TJ Ordinance and Its Implications

The ordinance might seem as a step towards implementing the past agreements, but at a closer look, it will be clear that it is against the spirit of all the agreements as it intends to institutionalize impunity by granting amnesty even in serious abuses of human rights.

1. Background
The council of ministers led by Prime Minister Baburam Bhattarai forwarded an ordinance on August 28, 2012, seeking presidential approval for the establishment of Commission of Inquiry on Disappearance (CID) and Truth and Reconciliation Commission (TRC). As the commission formed through this ordinance is likely to grant amnesty to the perpetrators of armed conflict, the ordinance was heavily criticized. Given that Bhattarai-led government had been withdrawing the conflict related cases saying that the cases in question were “political” in nature, the government’s move was not unexpected. However, the ordinance stunned the conflict victims and concerned others also because the ordinance was forwarded against PM Bhattarai’s own commitment not to withdraw the cases of serious human rights violation.

Earlier, the Prachanda-led government had also attempted to establish these commissions through ordinances whereas the Constituent Assembly (CA) was functioning at that time. Separate bills regarding formation of these commissions had been gathering dust in the parliament for more than two years owing to the lack of political consensus. Government had not been showing any interest in passing the bills through regular parliamentary procedures and deliberations. Ultimately, following the expiration of the CA, the government embraced ordinance as the process of forming commission. Conflict victims and human rights organizations were kept in the dark about the provisions of the ordinance. They came to know about it only after it was forwarded to the President seeking his approval.

2. Ordinance against Agreements, SC Directives
Various agreements and even the Supreme Court verdicts have recognized the importance of establishing transitional justice mechanisms. The Comprehensive Peace Agreement (CPA) signed between the government and the then CPN-M on November 21, 2006 which brought the decade-long armed conflict to a formal end had provisions to make the persons disappeared and killed during the armed conflict public within 60 days, to establish National Peace and Rehabilitation Commission to maintain peace, to provide relief and reconstruction, to establish a Truth and Reconciliation Commission, to investigate upon those who have been involved in serious violations of human rights and have committed crime against humanity, and to create a conducive environment for the return of the internally displaced persons. The CPA commits to ensure justice and reparation to the victims and to establish TRC and CID, however, the ordinance completely lacks the spirit of the CPA in this regard.

The Interim Constitution of Nepal 2007 has envisaged separate commissions to address the issue of truth seeking and reconciliation and enforced disappearances. Under the responsibilities of the State in the Interim Constitution, there are provisions to provide appropriate relief, respect and rehabilitation to the family of the killed, or injuries leading to disability being physically unfit during the armed conflict; to provide relief to the victims of the disappeared persons in accordance with the recommendations of the report of the Investigation Commission constituted in respect to the disappeared persons, launch special programs to rehabilitate displaced persons, provide relief against the destruction of the private and public property and for the reconstruction of the infrastructures and to establish the Truth and Reconciliation Commission to investigate the persons involved in committing serious human rights violations and crime against humanity. The ordinance, however, has provisions to grant amnesty, contrary to the Interim Constitution which commits to combat impunity.

Additionally, the June 2007 verdict of the Supreme Court (SC) directed the government to form a separate commission to look into the cases of enforced disappearances. The Supreme Court directed the government to make public the whereabouts of disappeared persons, establish a high-level commission of inquiry on disappearance, enact a law which would criminalize enforced disappearances and provide compensation to the families of the disappeared. Government decision to merge the two commissions is against the SC directive while the ordinance which can provide amnesty even to the cases of enforced disappearances runs contrary to the SC verdict. The ordinance might seem as a step towards implementing the past agreements, but at a closer look, it will be clear that it is against the spirit of all the agreements as it intends to institutionalize impunity by granting amnesty even in serious abuses of human rights.

3. Conflict Victims Cry Foul
Conflict victims have expressed their serious concerns regarding the contents of the ordinance and the process adopted to pass it as law. Victims’ groups have stated that they will boycott this commission if it is set up through an ordinance. The victims who had been hoping to get justice after the establishment of these commissions have been disappointed as the ordinance was forwarded without its content being made public. It is highly unlikely that a commission established without consulting the victims’ groups will provide reparation to the victim and help build social reconciliation. As thousands of them are still suffering the effects of war, any commission that prioritizes amnesty to the perpetrators will not be accepted by the victims. The amnesty provision which is included without the consent, coordination and satisfaction of victims would neither uphold reconciliation and peace, nor relieve society from the conflict mentality. Therefore, an independent commission should be formed in cooperation and consent from the victims’ group so as to investigate into the serious abuse of human rights, to establish facts about it and punish the perpetrators, such a commission should ensure justice and reparation to the victims besides ensuring that abuses would not repeat in the future.

