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Publication Date : 03-09-2012
Until a new legislature is elected, the government in Nepal — whether the current one or any that will replace it — will have to take decisions that will have to be ratified through ordinances. Ordinances, however, are an instrument to implement decisions in a time of political crisis. As they involve only the imprimatur of a small number of individuals who possess executive power, and entirely bypass the country’s legislative body, they lack a degree of legitimacy. As such, it is necessary that the government, in consultation with the political parties in the opposition as well as civil society, reach a decision on what kinds of law can be passed through ordinances. Urgent matters such as disbursal of funds for development projects or recurring expenditure should be passed through ordinances. More sensitive political matters over which there is great dispute between parties and in society should be stayed for a future date when a legislature exists and widespread debate is possible.
The matter of human rights violations during the conflict is such an issue. There has been great debate and widespread disagreement regarding the formation of transitional justice mechanisms such as the Commission on Disappearance and the Truth and Reconciliation Commission. It was these disagreements — between political parties, civil society and the international community — that halted the process of the formation of these commissions for such a long time. The parties were unable to bring legislation to the Constituent Assembly for the four years during which the body existed. And yet, now the government is attempting to establish these commissions through ordinance. This, despite the fact that there is such widespread disapproval of the ordinance. Victims of conflict-era violations have taken this decision as an insult. Others have rightly interpreted the government’s action as an attempt to steamroll a decision through, taking advantage of the political vacuum that prevails.
The government should remember at this time that a decision on such a sensitive issue, taken in such an ad hoc manner, will backfire. It will not enjoy legitimacy and will certainly be challenged in a major way. In the longer term, the ordinances will not help the image of the ruling parties among the population. For the ordinance proposes blanket amnesty for human rights violators. Similarly, it envisages that the political parties will heavily control the commissioners to the transitional justice mechanisms. These provisions mean that the majority of conflict victims will believe that these bodies have no intention of providing justice to them. Rather, they are simply eyewash, designed to protect perpetrators of grave human rights violations both among the Maoists and in the Nepal Army. In the longer term, there will appear no difference between the Maoists and governments of the past, which sought to protect the accused in the Mallik and Rayamajhi Commission reports.