Stalled Justice

However, unconvinced by the Government's approach to the Transitional Justice (TJ) process, the conflict victims, on January 27, 2020, threatened to invite the international community, including the United Nations, to intervene in the 'botched' justice process. Bhagiram Chaudhary, Chairperson of the Conflict Victims' Common Platform (CVCP), an umbrella body of 13 organizations advocating justice for war-era victims, noted

By ignoring our plea to revise the TJ law before appointing commissioners in the two commissions, the government has repeated the same old mistake. So, we will continue our protest against the botched TJ process. We will ask the United Nations and other countries that are committed to human rights to intervene in the TJ process if the government continues to undermine our voices.

The conflict victims have been demanding reforms in the existing TRC and CIEDP. On November 21, 2018, the CVCP 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.

The nominations of the office bearers had been submitted on January 18, 2020, by the five-member Recommendation Committee led by former Chief Justice Om Prakash Mishra. The Recommendation Committee had been formed on March 25, 2019, to nominate candidates for the chairpersons and members of the two TJ bodies. The Recommendation Committee recommended Ganesh Dutta Bhatta as chairperson of TRC and Yubraj Subedi as chairperson of CIEDP. Members of the TRC, include Prachanda Raj Pradhan, Mana Dahal, Bishnu Pokharel and Govinda Gautam. Similarly, members of the CIEDP include Gangadhar Adhikari, Sunil Ranjan Singh, Sarita Thapa and Bishnu Bhandari.

At the time of nomination as well, strong objections had been voiced regarding the process, with CVCP issuing a press release on January 19, 2020. The CVCP alleged that the recommendation committee had simply endorsed the names recommended by political parties that were indifferent to the pain and suffering of conflict victims. Arguing that the lack of initiative to amend the TJ Act was one of the major causes behind the failure of the two transitional justice bodies, CVCP asserted that the Recommendation Committee was ignoring the concerns of the conflict victims. CVCP further stated that the Committee had recommended party loyalists in the two TJ bodies without reviewing the causes of past failures of the two TJ bodies in addressing the concerns of the victims, and in investigating cases of human rights violations in an impartial and independent manner.

Earlier, presenting a memorandum to the Minister of Foreign Affairs Pradeep Gyawali on January 6, 2020, CVCP demanded that the TJ Act be amended on the basis of the Supreme Court's verdict of January 2, 2013, which states any amendment or new act should be drafted by a drafting task force including victims, experts and human rights activists. CVCP demanded that the process of appointment of members to the two TJ Commissions should start only after amendment of the Act. The conflict victims also dismissed the Government's consultations, held simultaneously in all seven provincial headquarters - Biratnagar, Janakpur, Hetauda, Pokhara, Butwal, Surkhet and Dhangadion January 13, 2020, as a sham. The consultations were held in two sessions - three hours with victims and another three hours with human rights defenders, civil society members, security forces and the media. Conflict victims and human rights defenders described the entire process as a farce. Badri KC, a conflict victim who was present at the consultation in Pokhara city of Kaski District, asserted,

Some of our friends couldn't even put forth their concerns due to time constraints. Rather than listening to our voices, the discussion was aimed at showing that the government has taken our feedback to amend the Act.

Similarly, Shree Kumari Budha, whose father was killed by the Maoists in Thawang village of Rolpa District and who was present at the consultation in Butwal city of Rupandehi District, rued, “The discussion was just a formality. I am not at all hopeful about our concerns being incorporated in the Act”.

TRC and CIEDP were constituted on February 10, 2015, in accordance with the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Act 2014 (TRC Act) , to probe instances of serious violations of human rights and to determine the status of those who disappeared, during 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.The TRC and the CIEDP were vacant since April 13, 2019, as their members were retired. Earlier, 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 also 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.

As a result, 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 TJ 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, 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. Separately, issuing a joint press statement, four international rights organizations - the International Commission of Jurists, Amnesty International, Human Rights Watch, and TRIAL International - on November 26, 2019, stated,

It is deeply disappointing that the government had repeatedly attempted to appoint commissioners without adequate consultation and transparency. The commissions will not gain trust of the victims and the international community if the political parties continue to interfere in the appointment process."

Meanwhile, the Nepal Government, on March 12, 2019, banned  the Netra Bikram Chand aka Biblab-led Communist Party of Nepal-Maoist (CPN-Maoist-Chand) following a series of explosions that took place at ‘Ncell’ telecommunication towers and other public places across the country. Upholding the order, the Government, took strong action against the CPN-Maoist-Chand in 2019. According to partial data compiled by the South Asia Terrorism Portal (SATP), 13 CPN-Maoist-Chand insurgents, including one District in-charge, were killed across the country in various operations in 2019. No insurgency-linked fatality was reported in the country between 2014-2018. Also, 173 leaders and cadres of the outfit were arrested across the country in 2019. 47 CPN-Maoist-Chand cadres were arrested in 2018 and 21 in 2017. CPN-Maoist-Chand was formed on December 1, 2014, after splitting from the Communist Party of Nepal (Revolutionary Maoist) headed by Mohan Baidya.

Hardening the Government's stand further, Deputy Prime Minister and Minister of Defense Ishwar Pokharel, talking to media persons at Biratnagar Airport on July 22, 2019, observed that the Government would take the process for talks with CPN-Maoist-Chand group forward only if the group gave up arms and violent activities. Similarly, Minister of Communications and Information Technology Gokul Prasad Baskota, speaking at a regular press meet at Singha Durbar, Kathmandu, on October 24, 2019, declared that the Government would not lift the ban on CPN-Maoist-Chand. Baskota, however, urged the outfit to shun violence and come for talks. He also urged the underground group to enter peaceful mainstream politics by abiding by the Constitution. He stated, further, that the demand for the release of arrested cadres of the group could not be addressed at any cost until the party came up with a peaceful compromise.

The Nepal Government is using its full capacity to curb the activities of CPN-Maoist-Chand. There are no signs of the Government backing off on its clampdown against the recalcitrant group, as it continues to reject calls for unconditional surrender. With a two-thirds majority in Parliament, the Nepal Communist Party (NCP) has the mandate and a golden opportunity to consolidate the stability the country currently enjoys. However, 14 years after the Comprehensive Peace Agreement which formally ended the war in Nepal, the mere extension of the terms of TRC and CIEDP is likely to prolong the justice process without meaningfully improving the chances of victims to secure justice, truth and accountability. Justice will continue to evade the victims of the protracted conflict in Nepal.