Transitional justice is backslidingTo ensure better predictability, a national roadmap with parliamentary ownership could be a way out.
Ignored by the government and instrumentalised by the leadership of the former Maoist faction of the ruling Nepal Communist Party (NCP), in cahoots with the main opposition Nepali Congress (NC), 'reversal' is increasingly creeping into Nepal's transitional justice process. Several developments over the past year scream loud in evidence. There is no parliamentary opposition party with regards to transitional justice. Only the victims and civil society are left as the watchdogs.
Last year, in February, when the extended term of the two transitional justice commissions—the Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP)—was expiring, there was some hope of momentum out of the repeated assurances of the political parties as well as the government. These commissions during the four years of their tenure had failed to conclude their job for the lack of credibility, resources and necessary laws. The commissioners were not given further extension, ostensibly making way for the restructuring of the commissions. The short-lived spark of hope was supported by the government's outpouring about the capability of the 'unique' Nepali peace process in several national and international forums, from New York to Davos to the recent one in Geneva. It briefly seemed as if the political leadership learned its lessons from the failures of the TJ process and that it would be ready to design and follow a more ethical and victim-centric roadmap.
This semblance of hope, however, evaporated in the run-up to the formation of the new commissions. In April last year, under a legal requirement, a committee chaired by a former chief justice of the Supreme Court, Om Prakash Mishra, was constituted to recommend to the cabinet candidates for the post of commissioner for the two TJ bodies. Originally given two months for the job, the Mishra-led committee got ten months, through several extensions. Whatever remaining trust and credibility Nepal's TJ process had was disastrously undone during this period. Persistent brinkmanship hindered the committee from recommending names, reducing the former chief justice into a mere political pawn. The National Human Rights Commission, which gets a mandatory representation in the committee, acted as a mere bystander.
Here is an example of the farce that was staged under the leadership of the former chief justice. The committee first made an open call for applications. Candidates were shortlisted. Then new names were inserted midway breaching the law. Procedural papers for new entrants were retroactively adjusted. Some withdrew their applications at this stage because they came to know who the directors of the drama were. Newer names were eventually recommended, many of whom had neither applied in the first place nor were included in the shortlist. It was clear that the politicians had begun looking for their lieutenants to nominate into the commissions right since the committee was set up. They prolonged the recommendation process, and finally sneaked in their nominees through political sharing. Mishra and his entire team, beholden to political leadership for appointments and also under pressure to fall in line, blatantly acquiesced, refusing to see the blood and tears of the victims, as well as the letters and spirit of the Comprehensive Peace Accord (CPA).
Why would any responsible government allow this to happen? The closest possible explanation is that Nepal's current government commands a clear majority in the parliament. The ruling party suffers from an insidious leadership contest, in which conflict era human rights violations play an important role. Former Maoist chief and now co-chair of the ruling NCP Puspa Kamal Dahal harbours deep-rooted apprehensions that are mostly based on his limited understanding of transitional justice, and also that the cases against the Maoist leadership could be instrumentalised in the NCP’s internal rivalry.
Making it more unhelpful is Dahal's own involuntary penchant for speaking his heart at times of excitement. This brings him to pronounce bitter truths that he would not wish to admit in normal circumstances. Out of this uncharacteristic weakness, Dahal has left a trail of public statements over the past decade ranging from how he, as the supreme commander of his guerilla forces, had ordered his comrades for painless murders of enemies, had duped successive parliamentary governments on the numbers of former combatants. He also recently accepted that the Maoists were responsible for 5,000 conflict era deaths. Dahal also seems to have developed an inclination of promising one thing in private and doing exactly the opposite.
The former CPN-UML, a separate political party until 2017, remained in opposition for most of the conflict era. This faction of the ruling NCP is likely to be the one that comes out from the peace process with the least amount of baggage. Therefore, despite being in two competing political parties, Dahal finds his interests converge with Nepali Congress’s Sher Bahadur Deuba. NCP chair and Prime Minister KP Oli, burdened with carrying the unified party forward, seems obliged not to hurt Dahal’s reputation at the cost of a fair process. He allows a free hand to Dahal and Deuba with regards to transitional justice.
As observed during the Mishra panel’s working, Congress kept demanding an equal share in appointments, threatening to discredit the commissions if its nominees were rejected. The ruling party seems to have acquiesced, to mitigate the erosion of the two commissions’ legitimacy in the international community. There were bound to be questions raised if the nomination process did not have the main opposition’s backing. It seems that Oli, in several high-level joint meetings, negotiated seats in the transitional justice bodies to be split among adherents of Nepali Congress and the Nepal Communist Party (the NCP’s share of seats seem to be mostly filled with people who were previously loyal to the Maoists, with at least one seat loyal to the former CPN-UML). The sum result of this all has been the formation of weaker commissions, uncertainty on the amendments recommended by the Supreme Court, and the trampling of the Comprehensive Peace Accord. The new commissions have received no cooperation from the victims, civil society and the international community.
The trepidation political leaders demonstrate on transitional justice is largely hyperbolic and therefore unjustified. On the one hand, they have precious little understanding of the process itself. On the other, it appears that a section of their own cadres, interested in continuing with the benefits they receive, seem to tickle with this unease. Besides the occasional misstatements from Dahal, there is no evidence of the political leaders’ direct involvement in any violation of human rights during the conflict. The only situation that might draw them into the investigation is the application of 'command responsibility'. Under this principle, supreme leaders from either side of the conflict would have to be individually accountable for injustices even if they have no involvement in operations.
However, in actual prior cases, command responsibility has proven to be hard to apply, even in the examples where conflicts have been decided through the annihilation of one side. The negotiated settlement brought about by the CPA transformed its signatories both in substance and form. Through this agreement, the Maoists abandoned their scheme of state-capture, accepted competitive politics and became adherent to multiparty democracy. The seven political parties agreed for the constituent assembly, a republic, inclusion, secularism and federalism.
For the pursuit of the rule of law as promised in the peace agreement, it is therefore imperative for political leaders not to block the truth-seeking, justice, reparations and institutional reforms in the transitional justice process. To ensure better predictability, a national roadmap with parliamentary ownership could be a way out. Nepal's peace process will never be complete without concluding the transitional justice. A constructive role from all for this would prevent this process from further backsliding.
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