Without a Truth and Reconciliation Commission, there will never be peace in this country, says Kedar Nath Upadhyay, Chairperson of the National Human Rights Commission (NHRC) and former Chief Justice of the Supreme Court. Kamal Sigdel and Gyanu Adhikari spoke with Upadhyay yesterday to discuss Prabhu Sah, who has since resigned as minister for land reforms, the culture of impunity, political parties’ withdrawal of court cases pressed against party workers and the perils of non-existent transitional justice mechanisms.
How does NHRC view Prabhu Sah’s implication in the murder of Kashinath Tiwari?
NHRC has asked the government for details on Prabhu Sah’s case. We’re monitoring the case. There are questions—things like why did the government lawyer drop the case against Sah? He is also a minister at the moment, so it becomes a moral question. The Minister should help conduct an impartial investigation by abstaining from a position of power.
In another case, Balkrishna Dhungel of the Maoist party was convicted by the Supreme Court for a murder committed during the conflict but he now walks free. What’s NHRC’s position?
Dhungel’s case, apparently, is going to the president for pardon. There’s a serious defect in our constitution, a legacy of the old system of governance. That defect allows for the presidential pardon without any legal criteria whatsoever. This is a very arbitrary and controversial power and a constitutional flaw. There should be judicious, justifiable grounds for pardon, something that appeals to reasonable conscience.
Constitutionally, the pardon, if it comes, will be legitimate under the current constitution?
Yes, the present constitution allows for that kind of pardon. There can be a moral question but no question of legality. From the human rights perspective, this is not good. It will heighten impunity. They say it’s a political offence but it’s not. A political offence is to raise arms against the state, to attack the state’s installation, to recruit people against the state, spread terror — that’s political offence. But if you abduct an individual in the middle of night, torture and kill him or her for not paying up, they are criminal offences.
The Maoists had set up people’s court, and used them to pass judgments. Does that grant a political nature to the conflict-era crimes committed by them?
First, is their judgment recorded? Does it show that they admitted evidences? In any case, for us, the main document that guides us regarding the crimes committed in that period is the Comprehensive Peace Accord. It has national and international legitimacy. The UN, government, and all major parties, all seven of them (SPA), were parties to it. But the present political agreement that grants amnesties for conflict-era crimes is not legitimate.
You mean the clause in the four-point agreement between the Maoists and the Samyukta Loktantrik Madhesi Morcha regarding amnesty and withdrawal of cases against party members?
Yes, I’m talking about that particular clause. There’s an unethical provision that says once we form the government we’ll repeal all the cases that were brought against us during the rebellion or the revolution in Madhes. They don’t qualify what kind of cases will be repealed. They also don’t say they’ll form a Truth and Reconciliation Commission (TRC) to examine the cases. The purpose of the agreement was not to establish peace in the country, unlike the CPA. The motive of this unethical and illegitimate agreement was to form a government. The clause to grant amnesty and withdraw the cases goes against international standards. Usually, a transitional justice mechanism is established to sort out whether or not the case is political. These parties are themselves doing the work of that mechanism.
The CPA said that mechanism will be formed within six months of the signing of the CPA. It’s been years and that severely eroded the rule of law.
Those mechanisms should have been formed indeed. They’d have fast tracked cases against politicians, say Prachanda or Baburam, and withdrawn the cases against them. But instead of forming the mechanisms, the parties themselves withdrew the cases.
Is it too late for those mechanisms?
They can still form them. But most of the cases against people belonging to political parties, especially the Maoists, are already withdrawn.
But can’t the TRC be retroactive?
It can be. It can be given the authority to look at cases that are withdrawn as well. But the draft bill on TRC does not give the mechanism that authority. I want to say to the political parties, we must discuss the legitimacy of withdrawing cases. This is an interim constitution, is it not? The governments under this constitution are interim governments.
But look at the kind of decisions they’re taking—absolving their people from any crimes.
The things that should’ve been done through the mechanisms that meet international standards, the government did by itself — we’re innocent, our people are innocent, that’s our truth and reconciliation! Along with TRC,
they should’ve established a hybrid court comprising of people who understand international criminal justice process and also understand the Nepali context. Existing court cannot handle transitional justice. It needs different mechanisms.
Rather than not have a TRC at all, isn’t it better to have at least a TRC, such as one purposed in a bill at the parliament but opposed by the civil society?
You need legitimacy. A weak TRC won’t have international legitimacy. If you mean by weak TRC one that only has the authority to establish facts, you’d need impartial people for that. If you install a person from a party there, he or she will try to protect people belonging to his or her party, someone like the present Attorney General, for example (he laughs).
What are the prospects for having a full-fledged TRC?
With due regard to Baburamji’s popularity, the kind of things the people in this government are saying — that the four-point agreement should be followed for peace and constitution — are highly problematic. Who will be held accountable if the illegitimate and unethical clauses in the agreement are implemented but we still don’t have peace and constitution? Will he be accountable? Without the TRC, even if you make the constitution and conclude the peace process, you won’t have any peace. Such constitution will hold no meaning. Rule of law won’t be established. Impunity will persist. The feeling of revenge will persist — especially between the families of police, Army and rebels who were killed.
But isn’t going back to conflict-era crimes re-opening old wounds? Isn’t there a possibility that it’ll create more conflicts?
The wound haven’t healed. They’re rotting — filled with puss. Unless you take this puss out, there won’t be peace. Feelings like “I didn’t get relief, I was displaced, my folks were killed by them but nothing happened to them, my family member disappeared by them”, they won’t just go away.
You carried out the exhumations in Dhanusha despite the government’s reservations. Can’t NHRC continue with similar bold work?
Today, when we ask the Army to talk to us, they say it’s the job of TRC. We can’t go to the barracks and start exhumations. The Army won’t send their people even to the court when the court requests them. I want to go back to the withdrawals of cases because it is so important. Technically, the government cannot withdraw cases without the courts’ consent. The courts should look into international human rights law and norms before withdrawing the cases. Nepal has accepted these laws and norms. Ignorance of law is no excuse for the judges. They are also accountable. Unfortunately, nobody has highlighted these things. The lawyer community should have gone for public litigation.
But the 500-odd cases withdrawn by successive governments post-2006 were carried with the court’s permission?
Yes, but the government has not been transparent on the withdrawals. To claim that we allow the withdrawals because the government asked for it is not good enough.
So you hold the judiciary equally accountable for these withdrawals?
Indeed, the judiciary should weigh whether the government’s request is reasonable.
http://www.ekantipur.com/2011/10/17/oped/monday-interview/342310.html
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