The Mo­ment of Truth

An ef­fec­tive Truth and Rec­on­cil­i­a­tion Com­mis­sion in Nepal would re­quire additional bod­ies work­ing along­side it – from prose­cu­tion and ac­count­abil­ity mech­a­nisms to repa­ra­tion and re­form pro­grams.

Southasia - - REGION NEPAL - By S. M. Hali

The Hi­malayan state of Nepal, wedged be­tween two gi­ants – China and In­dia – has been plagued by con­flict, in­sta­bil­ity and in­tractable po­lit­i­cal di­vi­sions for years. The Federal Demo­cratic Repub­lic of Nepal – which it is now of­fi­cially known as – ex­pe­ri­enced its sec­ond elec­tions since the abol­ish­ment of its 240-year-old monar­chy in 2006, fol­low­ing the 10-year re­volt led by the Com­mu­nist Party of Nepal (Maoists). The coun­try has been run­ning un­der an in­terim con­sti­tu­tion since 2008.

The pre­vi­ous elec­tions, which were held on April 10, 2008, saw the Maoists elected to power and form­ing a coali­tion govern­ment af­ter hav­ing won the largest num­ber of seats in the Con­stituent As­sem­bly (CA). Un­for­tu­nately, the Maoists were un­able to cope with the chal­lenges. In May 2009, their govern­ment was re­placed by an­other coali­tion govern­ment and a vir­tual mu­si­cal chairs of power fol­lowed till fresh elec­tions were held in Novem­ber 2013 un­der an in­terim govern­ment led by Chief Jus­tice Khilraj Regmi.

A clear ma­jor­ity was not achieved by any po­lit­i­cal party, leading to a dead­lock, which was re­solved in midFe­bru­ary when Nepal's par­lia­ment picked a so­cial demo­crat as its new prime min­is­ter af­ter a last-minute power-shar­ing deal. Sushil Koirala, the head of the cen­trist Nepali Congress party, was elected with sup­port from the com­mu­nist UML party, which holds the sec­ond-largest num­ber of seats in the CA.

Koirala faces two ma­jor chal­lenges

– draft­ing a new con­sti­tu­tion for Nepal and deal­ing with the Truth and Rec­on­cil­i­a­tion Com­mis­sion (TRC). The com­mit­ment to form a TRC was part of the 2006 Com­pre­hen­sive Peace Ac­cord, which ended the decade-long con­flict be­tween the state and Maoist forces. The TRC was tasked with in­ves­ti­gat­ing hu­man rights vi­o­la­tions that oc­curred from 1996 to 2006, dur­ing which at least 13,000 people were killed and 1,300 went miss­ing. An in­de­pen­dent re­port by the In­ter­na­tional Com­mis­sion of Jurists found that both par­ties to the con­flict – the Nepalese Army and mem­bers of the for­mer Maoist rebels – com­mit­ted grave hu­man rights vi­o­la­tions.

While draft­ing the new con­sti­tu­tion will be an up­hill task be­cause of po­lit­i­cal dif­fer­ences, the TRC is an equally dif­fi­cult chal­lenge. Fram­ing a new con­sti­tu­tion is an in­ter­nal mat­ter of Nepal but the TRC is un­der the mi­cro­scope of in­ter­na­tional hu­man rights or­ga­ni­za­tions, the UN and var­i­ous donor agencies.

Af­ter con­sid­er­able de­lays, on March 14, 2013, the govern­ment of Nepal ap­proved the TRC ti­tled Or­di­nance on In­ves­ti­ga­tion of Dis­ap­peared People, Truth and Rec­on­cil­i­a­tion Com­mis­sion, 2069. The or­di­nance calls for the im­me­di­ate cre­ation of a two-year Truth and Rec­on­cil­i­a­tion Com­mis­sion com­pris­ing five in­de­pen­dent com­mis­sion­ers. Un­der the or­di­nance, the Com­mis­sion’s func­tions in­clude “bring[ing] the real fact be­fore [the] pub­lic by in­ves­ti­gat­ing the truth of the cases in re­la­tion to the events of se­ri­ous vi­o­la­tion[s] of hu­man rights in­clud­ing dis­ap­peared per­sons in the course of armed con­flict,” and “rec­on­cil[ing] the per­pe­tra­tor and the vic­tim.”

The Com­mis­sion would in­ves­ti­gate both known hu­man rights vi­o­la­tions as well as vi­o­la­tions brought to its at­ten­tion by or on be­half of a vic­tim. Some hear­ings may be pub­lic and, upon its con­clu­sion, the Com­mis­sion would re­lease a re­port on its find­ings and rec­om­men­da­tions for in­di­vid­ual per­pe­tra­tors to be ei­ther granted amnesty or be pros­e­cuted by the at­tor­ney gen­eral in Nepal. The Com­mis­sion would also pro­vide rec­om­men­da­tions to the Nepalese govern­ment on the ap­pro­pri­ate com­pen­sa­tion for iden­ti­fied vic­tims.

The or­di­nance has faced se­ri­ous con­tro­ver­sies. The most knotty is­sue with the TRC is the le­gal pro­vi­sion autho­riz­ing the Com­mis­sion to rec­om­mend amnesty for per­pe­tra­tors of hu­man rights vi­o­la­tions.

