Nepal: Transitional Justice, TRC and Jurisprudence

Julius Engel
Berlin, Germany
Jurisprudence:

Up to now, no case of conflict-era crimes has been finally decided before a court. But several decisions by the Supreme Court (SC) regarding case withdrawals show a certain unwillingness to leave the cabinet’s withdrawal decisions uncommented. On various occasions it has stressed the government’s obligation to judge every withdrawal case in detail and emphasized that a case withdrawal shall be regarded as an exception in the light of the victim’s right to effective remedy.

Regarding the afore-mentioned withdrawals of 349 cases, the SC prevented further implementation stating that several of the eases were not filed with political motives and therefore unable to comply with the CPA condition the withdrawals were based on (Madhav Basnet et al vs. Prime Minister Puspa Kamal Dahal et al). In a latter decision, the SC again argued that case withdrawals must be reasonable, fair, and just while pointing out that withdrawal of the 349 cases by the cabinet was lawful. Most importantly, it left the final decision on withdrawal to the district courts. Though the decision was criticized, the SC strengthened the role of the courts at the district level according to the States Cases Act of 1998. Whether the district courts can live up to this grand responsibility remains to be seen, but it has been observed that district level courts do not always evaluate government decisions on case withdrawals in detail and fail to follow SC decisions.

Another important decision by the SC was seen when it reaffirmed one of its earlier positions. The SC was criticized for giving in on one of its earlier positions and adopting the government’s argument that conflict-era crimes should be dealt with in a TRC process and not according to the existing law. In June 2011, it turned to its earlier position and argued that conflict-era crimes must be addressed under the existing law and cannot be delayed by the argument that a TRC will address the crimes of the conflict.

One recent decision further tackled the government’s approach toward case withdrawals. On April it urged a district court not to withdraw cases which involved serious crimes. The SC urged the government to abstract the power of withdrawing cases including treason, war crimes, crimes against humanity, and serious human rights abuses. The government’s position that according to the States cases Act 1998 it could withdraw cases on crimes of any nature was rejected by the SC which said this could lead to anarchy and impunity.

With this last decision it corrected the deficient States cases Act 1998 bringing Nepalese law closer to the international standards by adopting a common formula supported by many legal observers. The position it took and seems to be taking against the executive’s approaches to case withdrawals can be interpreted as a sign of an independent jurisprudence by the highest Nepalese court. If and how a probable constitutional court will affect this jurisprudence remains to be seen.

The Local Peace Committee:  

While a system of reconciliation and conflict-era mediation has not yet been implemented on the national level, on the local level, the Local Peace committees (LPC) have taken up their work. The work of such committees can be crucial for a conflict-struck society. In the case of Nepal where the conflict took place in remote and rural areas, local reconciliation mechanisms can be adopted with the help of civil society organizations, among others.

Researchers have found that the work of the LPCs has improved over time exemplified by the decisions taken by some well respected LPCs. But while LPCs have been established all over the country (in 73 of the 75 districts), many of them exist only on paper. Activities of the LPCs include, among others, reviewing applications for relief by the conflict-affected person. This is a task the Chief District Officer (CDO) is responsible for, but the LPCs’ assistance is regularly requested for reviewing applications. On a smaller scale, LPCs also conduct training for the conflict-affected persons. The important function of managing the distribution of relief payments to conflict victims is problematic. While some victims have received money, the LPCs have been criticized for recommending relief to people who were not victims of the conflict, explained by the political connections of the members of LPC. The LPCs are, in fact, often used as a tool to enrich party supporters. Another problem that affects the distribution of relief to conflict victims is the unawareness of the LPC. Often being illiterate and in rural areas means lack of timely and adequate information. As a consequence, conflict victims do not know about the possibility of receiving relief money by the government.

Regarding functions similar to those of a TRC the LPCs also face their own share of similar problems. Unless the political elite is willing to use them-not only as a tool for reconciliation and/or investigation of conflict crimes, but for the activation of the entire peace process on a local level, the LPCs will at this point remain powerless. The LPCs carry the chance of being grassroots fora where each player of the civil society can play an active role. But the committee members must be impartial and committed to the idea of reconciliation. Since the LPCs work under the Ministry of Peace and Reconstruction, their impartiality has been questioned and it is doubtful whether they can activate marginalized and excluded groups of the society such as the victims of the conflict.

It is here important to notice that local reconciliation and debate on conflict crimes can only be seen as complementary to the national truth, reconciliation, and disappearance commissions. Most notably, the Terms of Reference of the LPCs are formulated in a very cursory way, which do not specify how the LPCs could work towards reconciliation and truth finding. This offers a possibility for political stakeholders to push for a lax handling of the rule of law and grant impunity for conflict-era crimes. Since the LPCs are influenced and driven by party politics, political will and active non-state actors from the civil society and elsewhere are essential to make the LPCs a proper tool of the Transitional Justice system in Nepal.

