Arun Baral
Nepal
is currently in a transitional period. The question of transitional
justice is equally important and intricate in a small country like Nepal
after a decade long People’s War. People are raising questions
regarding the killing of journalist Dekendra Thapa while the arrest of
Colonel of Nepal Army Kumar Lama in United Kingdom has raised further
questions. There is a huge debate whether the atrocities of the armed
conflict should be investigated and managed through Truth and
Reconciliation Commission or through traditional Criminal Justice
mechanism. Therefore, concern towards the current situation of Nepal has
increased in national and international level. The United Nations,
European Union and other non-governmental Human Right organizations are
showing their deep concern towards the current situation of Nepal.
The international community showing
interest in the human right situation and transitional justice in Nepal
should however understand that the transitional justice model should be
based on the distinctiveness of Nepal not on the international
practices. Considering the norms and values of human rights and criminal
justice, the sole right to manage the past atrocities should be based
on the distinctive feature of Nepal. If we try to manage the conflict
based on the theoretical knowledge provided by the international
community, it will not comply with the national benefit. Therefore, they
should understand there are unique process and its own model to manage
and solve the incidents of armed conflict.
Uniqueness of Nepalese Society
In eastern part of Nepal, a famous
‘three inches in fun’ traditon is recognized by the Limbu community. If
there is brawl in the market and someone injures other with Khukuri and
the cut is up to 3 inches, the incident is taken as simple incident and
both parties are made to compromise with a bottle of wine. If we look at
criminal law of Nepal, the incident where there is bloodshed with
Khukuri cannot be compromised or forgiven. The books of human rights and
criminal justice read by international community also do not allow
amnesty in such cases. Even in Nepal, such cases are registered under
criminal offense. However, these types of incidents where there is huge
brawl between two houses or two villages but no actual loss of life are
still tried to end with a compromise in our society. No one can raise
question that this is against the international standards of criminal
justice or human rights. If the victim on his on consent wants to pardon
the culprit, then there is no use of hue and cry over the case by
others.
Just like every society, ethnicity or
community has their own practices regarding justice; every nation also
has its own set of tradition and vogue. Any law cannot restrain or
reject the vogue. Likewise, international law cannot challenge any set
of national law. One should always look up to the international
considerations on human rights and criminal justice while incorporating
in national law however, one should also understand the fact that the
nation and society cannot move ahead based on the books of the
international community. The nation moves ahead based on it own
distinctive feature and always should. Many national personalities and
international community who are observing Nepal closely are unaware
about this distinctive feature of transitional justice in the country or
we Nepalese have failed to make them aware about this open secret. Some
people who are used to earn dollars under the veil of humanitarian
activities are misleading the international community.
Small Country Long Conflict
In a small country like Nepal, where the
civil war lasted for more than a decade, there was not any sector which
remained untouched by the conflict. Nepal Army, Nepal Police and all
other government bodies and people where directly or indirectly affected
by the conflict. A few years back, when there was uprising in Bahrain,
forces from Saudi Arabia to suppress the movement. However, in Nepal,
there was armed struggle between Nepalese themselves. So, at this time
if we think of taking revenge or registering cases, it will not bring
justice or peace, the nation will yet again plunge into bigger conflict.
Should we again return to conflict in the name of justice? The motive
of justice should be peace not war.
When Mao Tse Tung had captured the state
in China, the opposing group had taken shelter in Taiwan so they did
not had to face problem like Nepal. Korea was split into North and South
Korea. The clash in India was settled after its segregation into
Pakistan. The problem of Bangladesh was solved after it separated from
Pakistan. In many countries like Sudan, Yugoslavia and others, the
groups in conflict formed different states after segregation. In Bhutan,
millions of people were forced to leave the country to manage the
conflict. Still today, the human right activists have failed to go to
the country. However, a small country like ours is keeping both groups
in conflict together. The two groups who fought yesterday are living
next to each other. In this scenario, if a handful of lawyers start
filing cases to increase their job pay or some so called human right
activists start to create a charged environment to increase their dollar
income, will this lead to justice or create uproar or war? Everyone
should analyze and study this aspect as well. Therefore, if we really
want to manage the conflict in Nepal, the international community,
European Union, America, UK etc, instead of investing on the lawyers,
should invest on the areas which will lead to truce in society. Peace in
the country can only be established if we tried to reconcile the cases
of armed conflict, unnecessarily raising the cases of Dekendra Thapa or
Kumar Lama would not be beneficial to international community as well.
