar Gyawali, speaking at an interaction with media persons after his return from the 40th Session of the United Nations Human Rights Council (UNHRC) on March 5, 2019, declared, “Of course, we need international goodwill, but we are capable of concluding the transitional justice process in our own original way.” Once again, emphasizing that Nepal’s peace process was a home-grown initiative which would be settled by domestic stakeholders, Minister of Communications and Information Technology Gokul Prasad Baskota stated on April 18, 2019, “Nepal offers a unique model on transitional justice process and the international community needs to believe in Nepal’s competence.”
However, the Nepal Government has drafted a Bill to amend the National Human Rights Commission (NHRC) Act, 2012, which experts argue would curtail the rights of the constitutional watchdog. The Bill has made it mandatory for the NHRC to recommend cases against human rights violators – individuals or institutions – to the Attorney General. According to the existing Act, NHRC can directly write to the Cabinet for action against human rights’ violators. Arguing that such a move could defeat the whole purpose of holding human rights violators to account, Advocate Om Prakash Aryal observed, “Since the Government authorities also violate human rights, the Attorney General, who is the Government’s legal counsel, may not prosecute the case.”
There has also been dismal record on the implementation of the rights watchdog’s recommendations by the Government. According to the NHRC’s Annual Report 2017-18, of the 810 recommendations made by the commission between 2001 and 2017, only 12.5 percent of the total recommendations were fully implemented, 48.3 percent were partially implemented and 39.2 percent recommendations are ‘under consideration’. The report further noted that most of the recommendations that were implemented were related to compensation. Recommendations made for taking action against those involved in human rights violations largely remained unimplemented.
Expectedly, on April 20, 2019, the NHRC objected the Bill to amend the National Human Rights Commission Act, 2012, observing that the Government was trying to undermine the rights body’s authority by forcing it to recommend the cases it has investigated to the Attorney General. The constitutional body also stated that the Government had ignored its recommendations while drafting the Amendment Bill, as the Commission had submitted a 17-point reference to the Government. Anup Raj Sharma, Chairperson of the Commission, asserted, “Not a single recommendation has been incorporated in the draft. To our utter surprise, the Cabinet endorsed the Bill within a couple of days after I personally requested Prime Minister K.P. Sharma Oli to come up with the Bill incorporating our recommendations.”
Meanwhile, on April 30, 2019, at the meeting of the Parliamentary Committee on Law, Justice and Human Rights, a heated exchange of words between opposition lawmakers and Minister for Law and Justice Bhanu Bhakta Dhakal occurred. While the opposition lawmakers, along with officials from the commission, demanded revision of the Bill, arguing that it curtailed the authority of the rights watchdog, Dhakal refused to budge.
It has been 13 years since the Comprehensive Peace Agreement, which formally ended the civil war in Nepal. Even though the two transitional justice mechanisms have begun documenting cases and complaints, they have been hampered by an inadequate law that does not meet international standards, as well as by a severe lack of capacity and proper support from the Government. The Government is attempting to rush through an appointment process without transparency or consultation, and this has failed to gain the trust of victims. Moreover, as a proposed law threatens to weaken the NHRC as well, efforts to secure justice for victims of atrocities are likely to remain a mirage.
*S. Binodkumar Singh
Research Associate, Institute for Conflict Management
