Published in The Himalayan Times on Sep. 01 ::
We just marked one more International Day of the Victims of Enforced Disappearance, but without any significant progress in terms of addressing the past disappearances in Nepal. Enforced disappearances were among the most serious human rights violations committed during the decade-long armed conflict. According to the United Nations Working Group on Enforced or Involuntary Disappearances, Nepal recorded the highest number of enforced disappearances in 2003 and 2004 in the world.
On 21 November 2006, the Government of Nepal (the Seven Party Alliance) and the Communist Party of Nepal (Maoist) signed the CPA, officially ending the 10-year conflict. As part of this agreement, both sides agreed to “make public within 60 days of the signing of the agreement the correct and full names and addresses of the people who ‘disappeared’ or were killed during the conflict and convey such details to the family members.” Furthermore, the parties agreed to create a truth and reconciliation commission in order to investigate serious violations of human rights during the conflict, including enforced disappearances.
In the eight years since the signing of the CPA, little has been done to allow the families of the disappeared to find truth, justice and realize the right to an effective remedy. The Parliament has recently passed a law that provides procedures to form a Commission of Inquiry on Disappearances (CoI) and Truth Commission but it contains a provision on amnesty that is identical to that included in the 2013 Presidential Ordinance, which the Supreme Court previously rejected as unconstitutional on 2 January, 2014. It also failed to criminalize enforced disappearances despite repeated Supreme Court rulings. The Supreme Court repeatedly held that any transitional justice measures should include accountability for serious human rights violations and a guarantee for victims to a right to remedy and reparation, including the right to truth, justice, reparation and guarantees of non-repetition.
Following the adoption of the TRC Act, the Government formed a Committee to select the members of the Commissions. However, legally the Committee cannot be considered fully formed until the vacant posts of the National Human Rights Commission (NHRC) are filled and a member of the NHRC nominated to the selection Committee. While there has been much controversy surrounding the formation of the Commission, the obstacles facing the Commission in regard to how it will function are much more challenging, and, therefore, require more attention.
If the Commission is formed under its current mandate, key questions such as whether the Commission will be able to investigate all cases of disappearance, be able to handle the potential caseload, be able to contribute to the prosecution of enforced disappearance and hold perpetrator accountable, or be able to deliver reparation to victim will need to be considered.
The Mallik Commission formed in the aftermath of 1990 people’s movement named more than 100 officials and politicians as being directly or indirectly responsible for the deaths of 45 persons and injuries suffered by 23,000 others in 50 days of violence. The Rayamajhi commission formed to look into the atrocities committed during the Jana Andolan II found that King Gyanendra and 201 members of his administration were responsible for the violent response towards pro-democracy protesters, which resulted in 22 deaths and more than 5,000 injuries.
However, none of the Commission’s recommendations were implemented. On the contrary, officials implicated were promoted and/or appointed to the higher position of the Police Force, military and other public office despite their being implicated in serious human rights violations. The excuse for non-action on the commission report mainly was for supposedly maintaining peace and democracy, which is now one of the main arguments for granting the amnesty power to the TRC and CoI.
Over the years, various governments in Nepal seem unable or unwilling to reform the criminal justice system. Instead they have used non-judicial measures such as the appointment of various commissions. However, Nepal’s case is different; the idea for a separate Commission of Inquiry on Disappearance was developed from a rule of law point of view so that it would only focus on individual cases of disappearance and bring perpetrators to the justice, provide reparation to victims and come up with a very clear plan and policy so that the heinous crime would never happen again. However, the architects of the Nepal peace process failed to see the sincerity and seriousness of the problem of disappearance.
This past experience tells us that formation of the commission or a non-judicial measure on the serious human rights violation were always used or may be misused to avoid accountability. In Nepal, there is nothing that a CoI will do which the criminal justice and current NHRC cannot do if they are equipped, reformed and left independent to perform their mandate.
Nevertheless, it is not harmful to have a Commission if it is formed along with other accompanying measures as suggested by the Supreme Court. Otherwise it will not deliver what it should.