NOV 13 - 2011
Just as the peace process picked up steam with the deal on Maoist combatants on November 1, other issues related to the process are also emerging. One contentious issue is truth and reconciliation regarding conflict-era crimes. PM Bhattarai has been at the receiving end of criticism from human rights activists and the opposition with his Cabinet’s decision last Tuesday to recommend a Presidential pardon for Balkrishna Dhungel — a Maoist Consitutent Assembly member with a troublesome past. What has riled many is that the recommendation came despite the Supreme Court upholding the decision of the Okhaldhunga District Court to convic Dhungel of the murder of Ujjan Kumar Shrestha in 1998. Mandira Sharma, the chairperson of Advocacy Forum (an NGO which helped Shrestha’s sister file a writ against the Government decision at the Court) spoke with Bidushi Dhungel and Gyanu Adhikari about Dhungel’s possible pardon and what it means for rule of law in Nepal.
How would you describe the state of impunity in Nepal with Baburam Bhattarai’s as the PM?
We human rights workers had some confidence that Bhattarai would be sensitive to the issue. We went to see him soon as he became the PM, and he told us he was committed to end impunity in Nepal. That was the talk. In practice, his government has done exactly the opposite. Two decisions are noteworthy. One was the agreement between the parties to give amnesty to all kinds of serious human rights crimes committed during the conflict. This’ll affect the truth and reconciliation and disappeared Commission under consideration at the CA. Lately, the Cabinet has recommended a pardon to someone who was convicted by the Supreme Court — a convicted criminal. Not only that, the government appointed as a State Minister Suryaman Dong, who is accused in the murder of Arjun Lama, and for which the police has issued an arrest warrant. Naturally, we’re worried.
The PM says Balkrishna Dhungel’s case is politically motivated. Do you agree?
The question is — who has the right to decide which case is political? That right is with the court, not a party. The court decided that it was not a political case and convicted him. So this latest Cabinet decision is appropriate under no circumstances. It means that they don’t accept the rule of law. If you pardon people convicted of such crimes, why should anyone else be punished? If you can get away with a murder because you’re a politician, the government should give amnesty to everyone who’s in prison. Crimes committed by activists of a party are not political in nature. If someone is punished for having a political faith, then only does it become political.
What specifically happened in Dhungel’s case?
In the past, it was a crime to be a Maoist — they were taken to jails and usually false cases were brought against them. The law, domestic and international, doesn’t stop you from withdrawing that type of cases today. But there should be evidence that these cases were false. In Dhungel’s case, someone called Ujjan Kumar Shrestha married a Bahun girl related to Dhungel. If you study the documents, the root seems to be this anger arising from this marriage between two people from different castes. Lately, the Maoist district committee has said that it was a party decision. If a party decides to murder a civilian, that’s becomes even more serious issue.
But if the party had ordered the murder, it still won’t be called political case?
No, only recently have they tried to give the case a political colour. First, after the murder, Shrestha’s elder brother filed a complaint pointing out the so and so murderered his brother for enmity arising from such and such reasons. He was also murdered. This is a case based on personal grievances. We should be clear on that. There’s not even a “p” of political in this case. Second, whatever the reasons, good or bad, or whoever does it — murder is not allowed. A murder is a murder; whether it was party decision is irrelevant. If there are accomplices, they also deserve punishment. You can not commit serious human rights violations — murder, rape, toruture and disappearance — you can not withdraw these cases no matter whose orders the accused was following.
From the human rights perspective, why do you think that the Maoist party is obssessed with protecting someone who is convicted of such a serious crime by the Supreme Court?
The Maoist party is more suspicious than it needs to be. There’s a fear that if cases like this go on, then other leaders will be dragged into similar situations in the future. But their fear is unfounded.
In grave, criminal cases like this, you’re not allowed to prosecute anyone without solid proof. When a crime is being established it should be proven beyond doubt
that the accused committed the crime. In Dhungel’s case, it’s proven beyond doubt that he committed the crime. If the past cases were put on fair trial without political prejudice, I don’t think many Maoist leaders will have to go to jail.
In fact, the plea for Dhungel’s pardon is hugely disadvantageous to the Maoist party itself. We’re amazed that the biggest opposition to addressing past crimes is coming from the Maoist party itself. Until yesterday, they used to say they’ll end the system that’s in favour of the powerful — thulalai chain, sanalai ain. They said they fought a war to uphold the rule of law. That’s why the people voted for them and made them the biggest party. A lot of people were killed in the past merely for being Maoists. Many were tortured, raped and disappeared for being Maoists. The party repeatedly says to the families of these that they’ll get justice. In practice, they’re advocating the opposite.
What are the implications of pardoning Dhungel for other conflict-era cases?
It means you also pardon those accused in Maina Sunuwar’s case, those involved with disappearances at Bhairav Nath battalion, those guilty in the massacre at Doramba or those who first arrested then murdered people like Sanjeev Kumar Karna. The peace process is in a very serious mode at the moment. The Dhungel case presented a good opportunity for Bhattarai to prove he wants to end impunity. But he has made a blunder. But it’s not too late.
What do you think PM Bhattarai should do?
This decision must have come from a lot of pressure from the party and without analysing serious legal implications. Everyone is against it — the UN human rights agency in Nepal, National Human Rights Commission, the civil society and all donor countries. He might not have understood the implications. He can still consult and correct the decision.
You mean he should withdraw the recommendation for Dhungel’s pardon?
Yes, he should withdraw the recommendation, period. The consequences of not
doing so are huge. If a single thing can destroy the credibility of this government and the Maoist party with the people, then it’ll be for this case.
PM Bhattarai has said digging up the past and seeking revenge will lead the country back to conflict.
That’s why we’re advocating for instruments of transitional justice like the TRC and disappeare commission. They’re based on justice, not revenge. Seeking punishment for Dhungel is not seeking revenge. It’s seeking justice. Ujjan Shrestha’s family is not asking to murder Dhungel because he murdered one their own. All they’re asking is for him to be punished according to the law.
PM Bhattarai has also said that “there’s a small group that sows conflict to harvest dollars” and that we shouldn’t take their concern seriously.
It seems like he’s in a desperate [hatash] mentality. If saying rule of law should be established is considered “harvesting dollars,” then the PM himself should get into this business. He should respect the law, end impunity and make the country as green as possible by harvesting dollars. We’re in a difficult state. Hundreds have been killed, raped, tortured, but not a single one has faced justice. Who’s going to buy it if he’s standing on this foundation of impunity and starts selling the dreams of new Nepal again? The pre-condition for democracy and development is a rule of law. This means accepting no one is above the law in both principles and practice. This means respecting the Supreme Court. Bhattarai should stop harvesting illusions.
Posted on: 2011-11-14 09:22
http://www.ekantipur.com/the-kathmandu-post/2011/11/13/oped/monday-interview/228180.html
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