KIRAN KRISHNA SHRESTHA
The law is in limbo because of poor coordination between the Home and Peace Ministries, ambiguity about their responsibilities, preparations for elections and political deadlock. "Mostly, it is the sheer lack of political will," says Jitendra Bohara of the rights group, Advocacy Forum.
Another bill for the formation of a Truth and Reconciliation Commission (TRC), drafted by the Peace Ministry, has just undergone a fourth revision because of a controversy over a clause on amnesty for perpetrators of war crimes.
"You can't establish a truth commission in a hurry," warn experts at the Nepal office of the International Centre for Transitional Justice who say the environment is still not safe for a TRC to start work. But other activists say time is running out on the TRC and disappearance bills, and valuable evidence is being lost. With the Maoists soon forming the new government, victims and their families are also afraid the commissions may never be formed.
Ramesh Shrestha, a former Maoist, lost his right arm in a grenade attack in Kathmandu in 2000 and was in and out of military custody for 17 months during the war. He is not hopeful for the families of the disappeared. "In the Nepal Army as well as the PLA, those responsible for war crimes during the war are all high-level officers," says Shrestha, "if a disappearance commission is formed they will all be exposed, the Maoists will never let that happen."
Laxmi Maya Acharya's son, Lila Prasad, was arrested by army intelligence in Kathmandu in 2003 and detained at the notorious Bhairabnath Battallion. Lila Prasad was a Maoist and had called his mother in Gaighat a few days before his arrest and told her not to worry. She hasn't heard from him since.
Lila Prasad's picture appears on a Maoist poster of martyrs from Udaypur, but is listed as 'Bepatta'. Laxmi Maya carries the poster wherever she goes. "I want to meet Prachanda and tell him because of you my son is gone, tell me if he is dead or alive and if he is dead you should take care of us," Laxmi Maya said.
Although the Maoists are hesitant about the TRC, they supported a disappearance commission before the election. "Perhaps the Maoist leaders now feel there is a lot of evidence against them, which is why they want to push this issue under the rug," says Bohara. The Maoists have told the families of those disappeared by the state that all disappeared will be declared martyrs, and they should keep quiet for now.
MIN RATNA BAJRACHARYA
Meanwhile, rights groups are disturbed by a memo from the US-based Holland & Knight law firm that they say proposes a blanket amnesty for perpetrators of human rights violations. The memo states that Nepal doesn't have a 'clear, binding, general duty' under international customary law or Nepali law to prosecute rights violations. It says there is no 'firm support' for claims that Nepal must prosecute violations of human rights and humanitarian law. The memo adds that amnesty is common in times of political transition, especially when truth commissions are set up.
Advocate Mandira Sharma says the memo has many flaws. "Impunity has been the biggest challenge in Nepal, reports like the one Holland & Knight prepared only strengthens this culture," she says.
But Hannes Siebert, a South African consultant with the USAID-funded Nepal's Transition to Peace Initiative, says the memo doesn't state, recommend or imply that international law permits blanket amnesties for serious crimes.
"That is a terrible misreading, or non-reading, of the report," adds Siebert, who is also chairman of the Appeal Foundation of the Nobel Peace Laureates for whom the memo was written pro bono by H & K.
Joint Secretary at the Peace Ministry, Madhu Regmi says the H & K recommendations are not binding. "We did not ask for legal advice in our favour, we are not obligated to implement their suggestions since the TRC bill is a living document that is open for experts to comment on," Regmi says.
Devi Sunuwar, mother of 15-year old Maina Sunuwar, who was tortured killed in 2004 while in Nepal Army custody, is outraged about all this talk of amnesty.
She told Nepali Times: "They killed my little daughter, I can't forgive them. If they killed once they will kill again."
Behind the scenes
In Nepal, Siebert has been a consultant with the Nepal's Transition to Peace (NTTP) initiative since August 2005. The initiative involves Daman Nath Dhungana and Padma Ratna Tuladhar, Maoist leaders Khimlal Devkota and Suresh Ale Magar, the NC's Minendra Rijal and Prakash Sharan Mahat, UML's Bhim Rawal and Jana Morcha Nepal's Lila Mani Pokhrel and officers from UNMIN and OHCHR.
The group aims to enable Nepali stakeholders to develop common ground within their often opposed positions and provide support to the Peace Secretariat and political parties. About the controversy over amnesty provisions in the Truth and Reconciliation Commission bill, Siebert says this should be a Nepali debate and "not the place of international advisers to take positions or prescribe".
He says the foundation has had serious concerns about the draft TRC bill and has sent its recommendations, along with those from the UN OHCHR, to the TRC bill drafting committee.