Sushil Pyakurel: The longer the transitional justice process, the more complex it will becomeThe human rights activist on his resignation as president’s advisor and the transitional justice process.
Ignoring reservations from different quarters, the recommendation committee selected new teams for two transitional justice commissions after major parties agreed on the basis of political sharing. A day later, the Nepal Communist Party picked Agni Sapkota, who faces accusation of murder committed during the Maoist insurgency, as the Speaker of the House of Representatives. Sushil Pyakurel, an advisor to President Bidya Devi Bhandari, resigned from his post, on January 25, as a protest against the decision. Pyakurel, a noted human rights activist, had filed a case against Sapkota in 2011 in the Supreme Court. The case is currently sub judice. The Post's Binod Ghimire talked to Pyakurel about the ongoing transitional justice process and how it can be brought back on track as demanded by stakeholders.
The interview has been condensed for clarity.
The transitional justice process is moving ahead at the behest of the political parties and the government. What would be its long-term effects?
The fact that the transitional justice process hasn’t been concluded in so many years speaks volumes of the complexity of the process. A major impediment for this is the deeply rooted culture of impunity at the decision-making level. Similarly, a lack of credible leadership in transitional justice commissions has further cemented uncertainty. The transitional justice process in South Africa, though not without flaws, was concluded thanks to the leadership of Desmond Tutu. Garnering the trust of victims and the warring parties is quintessential. And that is what is largely missing in our case.
The appointment of officials in the commissions without creating an environment for them to function properly did add to the problem. The commissions had in the past, too, functioned without proper law in place, and the situation hasn’t changed even now. It would be wrong to expect anything concrete from the present leadership.
What’s more, the government and political leadership lack the clarity required to conclude the transitional justice process. Decisions are largely taken on an ad hoc basis. From conflict victims to security forces, civil society and the international community, there are many concerned parties. But a handful of politicians are taking decisions in the dark rooms, ignoring a broad base of concerned individuals. Transitional justice is all about building confidence and ownership of the stakeholders. And consultation is the only way to gain it.
But the stakeholders are barely consulted.
That’s the most unfortunate part of the transitional justice process. It would be prudent to revise the Enforced Disappeared Enquiry and Truth and Reconciliation Commission Act 2014 after holding wide deliberations with the concerned individuals. But the same mistake has been repeated. There was neither deliberation nor transparency when it came to appointing new members. The Act, too, has not been amended yet. There was no introspection on the failure of the previous commission officials. The consultations held in the name of collecting feedback for amendment were mere bogus attempts to show that the government talked to stakeholders before the amendment. It seems the only aim of the political leadership is to ensure all charges against them are quashed.
You have been privy to the modus operandi of top leaders. What drives their decision-making process when they ignore public outcry?
A few political elites are taking every decision without bringing the stakeholders on board. The executive head is sitting aloof from the entire process and is allowing those who once were warring parties to take decisions, completely ignoring those to whom transitional justice really matters—the victims.
The prime minister should have been actively involved in the decision-making process but other leaders seem to be having a much bigger say. We have been asking for the formation of a mechanism that has the participation of all concerned individuals to find out a solution to this complex process.
But that idea was criticised by a section of victims and human rights activists, and they blamed you for dividing the victims.
Yes, the idea to form a mechanism was criticised initially. But I now hear the same people are demanding that the similar system be in place so that victims and other concerned individuals have a place to voice their opinion. Had such a mechanism been in place before, it would have worked as a bridge between the government, transitional justice commissions and other stakeholders, including the international communities. However, it is either the political leaders or the bureaucracy that is leading the entire process. Those who criticised the idea should have come up with a better alternative, but they have not.
Was your resignation a result of Agni Sapkota’s selection as the Speaker or an expression of dissatisfaction over the lack of transparency in the entire transitional justice process?
I was the first person to be appointed as a human rights advisor to the president because she wanted to have some contribution to the human rights sector. There were no restrictions from the president in performing my duties. I too had set my moral demarcations where there were certain things I would not compromise on. The first challenge that I faced was when Bal Krishna Dhungel, a murder convict, got presidential pardon. There could have been malafide intentions, but the amnesty itself wasn’t illegal.
This time, it was a step ahead, and I was the one who had filed a case against Sapkota. I had two options, either to say filing the case was wrong and apologise for it or show some spine. Filing the case was the right thing to do, and I stand by it. So it was my moral duty to resign. The higher a position you hold, the higher your moral principle should be. This is the time we define what high moral principle as envisioned in the statute is, and practise it.
The decision to pick Sapkota as the candidate for Speaker was taken amid skepticism over the appointment to the two transitional justice commissions. Why don’t the parties respect the people’s voice?
Political leaders feel the decisions taken by them are sacrosanct. The recent decisions are an extreme violation of the rule of law. It’s natural that those in power try to exploit it. That is why the opposition must come to the defense of the law. But the opposition here is absent. The Nepali Congress was supposed to speak against Sapkota’s candidature. But they didn't even field a candidate for the Speaker, making his candidacy unanimous. Shouldn’t the chief of the legislature, which forms the government and promulgates the law, hold high moral ground? It is a shame that the position that was left by a rape accused has been replaced by a murder accused.
Some international human rights organisations have said the recent developments in Nepal will compel the victims to seek justice internationally. Do you think Nepal has reached that situation?
I don’t think the situations have worsened to that extent. We have the capacity to conclude the process, and there is no need for international intervention. The National Human Rights Commission is considered among the best, at least among Third World countries. Our laws are also quite progressive. We have internationally reputed people in the human rights sector and politicians with sound knowledge of the law. However, there is a need to change mindsets and be clear that the longer the transitional process, the more complex it will become. The process would have easily concluded had it begun immediately after the Comprehensive Peace Accord was signed in 2006.
Transitional justice is not a regular justice system. It is not an entirely judicial process either. It is also a political process. Similarly, heinous crimes have individual responsibility. It's a fact that political leaders haven't been involved in the crime directly but it happened under their leadership.
However, we need to think with a free mind what the reasons behind the failure could be, and listen to all the concerned individuals before making any decisions.
There are allegations that there were two extreme voices from civil society leaders and rights defenders, one pushing for prosecution and the other for amnesty. Did that also delay the process?
I agree. For long, we took prosecution as synonymous to justice. That increased a fear factor among political leaders and security agencies. In fact, prosecution is just one of the four pillars of the transitional justice process, the other three being truth-seeking, reparations and assurance of non-repetition. It is true that we cannot bring insurgency victims back to life, but we could have named local infrastructure after them, which is part of justice. I am saddened to see provincial and local governments sitting idle.
There is a feeling that the civil society movement is weak to challenge the arbitrary actions of the executive. Will you now work towards strengthening the movement?
There is nothing to hide. I am close to a particular party and believe in a particular ideology. I also have taken public positions at some points of time. But I am guided by my conviction. If you see my history, this is not the first time I resigned whenever there was a compromising situation. My prime identity is that of a human rights defender, and I won’t compromise on this. Civil society movement is my constituency, and I will contribute to my level best.
After my resignation, many people including those from the Nepal Communist Party congratulated me, saying it was a right decision to create pressure. However, they don’t speak themselves. My job would now be to make them speak.