25 April - 1 May 2014 #704

Pro-perpetrator justice

Disinformation and obfuscation in the TRC bill are designed to keep victims in legal limbo
Damakant Jayshi
FIGHT FOR TRUTH: Human rights activists and family of victims are arrested after they stage a sit-in protest at Singa Durbar against the new TRC bill last week.
At the outset, let me state that the bill on forming two transitional justice mechanisms currently being discussed in the parliament is better than its past versions. Nevertheless, it is still flawed and needs revisions to ensure justice for victims.

Some NC leaders including Law Minister Narhari Acharya have clarified that there is no  provision for ‘general amnesty’ in the bill on forming the Truth and Reconciliation Commission (TRC) and the Commission of Inquiry on Enforced Disappeared Persons. Yes and no. The bill allows perpetrators to be pardoned under the provision of melmilap (‘patch up’) between them and the relatives of victims and survivors.

Surely, it is the victims who must have the final say, not any political party, the security forces, or human rights activists. Remarks by Acharya and his colleagues, NC vice president Ram Chandra Paudel and general secretary Krishna Prasad Sitaula, are misleading and condescending.

Paudel was home minister during the insurgency in the early 2000s. Then, as chairman of Peace Secretariat, he oversaw the first draft of the Truth and Reconciliation Act 2007. It had this provision (No. 25): ‘Notwithstanding anything contained in Section 24, if any person is found to have committed gross violation of human rights or crime against humanity in course of abiding by his/her duties or with the objective of fulfilling political motives, the Commission may make recommendation for amnesty to such person to the Government of Nepal.’ This was clearly the escape clause for perpetrators from both sides.

Sitaula, for his part, has expressed surprise that the OHCHR and other human rights organisations were opposing a bill that contained provisions for punishment for perpetrators, and abided by the Comprehensive Peace Agreement (CPA) of 2006.

The OHCHR and others have criticised the bill for its amnesty (or pardon) for crimes under international law. Sitaula and the Maoist apologists need to re-read their Preamble of the CPA: ‘Remaining committed to the Universal Declaration of Human Rights 1948, international humanitarian laws and the fundamental principles and basic principles and norms related to human rights.’

Here’s another gem from Sitaula: “While signing the peace accord, nowhere do you have provisions calling for action against everyone. Only the crimes against those unrelated to the conflict would be prosecuted.”

If this is the guiding principle, then the torture and murder of Maoist cadres at Bhairabnath and 19 Maoists massacred in Doramba have no recourse to justice because, as per Sitaula’s logic, the killings were part of the conflict. The UCPN(M) has amply demonstrated it is not for resurrecting past atrocities. The Baburam Bhattarai government, instead of prosecuting Col Raju Basnet who was in charge of Bhairabnath, promoted him to the rank of brigadier.

The draft bill does not say what happens to hundreds of cases (including grave crimes) that have been withdrawn from courts across the country since 2006. It also violates two directives from the Supreme Court which categorically forbid pardons for gross abuses of human rights and orders an adherence to international norms.

Clause 26 on pardon is devious. Although sub-clause 2 contains a specific exception from amnesty for rape, it does not talk about the 35-day statute of limitation on reporting rape under criminal laws. The clause doesn’t mention murder, torture, abduction and clubs them under ‘other serious crimes.’ Are the drafters banking on the fact that most women would be reluctant to file rape cases? 

While Clause 25 of the draft speaks about prosecution for grave crimes, its scope is limited by Clause 22 (on reconciliation) and Clause 26 (provision on pardon). And Section 25 (4) says that if a person holding public position is found to have committed a gross human rights violation, the commissions ought to recommend departmental action against him to the concerned authority and that the said authority should take action within three months.

Then the bill says the commissions can recommend prosecution to the government through the Office of the Attorney General. The AG doesn’t have to act on the commission’s recommendation to prosecute, however, just state reasons for it. End of story. We know what happens when AGs are political appointees from the Baburam Bhattarai-Mukti Pradhan combine ordering the Dailekh district attorney’s office in 2013 not to pursue the Dekendra Thapa murder case.

The draft should be amended so that commissions can approach the courts directly in cases involving gross abuses and heinous crimes. The commissions should also be independent, impartial and powerful to reassure victims that the intention is honest because Clause 39 prevents any further investigation of the cases.

Even if the bill is improved and strong and independent commissions are formed, the chances of completing the task in two years time is remote. Based on my own reporting trips in some districts during 2007 and 2009, most families wanted to pardon and move on. But they wanted the complete truth out.


Read also:

Haunted by ghosts of the past, RUBEENA MAHATO

Healing the wounds of war, RUBEENA MAHATO

Irreconcilable truths, EDITORIAL

The tale of two commissions, BINITA DAHAL

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