- Deepa Adhikari

Default of Transitional Justice

The reason on default of transitional justice system in Nepal is mainly political. The Comprehensive Peace Accord signed on Mangsir 5, 2063, held the promise of justice for victims of Nepal's decade-long conflict. It committed to forming a Truth and Reconciliation Commission within a year and revealing the identities, names, and residences of individuals who had gone missing or were killed within a 60-days timeframe. Contrary to its own commitment, the government did not choose the path of bringing laws and setting up commissions.  In 2066, bills submitted to the Constituent Assembly became inactive after the assembly was dissolved in 2069.

Khilraj Regmi, the then the Chairman of the Interim Election Council of Ministers during his tenure, introduced the ‘Disappeared Persons Inquiry, Truth and Reconciliation Commission Ordinance, 2069’. This ordinance, however, went beyond the Constitution and legal principles enunciated by the Supreme Court, leading to its rescind on Poush 18, 2070. The Supreme Court further ordered the amendment of the ordinance in line with international standards. In Baisakh 2071, the government ignored the Supreme Court's order by introducing the 'Act on Truth and Reconciliation Commission and Investigation of Disappeared Persons'. The Court reiterated its stance on Falgun 14, 2071, emphasizing the need to amend the law according to international standards, the Constitution of Nepal, and the detailed peace agreement. Despite the Supreme Court's orders to amend an act that seemed designed to deprive victims of justice and grant immunity to perpetrators, the government did not initiate the amendment process, opting instead to file a petition for a review of the judgment in the Supreme Court. Instead of transparently working to establish commissions that would instill trust in victims, the government took a different approach. Subsequently, on Shrawan 11, 2072, the government petitioned the Supreme Court, stating that such amendments couldn't be incorporated. Unfortunately, this plea didn't yield any action, and six more years passed with no visible progress. Finally, on Baisakh 14, 2077, the Supreme Court reiterated that there was no need to review its prior verdict.

Regardless of these legal battles and court orders, the government has not taken significant steps to effectively address the issue of transitional justice. Furthermore, the Truth and Reconciliation Commission and the Investigation Commission for Disappeared Persons, established in Magh 2071, have remained largely inactive due to a shortage of officers. They have primarily focused on collecting complaints from victims, but in the eight years since their establishment, they have made little substantive progress. To date, the Truth Commission has collected around 62,000 complaints, while the Disappearance Commission has gathered about 2,500 complaints.

Transitional Justice and Nepal

Nepal experienced a decade-long civil war from 2052 B.S. to 2062 B.S. that claimed more than 13,000 lives and resulted in numerous human rights violations, including extrajudicial executions, disappearances, torture, and sexual violence. Following the Comprehensive Peace Accord (CPA) signed in 2063, the country underwent a transitional justice process aimed at addressing past human rights abuses and providing redress for victims.

The transitional justice process in Nepal has involved the establishment of two bodies, the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP), which were established in 2071. These bodies were mandated to investigate and recommend action on cases of serious human rights violations committed during the conflict.

However, the transitional justice process in Nepal has been stained by delays, political interference, and lack of cooperation from state agencies and former combatants. The TRC and CIEDP have been criticized for their lack of transparency, failure to consult with victims, and inability to ensure the participation of all parties to the conflict. As a result, many victims and human rights groups have lost faith in the transitional justice process.

Over the past few years, notable progress has been made, such as the Supreme Court's 2077 directive to revise the transitional justice law to align it with global standards. Concurrently, civil society organizations persist in advocating for a victim-centric approach to transitional justice. Nevertheless, there is still considerable work ahead to guarantee the efficacy and credibility of Nepal's transitional justice process, ensuring it delivers meaningful restitution to conflict victims.

Shortcomings in Dealing with the Transitional Justice System in Nepal

Political Unwillingness: A substantial interruption to progress in the transitional justice process stems from the lack of political will and varying perspectives among different political parties, both internally and externally. Political parties unveil ambiguity in their stance and approach toward addressing these cases, and they often appear not to prioritize the matter. Additionally, there are internal disputes within parties concerning this issue. Simultaneously, parties remain divided regarding the handling of cases from the wartime period.

Although Comprehensive Peace Accord was signed between CPN-Maoist and the then 7 major political party of Nepal, their unwillingness to address victims’ issues  have never been in priority list. The nature of political instability still continues either in coalition government or single majoritarian government here which have create the circumstance lacking good governance in Nepal to access the justice to the victim of the armed conflict.

