Access to impartial justice is not a favour but a fundamental right of the victims. Justice should not be done for formality's sake
KATHMANDU, APRIL 23
In 2021, Prime Minister (PM) Pushpa Kamal Dahal had claimed the responsibility of killing 5,000 people during the decade-long Maoist-led armed conflict.
A writ petition was lodged against him at the Supreme Court (SC), which was initially dismissed by the SC administration. Later, the single bench of the SC ordered the writ to be registered. The preliminary hearing issued a show cause notice against PM Dahal. Some time back, Dahal responded to the show cause notice illustrating that his claim was a political statement, and he does not take the responsibility of the killings and atrocities that happened during the Maoist movement.
PM Dahal and other high-level leaders associated with the Maoist movement were startled after the aforementioned writ petition was registered at the SC. The Maoist leaders scattered throughout many fractions converged together at the official residence of the PM, and they callously threatened the SC and the government. PM Dahal, himself as the head of the government, embarrassingly signed on the press note threatening the government.
These events triggered the government to immediately present the Bill for the Amendment of the Act on Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission (2014) – widely referred to as the TRC Bill – in the parliament on March 19. The government wanted to pass this Bill as soon as possible through a fast-track, but the opposition and a large section of humanitarian advocates and criminal-law experts expressed grave concerns on some of its lenient provisions.
Especially, fingers are pointed against the provisions favouring severe human rights violation offenders and granting blanket amnesty to the perpetrators. Recent developments show that the government has finally backtracked from the fast-track proceeding of the Bill.
A discussion on the status of pending transitional justice has been initiated in the country at the moment. The Comprehensive Peace Accord had promised that the TRC would be formed within six months and due justice would be provided to the victims of the decade-long violent conflict. Unfortunately, it has already been more than 16 years that the TRC was formed, but the commission has not reached a logical conclusion. The tenure of the TRC was extended multiple times during this period, and new sets of members of the commission were recruited. However, the outcome of this initiative was almost nil.
The deposed members of the TRC have unanimously pointed out the sole reason for their incompetency in concluding the transitional justice procedure to the lack of sufficient and viable judicial provisions. In addition, there were hints on obliviousness of the high-level political leadership regarding the completion of the TRC formalities.
The government led by Dahal, the then supreme leader of the rebellious Maoist movement, seems to have finally realised the intensity of the consequences that might arise if the TRC procedure is left unsolved. Nepal is not a signatory of the Rome Statute, the beneficiary of the International Criminal Court. Still, the documented crimes against humanity, war crimes, crime of aggression and recruitment of child soldiers during the Maoist insurgency are the issues that are enough to raise the concern of the international judiciary community, anytime.
There were incidents in the past when the leaders accused of war crimes had to cancel their international visits at the eleventh hour – the most prominent example being the last hour cancellation of PM Dahal's Australia trip a few years back. In 2011, former U.S. president George W Bush had to call off a trip to Switzerland amid planned protests by human rights groups over the treatment of detainees at Guantánamo Bay and the threat of a warrant for his arrest.
The government cannot afford to linger anymore with the transitional justice. Justice delayed is justice denied. Hence, all the stakeholders, including the parliamentary opposition, need to act determinedly in forming a powerful transitional justice tribunal. The government should also abhor from including the lenient provisions in granting amnesty to grave human right violators. All the offenders must be brought to book and should be penalised based on their crimes. The members of the Maoist party should not consider that the TRC is against them. In fact, it should be against the human right violators and in favour of the victims. All documented criminal cases should be systematically analysed and the due justice delivered.
For that, instead of cadres of political parties, a team of retired Supreme Court judges with proven integrity should be appointed in the TRC. Blanket amnesty to the perpetrators should be strictly proscribed. Everyone associated with the decade-long agitation should be trialed, be they high-level leaders of the Maoist party or the PMs, ministers and high-ranking security officials of that time. Even the former monarch should be quizzed on his alleged involvement in human right violations, if any, during the brief period of his kingship. If found guilty, everyone should be convicted, at least symbolically, irrespective of their statutory designation or political affiliation.
Access to impartial justice is not a favour but a fundamental right of the victims. Moreover, justice should not be done for formality's sake – the victims should acknowledge that justice has been done in their favour. This should be the bottom line of the TRC. Otherwise, it might take time, but justice will prevail anyway. We should learn a lesson from the recent incident where a German court convicted a 97-year-old ex-secretary at a Nazi camp, 77 years after the conclusion of the Second World War. Hence, the transitional justice measures should be swiftly implemented to address the legacies of the horrendous atrocities of the past.
Dr Joshi is senior scientist and neurobiologist at Martin-Luther University Halle-Wittenberg, Germany
A version of this article appears in the print on April 24, 2023, of The Himalayan Times.
