Slow boat to justice

  • The government keeps dilly-dallying while frustrated conflict victims keep waiting.
- GEJA SHARMA WAGLE

Apr 12, 2019-

The transitional justice process remains incomplete nearly 13 years after the signing of the Comprehensive Peace Accord and the management of the combatants of the then rebel Communist Party of Nepal (Maoist) in 2006. The formation of a five-member recommendation committee led by former chief justice Om Prakash Mishra to reconstitute the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons has brought the transitional justice discourse into the limelight again. But the fate of transitional justice and is as elusive as ever because of the vested and contradictory interests of the ruling and opposition parties.

From the start, the victims, civil society and international community have been demanding that the highly controversial transitional justice law be amended and the commissions be restructured. The existing transitional justice law does not meet international standards. It is not victim or human rights friendly,.Rather, it is perpetrator friendly. If the government and the ruling Nepal Communist Party are sincere in their commitment to transitional justice, they should amend the law and restructure the commissions. That will pave the way for justice and reparation.

No general amnesty

The government should amend the law in line with the 2015 Supreme Court ruling and the Comprehensive Peace Agreement. The amended law must state that there will be no general amnesty for serious human rights violations, and clearly define killing, disappearance, torture and rape as serious human rights crimes. Conflict victims have been demanding their representation and participation in the entire process. The government should consult them with regard to the process as they are the main stakeholders. If the government ensures meaningful consultation and participation, the victims will take ownership. Unless the victims take ownership, the ongoing process will be a futile exercise and a waste of time.

The process of appointing members of the commissions should be fair, transparent and impartial. The committee must consult with the victims and other stakeholders. The restructured commissions should be powerful, impartial, independent and neutral. More importantly, they should rise above political interests. Both commissions did not do anything substantial except collect complains for four years, which is utterly shameful.

Now the government must ensure justice to the victims in line with the ruling of the Supreme Court and the principles

and objectives of transitional justice.

The ruling party might have a hidden strategy to encourage the victims to accept reparation and reconciliation, thus diluting the justice issues. But reparation and reconciliation without justice will be meaningless, and the victims will not accept this deceptive process.

While transitional justice does not adhere to the regular criminal justice system, it does not espouse amnesty for all perpetrators either. Instead, it is a system that ensures justice to the conflict victims by ending pervasive impunity. The government must ensure the fundamental principles and process of transitional justice. Otherwise, neither the victims nor the international community will endorse the process. Unlike arms and army management that is a domestic matter, transitional justice is a universal matter. Nepal’s process should be endorsed by the international community.

Reparation is an equally important dimension. It is not only monetary compensation or financial assistance to the victims. Rather, it is a wider and comprehensive concept and process that includes a combination of restitution, rehabilitation and compensation to transform the lives of the victims so that they can live like dignified citizens. Reparation is not only the need and demand of the victims, it is their right as the main stakeholders. The Supreme Court has also laid down the comprehensive rights of the victims and the state’s obligation to provide reparation through various verdicts and rulings. The reparation policy should be victim-centric following the fundamental principles of the United Nations and other internationally acclaimed reparation policies.

No ifs and buts

Taking these realities into account, the government and the commissions should promulgate a comprehensive and dignified reparation policy along with the law. They should not politicise and bureaucratise the reparation policy and process. They should put the victims at the centre. There should be meaningful consultations with the victims, and they should be allowed to participate in drafting, designing, finalising and implementing the reparation policy and programmes. In fact, involving the victims in the process is the objective of transitional justice, so the government must follow the process without ifs and buts. The government must address the reparative needs including education, health, jobs and allowance to the victims so that they can live their lives with justice, dignity and honour. Otherwise, the victims may not take ownership of the policy and process.

Despite the failure to conclude the transitional justice process and the subsequent blame game, Nepal has set a milestone by promulgating the constitution and managing the Maoist arms and army through a Nepali-led process. If Nepal had completed the transitional justice process and ensured justice and reparation to the victims, it would have set an exemplary precedent. The sooner the transitional justice process is completed, the better it is for Nepal. Otherwise, the country may fall into the vortex of geopolitical games of superpowers and rising superpowers.

Sharma tweets at @GejaWagle.

Published: 12-04-2019 11:50

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