Last December, the Maoist leader Pushpa Kamal Dahal became Prime Minister of Nepal with the support of the Communist Party of Nepal – Unified Marxist-Leninist (CPN-UML), but in two months he changed his allegiance by joining hands with the Nepali Congress and seven parties. Following this development, the CPN-UML apart from the Rastriya Swatantra Party and the Rastriya Prajatantra Party pulled out of the government. As such, Prime Minister Dahal is overburdened with work as he has to head as many as 16 ministries, apart from the PMO. As if this was not enough, his trouble magnified following the event in which the division bench of Justices Ishwor Prasad Khatiwada and Hari Prasad Phuyal of the Supreme Court ordered to register a writ petition against him due to his public statement on 15th January 2020 in which he had taken the responsibility for the deaths of 5,000 people out of 17,000 killed during the Maoist insurgency movement between 1996 and 2006.

The Supreme Court had earlier refused to register such petitions several times on the ground that the cases were related to Truth and Reconciliation Commission (TRC). But this time in its verdict the court stated that seeking justice in insurgency-era cases of human rights violations in no way could be denied on the flimsy ground that there was a separate transitional justice mechanism like the TRC. The court stated, “Looking at the gravity of the issue, it would be wrong to reject the petitions thereby closing the door to legal remedy…criminal justice process cannot be kept on hold, made ineffective and passive under any pretext.”

After filing the petitions, Advocate and conflict victim Gyanendra Aran and Kalyan Budhathoki said, “We have been able to register the petitions after a long struggle. We are optimistic that the Supreme Court will give justice to thousands of insurgency-era victims.” The duo in their petitions demanded an order from the court to repeal laws if that was there to ensure that the criminal investigation against Dahal is not stopped.

However, on March 10, the Supreme Court instead of issuing an interim order in the case ordered Prime Minister Dahal to clarify within fifteen days why legal action cannot be initiated against him for the insurgency-era killings. Reacting to the Supreme Court’s order, Advocate Kalyan Budhathoki stated that he wanted an order for investigation against the Prime Minister by keeping him in custody. Though it did not happen, he was happy that the court’s decision to seek his clarification was a step towards booking him.

But no sooner than the court registered the petitions against Prime Minister Dahal, the Ministry of Law and Justice of the government of Nepal registered a bill in the parliament to amend clauses of the TRC and the Commission of Investigation of Enforced Disappeared Persons (CIEDP). The bill does not treat murder as a serious human rights violation and it finds such a crime fit for amnesty. It lists only such cruel murder as a serious rights violation which is conducted after torture, rape, and enforced disappearances.

The victim side is much perturbed by the way the new bill was registered in the parliament. The previous government under Nepali Congress leader Sher Bahadur Deuba had also drafted a similar amendment bill last year in July, but it did not dare to table it in the parliament for voting fearing a backlash.

The TRC and the CIEDP that was formed in 2014 contributed little in terms of providing justice to the victims even after receiving 63,718 and 3,223 complaints respectively. People’s faith in these bodies crumbled. The victims feel they could get justice only through the court.

Criticizing the government on the nature of the bill, Suman Adhikari, the founding chair of the Conflict Victims Common Platform, said that the government was least concerned about the victims. Another human rights activist, Charan Prasai said, “This is unacceptable, it shouldn’t be endorsed in its present form.” Several other human rights activists have also expressed concern about the government’s effort to categorize the crimes. Senior international legal adviser to the International Commission of Jurists, Mandira Sharma, opined that all those indulged in sexual violence, torture and murder must be prosecuted.

In its recent statement, the National Human Rights Commission of Nepal stated that it was concerned about the way certain issues related to insurgency-era atrocities remained unresolved even after 16 years of the peace accord in which provision had been made for giving justice to the conflict victims through a transitional justice mechanism.

Experts feel that it is mainly on account of the lack of laws that the transitional justice process continues to remain stuck even after so many years of the signing of the Comprehensive Peace Accord on November 21, 2006, between the Government of Nepal and the Communist Party of Nepal (Maoist). In 2015, the full bench of the Supreme Court directed the government to amend the law, but no government formed thereafter took the proper initiative for revising the legislation in line with international laws and practices.

In the meantime, the CPN (Maoist Centre), apart from its breakaway factions, have started opposing the Supreme Court’s decision to allow the registration of the petitions and the beginning of the hearings. They view the insurgency-era cases of atrocities solely within the jurisdiction of the transitional justice mechanism and not the court. Their joint statement on March 7 stated, “… all issues related to the transitional justice needed to be moved forward through the TRC and the CIEDP.”

It is yet to be seen what course Nepalese politics wouldtake after the Supreme Court’s verdict on the petitions of the victims against Prime Minister Dahal. If he gets a clean chit in the court in the case of the atrocities during the Maoist insurgency period, it will strengthen his position both within the Maoist party and at the national level. But if he loses the case, it will add to his miseries and create turmoil in national politics.

(The paper is the author’s individual scholastic articulation. The author certifies that the article/paper is original in content, unpublished and it has not been submitted for publication/web upload elsewhere, and that the facts and figures quoted are duly referenced, as needed, and are believed to be correct). (The paper does not necessarily represent the organisational stance... More >>