Reconciliation is an important goal, but it cannot be built on a foundation of impunity for serious crimes under international law, and it cannot be achieved by coercing victims either. The ordinance forces the victims and their families to artificially ‘reconcile’ and give up their rights to truth, justice and reparations. From the victims’ perspective, forming a Truth Commission through ordinance would simply confirm their worst fears that the state is out to protect and support perpetrators of war crimes while denying victims’ basic demands for justice and sustenance assistance.

4. Concerns of Human Rights Community
The government’s move to pass the bill regarding formation of Commission of Inquiry into Disappearance and the TRC through an ordinance drew widespread criticism. The Commissioner of the National Human Rights Commission (NHRC) condemned publicly the government move to pardon those who committed human rights violations during the conflict. The government completely disregarded the concern expressed by the NHRC over the latter’s request to include the constitutional body and stakeholders in the law making process regarding the formation of such commission. The NHRC, after learning about the government plan to bring the law regarding TRC with amnesty provision through ordinance and also upon receiving request from human rights organizations and victim’s families, had cautioned the Prime Minister in a letter on August 12, 2012 not to institute TRC as a design to offer general amnesty without ensuring with it peace, reconciliation, compensation, relief and reparation. The move was commented also as a design to whitewash the crimes committed during the insurgency by denying justice to the victims’ families. Also, it was criticized that it was more of a commission to pardon those who violated human rights during the conflict period than the one to ensure justice to families of the victims.

The UN High Commissioner for Human Rights Navi Pillay, while speaking at the 21st session of the Human Rights Council in Geneva on September 10, 2012, expressed concern over the proposed ordinance stating that it would grant the future transitional justice mechanism with broad powers to grant amnesties, including for those who might have committed gross human rights violations, in breach of international law and Nepal’s international human rights obligations. She stressed that the rights of victims to justice, to truth, to a remedy and reparations must be respected. Her emphasis on the ordinance reflects the international human rights watchdogs’ concerns on the amnesty provision incorporated in the ordinance and sends a message that the ordinance would not be accepted with such provision.

The European Union reiterated the importance of upholding international standards and principles of human rights and humanitarian law, in particular with regard to the establishment of a Truth and Reconciliation Commission and Commission of Inquiry on Disappearances.
Accountability for conflict-era human rights violation is an important step towards genuine reconciliation and consolidation of the peace process, and should be addressed as a matter of priority. The EU countries also urged the government of Nepal to ensure that any commission meets international standards and does not include or recommend amnesties for gross violation of human rights and serious violation of human rights and humanitarian law. Transitional justice mechanisms that are genuinely independent seek both truth and reconciliation and give victims the fullest opportunity for redress and provide the best framework for consolidating the peace process. Special attention is needed to ensure justice for women and girl victims of sexual violence during the conflict.

Amnesty International, Human Rights Watch, the International Commission of Jurists, and the TRIAL (Swiss Association against Impunity), in a letter on August 30, urged President Dr. Ram Baran Yadav to return the ordinance claiming that it would empower a politically constituted Commission with discretion to recommend the granting of amnesties for crimes under international law.

Human Rights Treaty Monitoring Coordination Committee (HRTMCC), a coalition of more than 60 human rights NGOs of Nepal, condemned the ordinance in a press release issued on September 6 stating that the cabinet decision was against the CPA, Interim Constitution of Nepal 2007, the past agreements, the bills tabled in the erstwhile parliament, and also the international obligation of the government related to human rights and victims’ right to justice.

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 the 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.

