Along with the appointment of the Chief Justice as the head of the government, Nepal’s peace process also witnessed another significant movement last Thursday when President Ram Baran Yadav enacted an ordinance on transitional justice. The “Investigation of Disappeared Person, Truth and Reconciliation Ordinance – 2013” will form a truth commission to investigate thousands of human rights abuses committed during the decade-long Maoist “People’s War” that ended in 2006.The truth commission was a part of the Comprehensive Peace Agreement that ended the war as well as the interim constitution.
But the bill has been criticised by some rights activists for its weaknesses in dealing with grave violations of human rights, which includes murder, abduction, disappearances, rape and torture, among others. They are unhappy that it could lead to amnesty on even the gravest crimes, though the truth commission can, if it chooses, recommend prosecution on those crimes.
“A truth and reconciliation commission formed by this will be powerful, but it does not bar amnesty in serious crimes, as did previous bills,” says Govinda Sharma “Bandi”, an advocate at the Supreme Court. “It will probably be challenged at the Court.”
The spokesperson of the National Human Rights Commission, which has already investigated thousands of wartime cases and made recommendations that have been ignored by all previous governments, was more optimistic.
“Our first priority is truth,” says Mr. Gauri Pradhan. “The bill is a positive step, but it could be clearer on amnesty provisions.”
The Maoist-led government that made way for the formation of an election government under the Chief Justice had insisted that the bill be passed as a part of the package deal between the Nepali Congress, United Communist Party of Nepal (Maoist), Communist Party of Nepal (UML) and the United Democratic Madhesi Front.
“The bill is aimed at peace and reconciliation,” says Mr. Khimlal Devkota, a UCPN (Maoist) leader. “It reflects the win-win situation that ended the People’s war with neither the state’s forces nor the Maoist defeating the other.”
Mr. Devkota claimed that the issues of wartime crimes could be used as a political tool by other political parties and individuals to marginalise the party, as well as the Nepali Congress, which led the government during significant duration of the insurgency.
Nine thousand cases of the abuses of human rights and humanitarian law, committed mostly by the then Royal Nepal Army and the Maoist rebels, have been documented in the Nepal Conflict Report published by the U.N.’s Office for High Commissioner for Human Rights in October last year. Though statistics vary, according to the U.N. estimates, 13,000 people died and 1,300 disappeared during the war.
In cases of gravest crimes, the bill allows the truth commission to recommend the attorney general to prosecute the offenders. That provision, too, has led to fears that this commission will share the fate of previous commissions — notably the Mallik Commission formed after the 1990 movement, and the Rayamajhi Commission formed after the 2006 movement. The governments that followed ignored the commissions’ recommendations, often promoting those responsible for suppressing the movements.
“A tribunal, separate from the normal criminal justice system, should deal with wartime cases” said Mr. Yubraj Sangraula, attorney general during the premiership of the CPN-UML’s Jhalanath Khanal. “Otherwise, the Attorney General may simply decide not to prosecute, as it happened in Dekendra Thapa’s case.”
Mr. Thapa, a journalist, was tortured and killed by the Maoists in 2004 during the insurgency. When the police started collecting evidence on the crimes in February this year, the attorney general halted the investigations at the urging of the Maoist government. The Maoists claim that Thapa’s case, and thousands of others, can only be dealt with by a truth commission. Still, it is likely to take years before the truth commission completes its task. Six years after the end of war, Nepal is closer to a truth commission, but when it will be formed is far from certain.
“We have the law, and the government’s first priority should be forming the truth commission as soon as possible,” says Mr. Pradhan, “but how fast the process moves, as in all bureaucracies, depends on the public’s reaction.”