The international community must be aware that they cannot understand
the true scenario of Nepal consulting with some leaders of failed
political parties, professional human right activists or layers who are
using conflict to make their earning. Even Nepali people are finding it
difficult to understand the psychology of the rural areas, how can they
understand through a handful of urban people?
Tradition of Nepali to Grant Amnesty
The conflict in Nepal started right from
the era of King Prithivi Narayan Shah. During his invasion of
Kathmandu, he had chopped off nose of many people of Kirtipur, which is a
serious case of human right violation and criminal offense. Why the
national and international human right activists never raise the case?
The Ranas were involved in various massacres like Kot Massacre and
Bhandarkhal Massacre. Even here, there was violation of human rights.
Similarly, the Shah dynasty, during the expansion of its state, has
brutally murdered many people in Khumbu region. If we have to work for
earning dollar, we have plenty of cases of human right violation or
criminal offense to hoist. However, these incidents are never raised in
Nepalese society because the people here want to forget the bitter
memories of the past. The time has healed the wounds of conflict and
people today are living in harmony forgetting the clash between their
ancestors. Even if someone tries to raise the cases again, the Nepalese
people are in no mood to do so. They are still in support of peace. The
people of Kirtipur have already forgiven the Shah dynasty for their
massacre.
In 2046 BS, when multi-party system was
established overthrowing Panchayati system, many cases of extreme human
right violation were provided amnesty. Those shown guilty by the Mallik
Commission were never punished, which is also a type of amnesty. During
the armed struggle in Jhapa, another leader, just like Prachanda, CP
Mainali, who was sentensed 10 year of imprisonment by district court for
murdering Rajbansis, was granted amnesty by the Congress government.
After the People’s Movement of 2062/63, many people who were judged
guilty by Rayamajhi Commission for human rights violation have not been
punished yet, neither any human rights organization have launched any
campaign for their punishment. This is because Nepalese society has
always stressed on compromise after every conflict. If there was no
compromise, there would not have been unity amid such huge diversity.
All Incidents do not have to be Forgotten
When we are talking about amnesty and
compromise, we cannot say that the extreme cases of human rights
violation and criminal offense should be forgotten or should not be
investigated. However, hoisting the cases, where the victim themselves
have pardoned, cannot be beneficial for anyone. If we try to convince
them for compromise and amnesty, this would be the best possible way to
manage the cases of conflict. It is clearly mentioned in the
Comprehensive Peace Agreement that the cases of armed conflict would be
investigated and managed by the Truth and Reconciliation Commission.
However, the ordinance for TRC prepared by the government is still
gathering dust at the President’s Office. Some people are showing their
descent stating that the commission is focusing largely on
reconciliation. However, if we forget that reconciliation provides peace
and justice to the society, the nation will yet again plunge into
another conflict. In a small country like ours, where both conflicting
forces are living together, we have no other option than reconciliation.
To raise the feeling of revenge in the new generation for the conflict
of past generation would be a foolish step to dismantle the unity and
harmony of Nepalese society. To raise the past conflict is just like
searching the lost nose of the people of Kirtipur. We should always move
forward not backward. So what should be done regarding the thousands of
innocent people killed during the armed struggle? The state and
international community should help raising the living standard of their
family. If the nation is prosperous and peaceful, everybody will get
justice.
Crime should be Ended, Not Criminals
When a rapist or a killer is sent to
prison, after completing his sentence, the place where s/he has to
return is again the same society. Is it possible to ignore those who
have completed the sentence of criminal offense? No! If the society does
not accept them, they will again return to path of crime, which cannot
bring peace or justice in the society. The incidents of decade long
armed struggle should be considered in the same way. If the Nepal Army
or Maoists begin making plans to take revenge on one another, it cannot
bring peace in the country. This would again force a group to move to
jungle and to kill them more innocent people will be killed. Many think
that peace has been restored in Sri Lanka after eliminating Tamils.
However, its side effect will be seen in the long run. The people
running after dollars should understand that is it good to find solution
by killing more people or through reconciliation?
No Other Option than to Forget
Yes, Dekendra Thapa’s mother has to get
justice. However, what about 17 thousand other people who lost their
lives in the armed conflict? Shouldn’t wife of poet and journalist
Krishna Sen get justice? There should not be discrimination in justice.
While saying all this, should we again scratch the scars or reconcile?
The state has already recognized that
they were in war with the Maoist signing the Peace Agreement. In this
scenario, if we treat them as ‘criminal’, how can the killing of
thousands of people by the state can be forgiven? Therefore, to
reconcile the past atrocities is the best way to move forward whether it
is the mother of Dekendra Thapa or wife of Krishna Sen.
http://www.onlinegreatway.com/2013/02/26/55181.html
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