PUBLIC OPINION, POLITICAL WILL, AND CIVIL SOCIETY: DISCUSSION ON TRANSITIONAL JUSTICE:

The International Center for Transitional Justice (ICTJ) and the Nepal-based NGO Advocacy Forum (AF) conducted a survey on transitional justice in Nepal and human rights violations of the armed

conflict in 2007. Among other results, the study revealed that granting amnesty to violators of human rights was not accepted by the majority of the participants (77%). Ninety-three percent said it is important (25%) or even very important (68%) to have accountability for past human rights violations. Of those who knew the meaning of the term ‘amnesty’ (64%), 77% were against granting amnesty to human rights violators.

These figures show that a culture of impunity or blanket amnesty is not seen as a practicable solution to cope with human rights violations in Nepal. The possibility of turning a blind eye or enforcing collective amnesia and a ‘get over it’ mentality does not seem to be an option for most Nepalese. This gives an important indication on what people expect from their government and the yet- to-be-formed commissions. Also public statements by scholars, NGO’s, Journalists, bureaucrats, victims, and members of the international community condemn the possibility of granting amnesties for human rights violators and emphasize the obligation of Nepal to prosecute gross violations of human rights during the armed conflict (and also violations that happened afterward). But the discussion about transitional justice and accountability has always been overshadowed by other issues of Nepali politics. The promulgation of the new constitution, integration of the People’s Liberation Army (PLA) into the Nepalese Army (NA), and the discussion about federalism has been in the foreground of Nepalese media and politics. The support of political parties for those who demand legal prosecution of human rights violations remains marginal. It has been said that “political parties have become like agencies granting licenses to commit crimes”. Instead, the political leadership is emphasizing publicly reconciliation rather than penal accountability. An example for the unwillingness of the political elite to include the civil society in the process is the refusal to allow victims’ representation on the TRC appointing board. Through this move, the process is kept in a closed sphere, politics are privatized, and non-state actors are once again treated as objects rather than subjects in the peace-building process of Nepal.

One reason for the inferior position of the transitional justice discussion compared to others may be that the conflict mostly took place in rural areas and did not reach the Kathmandu Valley immediately. Naturally, most conflict victims were those without any lobby in the capital, farmers, daily workers or other members of lower social classes. After the conflict several Nepalese NGOs became active and now conduct surveys, release publications on Transitional Justice and other conflict-related issues and support the victims in getting relief payments from the government. The most vocal ones are the Advocacy Forum (AF, Human Rights and Democratic Forum (FOHRID), and the Informal Sector Service Center (INSEC). These organizations have a high professional standard and cooperate with renowned international NGOs and their activities are regularly published in national newspapers. What seems to be lacking in the whole discourse is a genuine victim’s voice. Apart from single expressions by victims, a loud and steady floor of comments from victims on national politics is missing. Although there are victims’ organizations such as the Conflict Victims’ Society for Justice (CVSJ-Nepal), they show a weak presence in the discussion on Transitional Justice. Such an organization should bring an additional moral pressure upon the lawmakers and help bring the discussion about victim’s rights and conflict-era crimes to page one. The international community could also take further notice of the conflict crime abuses. The most famous victims’ organization that gained, international reputation as an example of how such an organization can impose pressure on the national government was Argentina’s Madres de la Plaza de Mayo which played an important role in promoting accountability even after Argentina had passed an amnesty law at the end of the 1980’s. One wonders why a similar lobby could not be formed in Nepal, if necessary, through civil society coordination.

The international community and especially the western governments were criticized by some Nepalese people saying that they did not put enough pressure on the Nepalese government and instead congratulated the new government too much for the progress achieved on other peace process issues. The OHCHR, too, was criticized for supporting the NHRC which seems to lack independency and political clout. Both gathered vast information about the conflict-era crimes but still did not release the report on Human Rights violations. But such human rights violations have also been recorded by other parts of the Nepali Society. Others have brought up certain emblematic file cases of conflict-era crimes and follow on their development. The press, as another player, has granted space for the expression of opinion by the observers of the Transitional Justice process and is critical in its coverage and has been a keen observer of the government’s moves. Still the pressure upon the lawmakers could be higher and more vocal.

The biggest lacuna in Nepal’s civil society is the absence of an influential set of political stakeholders to promote the demands for a transparent and thorough reconciliation process. The biggest asset on the other hand is that the Nepalese people have sharp observers and intelligent and independent critics of the political process in general and the Transitional Justice process in particular. This assures a continuous discourse and debate at the public level against any attempts to avoid Nepal’s international obligations to prosecute human rights violations.

http://www.telegraphnepal.com/views/2013-03-21/nepal:-transitional-justice-trc-and-jurisprudence.html