Slain Adhikari, the headmaster of local Panini Sanskrit Secondary School in Duradanda, Lamjung, was abducted by a group of Maoist cadres from the classroom he was teaching in and brutally murdered him after walking him for about 20 minutes from the school on January 16, 2002. Both his hands tied behind the back, the kidnappers first tied him against an alder tree with his muffler and shot him several times before making indiscriminate attacks with knife on his chest to leave him to die.
Almost seven years after the historic peace process began in the country, an ordinance relating to the formation of TRC was passed on March 14 and the much-awaited TRC is in the process of formation now. But this development has hardly brought any cheers to the Adhikari family. Instead, this has only faded their hopes for justice. "We had pinned great hope in the TRC. But as the ordinance has been introduced with provisions to grant general amnesty even to those involved in serious cases of human rights violations, this has only aggravated our pain," said Suman Adhikari, the eldest son of the slain Mukti Nath.
Adhikari also expressed strong disenchantment over the attempt by the government to give false impression that conclusion of the army integration process had marked the end of the peace process. "The most important element of the peace process is to provide justice to the civilian victims of the conflict. Political parties appear to have ignored this critical aspect of the peace process," complained Adhikari, who is also the chairman of Conflict Victims Orphans Society-Nepal (CVOS-N).
Adhikari family is just a case in point. Thousands of civilian victims and their family members, who were subjected to torture and killings either at the hands of state security personnel or at the hands of the rebel Maoists are disappointed with the proposed TRC. Various controversial provisions that seek to grant amnesty even to those involved in serious crimes during the conflict have not only disappointed the conflict victims.
Though there is no exact data, it is estimated that nearly 10,000 civilians were killed, over 1,400 people disappeared and nearly 5,000 were subjected to inhumane treatment. Likewise, properties of over 6,000 families were unjustly seized and some 80,000 people were displaced from their villages in the course of the decade-long conflict. Failure on the part of the political parties and the government to do anything specific to address these scars of the violent conflict has made the conflict victims greatly disappointed.
Not only has this ordinance left conflict victims unhappy, civil society, human rights community both within and outside Nepal and the international community that has been extending support to Nepal are equally skeptic whether the proposed TRC ordinance would be able to deliver justice to the conflict victims. "While respecting genuine concerns of the conflict victims, we have decided not to support this perpetrator-friendly TRC," said Chairman of Accountability Watch Committee (AWC) Sushil Pyakurel.
Formed with an objective to make collective initiatives to ensure accountability, the AWC consists of prominent civil society leaders, human rights activists, lawyers and conflict victims. Organizing a press conference last month, the AWC has expressed strong reservation for failing to ensure participation of conflict victims and concerned stakeholders while making agreement on the TRC ordinances.
While concluding that the proposed TRC not only flouts the spirit of the Comprehensive Peace Accord and the Interim Constitution but also the various verdicts made by the Supreme Court, the AWC has demanded that the provisions in the TRC be amended in line with the international standards and selection process of the commissioners in the TRC be made transparent. The body has also expressed reservations over the controversial provision in the TRC to make forceful reconciliation and that TRC is mandated to give general amnesty even to those involved in cases of serious human rights violations.
Likewise, the failure of the TRC to clearly spell out the issues concerning reparation as well as restitution and 35-day statute of limitation have equally become the matters of contention. What has made the rights group and victims additionally worried, is whether the proposed TRC would be able to function independently since all the commissioners are supposed to be appointed through ´unanimous´ decisions of the political parties that are represented in the High Level Political Committee (HLPC). "We have serious doubt if the commissioners appointed thus can work independently and provide justice to the victims," says transitional justice lawyer Gobinda Bandi.
Though the ordinance provides a list of nine kinds of serious human rights violations, there is no section in the ordinance that makes the perpetrators of crimes listed under Section 2 of the ordinance culpable. Likewise, the TRC has been asked to work under the Ministry of Peace and Reconstruction, instead of making it directly answerable to the government or the president -- something which makes it difficult for the conflict victims to get justice. The provisions set in the Section 22 to 29, according to rights workers and victims, clearly expose the mala-fide intention to eventually grant general amnesty to even those involved in serious cases of human rights violations during the conflict.
The enraged victims and human rights lawyers even went on to knock at the doors of the Supreme Court against the TRC ordinance. While the apex court has already issued interim order against the ordinance and the next hearing is scheduled for May 2, diplomatic community, especially the European Union, has expressed strong reservations over the controversial provisions in the TRC. The EU envoys in their meeting with newly-appointed Minister for Foreign Affairs Madhav Ghimire last month clearly put across their concerns.
And echoing the concerns similar to the EU envoys, the UN High Commissioner for Human Rights Navy Pillay has also expressed similar concerns through a press statement. While cautioning that the provision of general amnesty in the TRC will not only deny justice to the conflict victims, but also vitiate the environment for moving toward peace, she said, "Such amnesties would not only violate core principles under international law but would also weaken the foundation for a genuine and lasting peace in Nepal."
But political leaders, who were directly involved in the process of formulating TRC ordinance, dismiss all the allegations made by the rights workers and conflict victims. They argue that there had been wide-ranging consultations with different stakeholders before making agreement on the TRC provisions. "We are forming TRC as the existing justice system in the country failed to provide justice for the victims. The TRC should not be compared with regular justice system," said UCPN (Maoist) leader and advocate Khim Lal Devkota, who was closely involved in the negotiations on TRC ordinance. "This is fully in line with the international standards."
