From The Kathmandu Post (11 April, 2014)
Do the democrats in the government realise that they will be historically tarred as anti-human rights?
The government of Sushil Koirala has succumbed to Maoist blackmail in presenting the Truth and Reconciliation Commission (TRC) and Disappearances bill before Parliament, as if the people who voted in November for transparent governance and rule of law did not matter a whit. This action does not bode well for the Constituent Assembly’s work—a leadership that cannot stand up to the pressure of demagogues on human rights can hardly be expected to guide us through the shoals towards a democratic constitution.
The prime minister has bowed to Maoist pressure on both the local government elections and the TRC. On March 13, ostensibly divided into two parties, Chairmen Mohan Baidya and Pushpa Kamal Dahal issued a joint statement against the holding of local elections and proceeding with wartime-era cases in the courts.
As before, discussions were held behind closed doors between the top party leaders, many of them tainted by long cohabitation with the Maoists. Unacceptable compromises were made and the Parliament was bypassed as the forum for debate. The promise for local elections and democratic energising of the grassroots was abrogated by the prime minister himself and then came the TRC-disappearances bill.
Blanket amnesty gift
On transitional justice, the Nepali Congress (NC) and UML holding nearly two-thirds majority in Parliament have been held hostage by Pushpa Kamal Dahal and Baburam Bhattarai threatening to block constitution writing. The duo played a crafty game, forcing the government with a short deadline for the Commission’s establishment, giving the impression to cadres and the international community that they were in favour of transitional justice mechanisms. Whereas, behind the scenes they worked overtime to ensure that the bill was against the victims of conflict, defying international norms and the principles enunciated by the Supreme Court of Nepal.
Says the constitutional lawyer Hari Phuyal, summarising some of the objections to the bill: “This document is even more regressive than the one the Supreme Court struck down in January. It starts with the pretence that there will be prosecutions, but in actuality, it obviates the process. The Supreme Court directed that the Attorney General’s office be empowered to prosecute but the bill has created a maze that will make prosecutions impossible. The Court’s demand that torture and disappearances be criminalised by law has been bypassed, and the statute of limitations for prosecuting rape cases has not been lifted. The bill fights shy of defining grave human right abuse—including rape, torture, disappearance and extra-judicial killing—thus making way for general amnesty.”
The Maoist plan since coming above ground in 2006 has been to use the TRC as an opportunistic tool to bamboozle the diplomatic community and Kathmandu intelligentsia, and to waylay the victims of conflict—even as the commandants consolidated themselves in the national mainstream. The neglect of the demands of Maoist supporters themselves is found, among others things, in the current bill’s incredible provision that relegates all grave human rights abuse by the army and police (including disappearances) for ‘departmental action’.
As the TRC formation became inevitable, Dahal and Bhattarai came up with a game plan to puncture the run of Supreme Court decisions calling for internationally sound transitional justice mechanisms and restoration of the national criminal justice system. Their objective was a ‘blanket amnesty bill’, and this is what Sushil Koirala has gifted them. While prevaricating till the last moment, their next move would be to pad the TRC with members mandated to sabotage the process.
A couple of weeks ago, when the Minister for Law and Justice Narahari Acharya formed a taskforce to recommend the terms of reference of the TRC, it had seemed within the bounds of possibility that Nepal may develop an exemplary transitional justice system. The government seemed ready to follow OHCHR’s position as well as the Supreme Court’s decisions for an effective TRC. The Maoists leaders themselves, for the blinking of an eye, seemed to believe that a good national TRC would save them from the much-feared ‘international jurisdiction’.
The history of the TRC-making has been convoluted. Amidst the miasma of confusion, the translation of ‘reconciliation’ in the title as melmilap (friendship) has done incalculable harm to the cause of transitional justice. While the Comprehensive Peace Agreement and other agreements refer to “excesses in conflict-related cases” for some level of leniency, Maoist propaganda has convinced most politicos that “all cases of the conflict era” come under the ambit of amnesty. Thus, any killing done during the decade involving a Maoist would ipso facto be political and hence pardonable.
Over time, the Maoist leaders went into undeclared collaboration with the Nepal Army brass. Today, this provides an undercurrent of support against transitional justice because of the military’s influence within the NC and UML. In order to curry favour with the Army, Dahal and Bhattarai even managed to bypass the victims on their own side by promoting and defending alleged perpetrators in the military. When challenged that he may not be able to travel internationally in the absence of a credible TRC, one Maoist leader is reported to have said, “I will just have to do without overseas travel.”
The actual number of cases to be taken up for prosecution for heinous crimes would be few, and they would have been enough for the Maoist party to put its violent past behind and emerge democratic. Likewise, the Nepal Army would have consolidated its future as a proud national force and UN peacekeeper, in its willingness to go in for prosecution of the few perpetrators in its ranks.
Rather than tackle the Maoists through the force of numbers in Parliament that the voters have provided the NC and UML, Koirala has taken the path of appeasement. Succumbing to blackmail, he has defied the Supreme Court. If his attempt is to try and keep the Maoists within the constitution writing process, this was grave miscalculation—a democratic constitution cannot be written on the foundation of appeasement.
Surprising for a lifelong democrat, Koirala has shown lack of sensitivity towards the victims of conflict, seeming to regard them as nothing more than troublesome jhanjhat. At the crowning moment of his six-decades-long political career, Koirala is tarring himself with the anti-human rights label.
And it is not only Sushil Koirala who has abandoned the victims. Till some time ago, President Ram Baran Yadav use to be regarded as the backbone of liberal democracy when it came to protecting rule of law and accountability. However, a series of decisions over the last two years diminished his lustre and the watershed moment came in March 2013 when he okayed the amnesty-laced TRC ordinance presented by the Bhattarai government.
The Chitwan prosecution
Over at Bir Hospital, the fast-unto-death of Gangamaya and Nanda Prasad Adhikari seeking justice on the 2004 murder of their son Krishna Prasad has entered a critical stage. The Chitwan police on Tuesday morning placed the ‘misil’ document before the district prosecutor’s office, asking that the case against two alleged conspirators be taken to court.
Under normal circumstances, the prosecutor would have immediately taken the case to trial. But with the Koirala government so open to Maoist blackmail, there is great possibility that the prosecutor (under the Attorney General’s office, which itself is a hand of the prime minister) may scuttle the case. Till Wednesday afternoon, the Chitwan District Court had not been approached.
Without the case being lodged, the court will not be able issue a warrant, on the basis of which an Interpol ‘red corner notice’ would have been issued for the repatriation of Rudra Acharya from Northern Ireland. The police has identified Acharya as a Maoist sharpshooter who was part of the team of three that murdered Krishna Prasad. The alleged killer will remain free in the United Kingdom if Sushil Koirala does not understand the essence of impunity and accountability here in Nepal.