Will the Transitional Bill on Truth and Reconciliation Commission Bring Peace to Nepal?
Prof Hari Bansh Jha

The Bill on Truth and Reconciliation Commission (TRC) and on Commission of Inquiry on Disappearances (CID) was tabled in the Legislature-Parliament on April 16, 2014 for discussion, which was finally approved by the majority of the members on April 25, 2014. In fact, the Bill was long overdue as it was expected to address conflict related cases between the period 1996 and 2006 with a view to ensuring long-term peace in the country. Though late, the Bill in itself is important as Nepal's future largely lies on its implementation.

As it is well known, Nepal was fully engulfed by the conflict in which there were major causalities of human life and destruction to physical property between 1996 and 2006. Estimates are that 17,828 people were killed by the Maoists rebel forces and the security agencies during the conflict period, which brought about tremendous sufferings in the lives of 450,000 family members of the victims. Over and above, 5,800 people were disabled, 25,000 children orphaned, 9,000 women widowed and 14,852 people disappeared. In addition, many of the government buildings, educational institutions, telecommunication networks, roads, airports and other physical facilities worth billions of US dollars were partially or completely destroyed. As if this was not enough, the rebel forces even confiscated the private property of many of the individuals, which are yet to be returned to them.

Now it is time to see whether the Government of Nepal punishes the perpetrators and gives justice to the victims in the post-conflict phase or it gives blanket amnesty to all the war-era perpetrators as demanded by certain political forces. Those who protect the perpetrators tend to threaten and create an impression that further conflict would be generated in the country if clean chit is not given to them through such mechanisms as TRC and/or CID.

After tabling the Bill on TRC and CID in the Legislature Parliament, the present government led by Sushil Koirala strongly defended it. An impression was created that the government would not allow any of the perpetrators of heinous crimes to go scot-free and the victims would be given fair justice. For this, the reconciliatory approach was given due focus as per the spirit of the Comprehensive Peace Accord, 2006 and the Interim Constitution, 2007.

However, many of the human rights activists, advocates, victims and other sections of the society were not in a mood to buy the government's arguments on the Bill. They were highly skeptical about the intentions of the Bill. They thought that the sole purpose of the Bill was to give blanket amnesty to the perpetrators of serious human rights crimes. This was so because Section 26 of the TRC bill did not treat serious human rights violations like murder, kidnapping and taking hostage, forced disappearance, maiming, physical and psychological torture, looting of private and public property and arson as heinous crimes.

Besides, the Bill was also criticized on the ground that it gave draconian power to the commissions to decide if the case against any perpetrator was subject to punishment or amnesty. In fact, it should have been other way round in which the victims should have been allowed to decide if the perpetrators were to be given pardon or not. So some analysts thought that this was the ploy to give amnesty to the perpetrators as the Bill stipulated that each crime except rape was subject to reconciliation.

Rape is a serious attack on a woman's dignity as it is irreparable. But in fact only a few cases related to rape or sexual offences have been reported. The Office of the High Commissioner for Human Rights-Nepal in its 2012 reported 30,000 cases of transitional justice; of which only a hundred or so are related to sexual violence. Most of the war-era cases of rape or sexual offence occurred long back between 1996 and 2006. Therefore, it would be too difficult for the rape victims to produce sufficient evidence in support of their cases. Failing to do so, it is likely that they might lose their case. Moreover, it is also feared that the victims might be further coerced and intimidated if at all they ventured to prove their cases in the commissions.

In certain quarters, the process through which the bill on TRC and CID was drafted was found faulty. While the major political parties, including the Nepali Congress, CPN-UML and UCPN (Maoists) were consulted during the drafting process, other smaller parties were overlooked. Also ignored during the Bill drafting process were the human rights groups and the victims.

Most importantly, the Government of Nepal overlooked the verdict given by the Supreme Court with regard to the Bill on TRC and CID. The Court had directed the government to form a transitional justice mechanism on par with international standards. It also asked the government to drop some of those sections in the Bill that protected the interests of the perpetrators at the cost of the victims. Also, it was against giving discretionary power to the commissions and to the Attorney General in the matter of making decisions whether the alleged perpetrators were to be given pardon.

In this regard, the UN High Commissioner for Human Rights Navi Pillay attacked the Bill as its amnesty provisions replicated the matter in the previous ordinance which was rejected by Nepal's Supreme Court. Other international human rights organizations, including Amnesty International and Human Rights Watch and International Commission of Jurists found that the Bill was not drafted in line with International Convention on the Protection of All Persons from Enforced Disappearance. Also, the structure of the commissions on TRC and CID did not comply with international standards. More than anything else, the Bill failed to treat the disappearance cases as criminal offence. Because of some of these concerns, some of the human rights groups had even appealed to the Legislature-Parliament to reject the Bill on transitional justice.

It is unfortunate that the Legislature Parliament passed the draft Bill on TRC and CID without any meaningful modification. Only cosmetic changes were introduced in the Bill. Accordingly, a provision was made to establish a special court to deal with conflict related cases. Now the government attorney would have to file the case in the court after it is forwarded by the TRC. The TRC is also empowered to recommend a pardon for the perpetrators; for which approval or disapproval of the victims is required. Also, the Bill wants TRC to recommend to the government adequate compensation for the properties seized by the rebel forces.

It looks like that the interests of the victims have been minimised, if not ignored. Therefore, there is a danger that many of the perpetrators are likely to go scot-free. The provision of reconciliation is in fact forced reconciliation. In such a case, the victims might be coerced and intimidated if at all they try to seek justice and make effort to punish the perpetrators. Overlooking the interests of the victims, however, might prove a costly affair. Permanent peace in Nepal is not likely to return if the victims do not get justice and the culprits are allowed to go free.

(The author is Professor of Economics and Executive Director, Centre for Economic and Technical Studies, Nepal)

Published Date: 12th May 2014, Image source: http://www.insightonconflict.org

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