The Supreme Court of Nepal has ordered the government to initiate the process of appointing commissioners to the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappearance Persons (CIEDP) within a month. Both commissions have been vacant—and thus inactive—since mid-July 2022. The court has directed the Office of the Prime Minister: “To know the truth of the victim within 15 days and to ensure and protect the right of justice, the representatives of the organisations of the victims of the armed conflict and the secretaries of both commissions, in consultation with the secretaries of the two commissions. In the absence of officials, the secretaries of the commissions should form a working team and initiate the work of preliminary investigation to make necessary and appropriate arrangements". It has also reminded the government to maintain the autonomy of the commissions and to adopt a victim-centric approach.

Even eight years after their formation in 2015, the CIEDP and the TRC have failed to ensure justice and conclude the transitional justice (TJ) process. Conflict victims and stakeholders refused to cooperate with the commissions due to the faulty TJ law and a disputable selection process. The failure of the commissions exacerbated the pain, suffering, frustration and trauma of the conflict victims. Families are facing hardships and are compelled to perform the funeral rites of the disappeared by making imaginary representations of their bodies. More than 17 years after the peace agreement was signed between the Maoists and the government, the victims are still deprived of the fundamental rights to truth, justice, reparation recognition and treatment, and their social, cultural and economic dignity.

Stalled amendment process

The obligation to amend the law as per a number of Supreme Court directives, including one from 2015, has been deferred for nine years due to the unwillingness and insensitivity of the government and Nepal’s political parties. The amendment bill was tabled in Parliament in March 2023. In October 2023, a subcommittee of the parliamentary Committee on Law, Justice and Human Rights submitted a report sorting the settled and unsettled issues. Parliamentary committees and top political leadership have never been sensitive enough to approve the bill with due priority.

Victims hoped the parliamentary committee meeting earlier this month would approve the TJ Bill. However, the break-up in the Nepali Congress-Maoist Centre coalition and the formation of a new Maoist-CPN-UML alliance involving smaller parties have indefinitely delayed the committee's meeting.

Articles 31 and 34 of the TJ law authorise the commissions to formulate various working teams and to delegate power. Such authority is not granted to the secretary, who leads the bureaucratic team at the commission. The law also clearly mentions that the power to decide and recommend reconciliation, reparation, pardon, or prosecution cannot be delegated to anyone other than the commissioners. To grant power to the secretaries, the power to remove difficulties provisioned by Article 42 should be carefully exercised.

A preliminary investigation of the complaints is crucial to deciding their fate. Findings of the initial investigation are crucial to determining whether the case is a severe human rights violation, carrying out a detailed investigation into the complaint, recommending reconciliation, and deciding withhold the case, or recommending reparations, etc. Tasks like categorising complaints, identifying duplicate complaints, studying the underlying causes of conflict, identifying measures to strengthen the commissions, capacity building, documentation, and coordination of the services, facilities, treatments to be provided to the victims might be assigned to the working teams. It is to ensure that the mandate granted to the secretary and the working team does not adversely affect the commission's future work nor create conflicting situations with the commissioners in future. This is only a temporary provision that the commission secretaries can constitute working teams and initiate some activities. Commissioners must be on board to make any of the decisions.

Amendment to law

The subcommittee’s report reinstated the definition of enforced disappearance and recognised rape and sexual violence as serious violations. Public responses and the background of the candidates must be examined before selecting the commissioners. The right to review the Special Court’s decision by the special bench of the Supreme Court and the right to challenge discrimination and dissatisfaction with reparation is ensured. There will be different units for truth-seeking and investigation, deciding reparation, looking into serious human rights violations, investigating the incidents of sexual violence and rape, and coordination among the victims under the commissions. Similarly, the compensation for property damage will be determined considering the current market value.

The current process must be acceptable, solution-oriented and timely, ensuring truth, justice, reparation and non-recurrence in future. The process should not meet the bitter fate of the past when technical notes from the United Nations, filing writs in the Supreme Court, and non-cooperation from the victims and other stakeholders concerned were common. Consensus on the differences among the political parties must be sought on the basis of the principles, norms and values of transitional justice, the Supreme Court’s rulings, international human rights obligations, and practices that are acceptable, solution-oriented and sustainable without resorting to political power-sharing.

The definition and terminology used in the law should comply with the international humanitarian and human rights laws. There is no option of prosecution based on the available evidence, even in human rights violations, as the Supreme Court has already ruled that the victim must consent to reconciliation. The sole responsibility of the independent court to make decisions on the sentencing should not be intervened.

The subcommittee has not addressed several issues raised by conflict victims and stakeholders. Serious concerns over the commissioner recommendation committee's composition, autonomy, and credibility must be ensured. The procedure to select the commissioners must be based on merit and credible and transparent criteria. The commissions should have the autonomy to acquire the required resources, budget and experts.

All categories of unregistered victims should have the opportunity to file complaints. The commissions should have an accessible structure to reach out to the victims in remote areas. Experts in the respective fields should be appointed to the units to ensure their effective delivery and to conduct investigations. Commissions must adopt a victim-centric and gender-sensitive approach, ensuring meaningful participation and trust. The burden of proof and witness should be over the commissions but not to the victims. Strong and effective victim and witness protection mechanisms should be ensured. A comprehensive reparation policy should be developed for the meaningful participation of the victims and implemented as a joint responsibility of three tiers of government, providing easy access to reparation.

The court directive is an opportunity to put the derailed transitional justice back on track. The government must constitute a recommendation committee to select the commissioner within a month. Legitimacy, collaboration, and acceptance by stakeholders are the prerequisites for the success of the transitional justice process.

There is no alternative to amending the law to comply with the court’s verdict, and by following international norms and values, adopting a victim-centric approach, formulating credible recommendation committees and formulating commissions as soon as possible to ensure an acceptable and permanent solution. Government and political parties must stop their insensitive, dirty power politics on the pain and miseries of the victims. Parliament can approve the bill outright if the government and political parties have firm willpower, sensitivity and commitment.