20-26 February 2015 #745

TRC and Col Lama

Truth and reconciliation, but not without justice
David Seddon
At long last the long-promised Truth and Reconciliation Commission has been established and a Chair appointed. There has been much debate regarding its remit and the extent to which it will offer a degree of impunity to those responsible for war crimes and crimes against humanity.

Chair Surya Kiran Gurung has suggested that the TRC Act should be amended to give the Commission full jurisdiction over cases: meaning it should not have to seek permission from the courts for access to documents and investigate cases sub judice.

The UCPN(M) has supported this claim, arguing that all conflict-era cases should be handled by the TRC and not by the courts. Various legal authorities have suggested that this might not be possible since the supremacy of the Court must be maintained.

This issue may take some time to resolve as it is not simply a matter of legal jurisdiction, but is also highly political. “We need to prepare the code of conduct and legal framework,” Gurung said, “we also need to build the physical infrastructure.” It is not at all clear why any physical building is required, but perhaps he means developing the necessary capacity to undertake investigations.

He has promised all “stakeholders” would be consulted and that institutional development and practice of the TRC would be transparent. He indicated there would be funds to assist victims requiring support to lodge their complaints and make statements, and also that those who wished to remain anonymous would be able to do so.

He underlined that the TRC would not force “reconciliation” on victims of conflict and would not ignore the component of justice. This last is crucial, for the notion of transitional justice is an important ingredient in the truth and reconciliation process if it is to be effective. “There cannot be amnesty for serious cases of human rights violations,” he has stated clearly and publicly.

However, Gurung added: “We should be mindful that the peace process does not get derailed because of our acts.” This means that the TRC will not pursue a witch-hunt but will attempt to balance the potentially contradictory demands of justice for crimes and human rights abuses perpetrated in the past, on the one hand, and the need to move forward into the future, on the other.

While this process moves forwards in Nepal, the trial of Colonel Kumar Lama - who was arrested in the UK, in January 2013, under Section 134 of the Criminal Justice Act 1988 which defines torture as a ‘universal jurisdiction’ crime, and who is currently being prosecuted by the Crown Prosecution Service - continues later this month with further hearings. Col Lama is charged with ‘intentionally inflicting severe pain or suffering’ on two Nepali citizens - Janak Bahadur Raut and Karam Hussain - in two separate incidents that allegedly occurred between April and May 2005 at the Gorusinghe Army Barracks in Nepal.

The case went initially to the Criminal Court, which decided that Colonel Lama should be prosecuted for allegedly torturing two detainees at the Gorusinghe Army Barracks in 2005, during the Maoist insurgency. The International Commission of Jurists (ICJ) called the decision a victory for justice and issued a report ‘Authority without Accountability: The Struggle for Justice in Nepal’ pointing out that none of the major political parties had made any tangible commitment to address accountability for human rights abuses perpetrated during the conflict. The case eventually went to trial in May 2014, despite intensive lobbying by the government of Nepal as well as by Nepali political parties (including the Maoists) to drop the charges against Colonel Lama. The proceedings were delayed, and the trial effectively postponed until 2015.

The government of Nepal, under Prime Minister Baburam Bhattarai had previously agreed to bear the cost of Colonel Lama’s defence, and released Euros 220,000 to this purpose, but it was later argued that it was ‘difficult’ for the government to afford his defence and that Colonel Lama should receive legal aid. More significantly, it was suggested that the matter might be resolved (settled out of court) by ‘negotiations’ with the British government. Meetings were even held at the beginning of January 2015 between Foreign Secretary Arjun Bahadur Thapa and Permanent Under-Secretary Sir Simon Fraser who heads the British Diplomatic Service. Thapa apparently requested Fraser to ‘help settle the case amicably’ in view of the special relationship between the UK and Nepal.

Despite this intensive lobbying on the part of the government of Nepal, however, the trial is to resume later this month.

Read also:

Who doesn't want a TRC?, Om Astha Rai

TRC recommendations

Where is the justice?, David Seddon

On the sidelines of justice, Trishna Rana

Truth and memory Ram Krishna Bhandari

The tale of two commissions, Binita Dahal

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