Nepal: Flawed Nature of the Truth and Reconciliation Commission

23 Jul, 2014    ·   4585

Subin Nepal explains the flawed nature of Nepal's  Truth and Reconciliation Commission and suggests ways forward

Nepal seems to have met another roadblock in its ongoing peace process with the ongoing debate on the Truth and Reconciliation Commission (TRC) Act. The idea of TRC that was conceived in 2006 became a reality on paper in 2013 when the Nepalese Constituent Assembly (CA) voted to make it a law. It was heavily scrutinised for major flaws associated with possibility of amnesty for war criminals. Eventually, the Supreme Court (SC) of Nepal decided to strike down the law and ordered compliance with international standards.

On the 11 May, a new act that directs the functionalities of the TRC was passed. This act contains the same irregularities that existed in the previous one as well. Clause 26 of the current act provides discretionary powers to the commission to grant amnesty to those accused of serious human rights violations. Furthermore, Clause 13 hands off all the cases from the decade long war to the TRC – making it impossible for victims to pursue a civil suit against perpetrators in any court of law. While several international observers, human rights organisations, and most importantly, the victims of the civil war demand change in these provisions, the Nepali leadership seems to have turned a blind eye to the issue.

The South African model of the TRC has been an instant hit among Nepali politicians and the military leadership. Particularly, the mass amnesty provided by the South African TRC is where the focus appears to be. This skewed priority has created a commission that has serious flaws.

There have also been no nominations for the commission governance yet. The first logical step for Nepali politicians seems to make way for an impartial leadership to take over the functionalities of the TRC. The impartiality of this appointment itself seems to be a paradox. There is little to no chance that either the political parties who fear a Maoist backlash or a strong political influence from the Nepal Army would go against what has already been voted on. Additionally, there seems to have been a greater push to ‘leave things behind’. While it may sometimes be a good idea for quick reconciliation, a sustained one would focus on issues such as human rights violation and war-crimes.

The issue of amnesty itself is particularly concerning in Nepal’s case considering how the law was written and passed by a group with significant representation from one of the accused: Unified Communist Party Nepal – Maoist. This raises a question of obvious bias in the law. Further complications arise due to the possibility of triggers that could lead to a blockade in the peace process.

While there has been significant international pressure to amend the act since it was passed in May, there seems to be a lack of argument as to why Nepal’s situation might be unique. Overlooking the cultural realities of the Nepali society and judicial system just to comply with international standards may not be the best practice to move forward with either. While basic human rights should be respected and violators of those should be prosecuted regardless of their culture and national identity, the Nepali society can and should have a greater discussion regarding the ways of dealing with the process of reconciliation. A black and white set of regulations could push the country into further distress. The uniqueness could be as small as the way hearings take place – something that could be televised for a far reaching population than secretive, closed-door ones.

The commission itself should function as a supplement to the judicial system and not something independent with the ability to decide on civil lawsuits. At present, the TRC has been charged with the duty of opening up and solving cases associated with the ten-year long conflict. However, this system creates confusion as to where the victims should go to for justice:  the TRC or the courts. Having a commission created and appointed with political motivations trying to solve issues of heinous crimes might end up providing only a short term solution to the peace Nepal is looking into. On top of all, handing over all the cases to the commission may weaken the judicial system to the point where impunity might further increase. While the formation of the TRC has clear intentions to finish the peace process, hasty measures may only lead to unresolved cases.

Nepal’s reconciliation debate seems to have taken one-sided stance, devoid of a larger debate, no clear participation from experts in creating policies, and a serious non-compliance with treaties Nepal is signatory to. This creates domestic as well as international problems for Nepal’s peace process while moving forward. The TRC, as it is at the moment, is clearly flawed several fronts. Moving forward without a larger debate and an amendment to the act that has been passed might leave the wounds of the war exposed for years to come.