Transitional justice

  • No TRC process is flawless. Still, for post-conflict Nepal it’s the best way to heal our society
- POST REPORT, Kathmandu

Apr 20, 2014-

The debate over the Truth and Reconciliation and Investigation of Missing Persons Bill has been the subject of bitter debate. It has polarised society. As a result, there have been many selective readings of the bill that have obscured, rather than bring clarity to, the debate. There is a section of the population which claims that the bill blatantly violates the Supreme Court verdict of January; that it is even ‘worse’ than the previous Truth and Reconciliation Commission (TRC) ordinance. How much truth is there to such claims?

A close look at the bill clearly demonstrates that in many respects the new bill is markedly different from the old ordinance and tries to fulfil provisions as required in the Court verdict. For example, in the old ordinance, the TRC and Disappearances Commi-ssions were merged into one. The new bill, however, creates two separate commissions. Further, the old bill gave the TRC powers to force victims to reconcile with perpetrators. The TRC now has to respect the victim’s decision. If the victim refuses to reconcile with the perpetrator, then the TRC has no option but to recommend prosecution.

There is one clause in particular that human rights activists hold to be particularly problematic. This is Clause 2 of Article 26, which states that the Commission cannot recommend amnesty for cases of rape and “in cases of serious rights violations that lack sufficient reasons and grounds for amnesty.” Rights activists state that the phrase “sufficient reasons and grounds” gives discretionary authority to the commission and allows for pardon even in cases of serious rights violations. This, they fear, will lead to blanket amnesty. However, there are many other provisions in the bill that make it very difficult for the Commission to offer blanket pardons.

In his interview with Kantipur daily yesterday, Law Minister Narahari Acharya stated that this provision is not meant to offer blanket amnesty. Rather, it is meant to leave room for the TRC to have some discretionary powers in deciding what constitute serious crimes. According to Acharya, this is necessary because conflict-era violations were very diverse and they are yet to be analysed in a nuanced manner. The bill has various provisions to make the TRC and Disappearances Commissions autonomous. Their work will be transparent and public. They will not be able to offer blanket pardons as feared by some activists.

But it’s the politics of dither and delay we are most worried about, not so much the debate over the TRC bill—which is most welcome. The transitional justice process has been held hostage to the conflicting demands of a polarised polity for far too long. The latest bill is an attempt to reconcile diverse perspectives and Minister Acharya has done a commendable job in bringing a wide range of actors onboard the drafting process. In its broad outlines, the bill provides for a very strong TRC, such as has rarely been formed in other parts of the world. Most TRCs that have been formed in the world in recent years have not even had the power to recommend prosecution for individual cases. They usually just have the power to document violations, come up with a historical reckoning of the conflict, and recommend reparations and institutional reform. At most, they have the capacity to recommend types of cases that should be prosecuted by the Attorney General.

The TRC as outlined in the new bill is widely considered to be based on the South African model. South Africa was one of the few countries where the TRC, after hearing the testimony of perpetrators, had the power to recommend for prosecution or grant amnesty. However, in South Africa, the TRC also had the power to recommend amnesties even for cases of serious human rights violations. In recent years, various international human rights organisations, including the UN Office of the High Commissioner for Human Rights, have tried to formulate guidelines that prevent TRCs from offering amnesties in the manner of the South African TRC. But this has almost never been implemented in any of the countries that have recently established TRCs.

This clearly demonstrates that international practice is not as clear-cut as international rights organisations imply. It seems that by pushing Nepal to uphold prosecutions for all cases classified as ‘serious rights violations’, they are trying to create an example that fits the rules they have devised, which can then be used as a precedent in other places. In other words, they are trying to use Nepal as a ‘guinea pig’ for rules that they have formulated in the abstract and take no account of our context.

There are also other flawed provisions in the bill, which have been inserted as a result of pressure by human rights groups. For example, the provision to bring individual victims together with their perpetrators and asking the former whether or not they are willing to reconcile with the latter. Rights activists claim that this represents a ‘victim-centred’ approach. However, experience over the past two decades has demonstrated that bringing individual victims and perpetrators together in this manner puts a very high degree of pressure upon victims and tends to increase trauma and other mental health problems among them. Recognising this problem, many recent TRCs have decided to focus on community-centred measures of healing, rather than individual ones. Activists in Nepal have completely ignored this aspect, perhaps because they are focused much more on prosecuting perpetrators than looking into and being sensitive to the needs of victims.

Admittedly, the truth and reconciliation process is not easy and no TRC can be flawless. Nonetheless, our society has to make all attempts to come to terms with its dark past, and the TRC offers a means to achieving this. Rather than further delaying the formation of this body, it would be best to take up the current bill and approach discussions on it in parliament and outside with cool-headedness. A few amendments can be made to this bill but it should still be passed. This is not the end of the debate. If anything, the TRC bill only marks the beginning of a process. Even after the TRC is formed, various groups can put forward their demands and ask that the body take them up. Recognising this will help overcome the current stalemate and take the country forward.

Published: 21-04-2014 08:11

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