An article from the ‘The Himalayan Times’ forwarded by the Asian Human Rights Commission
by Govinda Sharma ” Bandi”
We just marked one more International Day of the Victims of Enforced Disappearance, but without any significant progress in terms of addressing the past disappearances in Nepal. Enforced disappearances were among the most serious human rights violations committed during the decade-long armed conflict. According to the United Nations Working Group on Enforced or Involuntary Disappearances, Nepal recorded the highest number of enforced disappearances in 2003 and 2004 in the world.
On 21 November 2006, the Government of Nepal (the Seven Party Alliance) and the Communist Party of Nepal (Maoist) signed the CPA, officially ending the 10-year conflict. As part of this agreement, both sides agreed to “make public within 60 days of the signing of the agreement the correct and full names and addresses of the people who ‘disappeared’ or were killed during the conflict and convey such details to the family members.” Furthermore, the parties agreed to create a truth and reconciliation commission in order to investigation serious violations of human rights during the conflict, including enforced disappearances.
In the eight years since the signing of the CPA, little has been done to allow the families of the disappeared to find truth, justice and realize the right to an effective remedy. The Parliament has recently passed a law that provides procedures to form a Commission of Inquiry on Disappearances (CoI) and Truth Commission but it contains a provision on amnesty that is identical to that included in the 2013 Presidential Ordinance , which the Supreme Court previously rejected as unconstitutional. It also failed to criminalize enforced disappearances despite repeated Supreme Court rulings. The Supreme Court repeatedly held that any transitional justice measures should include accountability for serious human rights violations and a guarantee for victims to a right to remedy and reparation, including the right to truth, justice, reparation and guarantees of non-repetition.
Nevertheless following the adoption of the TRC Act, the Government formed a Committee to select the members of the Commissions. However, legally the Committee cannot be considered fully formed until the vacant posts of the National Human Rights Commission (NHRC) are filled and a member of the NHRC nominated to the selection Committee. While there has been much controversy surrounding the formation of the Commission, the obstacles facing the Commission in regards to the how it will function are much more challenging, and therefore require more attention.
If the Commission is formed under its current mandate, key questions such as whether the Commission will be able to investigate all cases of disappearance, be able to handle the potential caseload, be able to contribute to the prosecution of enforced disappearance and hold perpetrator accountable, or be able to deliver reparation to victim will need to be considered.
The current Commission’s mandate expires in two years. In order to establish truth the Commission would have to take statements from victims and witnesses, in addition to examining the official records and burial sites, and conduct exhumations. Recently, it took approximately two years to identify the human remains in the Dhanusha Five case alone. However, there are hundreds of these types of cases and it may not be possible to investigate all of these cases during the Commission’s mandate. If other commissions are examples, the majority of the cases will remain unaddressed by the Commission, and the law is unclear as to what happens to those uninvestigated cases. The limited time in which to complete the mandate could result in the Commission failing to establish the truth or whereabouts of many victims, which would again require further investigation thereby calling into question the legitimacy of the commission’s establishment.
Moreover, there are concerns as to whether the Commission will be able to contribute to the prosecution of enforced disappearance and hold perpetrators accountable. The current law empowers the Commission to recommend for granting amnesty. At the same time the Commission may recommend for prosecution if deems necessary. However, in the absence of penal law to deal with enforced disappearance, criminal action is not possible, even if the commission recommends for the prosecution. Without reforming the criminal justice system, prosecution of enforced disappearance is not possible.
Dealing with past disappearances is not only to address the past, but also to secure the future. It is not possible to secure the future unless the whole criminal justice system is reformed and rule of law is upheld. Therefore, the Supreme Court, in 2007, introduced a comprehensive approach to deal with the cases of enforced disappearance. The Supreme Court in its directive order instructed the Government to urgently enact a law; to constitute a separate Commission of Inquiry on Disappearances with special powers, skills and procedures necessary to effectively probe disappearances. It further said that law should include provisions on judicial remedies and pardon should not be granted. The court also instructed the Government to have provisions on continuous inquiry until the status of an allegedly disappeared person is determined; the availability of protection and security for victims, witnesses, plaintiffs, advocates and investigator; and to ensure the means and resources necessary for such commission to accomplish its goals.
This decision comes in the context of the failure of the commissions of inquiry constituted after the Janaandolan I and II. The Mallik Commission formed in the aftermath of 1990 peoples movement, named more than 100 officials and politicians as being directly or indirectly responsible for the deaths of 45 persons and injuries suffered by 23,000 others in 50 days of violence. The Rayamajhi commission formed to look into the atrocities committed during the Jana Andolan II, found that King Gyanendra and 201 members of his administration were responsible for the violent response towards pro-democracy protesters, which resulted in 22 deaths and more than 5,000 injuries. However, none of the Commission’s recommendations were implemented. On the contrary, officials implicated were promoted and/or appointed to the higher position of the Police Force, military and other public office despite their being implicated in serious human rights violations. The excuse for non-action on the commission report mainly was for supposedly maintaining peace and democracy, which is now one of the main arguments for granting the amnesty power to the TRC and COI-D.
Over the years, various governments in Nepal seem unable or unwilling to reform the criminal justice system. Instead they have used non-judicial measures such as the appointment of various commissions. In the case of disappearance, even the Argentinean Commission, which was probably the oldest and first Commission of Inquiry to probe the enforced disappearance, had collected the truth for legal purposes and submitted to the court for the prosecution. There has not been any CoI, which had power to grant amnesty to the case of disappearance, except the South African Truth Commission, which was more about apartheid then the disappearance.
However, Nepal’s case is different; the idea for a separate Commission of Inquiry on Disappearance was developed from a rule of law point of view so that it would only focus on individual cases of disappearance and bring perpetrators to the justice, provide reparation to victim and come up with a very clear plan and policy so that the heinous crime would never happen again. However, the architects of the Nepal peace process failed to see the sincerity and seriousness of the problem of disappearance.
In fact, the law enforcement mechanism in Nepal itself is a big problem for rule of law. As a result, extrajudicial killings were not only the phenomenon of the conflict; they are still occurring in many places, including the Tarai. There is no mechanism to examine the excessive use of force by the police; the recent rejection to probe the Chari murder is an example of such practice. And, this present situation is the byproduct of the impunity in case of enforced disappearances. Therefore, the whole law enforcement system needs to be reformed if we are to secure the future.
This past experience tells us that formation of the commission or a non-judicial measure on the serious human rights violation were always used or may be misused to avoid accountability. In Nepal, there is nothing that a CoI will do which the criminal justice and current NHRC cannot do if they are equipped, reformed and leave independent to perform their mandate. Nevertheless, it is not harmful to have a Commission if it is formed along with other accompanying measures as suggested by the Supreme Court. Otherwise it will not deliver what it should.