Stalled Justice

The commissions to be established thereafter must be impartial, independent, empowered and autonomous with the goal of ending impunity and ensuring lasting peace through a transitional justice process that is transparent, gender-sensitive, inclusive and participatory. Any process or legislation that for the sake of expediency prioritizes amnesty for perpetrators and undermines the principle of punishment for the offender and justice for the victim in the name of political consensus, transitional justice, reparation and reconciliation will be unacceptable to conflict victims.

TRC and CIEDP were formed on February 9, 2015, to probe instances of serious violations of human rights and 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.

Significantly, as a result of their failure to accomplish their assigned tasks, TRC and CIEDP tenures have been extended twice, with the second extension due to come to an end on February 10, 2019. However, the TRC has completed preliminary investigation into hardly 2,800 cases among the 63,000 cases filed, and is yet to complete a detailed probe into a single case. CIEDP, which has completed preliminary investigation into 3,197 complaints, has also failed to launch a single detailed investigation.

Anguished over the snail-paced transitional justice process, CVCP in a press release on November 30, 2018, stated “Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons have failed to provide the conflict victims a chance to freely tell their tales of sufferings. If victims get a chance to tell their tales freely, it will lessen their pain and sufferings.”

Refuting the CVCP charge the transitional justice mechanism has done nothing, CIEDP spokesperson Bishnu Pathak, in a Press Conference on December 3, 2018, pointed out that, despite legal, financial and logistics constraints, CIEDP had completed preliminary investigation into 3,197 complaints. CIEDP’s teams had collected data from 56 Districts and would soon cover at least 65 Districts. Meanwhile, CIEDP Chairperson Lokendra Mallick noted that the commission only had the mandate to investigate cases of enforced disappearance; the responsibility of prosecuting the offenders lay with the Office of the Attorney General.

The fact is, the two transitional justice bodies have made little or no progress in investigating war-era cases of human rights violations, principally because the Government continues to delay the release of funds necessary for the process. TRC and CIEDP have received no money for investigation despite their persistent lobbying for funds since the beginning of the current fiscal year. Out of total NR 130 million required by CIEDP, the Government has released NR 40 million for staff salary, and NR 30 million to pay experts and contract officials. But officials say there is no money for travel, which is critical to the investigation of thousands of cases. The situation at TRC is worse. The commission needed NR 117 million for the current fiscal year, towards salary, travel costs, and a stipend for employees, as well as allowances for the victims who need to travel to TRC offices to record their statements. The Government has released just NR 37.70 million.

On December 4, 2018, CIEDP formed five committees: the Suggestion Preparation Committee for Institutional Improvement for Prevention of Conflict in Future, with Commission Chairperson Lokendra Mallik as coordinator; the Reparation Recommendation Criteria Preparation Committee under the coordination of Commission member Bijul B.K. Dulal; the Perpetrator Statement Committee, headed by Bishnu Pathak; the Disappeared Victim Identity Card Distribution Work Procedure Preparation Committee under the coordination of Commission member Nar Kumari Gurung; and the Action Recommendation Criteria Committee under the coordination of Commission member Aai Bahadur Gurung.

Meanwhile, Prime Minister K.P. Sharma Oli, addressing the inaugural session of the Asia Pacific Summit organized under the theme ‘Addressing Critical Challenges of Our Time: Interdependence, Mutual Prosperity and Universal Values’, by the Universal Peace Federation at Kathmandu on December 1, 2018, noted,

My government enjoys robust mandate of the people with three-fourth support of the Parliament, out of which my party alone constitutes two-third majority. The people of Nepal have voted for stability and economic transformation and as Prime Minister I am proud to dedicate myself to the great service of the nation and people. Equally successful has been our unique peace process, launched in 2006. It was a process invented, led, owned, managed and steered by ourselves. With courageous steps and bold decisions at various critical points of time, we have been able to fundamentally conclude the peace process and leave behind one of the most difficult periods in our history.

At the conclusion of the two-day Asia Pacific Summit, on December 2, 2018, a seven-point Kathmandu Declaration for Peace and Development was issued, observing,

The summit appealed to the world community to study Nepal’s peace process where, after a decade of conflict and violence, armed militants handed over their weapons to the United Nations, and together with other democratic parties participated in constituent assembly elections, rewrote the constitution, integrated two armies, restructured the state, formed the federal democratic republic of Nepal — an unprecedented and historic achievement.

Earlier, on June 12, 2018, Nepal ordered the United Nations to close its Department of Political Affairs (DPA) unit in Nepal with immediate effect and remove its staff within three months, stating that Nepal’s political transition, which started in 2006, had come to an end with the successful conclusion of elections to three tiers of Government – local, provincial and federal – as envisaged in the new Constitution adopted on September 20, 2015.  Significantly, in 2017, after an interregnum of 20 years, local level elections were held in three phases; and, after a gap of 18 years, the House of Representative (HoR) and Provincial Assembly (PA) elections were held in two phases.

However, warning that the culture of impunity had been institutionalized in the country, as its recommendations to the Government of Nepal to take legal action against those involved in incidents of human rights violation during the conflict were not duly implemented, the National Human Rights Commission (NHRC), in a brief report on ‘Twelve Years of Comprehensive Peace Accord: Human Rights Situation’ released by the rights watchdog on November 21, 2018, paints a dismal picture of the implementation status of NHRC’s recommendations to the Government. According to the report, NHRC made 810 recommendations to the Government for necessary action to provide justice to conflict victims, from 2000 to mid-July 2017. Of the recommendations, 12.5 per cent were fully implemented and 48.3 per cent partially. Similarly, 39.2 per cent of the recommendations are still under consideration of the Government. The fully implemented recommendations relate essentially to providing compensation to conflict victims. The recommendations for legal action against perpetrators of human rights violations are yet to be implemented.

Since the Comprehensive Peace Agreement (CPA) 2006, which ended the decade-long insurgency bringing the Maoist revolutionaries into the political mainstream, Nepal has taken many strides forward on the socio-political front. The victims of the war have, however, been consigned to oblivion despite their continuous cry for justice. Even after 12 years, victims of the conflict are waiting for justice for human rights’ abuses that were committed during 10 years of war. The two Commissions, which had an initial mandate of two years, have twice extended their tenures. However, they have neither the legal power nor the wherewithal to investigate war-era violations and their job has been limited to collecting complaints and recording statements. Unless justice is delivered and a climate of reconciliation is established, these processes can only perpetuate injustice.