5. Flaws in the Ordinance
The government’s intention to bring the ordinance seems more towards granting blanket amnesty to perpetrators rather than ensuring justice, truth and reparation to the victims. By merging the TRC with CID, the government provides an opportunity for amnesty even in serious human rights violations, including enforced disappearance, extra-judicial killing, torture and rape. Article 24 of the UN Updated Set of Principles for the Promotion and Protection of Human Rights through Action to Combat Impunity provides that “the perpetrators of serious crimes under international law may not benefit from [amnesties and other measures of clemency] until such time as … the perpetrators have been prosecuted before a court with jurisdiction …” Furthermore, the government of Nepal has an obligation to investigate into and prosecute all instances of serious human rights abuses, and guarantee victims’ right to an effective remedy and to be heard by an independent and impartial tribunal as a State Party to the International Covenant on Civil and Political Rights (ICCPR). The government has overlooked these aspects while bringing forward the ordinance which can have serious repercussions. British Ambassador John Anthony Tucknott’s recent warning to stop aid to Nepal government if the commissions were formed with a view to grant amnesty should be seen in this light.

The ordinance provides opportunity for political maneuvering. 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 compromise 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.

Section 22 (1) of the Ordinance mentions that the Commission can reconcile the victim and the perpetrator if either of them applies for reconciliation. However, the clause saying that it would not be considered that the Commission is barred from reconciling even if there is no such application apparently stresses on forced reconciliation. Therefore, there should be a provision ensuring that the perpetrators of serious human rights violation cannot get away in the name of reconciliation.

Section 23 (1) on amnesty says that the Commission could recommend for amnesty of the perpetrator with sufficient base and reasons if its investigation finds that the perpetrator can be pardoned. This gives the commission the power to grant amnesty even in serious abuses of human rights.

Section 24 (1), says that the Commission can recommend for reparation, the victims shall be duly compensated, re-rescued or rehabilitated or any other suitable measures as needed to the government of Nepal. The Ordinance does not focus on reparation but only touches the aspects of reparation.

Section 28 (1) says that the filing or dismissing of the case would be decided by the Attorney General (AG) or government attorney deputed by the AG on the basis of recommendation of the Commission arrived after its investigation of the perpetrator. This means the Ordinance has the provision of amnesty to all kind of cases and that the cases can be filed not with the permission of the victims but with consultation with them. Weak legal provisions and past experiences reveal that these provisions are likely to promote impunity.

The international standards on the transitional justice mechanisms include: (i) terms of reference and a scope of inquiry which are neutral and adequately framed; (ii) guarantees of independence such that the Commission is structurally and hierarchically independent of the authorities facing complaints; (iii) enjoyment of adequate administrative authority and resources; (iv) non-politicized appointment of the Commission, followed by wide and public notice of the appointment of the Commission and its mandate; (v) public Commission proceedings; (vi) effective victim and witness protection; and (vii) publicizing the Commission’s final report(s). However, the mechanisms in the proposed ordinance do not meet these standards.

6. Necessity to form TRC, CID, and the International Experience
To paraphrase the views of the ICTJ, transitional justice through the TRC and other related commissions is inevitable in the post-conflict context. Transitional justice is a response to systematic or widespread violations of human rights. It seeks recognition for victims and promotion of possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades. The truth uncovered through the TRC can be therapeutic for the victims especially for the victims of human rights abuses. Reducing tensions should be the main aim of the TRC. Making reform and recommendations so as to prevent the repetition of the violent past and helping the opponents of the past live side by side should be the end result of the TRC.( Brahm: 2007:22). Referring to the TRC of South Africa Annelies Verdoolaege (2008) writes “testifying, complaining, apologizing, venting one’s rage, expressing one’s grief, disappointment or despair, all of these discursive practices took a central position in the proceedings of the TRC.”
After examining the truth commissions of South Africa, Chile, El Salvador and Uganda, Eric Wiebelhaus-Brahm( 2010) view that even in a variety of unique and difficult situations, truth commissions have promoted human rights reforms to a varying degrees, however, violence was also seen to have been triggered in many countries as a direct result of dissatisfaction with the truth commission process. “A broad range of goals has been attributed to truth commissions. Among them, most scholars recognize human rights improvements as central (Olsen, Payne and Wiebelhaus-Brahm: 2010). Wiebelhaus-Brahm takes the debates of the critics and proponents of the truth commissions into consideration and writes:

“…the lack of individual accountability provided by truth commissions may send the message that impunity for human rights abusers will continue and this will inhibit the establishment of the rule of law. As a result, the would-be human rights abusers may be emboldened.”

