Don’t let bygones be bygones

  • Role of the Courts in bringing conflict crimes to a logical end could restore public faith in the judiciary
Nepalis harbour resentment because of the lack of functional institutions that could help them access justice: a new social order must be promoted that is marked by a system supported by the rule of law and the promotion of human rights

Mar 26, 2018-

The victims of the conflict that afflicted Nepal from 1996 to 2006 are no longer buying into the idea that the current transitional justice apparatus will uphold post-conflict justice. The Truth and Reconciliation Commission (TRC) and the Commission for Investigation on Enforced Disappeared Persons (CIEDP) were established for the purpose of delivering post-conflict justice for the human rights violations and crimes perpetrated during the decade-long conflict, but time has shown that they have completely failed in upholding their mandate. The commitments expressed through the Comprehensive Peace Accord (CPA) to re-establish justice and the rule of law through the establishment of these two commissions has not been accomplished despite the fact that a decade has passed since the signing of the CPA. Flawed governing acts and the contested provision for amnesty, limited mandates and scope of coverage, lack of impartiality, and to top it all off, the sluggish and stalled modus operandi administered by politically motivated runners have proved to be insurmountable roadblocks when it comes to ensuring justice. As an obvious result, the TRC and CIEDP, established in 2015 after years of delay, have been unable to effectively begin their work, even after the adoption of the TRC and Disappearance Commission Act, Rules and Directives.


Forgive or forget?

The mandate of transitional justice is governed by faulty legislation and is administered by the same faces that have followed the same ideology since day one. Being optimistic about the possibility of better prospects as a result of the current mandate is as good as chasing rainbows. If a mechanism fails terribly, the wise thing to do would be to admit its failure and try another system before it is too late. It is illogical to keep making excuses and extending deadlines so as to continue with the same old mechanism. In the wake of the recently formed and supposedly stable governance structure, the nation needs to make a concrete decision on whether to forgive and forget when it comes to the injustices committed during the conflict period, or whether to explore new, practical and effective methods of achieving post-conflict justice. 

There is no doubt that the people of Nepal harbour resentment because of the lack of functional institutions that could help them access justice. In order to overcome this sense of resentment, a new social order must be promoted that is marked by a system supported by the rule of law and the promotion of human rights. For this, a better mechanism of transitional justice must be formulated. The current “stalemate” locus of transitional justice is detrimental to the state of the nation, particularly considering that is it at the cusp of transforming to a federal structure. The CPA was signed amidst the rousing calls for a ‘new Nepal’, yet the unending legacy of impunity and faux peace building vows has in no way allowed for access to justice. Hence, the need of the hour is to replace the current moribund and defunct transitional justice apparatus and change the dynamics to fuel progress. 


Judicial intervention

The fact that the two truth commissions have had absolutely no concrete undertakings in the three years since their establishment makes it clear that they have 

no credible future. Prolonging the life of these failed mechanisms is in no way going to address the problems related to transitional justice . 

It is high time that the current legislation in regards to transitional justice is amended. As of now, handing over the crucial responsibilities of the TRC and the CIEDP to the judiciary (not just the special court) seems to be an appropriate trade-off. The judiciary of Nepal has played a proactive role in filling the gaps related to transitional justice. For instance, the Supreme Court ruled on a large number of enforced disappearance writ petitions and ordered the government to immediately investigate all allegations of enforced disappearances in line with international human rights standards. The adjudication of the cases of Dekendra Thapa, Kumar Lama, Rabindra Dahal and Suman Adhikari reflects the fact that even when the laws governing the conflict crimes were in a vacuum, the judiciary of Nepal demonstrated competence. By exhausting extra territorial jurisdiction, the court left no stones unturned when it came to responding to retrospective offenses by means of prosecution and reparation. 

As the litigation of these cases are recurrently dealt with through class action law suits (strategic litigation), concerns about the caseload seem less significant. The court could deliver generic as well as specific verdicts in the name of both victims and perpetrators. The court, on various occasions, has proved its prowess through verdicts delivered against a significant number of defenders in a single case. In the current context, judicial intervention in establishing transitional justice might serve as a well-timed opportunity to rebuild and restore public faith in the judiciary. 


Devkota is an advocate who specialises in human rights and rule of law

Published: 26-03-2018 07:45

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