NEPAL: Political parties choreograph transitional injustice

The Asian Human Rights Commission (AHRC) is concerned about the recent political move in Nepal. The political parties have ganged up to undermine the ongoing transitional justice process, to flout the verdict of the Supreme Court of Nepal – on how those involved in crimes committed in the conflict period can be given amnesty, and to ignore the voices of conflict victims and national and international human rights community.

The 5 May 2016 nine-point deal made between the Communist Party of Nepal (Unified Marxist-Leninist) CPN-UML and the Unified Communist Party of Nepal-Maoist (UCPN-Maoist) to keep the current government in power is particular disconcerting. The third, fifth and seventh points in the deal between the two major ruling parties contradict the Supreme Court (SC) verdicts and adversely affect the Truth and Reconciliation Commission (TRC). On top of this, the execution of such a deal leads the country to the path of impunity for crime and threatens the power and independence of the Judiciary.

The seventh point of the nine-point agreement reads as follows: “To immediately initiate the process to withdraw or give clemency on insurgency-era cases and other politically motivated cases filed on various occasions.”

This violates Section 4 (7) of TRC Regulation, 2016, which states, “The commission shall order concerned bodies to take over cases filed at any of agencies except courts.” In other words, the TRC cannot take cases for consideration that are sub justice in various courts.

Similarly, the seventh point also breaches Section 29 (1) of the TRC Regulation that has given authority to the TRC to recommend for prosecution those found through investigation to have been involved in serious human rights violations.

On top of all this, it contradicts the 26 February 2015 Supreme Court Order 069-WS-0057, which rules in favor of 234 conflict victims by upholding the primary role of the courts in delivering justice for criminal acts committed during the conflict. The Special Bench of three justices (Kalyan Shrestha, Girish Chandra Lal, and Honorable Acting Chief Justice Sushila Karki) pronounced this Supreme Court verdict.

Judicial review of this case is not possible as the general trend is that the order of the Special Bench of the Supreme Court cannot be reviewed. Any change in regulation or act, which contradicts with Supreme Court order, is subject to being null and void. If the Executive does not respect the final orders of the Supreme Court, the nation is heading for troubled times under a rogue Executive.

Likewise, there are other Supreme Court orders such as that in Liladhar Bhandari and others vs. Government of Nepal, in writ number 0863 (2008). On 7 January 2009, the Division Bench of the Supreme Court clearly states the following:

“Impunity of conflict-era rights violation cannot be tolerated: the government has a responsibility to ensure a remedy for rights violation including unlawful seizure of properties by the non-state actors during the conflict.”

This Order has been violated in the fifth point of the ninth point deal as well. The fifth point of the political deal reads as follows: “To register the ownership of the lands that were transacted on the basis of household documents during the conflict period.”

Even to get clemency on insurgency-era cases, certain criteria and procedure must to be completed as per section 28 (1 & 2) of the TRC Regulation. Upon receipt of the applications from either of the parties, the TRC shall hold consultations, between the applicant and another party, for reconciliation. The reconciliation between the victim and perpetrator can be initiated as per the legal provision. And, if both the parties voluntarily agree to reconcile, TRC shall mediate for the reconciliation between them by making the perpetrator apologize to the victim and express regret for the wrongdoing. The seventh point in the deal between the UML and Maoists supersedes the mandatory procedures for clemency on insurgency-era cases.

Hence, it will consequently lead the TRC to become totally dysfunctional. And, the government intends to ensure the dysfunctionality is effective immediately. The third point of the deal expresses the aim “To initiate amendment and other procedures within 15 days with a time-bound plan on transitional justice as per the spirit of the Comprehensive Peace Agreement.”

The execution of the deal in contradiction with the Supreme Court’s verdicts threatens the rule of law in Nepal. Impunity will only be strengthened as a result and judicial authority, which is basic norm of democracy, will collapse as well.

The AHRC fears that leaders from different political parties are on a mission to deprive victims their constitutional right to seek justice, and to hijack the transitional justice process for their own gains. They are choreographing an environment of fear amongst conflict victims; they are creating conditions where conflict victims will be too afraid to register their complaints against members of UCPN (Maoist), Nepal Police, and the Nepal Army. Ultimately it will result in no readily available protection mechanisms for victims and witnesses remaining.

It is time for all stakeholders to speak out against this political deal.