The Supreme Court (SC) verdict of February 26 quashed the discretionary powers of the Commission of Inquiry on Enforced Disappearance (CIED) and the Truth and Reconciliation Commission (TRC) to recommend reconciliation without the consent of conflict victims and to recommend amnesty even in cases of serious human rights violations. The SC ordered that cases currently sub judice at the courts could not be transferred to the quasi-judicial commissions and clarified that the commissions could not displace, replace, or act as an alternative to the judiciary and the country’s legal system. The court also ruled against the interference of governmental ministries on the Attorney General’s authority to file cases. The apex court ordered the CIED, TRC, and the government to abide by the Court’s previous orders, instructions, and interpretations on transitional justice. The verdict, thus, justified and attempted to correct concerns from conflict victims regarding serious flaws in the transitional justice Act.

For victims

Broadly, transitional justice must be a victim-centric process involving confidence building, mutual acceptance and the reinstatement of dignity and social relationships through healing and justice. The essence of a democracy is to ensure social justice, but contrary to these ideals of effective remedy and reparations for gross human rights violations, the CIED and TRC have been seemingly formed to fulfill the interests of political powers under a flawed law, a flawed process, and in political consensus. Meanwhile, conflict victims have been marginalised and remain desperate for truth, justice, education, employment, rehabilitation, and the return of captured property.  

In this regard, a TRC is a short-term quasi-legal mechanism formed to investigate the truth behind national conflicts and make necessary recommendations to the government. It neither has the right to grant amnesty nor pursue prosecution. The mandate of the TRC is to identify the underlying causes of conflict and make recommendations for institution reform and root out impunity. For this, the government must adopt a comprehensive transitional justice approach. Various interest groups have overshadowed the special mandate of truth-seeking granted to the TRC and CIED. Victims still have the right to choose the TRC, a judicial court, or other mechanisms for truth and justice.

Problems abound

Coming back to the Supreme Court decision, in clear contradiction to the February ruling, the TRC has remarked that it will attempt the repatriation of Colonel Kumar Lama, who is under trial in the UK for torture. Not only the government, but many others want to see Col Lama tried in a Nepali court, to make certain that such cases will not recur in the future. But repatriation has not been possible for the last two years due to a lack of will power and the lack of a credible law and a credible mechanism to investigate independently and hold Lama accountable. The TRC’s recent remarks, therefore, have only served to diminish the confidence of victims, who see the attempt as focused on the perpetrator, rather than the victims.

There are further issues with the mandate of the commissions. In the past, recommendations to the Attorney General even from the National Human Rights Commission (NHRC), a constitutional body, have not been implemented. As the Attorney General retains the right to decide whether to implement recommendations or not, there is no assurance that the recommendations of the TRC and CED will be implemented. Furthermore, no TRC can investigate every event of human rights violations during the conflict nor address the aspirations of all victims. Hence, the commissions will no doubt face dilemmas regarding their work.

Furthermore, it is not just good laws that make successful commissions but also a transparent and credible selection process for members. Sensitivity to the trauma and unrest of victims, social standing, integrity, and expertise on international humanitarian laws and transitional justice are essential when selecting commissioners. In our case, commissioners not familiar with the transitional justice campaign were selected through an opaque process with no consultations with victims. Political consensus even elevated a few who had previously pleaded in favour of alleged perpetrators at courts of law in the past. This has raised serious questions regarding the credibility and legacy of the two commissions. The commissioners did not even express any concerns on the faulty provisions of the transitional justice Act on reconciliation and amnesty nor admitted that the process had not been victim-centric. The Recommendation Committee held consultations with victims but did not address any of our objections on the Act, the selection guidelines and the selection process. If victims have no confidence and disown the transitional justice process, just whom will the commissions serve?

There is also much confusion regarding the definition and criteria of ‘serious crimes’ in the Act. Victims have been demanding clear criteria and clear avenues for reconciliation. Additionally, a failure to criminalise torture, enforced disappearance, and amend the statute of limitations on rape in national law amounts to de-facto amnesty. Necessary regulations, guidelines, and directives must be drafted in meaningful consultation with conflict victims. Sensitive mechanisms and ownership from victims and experts are equally necessary to ensure the access of every category of victims, especially those from remote areas. The security and protection of victims and witnesses and the confidentiality of information and evidence will also be crucial, especially given the political bent to the commissions and the number of technical issues that are certain to arise in the future.

A clear end

Nepal has a long and futile tradition of formulating commissions of inquiry. In this process, victims often lose ownership, as they are bypassed by both the law and the commissions. The SC rulings have corrected the mandates of the two commissions and shown a clear way forward for transitional justice, thus igniting a tiny spark of hope in victims. Nevertheless, the UCPN (Maoist) has objected to the SC ruling. All parties must ask themselves a serious question: do they want a real solution and a real end to the transition or an imposed solution that simply hides and shifts the major causes and trauma of the decade-long conflict? Partisan interests and a lack of priority have delayed the formation of these two commissions for up to eight years. Now, victims do not want reports numbering hundreds of pages. We want to resolve conflict-era trauma and ensure that such incidents do not recur. Victims yearn for a sense of closure.

World experience shows that many truth commissions fail. Victims in Nepal do not want that experience to repeat here. We have only ever demanded victim-centric credible commissions, not ‘clean-chit commissions’. Therefore, the sincere implementation of the SC rulings is a prerequisite to ensuring justice without manipulation or distortion from suspected perpetrators. There should be a clear basis for the commissions to work independently on the foundation of the SC rulings and a transitional justice process that places victims at the centre.

Adhikari is Chairperson of the Conflict Victims Common Platform