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Letting them off the hook
Publication Date : 19-09-2012
The Nepal caretaker government's recent decision to establish a Commission on Investigation of Disappeared Persons, Truth and Reconciliation via an ordinance has served as a blow towards efforts by all the parties concerned to bring justice, truth and accountability to human rights abuses committed during the decade-long armed conflict. Citing primarily problematic amnesty provisions, rights groups have formally urged the prime minister and the president not to promulgate and approve the ordinance.
The proposed ordinance, similar to its two antecedents, has sparked controversy for its failure to observe the minimum international standards considered mandatory in the formation of such commissions. Besides, the latest edition of the ordinance has made a travesty of transitional justice efforts.
Reconciliation/Mediation: The proposed provisions in the ordinance make no distinctions between mediation and reconciliation The ordinance has limited objectives, which is primarily to reconcile the victims with the perpetrators. The section on reconciliation, in fact, gives power to the commission to reconcile victims and perpetrators even if they have not applied to do so. The commission can then order the perpetrator to ask forgiveness from the victim and to provide compensation. International experience tells that reconciliation cannot be imposed from outside, and victims’ sufferings should be addressed while trying to find a path to truth and justice. Reconciliation is not a mediation between the victims and the perpetrators. Truth without justice and justice without accountability would be meaningless and counterproductive in country like Nepal where impunity is so entrenched.
Impartiality and independence: The ordinance provides opportunity for political manoeuvring. The selection committee to choose the commissioners has to consult with political parties before making its recommendations. This means that the commissioners will be under political influence, which will compromises the independence and autonomy of the commission. The ordinance uses the term “high level commission” instead of “independent commission” as used in the previous bill which ominously suggests that the commission will be a mere political mechanism as other commissions of inquiry have been.
Mandate of the commission: This ordinance significantly narrows down the mandate of the Truth and Reconciliation Commission (TRC) by confining it to looking into cases of serious human rights violation, whereas the bill pending in Parliament on the TRC has given it power to look into any “human rights violation”. This deliberately excludes the jurisdiction of the commission over violations of “economic and social cultural rights” and excludes any matter under consideration before the courts.
Amnesty to perpetrators: As per the ordinance, the commission can grant amnesty to perpetrators if they make a satisfactory apology and tells the truth regarding their involvement. It provides for a victim to being intimidated to accept the apology and not press for prosecution. Moreover, by merging the TRC with the Disappearance Commission, the ordinance has given an opportunity for amnesty even for serious violations like disappearance, extra-judicial killing, rape and torture.
Merging two commissions: The ordinance merges the Commission of Enquiry on Disappearance with the TRC and this is a problem in itself. The definition of the victim in the ordinance does not even include the families of the disappeared. A separate commission to investigate into disappearances was promised in the CPA. Furthermore, the Supreme Court’s order in the Rajendra Dhakal case has envisioned a separate commission for making public the whereabouts of the disappeared. The Supreme Court has further issued a ruling against the government to enact legislation that would prevent and criminalise enforced disappearances. Political parties agreed to have two commissions from the start, and there is no rationale behind this sudden merger. Victims groups have asserted that they will boycott this commission and have requested national and international organisation to do so if these commissions are set up through an ordinance.
Implementation of recommendations: This commission will meet the same fate of past inquiry commissions because there are no provisions of oversight of the implementation of the commission’s findings. While the previous bill explicitly provides for the NHRC’s oversight, this ordinance has failed to include this provision making it a perfunctory commission. The government will not take its recommendations seriously, let alone implement them.
Ironically, it’s a “the more, the worse” scenario. The present ordinance is a severe setback to years of efforts. Although some provisions needed further scrutiny and amendment, the previous bills under deliberation in Parliament were far more advanced and nuanced than the present ordinance. In addition, sustained lobbying by victims and human rights organisations had influenced many amendment proposals made by parliamentarians in the bills. Against a backdrop of such a promising build-up, the ordinance is a sheer debacle.
While the introduction of the ordinance is an anticlimax to years of efforts and dedication, it has raised further questions over the entire transitional justice process started at the government’s behest. Millions of dollars have been spent in the process. The government conducted dozens of consultations and cluster meetings with the stakeholders to finally come up with a “good” draft. Similarly, millions were spent in capacity building and relevant logistics of political party leaders and the people of different ministries. However, the introduction of the bill has proved these efforts a worthless exercise. If justice meant mere mediation between the victims and the perpetrators and paying some monetary compensation to the sufferers, it was imprudent to waste so much resources and time.
In conclusion, the introduction of the ordinance, among other things, shows the ill intention of the government to introduce a blanket amnesty for the perpetrators. In fact, the government has always been bent on amnestying the perpetrators via means like case withdrawals and executive pardons. In this connection, this ordinance can be regarded as a mere means to legitimise amnesty in the name of reconciliation and transitional justice. Do we need to form another commission and spend millions of rupees to grant general amnesty to the perpetrators and legally establish that rights violators are above the law?
Sharma is the founder of Advocacy Forum, a human rights organisation