Dismantling impunityVictims must now be allowed to take full ownership of the truth and transitional justice process
For conflict affected Nepalis, the January 2 Supreme Court ruling on a Truth and Reconciliation Commission (TRC) ordinance was an encouraging step forward. This decision, which lays out the need for separate commissions for TRC and to investigate enforced disappearance, comes after seven years of minimal progress on victims' issues, a delay in large part driven by political unwillingness to address the legacy of the 'People's War'.
Two, not one
A joint TRC and disappearance commission was approved in March 2013 by the caretaker government of Chief Justice Khil Raj Regmi. In the proposed joint commission, perpetrators were accorded a provision of amnesty for their crimes. It was a decision taken in clear diffidence of the parliamentary process promising redress and reparation for victims and in clear contradiction to political agreements reached in the 2006 Comprehensive Peace Agreement (CPA) and the 2007 Interim Constitution. Moreover, international laws and principles protect the right of victims to effective justice and reparation, which the joint TRC and disappearance commission was poised to reject.
The victims' alliance strongly believes in the need for two separate, independent commissions. On March 24, 2013, the International Day of the Right to Truth, an alliance of seven victims groups and an NGO submitted a writ petition challenging the government and President's approval of the joint ordinance. At first, there was disagreement within the human rights community over the appropriate position to take on the ordinance. We debated internally whether to reject the ordinance altogether or to amend the faulty clauses. In the end, we agreed that the formation of a TRC was very important for Nepal and decided to fight to amend the flawed ordinance.
In its January 2 decision, the Supreme Court also ruled out the provision of amnesty, the limitation on criminal prosecution and the 35-day limit for filing cases that concern fundamental rights guaranteed by the Constitution of Nepal, its justice system and international law. The Court further ordered that the Disappearance Commission should meet existing international standards, including guarantees of autonomy and impartiality, the right to meaningful participation of victims and witnesses and the responsibility to adopt all available measures to protect them throughout the process.
This is a historic decision in Nepal's transition from conflict and it is one that favours the victims' struggle for justice. However, this victory does not mean that the struggle for victims' rights is over. We must now ensure that the commissions are created in an effective, independent and representative manner. Political accountability, the role of stakeholders and effective implementation are some of the challenges ahead.
We know that state police, in the guise of initial arrest, perpetrated the majority of disappearances. Many cases of rape, torture and extrajudicial killings happened in police custody, in Army barracks or in the 'People's Liberation Army' camps. But is it possible to secure the cooperation of Nepali security institutions with the truth-seeking process? Until now, these institutions and their personnel have not been supportive of the justice process. There have been no credible investigations and no institutional reforms. Instead, political parties are actually promoting alleged perpetrators, protecting criminals and even went ahead with Army integration. All in the name of political consensus.
Now legally rejected, the TRC ordinance needs to be fully reinvented. The content of the ordinance, its driving principles and its procedural approach all need to be revised. To create a transitional justice environment acceptable to the victim community, there must be political accountability, transparency and a special commitment to effectively implement the Supreme Court directives. Civil society, the media and the donor community have shown their solidarity by giving voice to victims and supporting our criticisms of the ordinance. Now they must continue that support by helping secure a process that is transparent, victim-centred and inclusive.
A revived truth commission needs to grow from meaningful participation and consultation with the victims' community. Truth commissions elsewhere have effectively revised their procedures through a special oversight committee of victims. Considering the demonstrated unwillingness of political leaders to establish a legitimate and functioning truth commission on their own, such an oversight body is especially necessary.
The political parties' involvement must be responsible, accountable and transparent to the Nepali people. They should start by respecting existing agreements, including the CPA, the Interim Constitution and the June 1, 2007 Supreme Court directive. Similarly, the state has a clear responsibility to address the people's demands for truth and justice. Nepal is a party to various UN instruments and covenants and must therefore respect international norms defining accountability for atrocities. The first attempt at a Nepali truth commission failed largely because of the state and the parties' unwillingness to allow the formation of an independent commission.
In order to implement the Supreme Court decision, it is also crucial that a number of key people cooperate. These include the security chiefs, former prime minister Sher Bahadur Deuba, former home ministers Purna Bahadur Khadka, Ram Chandra Poudel and Kamal Thapa, Maoist leaders, including Lalendra Mandal (who is accused of murder) and former head of police Rabindra Pratap Shah.
Civil society and the human rights community must play the role of watchdogs in this process. They can provide technical expertise, help disseminate accurate information about the TRC process and generate international pressure to respect national laws and international norms. Victims' organisations have shown that they can initiate and implement their own work and are not mere tools but rather, active stakeholders in the transitional justice process. Stakeholders should refrain from 'supporting' victims by implementing the process on our behalf. Rather, they can lend victims' groups support and resources to initiate their own activities, driven by their own needs and priorities.
Victims' groups and the conflict-affected community should continue with their joint initiatives by building trust within the community and taking full ownership of the transitional justice process. The Supreme Court ruling represents a significant achievement brought about by the collective campaign of many organisations. We must continue acting as a united front to ensure the proper implementation of the new disappearance commission and the TRC process.
The conflict-affected community appreciates the role of donors for their many contributions to Nepal's peace process. These efforts must continue, in ways that support the Supreme Court ruling, rule of law and human responsibility. Moreover, that support must come in a transparent manner. Donors must be careful that their financial assistance does not actually help political corruption, state impunity and the abuse of resources at the top.
In the wake of the Supreme Court verdict, we will continue to move forward, working collectively to build a common strategy. Victims' groups have learned the importance of working together to defend their movement from unwanted manipulation and instrumentalisation. Perhaps most important is the wider purpose of a TRC and disappearance commission—to help build meaningful reconciliation and trust within society. Transitional justice is not merely a mechanism for victims and their families. The focus now should be on socialising the legacy of the past through mobilisation and victim empowerment.
Bhandari is chair of the Committee for Social Justice and founder of the National Network of Families of the Disappeared