Nepal earth­quake vic­tims marginal­ized fur­ther

The China Post - - COMMENTARY - BY RAM BHAN­DARI

Four months af­ter the for­ma­tion of the Truth and Rec­on­cil­i­a­tion Com­mis­sion (TRC) and the Com­mis­sion for the In­ves­ti­ga­tion of En­forced Dis­ap­pear­ance, lit­tle progress has been made to­ward ad­dress­ing con­flict era vi­o­la­tions.

Now, amid the on­go­ing earth­quake cri­sis, the cru­cial Supreme Court ver­dict of Feb. 26 has been called into ques­tion.

The Supreme Court ver­dict stated: amnesties can­not be granted for se­ri­ous hu­man rights vi­o­la­tions; rec­on­cil­i­a­tion can­not be en­forced but needs the full con­sent of the vic­tims; the gov­ern­ment can­not choose which cases to pros­e­cute; the com­mis­sions need to send their rec­om­men­da­tions di­rectly to the Of­fice of the At­tor­ney Gen­eral; and the con­flict-re­lated cases cur­rently in the reg­u­lar crim­i­nal jus­tice can be handed over to the com­mis­sions.

The Nepali gov­ern­ment is tak­ing ad­van­tage of the earth­quake and the re­sult­ing con­fu­sion to fur­ther marginal­ize con­flict vic­tims and sub­vert ef­forts to make progress on a vic­tim-cen­tric tran­si­tional agenda.

The gov­ern­ment has ap­pealed for the re­view of the Feb. 26 ver­dict. At first, the court re­jected the ap­peal.

On May 24, how­ever, through the at­tor­ney gen­eral, it ac­cepted the ap­pli­ca­tion to re­view the ver­dict.

The earth­quake is thus be­ing used as a po­lit­i­cal tool to gain lever­age in the on­go­ing tran­si­tional jus­tice de­bate — ques­tion­ing this im­por­tant rul­ing when the coun­try is pre­oc­cu­pied with re­build­ing.

Un­wel­come Op­po­si­tion

In ad­di­tion to the gov­ern­ment’s sub­ver­sion of the agreed upon jus­tice process, there re­main sig­nif­i­cant gaps in the com­mis­sions that need to be ad­dressed.

First and fore­most, the com­mis­sions lack a con­crete method­ol­ogy and ap­proach to the tran­si­tional jus­tice is­sues at hand.

There are no clear plans as to how ei­ther of the com­mis­sions will op­er­ate, and their works have been stalled by ques­tions of po­lit­i­cal le­git­i­macy, es­pe­cially by the Maoists (of all fac­tions) who op­pose the Feb. 26 ver­dict.

Such op­po­si­tion, along with a high-level po­lit­i­cal com­pro­mise to re­view the court ver­dict, may ul­ti­mately po­lar­ize the ac­tors in the com­mis­sion process re­sult­ing in con­tin­ued stag­na­tion.

Mean­while, the vic­tims’ com­mu­nity has been seek­ing the truth and de­mand­ing repa­ra­tion and jus­tice for those af­fected by con­flict-era vi­o­la­tions. To meet these de­mands, the com­mis­sion must be pow­er­ful, in­de­pen­dent and reach ev­ery fam­ily and in­di­vid­ual vic­tim across all 73 dis­tricts to ef­fec­tively en­gage them in the tran­si­tional jus­tice dis­course.

Till date, the tran­si­tional jus­tice de­bate in Nepal has been tak­ing place be­tween the hu­man rights com­mu­nity fo­cused largely on pros­e­cu­tion, and a po­lit­i­cal class seek­ing to avoid ac­count­abil­ity at any cost.

Vic­tims’ agen­das have been largely ab­sent from that dis­cus­sion as vic­tims have not been given any agency in any of the tran­si­tional jus­tice pro­cesses. While the crim­i­nal jus­tice sys­tem has failed to tackle im­punity, no other process has emerged to re­cover the truth and pro­vide restora­tive jus­tice.

To ad­dress this gap, the com­mis­sions’ man­dates should ex­plic­itly in­clude the in­de­pen­dent in­ves­ti­ga­tion of con­flict-re­lated cases and the de­vel­op­ment of a com­pre­hen­sive repa­ra­tion pro­gram to es­tab­lish the facts of past vi­o­la­tions and cre­ate sup­port mech­a­nisms to move for­ward.

Re­solve Con­tra­dic­tions

For con­flict vic­tims, the ma­jor­ity of whom live in ru­ral ar­eas, Nepal’s tran­si­tional jus­tice process has been a fail­ure.

There is no con­struc­tive de­bate to ad­dress their con­tin­ued vic­tim­iza­tion or liveli­hood chal­lenges and lit­tle ef­fort has been made to en­sure that tran­si­tional jus­tice pro­cesses work at the lo­cal level.

Laws and tran­si­tional com­mis­sions alone can­not ad­dress vic­tims’ eco­nomic and so­cial needs.

The ap­proach of both the com­mis­sions, the po­lit­i­cal deals that sur­round them and the dis­re­gard for the re­cent Supreme Court ver­dict dis­re­spect both the Com­pre­hen­sive Peace Ac­cord (CPA) and the dig­nity of the vic­tims.

