Interview with human rights lawyer Govinda Bandi and chief advisor to former PM Baburam Bhattarai, Devendra Paudel, BBC Nepali Service, 23 March
Why are you still opposing the TRC ordinance?
CAUGHT IN THE MIDDLE: Remains of the passenger bus that was bombed by the Maoists in Madi, Chitwan in 2005.
Govinda Bandi: Because it has provisions to grant amnesty to those who committed grave crimes and human rights abuse during the war. Not only does this betray the Nepali people who demand justice, it doesn’t meet international standards.
Why did you include provisions for amnesty when everyone is opposing it?
Devendra Paudel: We are not against punishing criminals, but there are many cases of political nature and classifying them as serious crimes is not relevant to the current discussion.
But Article 23 of the latest ordinance says that the government can recommend names of perpetrators who are ‘suitable’ for amnesty.
DP: Even though all those who died during war are victims, there are cases in Europe and Nepal too during the politically motivated movements of 1950 and 1960, which have not been treated as crimes against humanity.
What is the use of the TRC then?
DP: We have to look at it like this. All the events that took place from the first day of our revolution to the signing of the CPA in 2006 have to be separated from cases that were motivated by personal ambitions.
Do you agree Mr Bandi?
GB: There is a school of thought that likes to look at armed conflict in that manner, but I don’t agree with it because it is wrong. The first draft of the TRC had provisions to punish all crimes. But it was strongly opposed and that’s why they removed it. Now the commission can only investigate heinous crimes against unarmed civilians. Also how can you bring political motivation into rape cases? Hundreds of non-militants were kidnapped and killed inside barracks, where is the politics in that?
But Article 23 of the last ordinance says those accused of rape and other cases which can’t be forgiven, cannot be pardoned.
GB: Article 23 says that, but Article 25 says those who can’t be given amnesty should be handled according to currently prevalent law, meaning the recommendations also have to follow law of the land. In Nepal, torture, forced disappearances, and crimes against humanity are not considered crimes by law books at the moment. So Article 25 renders Article 23(2) completely ineffective. We want the guilty to be punished, while this ordinance makes crimes ambiguous and leaves it to the discretion of the commission.
You said that personal and political cases should be kept separate, but why didn’t you include that in this ordinance?
DP: We want the commission to provide justice to the victims of grave crimes, but if, as is being widely debated, all cases from the past are brought to trial we will run around in circles, all progress will be lost, and the peace process will be derailed.
Only yesterday the head of UNHCR Navi Pillay said in a press statement the TRC ordinance fails to meet international standards.
DP: We respect the UN’s position because we are also a member. But there are different practices in the world. Countries like China and Saudi Arabia are also accused of human rights violations but they deny it. We must try to understand these issues in relation to the country in question.
Mr Bandi, people say that the representatives of organisations like UNHCR are bias and are provided inaccurate information by their Nepali counterparts.
GB: I don’t know where these accusations come from, but yesterday’s press statement came from the official high commissioner of the UNHCR, which reserves the right to comment on such matters because it cannot extend help to processes that are against previously agreed standards.
What do you say about some parties’ concern that reopening old wounds will derail the peace process?
GB: We are not opening old wounds. We all know what happened in Argentina in the 1980s and how the peace process there was derailed. Kidnapping people from their bedrooms and killing them on altars after accusing them of being feudalists or executing people in barracks and saying they were killed in combat cannot be called old wounds.
Why did you not consult with lawyers, human rights activists, or civil society while drafting the TRC ordinance and why was it ratified while everyone was asleep?
DP: We did hold discussions with everyone and we are open to dialogue. Our concern is that if we investigate every single case, we will be trapped in a never-ending human rights circle and won’t be able to move ahead.
So does that mean you will prosecute those found guilty in the Madi incident?
DP: We have discussed that issue many times and even gone to Madi for evaluation. Everybody knows that armymen were inside the bus. It’s not as if we killed everyone because as you can see so many NC and UML cadre are still alive.
Mr Bandi, if you investigate every incident after 1990, everyone from government employees to former prime ministers will have to be punished and no one will be spared?
GB: We are not saying that the entire state security along with high ranking members of the Maoist party must be jailed. We just want those who committed wartime atrocities to be punished. Many years ago Pushpa Kamal Dahal said that the Madi incident was unfortunate. So why can’t he hand the guilty to the police and let them carry out investigations instead of protecting them.
Why does your party not show any willingness to bring perpetrators to justice?
DP: During the armed conflict the party always punished members who acted against rules and ethics. What is happening now is that people are trying to bring up old cases after we put an end to violence by signing up for the peace process.
What is the solution then, Mr Bandi?
GB: If we remain silent about a TRC that pardons criminals, many more army and policemen along with political leaders will end up like Kumar Lama in international courts. That will be most unfortunate for Nepal, so we need to come up with a home grown solution that grants no amnesty to criminals.
Listen here to the original debate in Nepali