NEPAL: Truth and disappearance

An oped from the Kathmandu Post forwarded by the Asian Human Rights Commission

Widely awaited yet secretly formed, the Truth and Reconciliation Commission (TRC) and the Commission of Inquiry on Enforced Disappeared Persons (CIEDP) have spent the first year of their two-year term without doing any substantive work. Both the commissions have blamed the government for not approving the draft rules and procedures for their inactiveness. Other underlying causes too will continue to affect their work and credibility in the future if they are not addressed now. The TRC and CIEDP were agreed upon as part of the peace process. However, they seem to have failed to meet the expectations laid out in the peace agreement.

Peace vs justice

To be fair, the architects of the peace process did attempt to balance peace and justice by proposing a non-judicial truth commission and by not incorporating an amnesty scheme in the peace accord. Accountability is an important step in any national reconciliation process to ensure non-recurrence. This approach was reflected in the initial draft of the TRC law, which proposed a list of serious crimes that were not covered by its amnesty powers. However, after the balance of political power changed after the second election to the Constituent Assembly, a new version of the TRC law giving it amnesty powers was adopted.

This new law has significantly changed the dynamics of the transitional justice narrative in Nepal and paved the way for impunity. Allowing the government to form a commission with an excessive focus on reconciliation and entrusting it with powers of amnesty has become a political fault line in Nepal’s transitional justice process. Moreover, the selection committee hand-picked politically connected “experts” to form the two commissions. Within a few days of forming the commissions, the Supreme Court rejected the amnesty powers, ruling that reconciliation was an important component of any transitional justice process but that it could not be built on a foundation of impunity. The same ruling also instructed the government to address other legislative deficits of the TRC law such as the criminalization of serious crimes including enforced disappearance, torture, crimes against humanity, war crimes and sexual offences. This ruling reversed a negative trend and brought a ray of hope that accountability and justice would be seen instead of impunity.

The Supreme Court ruling requires the commissioners to seek the truth, design reparations packages, facilitate criminal prosecution and create an environment for national reconciliation on the basis of justice. This puts the commissioners in a moral dilemma as they were appointed to serve a political purpose of reconciliation, and in doing so would be exercising powers of amnesty. The job has changed but the commissioners haven’t. This raises a question: Do the members of the two commissions have the legitimacy to continue in office?

Credibility deficit

Credibility is a prerequisite for any successful truth seeking process. Earning credibility involves independence, transparency, trustworthiness, competence, sensitivity and rationality. However, both the commissions lack most of these qualities. Victims’ organizations, civil society members and transitional justice experts view these commissions as lacking independence because the commissioners were selected without proper consultation and transparency. The independence of truth commissions has many dimensions, such as courage, particularly lack of fear of central power, freedom from economic and political intervention and freedom from prejudice. But these commissions seem to be solely dependent on the executive as they cannot formulate their rules and procedures or hire staff on their own.

There is a huge trust gap between the commissions and other stakeholders. Confidence is lacking as demonstrated by the various public statements issued by victims’ groups. The victims have submitted a memorandum to both the commissions listing their demands and expectations, something they themselves are labelling “the notion of critical engagement”. However, the commissions remain unreceptive. One year on and no information has been made public on how the commissions intend to engage with the victims’ groups or other stakeholders. In addition, confidence among security agencies and former combatants is low as many appear to be reluctant to give detailed accounts of the atrocities in which they may have been involved or witnessed as the commissions do not have amnesty powers and seem to be politically inclined. This lack of trust has left both the commissions with nothing to do.

Truth seeking is a victim-centric, democratic and consultative process. Judicial processes rely on the rule of evidence and focuses on criminal accountability whereas a non-judicial process, such as a truth commission, focuses on the needs and rights of the victims. The emergence of a non-judicial truth seeking procedure was conceptualized to fill a gap that a judicial process cannot. Both the commissions, however, seem to have been badly designed. The TRC law requires the victim to submit a complaint to the commission, similar to filing an FIR with the police. The same law also gives the commission the power not to accept complaints as if they are a court. This is an authoritative and feudal approach which does not fit the concept of truth seeking. Globally, truth seeking processes have adopted consultative processes and displayed sensitivity to the plight of victims.

A truth commission is a process rather than a result. Despite being very hard to ascertain the truth sometimes, adopting a consultative and transparent process provides an opportunity to victims to tell their stories. But the process seems to be very authoritarian and feudalistic. If the TRC continues to work in the way it has, it is certain that the victims will only be re-victimized thereby jeopardizing their rights.

Failed commissions

Nepal’s political and historical context does not support the idea of a commission of inquiry since it has a long history of failed inquiry commissions. About 40 commissions of inquiry have been set up since 1990, most of which remained ineffective because of political manipulation. There is enough reason to suspect that the TRC and the CIEDP will serve political interests rather than seek the truth and design and implement victim-centric reparations programs. The failure of the commissions to demonstrate their willingness to abide by the Supreme Court’s ruling and develop a tangible confidence building strategy will translate into nothing but an increased burden on the Nepali taxpayer. It seems to be hopeless to attempt any form of transitional justice in Nepal through these commissions. The sooner they fail the better as it will pave the way for a new and improved victim-centric process.

About the author: Govinda Sharma ‘Bandi’ is an expert in international and constitutional law.