The gov­ern­ment and po­lit­i­cal par­ties must come up with so­lu­tions through di­a­logue with the vic­tims’ com­mu­nity and must ac­cept the fail­ure of the author­i­ties to gain vic­tims’ trust so far.

Though there is no dis­ap­pear­ance law in Nepal, fam­i­lies of the dis­ap­peared wish to bridge the tran­si­tional jus­tice gap by en­gag­ing con­struc­tively with the Dis­ap­pear­ance Com­mis­sion.

For that, there is a need for strong po­lit­i­cal com­mit­ment. Oth­er­wise, both the com­mis­sions are likely to be lost in tran­si­tional pol­i­tics.

As of now, the com­mis­sion­ers them­selves are con­fused and ill-equipped for their role.

Re­cently in Bardiya, when con­flict vic­tims at­tempted to file a re­port with the po­lice, it was re­jected.

The po­lice said that con­flict-era cases should be in­ves­ti­gated by the TRC, which con­tra­dicts the re­cent Supreme Court di­rec­tives.

Law­mak­ers, po­lit­i­cal par­ties, se­cu­rity in­sti­tu­tions, min­istries and line agen­cies must clar­ify their roles in deal­ing with con­flict era is­sues. The con­tra­dic­tions be­tween the CPA, the In­terim Con­sti­tu­tion 2007 and the court ver­dicts must be rec­on­ciled.

Un­for­tu­nately, in­stead of clar­i­fy­ing their roles, which would have helped build con­fi­dence among vic­tims, the com­mis­sion­ers have spent the past four months com­plain­ing to the media about their lack of of­fice, staff and nec­es­sary re­sources and pro­ce­dures.

In spite of such co­or­di­na­tion prob­lems among author­i­ties, con­flict vic­tims seek to en­gage crit­i­cally with the both the com­mis­sions if these mech­a­nisms are ready to clar­ify their way for­ward.

Unan­swered Ques­tions

To be­gin with, both the com­mis­sions must de­velop a work­ing modal­ity and pol­icy to en­gage with vic­tims and their as­so­ci­a­tions. Vic­tims’ net­works seek as­sur­ance from both the com­mis­sions that they will re­spect na­tion­ally and in­ter­na­tion­ally es­tab­lished prin­ci­ples of tran­si­tional jus­tice.

Still, there are many ques­tions that re­main unan­swered. They are: How will the com­mis­sions en­sure a vic­tim-cen­tered ap­proach in their op­er­a­tional work, in­clud­ing the plan of ac­tion, roadmap, and strate­gies?

Will the com­mis­sions en­gage with other in­sti­tu­tions, specif­i­cally with the Na­tional Hu­man Rights Com­mis­sion, se­cu­rity forces, po­lit­i­cal par­ties and other agen­cies?

Will ex­pec­ta­tions (time-line, re­sources, con­tent) of their en­gage­ment be shared with con­flict vic­tims, in­clud­ing with vic­tims who are liv­ing in ru­ral ar­eas far from Kathmandu?

How will the com­mis­sions set their pri­or­i­ties around a range of is­sues re­lated to truth, repa­ra­tion and crim­i­nal jus­tice?

What are the modal­i­ties through which the com­mis­sions will de­velop their reg­u­la­tions and rules, guide­lines, and op­er­at­ing pro­ce­dures?

Will they be de­vel­oped in broader con­sul­ta­tion with vic­tims en­sur­ing their mean­ing­ful par­tic­i­pa­tion at all stages? Will there be uni­ver­sal ac­cess to the rules and pro­ce­dures of the com­mis­sions (struc­ture, vic­tim and wit­ness pro­tec­tion, out­reach pol­icy, pro­tec­tion of data and ev­i­dence) once de­vel­oped?

How will the com­mis­sions en­sure an in­sti­tu­tional and phys­i­cal en­vi­ron­ment that will al­low all vic­tims — in­clud­ing chil­dren, per­sons with dis­abil­i­ties, women, and vic­tims of sex­ual vi­o­lence — to ex­press them­selves se­curely and ap­pro­pri­ately?

Civil so­ci­ety and the in­ter­na­tional com­mu­nity should de­velop their strate­gies of en­gage­ment with the com­mis­sions only af­ter en­sur­ing that the com­mis­sions are com­mit­ted to ad­dress­ing these is­sues in de­tail, since a cred­i­ble tran­si­tional jus­tice process can­not start with­out the min­i­mum com­pli­ance with these pre-req­ui­sites.

Vic­tims are the en­gine of any tran­si­tional jus­tice process, in the sense that they are the cru­cial con­stituency in terms of be­ing both the key sources in tes­ti­monies and the pri­mary ben­e­fi­cia­ries of any process.

The needs of the na­tion and the state can­not be ad­dressed with­out deal­ing with the needs of vic­tims and this truth must be rec­og­nized even in the face of the on­go­ing earth­quake cri­sis. The writer is the gen­eral sec­re­tary of Con­flict Vic­tims Com­mon Plat­form.

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