The UN and the donor com­mu­nity also ex­pressed their re­luc­tance to sup­port a TRC that does not meet in­ter­na­tional stan­dards. Some other se­ri­ous ob­jec­tions are that the or­di­nance was fi­nal­ized and ap­proved by only four of Nepal’s po­lit­i­cal par­ties, with even of­fi­cials of the Na­tional Hu­man Right Com­mis­sion claim­ing to have been de­nied ac­cess to the or­di­nance’s fi­nal ver­sion. It was per­ceived that the TRC took cog­nizance of only po­lit­i­cal con­sid­er­a­tions.

It has been pointed out that struc­turally, the Com­mis­sion lacks guar­an­tees of im­par­tial­ity and in­de­pen­dence that are re­quired to en­sure a mean­ing­ful and ef­fec­tive process for na­tional rec­on­cil­i­a­tion. These con­cerns stem in part from the re­quire­ment that the Com­mis­sion is sup­posed to at­tain govern­ment per­mis­sion be­fore ob­tain­ing any in­ter­na­tional sup­port, which ef­fec­tively serves as a built-in de­pen­dency on the govern­ment for fund­ing and re­sources. The Com­mis­sion’s po­ten­tial has also been cur­tailed by its work be­ing limited to only two years, which lim­its its chances of suc­cess­fully ad­dress­ing a con­flict that spanned ten years and re­sulted in thou­sands of deaths and dis­ap­pear­ances.

Un­sur­pris­ingly, only a fort­night af­ter the pas­sage of the bill, the Nepalese Supreme Court sus­pended the TRC from tak­ing ef­fect, pend­ing a fur­ther re­view of the planned Com­mis­sion. The court ruled that the pro­vi­sions of the or­di­nance con­cern­ing amnesties, lim­i­ta­tions on crim­i­nal prose­cu­tion and a 35day limit for fil­ing cases con­tra­vene fun­da­men­tal rights guar­an­teed by the con­sti­tu­tion of Nepal, its jus­tice sys­tem and in­ter­na­tional law. It also or­dered the Com­mis­sion to meet in­ter­na­tional stan­dards, in­clud­ing guar­an­tees of au­ton­omy and im­par­tial­ity and to en­sure the in­volve­ment and pro­tec­tion of vic­tims and wit­nesses.

As a neu­tral ob­server of the pro­ceed­ings, one can’t help won­der why an ex­er­cise aimed at achiev­ing rec­on­cil­i­a­tion has hit se­ri­ous snags even be­fore it could take off.

Per­haps Nepal could learn a les­son or two from the TRC of South Africa, which had en­deav­ored to reach the truth through a free and fair di­a­logue. The Com­mis­sion would re­quire the par­tic­i­pa­tion of neu­tral of­fi­cials, who could en­able the heal­ing process. The first step would be the cre­ation of a safe and open space for sto­ries to be told and the in­stall­ment of strong so­cial-sup­port mech­a­nisms for those who shared their ex­pe­ri­ences, a nec­es­sary part of this process. The par­tic­i­pants must not fear re­tal­i­a­tion or reprisal for their nar­ra­tive, which is es­sen­tial for fact-find­ing.

Sec­ondly, frus­tra­tion among con­flict vic­tims re­gard­ing their limited par­tic­i­pa­tion in the for­ma­tion pro­cesses of the cur­rent or­di­nance might fur­ther shape and re­duce their fu­ture en­gage­ments with the TRC. Fur­ther­more, the ob­jec­tions of con­flict vic­tims to amnesty are based on their ob­ser­va­tion that the truth pro­duced by the TRC can­not re­place the dif­fer­ent and additional truth es­tab­lished in the court, one of an in­di­vid­ual’s le­gal re­spon­si­bil­i­ties to con­flict-era crimes.

For a frac­tured so­ci­ety like that of Nepal’s, the process of rec­on­cil­i­a­tion and heal­ing can only take place if the root causes of the con­flict are ad­dressed and when a brighter fu­ture, free of con­flict is vis­i­ble. The so­ci­etal di­vides will have to be bridged and in­equal­i­ties and in­jus­tices ad­dressed. An ef­fec­tive TRC in Nepal would re­quire additional bod­ies work­ing along­side it, from prose­cu­tion and ac­count­abil­ity mech­a­nisms to repa­ra­tions and re­form pro­grams.

The quest for truth and rec­on­cil­i­a­tion should be based on a gen­uine de­sire for durable peace. The can­vas of the TRC must be broad­ened and var­i­ous state or­gans, es­pe­cially the ju­di­ciary and other sup­port mech­a­nisms, must be strength­ened. The task for Sushil Koirala, the new in­cum­bent in the prime min­is­ter’s of­fice, is not go­ing to be easy, es­pe­cially be­cause he heads a coali­tion govern­ment. If he wants to leave his mark on his­tory as one who brought peace to the Nepalese people and re­molded them into a united na­tion, he will have to give ut­most at­ten­tion to the work­ing of the TRC.

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