The transitional justice process has hit a major snag after the government shelved the regulations of the transitional justice bodies for now following objection from former rebel party, which is a main coalition partner.

The Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons, formed a year ago to look into conflict-era cases, had forwarded their draft regulations six months ago. But the government put the drafts on hold after the UCPN (Maoist) showed resistance following recent verdicts of the Supreme Courts on conflict-era cases.

As the Bill Committee was finalising the regulations, on January 7, the Supreme Court quashed Baburam Bhattarai-led government’s decision to pardon UCPN (Maoist) leader and former lawmaker Bal Krishna Dhungel, who was convicted of killing Ujjain Kumar Shrestha of Okhaldhunga.

On January 14, the apex court annulled the Bhattarai-led government’s decision to withdraw criminal cases against 227 individuals, saying the decision was “arbitrary and politically motivated”. These cases, withdrawn four years ago, were related to the erstwhile rebel Maoists.  

Former rebel parties have called the verdicts “irrational” and described them as “judiciary’s bid to overreach” and interference  in transitional justice process.

“The judiciary has become too interventionist,” said Ram Narayan Bidari, UCPN (Maoist) lawmaker, who is also an advocate. “We changed the regime and promulgated the constitution, but the judiciary and the Nepal Army have remained the same.”

He argued that the court has limited the jurisdiction of the transitional justice bodies by its verdicts issued at different times. The court has opened an avenue for conflict victims to seek legal remedy even in conflict-era cases through regular courts as

well as the transitional justice bodies.  

Besides, the court in its verdict had ruled that sub-judice cases should come under the purview of the court. However, the former rebels have been demanding that

all the conflict-era cases should be dealt with truth commissions, giving them power to bring sub-judice cases under them.

“In addition, the court has no authority to formulate the law,” said Bidari, referring to the annulment of the plea for clemency of Dhungel. “Clemency is the prerogative of the President,” he said.

CPN-Maoist General Secretary Dev Gurung said that they would not take ownership of the entire transitional justice process. “We had agreed to set up the commissions to look into conflict-era cases, but the government unilaterally set up the commissions, undermining the spirit of the Comprehensive Peace Accord,” said Gurung.

He argued that the commissions, under the current provision, are only recommendatory bodies, while his party has been advocating for powerful commissions.

The then rebel CPN (Maoist), which united with CPN (Unity Centre) to become UCPN (Maoist) in 2009, has now been split into CPN (Maoist) and CPN-Maoist parties and a section of cadres led by Baburam Bhattarai has formed “Naya Shakti”.

The UCPN (Maoist) and CPN-Maoist share similar views on the transitional justice system—but the former has not completely disowned the process, while the latter has rejected it.

“We will not stop the transitional justice process, which is part of the peace process, but we will raise the issue as and when it arises,” said Bidari.

The former rebel Maoist parties argue that the [ear-era] incidents should be investigated by the truth commission and establish whether they are criminal or political in nature, then deal with them accordingly.

Gurung and Bidari’s parties are of the same view on war-era cases—that the incidents took place in a special situation and that the cases should be treated accordingly.

Rights lawyer Govinda Bandi, however, argued that seeking truth is not an exclusive authority of truth commissions.

“Truth can be sought through criminal investigation as well,” said Bandi. “It is often the responsibility of police to carry out investigation into any wrongdoing.” Bandi said the warring parties gave the cold shoulder to the commissions, fearing that they could also be dragged.

This has impeded the commissions’ work. “It is a clear indication that perpetrators will not cooperate in settling war-era crimes,” he added.