As parties quietly plan to make preparations to form the TRC and Disappearance Commission while convincing the disgruntled conflict victims, civil society members and the international community, the coming days will be crucial to watch for as to what verdict the Supreme Court will issue and how the parties will then move ahead with the formation of these Commissions as per the 11-point political agreement reached last month. But what everyone including the political leaderships must acknowledge is these Commissions would bear no meaning if they failed to address the genuine concerns of civilian victims, who bore the brunt of the conflict even as they apparently had nothing to do with it.
“I pity those who think TRC is a punishment mechanism”
Khim Lal Devkota
Advocate Khim Lal Devkota, who was UCPN (Maoist) lawmaker in the erstwhile CA, was involved the inter-party negotiations in the drafting process of TRC ordinance.
There are allegations that the proposed TRC grants general amnesty even to those involved in serious human rights violations. What do you say on this?
This is a baseless allegation. There is nothing such in the TRC draft. Those who have been making this kind of allegations have either not gone through the TRC ordinance or they harbor some kind of prejudices against this. And if they are really putting such allegation, they have not understood the very spirit of transitional justice. Transitional justice is not regular justice system. It is wrong to compare transitional justice with the regular justice system. It would have been fair enough had they said that TRC fails to address the root cause of the conflict. So the allegations made against TRC are superficial and prejudiced.
Some people are even saying that the TRC does not meet international standards?
Nearly three dozen countries in the world have adopted TRC in the post conflict situation. They were formed in different names such as Truth Commission, Fact Finding Commission and similar other names. Each of these countries had different forms of Commissions to address transitional justice. Since it is related to the root causes of conflict, TRC as such cannot be similar in all countries. The root cause of conflict is different in each country and so is the type of TRC.
Civilian victims of conflicts have complained that TRC ignores their concerns.
I don’t buy this allegation either. The TRC has absolutely taken care of the concerns of civilian victims. We have done our best to address their concerns. The TRC we are working to form is probably one of the best in the world. The TRC ordinance is probably the most widely consulted ordinance in Nepal. The bills relating to the TRC and Disappearance Commission were initially presented at the parliament following wide-ranging consultations. The content of the TRC ordinance is the same in the newly-introduced TRC ordinance.
But there are concerns that TRC gives amnesty even to those involved in serious crimes?
There are certain core elements of transitional justice. I pity those who think TRC is a punishment mechanism. They have either not understood the essence of transitional justice or are pretending to have known about it. I have nothing to say to those who have willingly chosen to not understand the core values of transitional justice.
Of course, some rights workers have made baseless allegations that the TRC has a provision to grant blanket amnesty. The ordinance aims at reconciliation and includes reparation, prosecution and amnesty. If they think that there should not be the provision of amnesty at all, I think they have not understood the spirit of transitional justice.
“This is rather an Amnesty Ordinance”
Advocate Govinda Bandi is working on issues related to impunity and transitional justice in Nepal.
Human rights community was very much optimistic that TRC would address past human rights violations. But you all seem to have been miffed at it now?
We were heavily involved in the preparations of the bills relating to the Truth and Reconciliation Commission and Disappearance Commission. Human rights community and victims across the country were consulted in the course of preparing the bills in the erstwhile parliament. The TRC and Disappearance Commission formed on the basis of those bills would have guaranteed non-occurrence of these types of crimes and prepared record of the conflict-era crimes. Now both the bills have been put into a single ordinance with so much modification so the essence is missing. Next important thing is that this ordinance does not criminalize torture, disappearances and crimes against humanity. Even if competent persons with good moral integrity are sent to the TRC, victims won’t be able to get justice due to lack of necessary legislations to deal with such crimes. This ordinance is not in line with the verdicts made by the Supreme Court on various occasions in the past, let alone conforming to different human rights instruments.
What do you think are the weaknesses of this TRC ordinance?
The TRC ordinance introduced as a part of the opaque political deal has several shortcomings. Firstly, this ordinance gives TRC amnesty powers --something TRC should not be given. Secondly, this ordinance gives mandate to grant amnesty even to the individuals involved in serious cases human rights violations. As per international practice in the TRC there cannot be amnesty for serious crimes. Another serious thing it has is it sets only 35 days for statute of limitation. This is virtually impossible for victims, who live in far flung areas of the country, to file cases against their perpetrators within the given time period. Moreover, the TRC does not mention specifically about reparation and restitution. It has a concept of forced reconciliations. Above all, we have a serious doubt whether the TRC formed through a ´political consensus´ in the High Level Political Committee would function independently and provide justice to the victims concerned. It would be good to rename the ordinance as Amnesty Ordinance rather than TRC ordinance.
Since you are also an active member of Accountability Watch Committee that has been protesting against the proposed TRC, what do you plan to stop this?
We cannot support the TRC to be formed under this controversial ordinance. We cannot cooperate to this either. This process cannot move ahead without the cooperation of victims, human rights community and civil society members. The success of TRC depends on the cooperation from all stakeholders concerned. This cannot be regarded as a credible process until TRC receives support from the human rights community, victims and other concerned parties. And such a TRC won´t get recognition from the international community as well. UN Office of the High Commissioner for Human Rights (UN-OHCHR) has already said it cannot accept the proposed TRC. Since international support is a must to implement the decisions of the TRC, the proposed TRC will fail. We have already moved the Supreme Court against the ordinance and it has already issued stay order against it.