Kathmandu: When, in August, the House of Representatives of Federal Parliament passed the bill to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, by a majority vote, it came as a new beacon of hope about taking the protracted transitional justice process to a logical conclusion. Three major political parties—Nepali Congress, CPN-UML and Maoist Center—who at times stood poles apart about the TJ process, came on the same page on the bill and expressed commitment to ensuring justice to the victims of the insurgency period. The International Community lauded the passage of the bill and it appeared that the TJ process would move forward unhindered henceforth. But four months later, voices of dissent have begun regarding the selection of officials, including the chief commissioners and other commissioners in Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP). The candidates shortlisted by the Recommendation Committee have been opposed by victim communities as well as rights defenders and there are misgivings about whether TRC and CIEDP will be able to ensure justice to the victims of the insurgency era. In this context, The DMN News approached Nirajan Thapaliya, human rights activist and director of Amnesty International Nepal to take his insights. Here are the excerpts:
While foreign diplomatic missions lauded the passage of the Transitional Justice Bill into law in August, Amnesty International Nepal and other human rights organizations called it a ‘flawed step forward.’ What are the shortcomings you see in the TJ law?
My reading of the international community’s message is that they are pleased only at the prospect of the process restarting after a stalemate of about a decade. To my understanding, they have neither commented nor shared any perspective on the content and merit of the law passed. That the law has been amended after nine years of the Supreme Court’s verdict in 2015, and that the process will likely finally gain life perhaps prompted them to celebrate the achievement in the context otherwise of a long-lingering dull, dreary nothingness.
Now as to your question regarding why we call it a ‘flawed step forward’, we call it so because the current law still has serious accountability gaps. We urged the parliament of Nepal to address these gaps before the passage of the law, but our concerns were not heeded.
There is a group of people in Nepal who tend to argue that the TJ discourse in Nepal so far has been overly “prosecution” and/or “amnesty” dominated while ignoring the component of truth seeking and reparations. I think this is an overly generalized argument. All four components of the TJ namely truth seeking, prosecution, institutional reform and reparations are equally important, and one particular component cannot be done away with at the expense of the other.
The way the language of the TJ law is crafted gives a sense that the inherent intention is to primarily shield the perpetrators from legal action or to extremely reduce the chances of such an action thereby promoting a situation of de-facto impunity in which perpetrators enjoy a situation of “disguised amnesty”.
Now the problematics in the law are that it seems to basically weaken the prosecution aspect of the TJ with a weak legal and institutional arrangement. The way the language of the law is crafted gives a sense that the inherent intention is to primarily shield the perpetrators from legal action or to extremely reduce the chances of such an action thereby promoting a situation of de-facto impunity in which perpetrators enjoy a situation of “disguised amnesty”. This is evident by the way the crimes committed during the conflict are categorized either as “violations of human rights” or “serious violations of human rights”. The crimes of “serious violations” include rape or serious sexual violence, intentional or arbitrary killing, enforced disappearance, provided that the victims’ whereabouts remain unknown and inhuman or cruel torture. The ideation here is that only the crimes listed under “serious violations” can potentially be referred to and prosecuted in a special court to be established for this purpose.
Now the problem is that the list of crimes under the “serious violations” category is exclusionary of several international crimes such as war crimes and crimes against humanity among others and contains problematic qualifiers such as “inhuman or cruel” before “torture” and “serious” before “sexual violence” which is against international standards and law. The current provisions of the law pose the risk of excluding many crimes from the ambit of not just criminal accountability but other measures such as civil and administrative remedies and reparations.
What is another major concern about the amended law?
Another major concern of the amended law is that the attorney general is obligated to request a 75 percent reduction in the sentencing for those convicted even in cases of serious violations. This is against the principle that criminal sanctions must be proportionate to the gravity of the crimes. Such a provision also undermines the fundamental role and competency of the judiciary. What amount of reduction in the sentencing is appropriate in a particular crime should exclusively be a matter for the court to decide.
If so, in your view, how does this law compare with the previous law on TJ?