Non-compliance with judicial decision: Government has ignored the Supreme Court verdicts to compliance from time to time. For instance, even though the Supreme Court’s verdict of 2014 held the government to change a law (The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071) that seemed unfair to victims and tended to protect perpetrators, the government didn't start making those changes. It’s already been about 9 years even after this enactment and our justice system is just revolving around the executive’s power instead of assuring justice to the victims. New Bill relating to Transitional Justice to reform this 2071 Act  is now in consideration in legislative (house). This proposed Bill permits the dismissal of charges against individuals affiliated with a political party or organization if they have shifted from past violent protests to peaceful activities. However, critics are feared that this act may threaten the entire Transitional Justice process. But victims are advocating for amendments to the Bill, emphasizing the exclusion of amnesty for serious crimes, ensuring the informed consent of victims even in cases that may be eligible for amnesty, protecting cases currently in regular courts from being transferred to transitional judicial commissions, and empowering these commissions to address issues such as child soldiers, rape, sexual violence, and the elimination of statutes of limitations in disappearance cases. This period of transitional justice is already been 17 years, but justice delivery to victims of armed conflict of 10 years Maoist insurgency is not yet addressed.

Fear of Vetting: The higher profile officers and political leader in power have been feared of vetting. This transitional vetting is a specialized procedure aimed at:

 (a) Excluding or inhibiting the inclusion of state officials or former combatants who have been involved in human rights violations or significant professional misconduct from public service during the armed conflict,

 (b) Taking place following periods marked by widespread human rights abuses, systemic corruption, and other grave instances of misconduct in public office, and

(c) Primarily undertaken to establish or reestablish responsible, lawful, and efficient public institutions.

Further, it is evident that the impact of a vetting process can be strengthened when combined with other institutional reforms. To complement vetting procedures, Nepal could implement screening processes for candidates in its security forces, curtail the executive branch's appointment powers, establish internal and public avenues for redress, ensure effective civilian oversight to secure the operational autonomy of security institutions, and consider changing symbols associated with abusive practices. By removing individuals who have been involved in serious crimes from the army, police, and other security institutions, Nepal can work toward reinstating trust among its citizens and the global community, demonstrating that no one is immune to the law. This aspect is thus one of the lacking thing in the institutional reformation of victims of armed conflict in addressing transitional justice system in Nepal.

Lack of Victim oriented justice system: In Nepal, Victim Justice System has been the new concept. Victims have been the silent partners in the legal process, with little role other than as witnesses. Since there is no protection from the state, victims and witnesses often do not feel part of the criminal justice process and yet they fulfill a valuable and important role: thus there is an urgent need for making their roles more meaningful and to obtain the optimal cooperation from them in order to address transitional justice system in Nepal.

Moreover, the absence of clear constitutional and statutory provisions have made the rights of victims not adequately incorporated into the legal framework, leaving crime victims in the country without access to effective legal assistance and victim support mechanisms such as compensation, reparation, and restitution. Traditionally, the victim has been disregarded as an integral part of addressing crime. In transitional justice system, victim oriented justice system is one of the crucial component to enable the 1) Truth seeking; 2) Prosecution; 3) Reparations; and 4) Institutional reforms in accessing the justice to victims of armed conflict.

Way forward

In Nepal, sorting out justice after the conflict is connected to fairness and holding people accountable. It's influenced by how the conflict happened, the peace talks that followed, and changes in how the country is run. People need to trust the process, and that depends on making sure those responsible are held accountable. The more victims are involved, and everyone can see what's happening, the better the chances of a successful transition.

Thus, in Nepal there is peace after the seized of 10 years long armed conflict, but no justice delivered yet. The transitional justice process has been delayed for an extended period, primarily because of the inability to revise the Enforced Disappearances Enquiry, Truth and Reconciliation Act of 2071 (2014) in accordance with a 2071 Supreme Court mandate and international norms.

The current Bill on Transitional Justice System is in-consideration in the legislative (house) which is facing maximum criticism from the victims because justice is not the showy thing but the realization too. The main agenda of victim demands on the transitional justice system revolves around ensuring no amnesty for serious crimes, securing the informed consent of victims even in cases potentially subject to amnesty, preserving cases pending in regular courts from transfer to transitional judicial commissions, and empowering the commissions to address child soldiers, rape, sexual violence, and the removal of statutes of limitations in cases of disappearances. These crucial steps are essential to fulfill Nepal's commitment to justice and transitional justice processes, finally bringing closure and healing to the victims of its turbulent past. Hope this Bill will be the new array of hope addressing the armed conflict victims; demand and will sort out the issues of transitional justice system in Nepal soon.

       - Deepa Adhikari is a law graduate from Prithvi Narayan Campus, Tribhuvan University with a profound passion for research and intellectual discourse on diverse legal and socio-political topics.