The 16-point agreement among the four major political parties laid the foundation for drafting the constitution, holding public consultations and issuing the constitution as soon as possible. The promulgation of the constitution will technically be taken as the completion of Nepal’s peace process and the end of an elongated transition. But unless the constitution includes the people’s feedback, ensures their rights, addresses their concerns and is owned by them, the transition cannot be considered to have ended in the true sense.

Further, the suffering of the thousands of conflict victims, due to the decade-long conflict which laid the foundation for the federal democratic republican constitution, remains unaddressed. The Commission of Investigation on Enforced Disappearance (CIED) and the Truth and Reconciliation Commission (TRC) were formed with political consensus diluting the essence of transitional justice. These commissions, functioning under a political shadow and hindered by a limited mandate and lack of sufficient resources, expertise, public trust and witness protection mechanism, are not strong, credible and trustworthy enough to ensure truth, justice and reparation for the gross human right violations committed during the armed conflict.

Mere formalities

Recently, the Conflict Victims Common Platform, a joint forum of conflict victims from both the sides and all categories countrywide, met with the two commissions five months after it was formed. While the office bearers claim to be independent and intent on working for the victims, their victim-centric vision, goal, approach and modalities are yet to be made public. The victims are tired of such oral commitments and the practice of bypassing their concerns and sentiments.

The TRC has visited 20 districts, conducted consultations and prepared the structure, victim-centric modalities, terms of reference (TOR) and regulations. The CIED has worked on the TOR, mandate and regulations, but it has not conducted consultations. The TRC’s consultations in some districts were conducted without due preparations to incorporate the victims’ needs and aspirations and gain their confidence. It is crucial that the TRC prepare its documents, regulations, organogram and collaboration modalities in consultation with the conflict victims to ensure their core concerns, aspirations and ownership.

It seems that the commissions formed under the political motto of ‘forget and forgive’ will simply collect the available documents, make a list of the victims, recommend providing education, health, training and psychological counselling as reparation and not investigate into the cases of the victims to reveal the truth.

There are wives who have been living without any knowledge of the whereabouts of their disappeared husbands for more than a decade. Daughters have been raped in front of their mothers. Husbands have been killed in front of their wives. Thousands of such families are waiting anxiously for the truth as it is the first step in healing the trauma of serious crimes like forced disappearance, murder, torture and rape. Against this backdrop, denying conflict victims the truth and not adopting proper institutional reform measures is equivalent to denying justice to them.

Inadequate provisions

With regards to the draft constitution, Article 25 (4) mentions that no person shall be punished for a crime that was not punishable during the time it was committed. Such a provision closes the door to formulating retroactive laws against crimes such as torture, enforced disappearances, crimes against humanity and war crimes to prosecute the alleged perpetrators. Article 26 provides for investigation and punishment and introduces social rehabilitation and compensation for the first time in the criminal justice system. But there is no provision for serious human rights violations during the conflict. Similarly, serious conflict-era human rights violations have not been defined as a crime.

In Article 27, the right against torture mentions about torture and ill-treatment only under custody. Further, Article 30 guarantees the right to property of every citizen but it does not mention about the property captured during the conflict which has still not been returned to the owners. Article 47 (5) recognises conflict victims and displaced persons and ensures their right to education, health, residence and social justice, but it does not ensure their right to reparation.

Fix the statute

The constitution should bind the people together with a sense of brotherhood, ownership and equality for peace and prosperity of the nation. The 2006 Jana Aandolan II created a golden opportunity to enshrine the core pillars of democracy, that is, human rights, rule of law, social justice, inclusiveness, vetting, equality and accountability, in the constitution. The autonomy of the judiciary and the National Human Rights Commission and the implementation of the respective verdicts and recommendations should be ensured. There should be clear criteria and provisions to prevent the misuse of the right to pardon and to ensure that there is no pardon for gross human rights violations.

For now, the transitional justice commissions are too weak to ensure the conflict victims’ right to truth, justice and reparation. Even if the commissions are credible, competent and trustworthy, it will take years to investigate the truth and address the trauma of the conflict victims. So the new constitution must include provisions for finding the truth and ensure justice and reparation for conflict victims. It should further pave way for retrospective laws to grave human rights violations ensuring the right to remedy in compliance with Supreme Court verdicts and state obligations under international human rights laws.

Adhikari is chairperson of the Conflict Victims Common Platform