An ordinance to defy

From The Kathmandu Post (29 March, 2013)

As proposed, the commission for truth and reconciliation, and disappearances, privileges abusers of the conflict and discriminates against the victims

For long, the frail Nepali Congress and CPN-UML leaders have lost the energy to fight the above-ground Maoist onslaught, even to the extent of abandoning their best election campaign message, viz. the ex-rebels’ use of violence for political ends. Even so, the victims of the conflict era and the human rights community had some hope left in the two parties. But then the Congress and UML negotiators have now submitted to the UCPN (Maoist) position by helping to draft an appalling ordinance for a conjoined commission on disappearances, and truth and reconciliation.

Over at Shital Niwas, barely two months ago, President Ram Baran Yadav, had assured rights activists that he would return any ordinance that challenged norms and values. But, on March 14, he unquestioningly put his stamp on the ordinance. Whatever has gone on between Singha Durbar and Shital Niwas, though, it is impossible to accept this project of the four-headed political syndicate and its handmaiden, the Khil Raj Regmi government.

Navi Pillai, the UN High Commissioner for Human Rights, has rejected the ordinance, and the UN Secretary General’s representative in town last week also expressed reservations. In a detailed review, the umbrella group Accountability Watch Committee (AWC) has exposed the substantive and procedural flaws in the ordinance and its making. It has declared a boycott of any commission that emerges from this conspiracy of the powerful. Most importantly, on Sunday, seven groups representing victims of atrocities both by the state and by the Maoists came together to file a writ petition in the Supreme Court against the ordinance.

National decline

The ordinance symbolises the thus-far successful campaign for impunity pushed so diligently by Baburam Bhattarai and Pushpa Kamal Dahal. Rule of law recedes as might becomes right, and unaccountability permeates all aspects of national life. The ordinance is the lowest point achieved since 1990 in the decline of the polity.

The nice sounding ordinance preamble, expressing commitment to justice and accountability, is crafted to lower the guard of the lay reader. The rub lies in the actual provisions, whose application would privilege the perpetrators of grave human rights abuse and persecute further the victims of conflict. Beyond the lacunae in the drafting, there is every expectation that the UCPN (Maoist) will force the appointment of commissioners tasked specifically to sabotage the commission’s work, allowing both rebel and state-side perpetrators to evade accountability. The goal of the Maoists would be a whitewash commission to allow perpetrators to remain ‘cleansed politicians’ for decades to come.

Those who drafted and adopted the ordinance were clearly insensitive to the pain of the citizenry, even after the OHCHR’s Nepal Conflict Report detailed how the war decade was marked by such a massive volume of abuse of international humanitarian law. The negotiators drafted a document with a confusing set of provisions that contradict each other, defy Supreme Court decisions, challenge the existing criminal justice system, and are at odds with the tenets of international law and practice.

Substance and procedure

The purpose of a transitional justice commission should be to establish a norm and a trend for making everyone equal before the law in relation to conflict atrocities, and ensuring that no one is exempted for crimes under the cover of political activism or government assignment. A high standard in public life would be guaranteed by a properly established commission, with deterrence created for long into the future. The proposed commission will do nothing of the sort.

The title of the ordinance itself is misleading, referring in Nepali to individuals who happen to have disappeared rather than forcibly disappeared (‘bepatta bhayeka’ rather than ‘parieka’). The dovetailing of the two commissions on disappearances, and truth and reconciliation, into one body goes against the peace accord, the Interim Constitution and past court directives.

In terms of procedure, the Supreme Court had laid a stricture that preparation for the formation of the commission should be in consultation with the victims, the rights community and the National Human Rights Commission (NHRC). Instead, this document was prepared secretively without even a show of consultation. The NHRC, as the fully empowered constitutional body, has been completely bypassed in the text.

Substantively, international principle and practice insist that the perpetrators of grave human rights abuse such as rape, torture, abduction, disappearance and killing in captivity are not eligible for pardon. But the ordinance creates conditions for amnesty for such crimes, while building obstacles for victims who want to see justice done through prosecution.

The attempt is made to downgrade the commission by having its report presented to a line ministry rather than to the president’s or the prime minister’s office, and the commission’s final report is to be handed over to the ministry rather than released to the public. The intention clearly is for this body to meet the same desultory fate of the earlier Mallik and Rayamajhi commissions, which had sought to tackle impunity after 1990 and whose reports remained ignominiously shelved.

In limbo

Many forms of grave human rights abuse are not yet defined for punishment under Nepali law, and the ordinance takes advantage of this by allowing the matter to hang in limbo. Nor does it specify retroactive application of new law in such cases. The ordinance unnecessarily mixes all kinds of ‘lesser’ crime such as looting and land-grabs in its listing, clearly intending to muddle and bewilder. Reparation for victims is seen as a privilege rather than a right.

There is no requirement of full disclosure on the part of accused, and the document denies the international understanding that proper reconciliation can only happen when the testimony is to the satisfaction of the victim. The text is neglectful of the drastic power imbalance that exists today among the protagonists: the perpetrators are by now are powerful individuals in politics with strong links to the topmost state administration, while the victims tend to be villagers without access.

The text is replete with reference to what the commissioners ‘may’ do rather than ‘shall’, and they are allowed to set aside complaints without assigning reasons, for which there is no provision of judicial review. When the commission does recommend prosecution, a roundabout process for action has been created via the ministry and the attorney general’s office. Meanwhile, hurdles have been created in case a proactive attorney general decides to start prosecution.

The eligibility for membership in the commission is limited to judges of the Supreme Court and retired government secretaries. This is extremely constricting, preventing whole categories of eminent persons from giving credibility to the commission, which in any case is designed to be at the mercy of the political and administrative forces.

At a meeting called last week to discuss the ordinance, Purnimaya Lama (see picture), spouse of the murdered Arjun Bdr Lama, said, “The wall before us victims has just become higher.” Suman Adhikary, son of the late teacher Muktinath Adhikary: “This ordinance feels like a kick in the stomach for the victims; it is a gift to the perpetrators.”

The best that can and should be done at this stage is to postpone formation of the commission till the new Legislature Parliament is elected, allowing the regular criminal justice process to work in the meantime.

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