Neither truth nor justice

  • Parties have demonstrated time and again that they intend to do nothing to stop extrajudicial killings
- Suhas Chakma
Neither truth nor justice

Aug 17, 2014-On August 8, Dinesh Adhikari aka ‘Chari’, a dreaded criminal, was shot dead by police. The CPN-UML party insists Chari was killed in a ‘fake encounter. Media reporting has noted Chari’s established links to the UML leadership and the growing links between criminals and politicians. But this is hardly new. For Nepal’s politicians, murder, when it comes to the connected and powerful, is political and partisan, certainly not a matter of criminal law.

The Nepali Congress (NC) is no different. They too were outraged that the police recently arrested their ‘students’ with illegal weapons in Kathmandu. During the war, it was much the same. The reaction of the UML and the NC to Maoist gang violence was not to seek their arrest but rather, to establish their own thug gangs.

A criminal-politician nexus

The UML has angered the public fed up with criminals enjoying political protection. Kathmandu’s noisy reaction to Chari’s death has angered the Tarai too. One killing in the hills is greeted with a week of front-page news. Yet, years of routine police killings in the Tarai plains have been greeted with near silence.

The Terai Human Rights Defenders Alliance, a Tarai-based NGO, documented 12 cases of alleged extra-judicial executions perpetrated by police between January 2011 and August 2013. These reports follow similar findings by prior reports by OHCHR and Advocacy Forum. Yet, successive governments have totally ignored these killings.

Besieged by Chari supporters, the UML has demanded an independent investigation into the death. But a report published by the International Commission of Jurists (ICJ) in 2012 suggests that the UML is playing games with its supporters. The ICJ report investigated the effectiveness of these inquiries over the last 20 years and noted “instead of providing justice to victims and survivors, the commissions have effectively shielded perpetrators.” The UML is well aware that these investigations will achieve nothing.

The political parties have demonstrated time and again that they intend to do nothing to stop state violations, including extrajudicial killings by the police. All the mainstream parties have supported a new legislation providing impunity for past abuses which will only increase extrajudicial killings. In May 2014, the government passed the long awaited transitional justice legislation (known as the TRC Act). The legislation falls far below international human rights standards. It provides amnesty to perpetrators, does not provide any witness protection, lacks independence and is peppered with the familiar Nepali legal, political and institutional opacity and get-out clauses that have poisoned all prior attempts at accountability in Nepal.

Nepal’s own Supreme Court rejected the prior draft wholesale and sent it back for a re-draft. Yet, in total defiance, some might even say contempt of the Court, the new law presented to Parliament was almost unchanged. If Nepal’s Supreme Court was prepared to say that the old bill would buttress impunity and the government passed an almost identical law, it is difficult to resist the conclusion that the new law is expressly designed not to deliver either truth or justice.

Grave implications

The implications for the future of police killings are clear. If institutions are exempted from truth or censure then it is difficult to see where the momentum for reform will be found. And if individuals too have no incentive to change as there is neither punishment nor cost attached to negative behaviour it is difficult to see that conduct changing. In other words, police killings and other violations look set to continue.

As an aside, the people of the Tarai might do well to wonder why their political leaders obediently voted en masse for a law that will allow the police to continue with summary execution and torture and abuse.

Ongoing police killings are a very good demonstration of the wider need to address the past and impunity in Nepal. Unchallenged, they demonstrably continue. Yet, despite the evidence, political elites appear unwilling to recognise that the past is laying down a chaotic criminalised Nepal in the future.

The international community has been weak and divided over the new law. On the plus side, most donors appear finally to have seen the new law for what it is. While they will not openly oppose it, they appear unwilling to support it financially.  The Americans, for motivations that remain unclear, appear determined to fund. The UN is just confused. On the one hand, the UNDP country representative clumsily welcomed the new law as a ‘step forward’ while the UN’s Chief of Human Rights Navi Pillay, the High Commissioner for Human Rights, unequivocally denounced it.

The new law won’t address the past. However if Nepal is to develop, the 13,000 conflict deaths must be addressed. Yet, most donors continue to overlook this inconvenient truth. An example is demonstrative. The UK’s development arm, the Department for International Development’s (DFID) huge access to justice programme proposes to spend tens of millions in Nepal. Their strategy is full of good development

intentions. It speaks of ‘grassroots’, of ‘inclusion’, a focus on women and ‘vulnerable sectors’, and lots of ‘bottom up’. Yet, this entire bottom-up strategy appears premised on ignoring the fact that the top-down part, the justice system itself, can’t actually deliver justice.  

Back to a bully state

Over the years, Nepal’s Supreme Court has ordered the investigation of innumerable perpetrators of gross human rights violations. It has ordered vetting, reform of the Army and of transitional justice laws ad infinitum. The problem is that the Courts don’t implement their own rulings. That is the job of government. And in Nepal, the government routinely ignores the courts in matters of violations of human rights and where rulings conflict with vested interest. This raises uncomfortable questions about the DFID programme and its ‘theory of change’: it is hard to see the point of any individual engaging with DFID’s ‘access’ if there is no justice to be had. UNDP, too, is spending millions on reform of the judiciary while refusing to address the damage to judicial credibility caused by the Nepal’s government refusal to obey their rulings.

Meanwhile, the Maoists and the Army, the main perpetrators of human rights vilations during the conflict, are delighted with all of this—just like the NC and UML, they must protect their own and their own interests. And therein lies the crux of the issue The political parties and the Army all have an interest in ensuring that there will be neither justice nor accountability. This reveals the emptiness of reform efforts in Nepal and that pushes the nation back into its comfort zone of the patronage, caste-based bully state of the past.

Chakma is director of the Asian Centre for Human Rights

Published: 18-08-2014 09:20

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