As
proposed, the commission for truth and reconciliation, and
disappearances, privileges abusers of the conflict and discriminates
against the victims
MAR 29 -
For long, the frail Nepali
Congress and CPN-UML leaders have lost the energy to fight the
above-ground Maoist onslaught, even to the extent of abandoning their
best election campaign message, viz. the ex-rebels’ use of violence for
political ends. Even so, the victims of the conflict era and the human
rights community had some hope left in the two parties. But then the
Congress and UML negotiators have now submitted to the UCPN (Maoist)
position by helping to draft an appalling ordinance for a conjoined
commission on disappearances, and truth and reconciliation.
Over at Shital Niwas, barely two months ago, President Ram Baran Yadav,
had assured rights activists that he would return any ordinance that
challenged norms and values. But, on March 14, he unquestioningly put
his stamp on the ordinance. Whatever has gone on between Singha Durbar
and Shital Niwas, though, it is impossible to accept this project of the
four-headed political syndicate and its handmaiden, the Khil Raj Regmi
government.
Navi Pillai, the UN High Commissioner for Human Rights, has rejected
the ordinance, and the UN Secretary General’s representative in town
last week also expressed reservations. In a detailed review, the
umbrella group Accountability Watch Committee (AWC) has exposed the
substantive and procedural flaws in the ordinance and its making. It has
declared a boycott of any commission that emerges from this conspiracy
of the powerful. Most importantly, on Sunday, seven groups representing
victims of atrocities both by the state and by the Maoists came together
to file a writ petition in the Supreme Court against the ordinance.
National decline
The ordinance symbolises the thus-far successful campaign for impunity
pushed so diligently by Baburam Bhattarai and Pushpa Kamal Dahal. Rule
of law recedes as might becomes right, and unaccountability permeates
all aspects of national life. The ordinance is the lowest point achieved
since 1990 in the decline of the polity.
The nice sounding ordinance preamble, expressing commitment to justice
and accountability, is crafted to lower the guard of the lay reader. The
rub lies in the actual provisions, whose application would privilege
the perpetrators of grave human rights abuse and persecute further the
victims of conflict. Beyond the lacunae in the drafting, there is every
expectation that the UCPN (Maoist) will force the appointment of
commissioners tasked specifically to sabotage the commission’s work,
allowing both rebel and state-side perpetrators to evade accountability.
The goal of the Maoists would be a whitewash commission to allow
perpetrators to remain ‘cleansed politicians’ for decades to come.
Those who drafted and adopted the ordinance were clearly insensitive to
the pain of the citizenry, even after the OHCHR’s Nepal Conflict Report
detailed how the war decade was marked by such a massive volume of
abuse of international humanitarian law. The negotiators drafted a
document with a confusing set of provisions that contradict each other,
defy Supreme Court decisions, challenge the existing criminal justice
system, and are at odds with the tenets of international law and
practice.
Substance and procedure
The purpose of a transitional justice commission should be to establish
a norm and a trend for making everyone equal before the law in relation
to conflict atrocities, and ensuring that no one is exempted for crimes
under the cover of political activism or government assignment. A high
standard in public life would be guaranteed by a properly established
commission, with deterrence created for long into the future. The
proposed commission will do nothing of the sort.
The title of the ordinance itself is misleading, referring in Nepali to
individuals who happen to have disappeared rather than forcibly
disappeared (‘bepatta bhayeka’ rather than ‘parieka’). The dovetailing
of the two commissions on disappearances, and truth and reconciliation,
into one body goes against the peace accord, the Interim Constitution
and past court directives.
In terms of procedure, the Supreme Court had laid a stricture that
preparation for the formation of the commission should be in
consultation with the victims, the rights community and the National
Human Rights Commission (NHRC). Instead, this document was prepared
secretively without even a show of consultation. The NHRC, as the fully
empowered constitutional body, has been completely bypassed in the text.
Substantively, international principle and practice insist that the
perpetrators of grave human rights abuse such as rape, torture,
abduction, disappearance and killing in captivity are not eligible for
pardon. But the ordinance creates conditions for amnesty for such
crimes, while building obstacles for victims who want to see justice
done through prosecution.
The attempt is made to downgrade the commission by having its report
presented to a line ministry rather than to the president’s or the prime
minister’s office, and the commission’s final report is to be handed
over to the ministry rather than released to the public. The intention
clearly is for this body to meet the same desultory fate of the earlier
Mallik and Rayamajhi commissions, which had sought to tackle impunity
after 1990 and whose reports remained ignominiously shelved.
In limbo
Many forms of grave human rights abuse are not yet defined for
punishment under Nepali law, and the ordinance takes advantage of this
by allowing the matter to hang in limbo. Nor does it specify retroactive
application of new law in such cases. The ordinance unnecessarily mixes
all kinds of ‘lesser’ crime such as looting and land-grabs in its
listing, clearly intending to muddle and bewilder. Reparation for
victims is seen as a privilege rather than a right.
There is no requirement of full disclosure on the part of accused, and
the document denies the international understanding that proper
reconciliation can only happen when the testimony is to the satisfaction
of the victim. The text is neglectful of the drastic power imbalance
that exists today among the protagonists: the perpetrators are by now
are powerful individuals in politics with strong links to the topmost
state administration, while the victims tend to be villagers without
access.
The text is replete with reference to what the commissioners ‘may’ do
rather than ‘shall’, and they are allowed to set aside complaints
without assigning reasons, for which there is no provision of judicial
review. When the commission does recommend prosecution, a roundabout
process for action has been created via the ministry and the attorney
general’s office. Meanwhile, hurdles have been created in case a
proactive attorney general decides to start prosecution.
The eligibility for membership in the commission is limited to judges
of the Supreme Court and retired government secretaries. This is
extremely constricting, preventing whole categories of eminent persons
from giving credibility to the commission, which in any case is designed
to be at the mercy of the political and administrative forces.
At a meeting called last week to discuss the ordinance, Purnimaya Lama
(see picture), spouse of the murdered Arjun Bdr Lama, said, “The wall
before us victims has just become higher.” Suman Adhikary, son of the
late teacher Muktinath Adhikary: “This ordinance feels like a kick in
the stomach for the victims; it is a gift to the perpetrators.”
The best that can and should be done at this stage is to postpone
formation of the commission till the new Legislature Parliament is
elected, allowing the regular criminal justice process to work in the
meantime.
Posted on: 2013-03-29 08:40
http://www.ekantipur.com/2013/03/29/opinion/an-ordinance-to-defy/369175.html