Despite the above-stated shortcomings, the current law does have some positive provisions. For example, the law expands the mandate of the TJ Commissions to find out the root causes of the conflict and recommend changes in law, policy and institutions to guarantee non-recurrence. The law, most importantly, recognizes the victims’ right to reparation and provides for a “reparation fund” which is to be supported by the government, donors and others. The law also aims to bring in those victims who were earlier excluded in the interim-relief distribution scheme, including victims of torture and rape, as recipients of these interim relief as well as other reparative measures. The new law provides for the creation of a Special Court to hear the cases of serious violations of human rights. Another very positive addition in the new law relates to the transfer of property from the name of an enforced disappeared person to the victim’s next of kin. Once implemented, this will ease a huge difficulty faced by the families of the disappeared towards accessing and using the fixed asset that is legally registered in the name of the disappeared persons.
Overall, there has been marked improvement in the law, and some of the gaps mentioned above perhaps could be improved in the course of the implementation as well.
Though the political leadership claims that the new law is victim-centered, the victim community denies it is so. What are the major concerns of the victims about this?
The community of victims feel that the state has been playing with their sentiments over the last 18 years by delaying and denying them truth, justice and reparations. The government’s rhetoric has been that they have put victims at the center of the process. However, the victims allege that they were never at the center and that the government and the political parties were always acting for and in the interest of the ‘powerful’, and the alleged perpetrators. They also complain about lack of meaningful consultation in the law-making as well as other processes. Their main concern currently has been around the way the Recommendation Committee is functioning for the selection of the members to the Truth Commission and Commission for the Investigation of Enforced Disappeared Persons. Complaints are heard around the lack of independence as well as the opaque style of the functioning of the Committee, including in its publication of the short list of candidates for the two TJ Commissions.
Transitional justice process that should ideally have completed in three years after the CPA has dragged on to 2024. In your view, will the new development help to conclude it faster now?
Only time will tell whether the new development will actually lead to the timely resolution of the long stalled and long overdue transitional justice in Nepal. There are challenges galore. Now that the law has been passed, although in a compromised shape and fashion, the government and political parties must now refrain from meddling in or dictating their will into the sanctity of the process, and let the law take its course. If competent and capable individuals with no partisan inclination and/or orientation are appointed in the two TJ commissions, and if they act with courage, determination and sincerity putting the interests of the victims at the center, I think we may be heading towards some good progress. It all depends on what kind of persons are appointed to these Commissions, and whether or not they function impartially, independently and daringly. International support will come in only if persons of merit and integrity are appointed and only if they show a vision backed by actionable plans. Without international support and victim and local civil society groups’ participation, the process will not succeed.
TJ commissions have been headless for many months now and the process is underway for appointing new commissioners. What roles do the commissioners and other officials play to ensure that the TJ process can become victim-friendly?
The role of the commissioners will be pivotal. Empathy, courage, commitment, due diligence, sensitivity, independence, autonomy and integrity are some of the traits a commissioner needs to have to deal with this grave issue. The ability to listen to, cry and laugh together with the victims’ pain and sorrow, and to be able to objectively look at facts and circumstances to draw conclusions towards building a body of truth is vitally needed in every commissioner. We have seen internal bickering, fraction, bootlicking of the political masters and so on within the team of previous commissioners that ultimately led to zero achievement over the eight years in their time at the expense of the state’s huge amount of resources and time. This is a job of far-reaching consequence that will shape the fate of the country, and therefore the Commissioners should not only be strategic but also clairvoyant so that they should be able not just to listen to the deep wounds and pains of the victims and society as a group but also dare to summon the alleged persons and question them of their wrong doings, seek apologies, facilitate reconciliation and guide a process of healing. This is possible only at the leadership of a person of grand stature such as Desmond Tutu in South Africa.
In your view, what are some of the conditions which must not be missed out while taking forward the TJ process?
Well, I would say that the above-mentioned shortcomings in the law, particularly regarding the gaps in accountability, must be addressed either through an amendment or through the medium of delegated regulation. Once competent, high-caliber individuals are appointed as Commissioners, both the Commissions should be staffed with competent, talented, committed, trained and motivated workforce to handle the several strands of the Commissions’ work such as investigation, public hearing, truth telling, exhumation and forensics, psychosocial services, documentation, report writing, relief and reparations planning and programming, logistics etc. The workforce should be human rights literate and must perform their duties in victim-friendly ways. A lot of investment is required to that end. So, resourcing the two Commissions should be the top-most priority. The Commissions themselves should be able to seek and obtain the workforce that they need to deliver their mandate. They should also be able to independently generate and raise the fund that they need for this purpose. The coordination with other state agencies, and their support, will also be equally important.
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