Exhuming Justice in Nepal

On October 8, 2003, a joint command operation of the Royal Nepal Army and Nepal Police arrested and detained 11 youths suspected of being Maoist insurgents from Janakpur, a dusty industrial town in the eastern part of the country’s restive Madhesi belt. Six of the detained were released the following day; four were blindfolded, executed and buried in a shallow grave by the banks of the Kamala River. And another was likely beheaded; the victim’s remains were found in a dismembered state a short walk from those of the others. For over five years, the families of Sanjiv Kumar Karna, Durgesh Labh, Jitendra Jha, Pramod Narayan Mandal and Shailendra Yadav were denied knowledge of the whereabouts of their kin. Details of the incident were documented in a report by the National Human Rights Commission released earlier this year. Depending on the Supreme Court’s decision on a writ petition filed by victims due to be heard on September 4, they may also be denied justice.

Attempts by Nepal’s consensus-driven political class to deliver legal redress to victims of the country’s decade-long civil war have been defined by efforts to obtain amnesty. Though in April of this year, the Constituent Assembly (CA) promulgated a law mandating the formation of a Truth and Reconciliation Commission and Commission of Inquiry on Enforced Disappearances (TRC ACT), the legislation has been condemned as a facsimile of an executive ordinance struck down by the Supreme Court on January 2. In its landmark ruling, the apex court argued that the ordinance betrayed the basis of the 2007 Interim Constitution, violated international law, and was an obstacle to the country’s post-conflict reconciliation process. Despite the precedent set by the Court, President Ram Baran Yadav signed the TRC Act into law on May 11.

In recent months, the perception that ‘close enough’ is indeed ‘good enough’ for delivering post-conflict justice has permeated the editorials of Kathmandu dailies and is implicit in the muted response of the diplomatic community. Rather than a betrayal of the Republic and a disregard for the suffering of conflict victims, the sentiment is symptomatic of a political transition that, despite significant achievements, is now eight years in the making. With a new constitution due in January 2015, a robust transitional justice mechanism may be sacrificed in favour of broader cross-party cooperation.

Problematic aspects of the current Act are readily apparent. Among a host of misgivings, the Act fails to recognize the right of victims to reparations (section 2.e and 23), grants the commission the capacity to enforce ‘reconciliation’ while proscribing further legal action (section 22), and compromises the judicial integrity of cases currently within the criminal justice system (section 13 (2)). Crucially, section 26 of the Act provides the commission the discretionary power to recommend amnesties for a broad array of crimes, ranging from ‘politically motivated’ offences that fall within the purview of Nepal’s domestic law, to those of an international gravity owing to Nepal’s treaty-based obligations as well as international common law. Though unfortunate, the Act is not atypical for post-conflict states: the duty to prosecute past crimes remains disputed and the attractiveness of amnesty apparent. Indeed, however unpalatable, norms concerning the use of amnesty and the legal duty to prosecute remain half-formed, under-theorized, and politically contingent.

Louise Mallinder, a leading scholar on transitional justice and a reader in human rights and international law at the Transitional Justice Institute, University of Ulster, is candid: “The duty to prosecute doesn’t come from one neat, tidy place. What we found through working on the Belfast Guidelines is that there isn’t one clear and absolute standard where amnesties are prohibited for all forms of international crimes and human rights violations – it’s a bit of a patchwork.” Though sympathetic to progressive readings of international law concerning the duty to prosecute international crimes, particularly in states with scant treaty-based obligations, Mallinder says “states have a right to prosecute those crimes, but to say they have an absolute clear duty to, you need to find evidence of an established practice of states initiating prosecutions because they believe they have that duty. That’s something I’ve struggled to find.” Though Nepal’s TRC Act may fall short of ‘international standards,’ with reference to both hard and soft sources of international law, it is not entirely impermissible.

Given the deficiencies of international jurisprudence concerning amnesty, the September 4 Supreme Court hearing will have significant consequences for norms related to the duty to prosecute, as well as Nepal’s rule of law scenario. While the Court’s January 2 ruling argued an amnesty was untenable based on its reading of international legal sources, it also provided a definitive judgment on the Interim Constitution’s position regarding impunity. The current Act, quite clearly, contradicts the apex court’s interpretation of both international and domestic law.

Mandira Sharma, a leading human rights lawyer and chairperson of Advocacy Forum, says that a deviation from the Court’s precedent as a result of the hearing would be indefensible: “Legally speaking it is not possible… if the Supreme Court stands for the rule of law, constitutionalism, and international law, and its own previous decision, it should [demand amendment].”

The hearing of the writ petition represents the first serious opportunity for the Act to be formally reviewed. According to Sharma, “No one was consulted. Though they formed the committee of experts, they did not take any of the recommendations that the committee of experts made…They issued a party whip and within a few hours passed the law.” If the Court declines the opportunity to assert its previous ruling, beyond civil disobedience, there will be few opportunities left to challenge the Act’s amnesty provisions.  

Despite the legal principles at stake, arguments concerning the utility of amnesty for Nepal’s political stability remain powerful within the wider discourse. A return to violence is, however, unlikely.

While the strength, composition and political muscle of the armed forces is pivotal to the prospect of prosecution in states emerging from internecine war, eight years after the signing of the Comprehensive Peace Agreement, the Nepal Army is an integrated, largely depoliticized force. Though in the past the Army has thwarted investigations and promoted members implicated in a range of excesses, its credibility is dependent on its adherence to civilian authority. Ramesh Nath Pandey, former foreign minister under King Gyanendra dismisses talk of the Army acting to undermine the people’s mandate as absurd: “Are they the civilian masters? They are not. Do they make the law? No they do not. Who makes the law? Politicians.” The lessons of the 2006 Jana Andolan — during which the direct rule of the monarch was overthrown and authority of the armed forces transferred to the parliament — are unlikely to be forgotten.

Former members of the People’s Liberation Army and cadres of the parties formed in the shadow of its dissolution are likewise a minor threat. As the 2013 November elections demonstrated, the disruptive potential of the Mohan Baidya-led Communist Party of Nepal (Maoist) [CPN(M)], the most prominent former rebel party outside of the CA, is limited. The opposition UCPN(M), meanwhile, is firmly entrenched in the political mainstream — its reluctant acceptance of November’s humiliating electoral defeat a tacit admission of the fatigue of its leaders, if not their democratic disposition. Though street-level provocations are possible, and accusations of politically targeted prosecutions likely, the prospect of significant violence is slim.

For the families of Janakpur’s disappeared, the return of the victims’ remains and the administering of their final rites in a July 23 ceremony this year organised by the National Human Rights Commission is likely to be of little immediate consolation. Closure is a long way off. Still, in the current scenario, the truism that ‘justice delayed is justice denied’ may be overstated.

Somewhat counter-intuitively, an end to impunity in Nepal will likely hinge on whether the process of judicial review outstays the intense politicking and consensus-making demanded of constitution drafting. If the Supreme Court holds its nerve, the renewal of political choices in 2015 may prove definitive — both for transitional justice in Nepal, as well as international jurisprudence concerning amnesty. For observers of transitional states, the outcome would provide yet another example of the often circuitous and oblique processes by which countries obtain stability, democracy and the rule of law.

Michael Vurens van Es is a Kathmandu-based journalist. His work has appeared in the Diplomat, Livemint & the Wall Street Journal, and Himal Southasian among many others.