Nepal’s Truth and Reconciliation Commission: Where Does It Stand?
04 Mar, 2015 · 4846
Kalpana Jha presents her reading of the problems that beset the TRC process
Kalpana JhaResearch Intern
While truth is a mirror to the past, reconciliation is the road into the future. Uncovering the truth to attain reconciliation is an intrinsic step for all post-conflict societies. In such societies, reconciliation involves an elaborate engagement with those who were directly and indirectly affected by the conflict. It is an extremely cautious process of helping people conquer their past and establish an environment conducive for the nation to move forward. Although reconciliation does not directly translate to delivering justice, the process itself is of utmost importance.
However, there has never been a serious effort towards this end in the Nepalese context. The long awaited Truth and Reconciliation Commission (TRC) and the Commission on Enforced Disappearances (CED) in Nepal were finally formed eight years after signing the Comprehensive Peace Accord (CPA), but upon shaky grounds. Section 22 gave the TRC powers to mediate between the victims and the perpetrators on the request of either party - the perpetrator or the victim. In addition, Section 26 stipulated that "the Commission shall not recommend for amnesty to the perpetrators involved in rape and other crimes of serious nature in which the Commission follows the investigation and does not find sufficient reasons and grounds for amnesty.” Therefore, the Commission could recommend amnesty for all crimes under its jurisdiction if sufficient reason and ground was found. These provisions have now been annulled by the Supreme Court on 26 February 2015. This is definitely a promising step forward in the delayed process of recognition of the victim’s concerns.
At least three attempts to form a TRC have failed in the past due to the same flaws mentioned above. Despite the court ruling of 2 January 2014, the recommended changes were never incorporated in the previous TRC.
Further, Nepal has not yet criminalised torture. Neither has Nepal defined extrajudicial killings as crimes against humanity, which clearly places the perpetrators at an advantage in any hearing. Adding to this plight are the laws that provide protection to the army and the police which have not yet been re-defined in the interest of the public. The 1959 Army Act had a provision requiring a court of inquiry board and a court martial for any violations of the Act. There are no provisions in the 1959 Act or any other law that stipulate the situations in which the army is obliged to release full and complete details of court-martial proceedings and any judgments, including if a First Information Report (FIR) was filed and if police commenced criminal investigations.
The army has manipulated the provisions calling for army inquiries and courts martials in order to avoid accountability before civilian courts. It has obstructed police investigations into alleged extrajudicial executions and other abuses. This was apparent in the Maina Sunuwar (a 15-year-old girl killed by the Nepalese Army in February 2004) case - the army’s refused to share the results of the court martial with the police and her family, despite a court directive. Similarly, The Public Security Act of 1989 Section 22 provides immunity for any acts committed by State officials in good faith during the course of duty. These protective laws in favour of the police and the army will play a significant role in thwarting the truth and reconciliation process even if the changes are incorporated by the TRC.
These concerns are heightened in the Nepalese context where the power imbalances between the victim and the perpetrator are apparent. The perpetrators are part of well-established State structures like the army and the third largest political party of Nepal, the Maoists. Importantly, as the process has already been delayed for eight years, finding evidence of the crimes will itself be challenging, thus complicating the very first step of uncovering the truth.
Another major factor complicating the entire truth and reconciliation process is the lack of a fuller understanding of democracy by the citizens as well as the institutions of the nation. There remains a major lacuna in Nepal in this regard as the source of democratic institutions - the constitution - remains in limbo.
Finally, the very definition of the term 'reconciliation' still remains vague. The term has been limited to mean settlement or mediation where the process of engagement has totally been undermined, placing total stress on the end result. This is particularly problematic when the emphasis of the entire process is placed on achieving reconciliation. Therefore, with the deliberately skewed attitude clearly manifesting in faulty laws, the chances of the successful discovery of truth and lasting reconciliation appear bleak. Despite all these ills, even if the Commission comes up with recommendations, the government has not yet formulated the laws required for their implementation.
Engendering a sense of justice in the victims could pave the way for peaceful co-existence between the victims and perpetrators. It could also help in preventing the nation from slipping into another conflict. For this, an honest effort to scrutinise the past and begin a long-term engagement is essential. With all these aspects missing from the Nepalese context, things can only be expected to get worse before they get any better.
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