Literatures are amply available that the figures selected as the member or head of the commissions formed for the transitional justice should be impeccable and revered by all the parties concerned. Impartiality is sought in the figures selected and nominated to lead the commissions formed for truth and reconciliation. Such qualities have, experience shows, been sought while forming the commissions as such. President Mandela, in consultation with his bipartisan cabinet, made the final selection, people he considered to be of high moral integrity, impartial, and committed to human rights (Lyn S. Greybill : 2002).

It has also been discussed that the citizens of truth commission countries frequently express lukewarm support for democracy and large numbers of people in these countries often express a willingness to abandon democracy in exchange for economic development and law and order (ibid, 24). The government of Nepal also seems to have brought this ordinance by being guided by similar deduction. However, as the government has tried to establish the truth commission at a time when people have already tested the modus operandi of the political parties and especially the rhetoric and reality of the UCPN-Maoists, such the view is not going to be applicable in Nepal’s case. People, here, are still advocating for democratic set up enthusiastically.

Keeping the importance of transitional justice related commissions into consideration; various commissions have been formed so far in different countries. However, the contexts of forming these commissions vary from one country to another. The following table indicates that name of the commissions differ despite the fact that truth commissions are formed with similar objects. The legal bases of their formation also differ. Some commissions are seen to have been formed through commission acts and some others through the decrees or discretion of the head of the governments or states. Likewise, some are seen to have been founded on the basis of the UN Resolutions. Not to release reports of the commissions is seen as a problem and many commissions formed for truth seeking published only the unofficial reports. Likewise, non-implementation of the recommendations of the released reports is seen also as a challenge.

Forming the TRC and CID is indispensable in Nepal and it is highly desirable that such commissions should be formed through a formal democratic process keeping into mind that conflict victims are justly dealt. The recommendations made by different commissions formed at various times for different purpose are not implemented. Nepal has bad precedent regarding this. Therefore, it is highly desirable to form an all-satisfying commission whose recommendations are properly implemented.

7. Conclusion
The forwarding of the ordinance on the eve of the International Day of the Disappeared demonstrates the government’s intention to protect the perpetrators of serious abuses of human rights. This move of the government will only prolong the transition. The repeated efforts of the UPCN-Maoists to establish the commission without consulting with the stakeholders has raised suspicions that the party is keen on legitimizing amnesty in the name of reconciliation. Although reconciliation is an important part of the transitional justice mechanism, it cannot be achieved through coercion which the bill intends to do. The introduction of this ordinance following the withdrawal of criminal cases and after the promotion of the security officials implicated in serious human rights abuses show that the government is bent to provide amnesty to the perpetrators.
The President, during a meeting with the Society of the Families of Disappeared Fighters by the State has indicated that he will not approve the ordinance. This measure taken by the President has made the conflict victims hopeful again. However, until and unless he does not send the ordinance back to the Prime Minister indicating its flaws, it will be very difficult for the conflict victims to be assured that they will get justice, which they have been awaiting desperately. If the process to form such an important commission is forwarded without broader consultation with the conflict victims and the human rights organizations, the would-be formed commission will be unacceptable. Also, the commissions in question should be established based on political consensus following rounds of consultations with the stakeholders.This only will ensure a fair, independent, transparent and effective commission. The effective implementation of the recommendations of the commissions should also be ensured at the same time.

The government has attempted to form the TRC through the Ordinance primarily to grant amnesties for crimes and gross violations of human rights committed during armed conflict whereas amnesties not only contravene international human rights law by upholding impunity, they also weaken the foundation for a genuine and lasting peace.Moreover, at a time when the government itself is caretaker, establishing such commissions through ordinance has invited controversy. It will be most appropriate to bring the law when the parliament is in place but if the present political uncertainty persists compelling the conflict victims to live in the dark, a law brought with broader consultations and political consensus might be acceptable. As this ordinance did not incorporate the suggestions that the previous draft-bills regarding establishment of transitional justice mechanisms had offered, it is imperative that series of consultations be held with the stakeholders before bringing such a law. Then only will the human rights bodies, victims’ groups and international community approve of the government’s efforts to ensure justice to the victims and to address the abuses and human rights violations committed during armed conflict.

A version of this article was published in the July-December, 2012 edition of INFORMAL .