View Points

Radio, Television, newspapers and tabloids have been publishing news of women violence prevailing in the society in almost daily basis. The data shows that there has been increase in violence in our society. The campaigners active in this sectors have said that the registration of complaint and seeking for justice process have increased simultaneously. Except province number 2, in other provinces, the local level election has been concluded along with its implementation. Elected people’s representatives are already engaged in various work by making plans and policies. On this context, we have asked recently elected women representatives about their future plan to end women violence and women empowerment planning.

Kantika Sejuwal

Mayor, Chandan Nath Municipality, Jumla

The programs and policies of 2017/18 has been adopted from City Council inorder to work for women rights and to end women violence. The foremost important thing to end women violence is awareness. It is very important to make people aware on this. The Chandan Nath Municipality has allocated one million Rupees for the women empowerment campaign. My future planning is to bring policy program and empowering women to end women violence. For this financial year also, a million rupees has been allocated to minimize child marriage, untouchability and women violence. Three member committee has been formed in coordination of vice Mayor Apsara Devi Neupane with the objective of providing justice to the victims and minimizing women violence. This committee will especially work in the field of women violence and women rights.

Eek Maya B.K

Vice-chair Khajura Village Council, Banke

The minimization of women violence is the first priority. The important this is to prevent women violence rather than reaching into agreement. The violence is in increasing trend due to poverty, illiteracy rate, economic status, untouchability and dowry etc. Education is must at first. It is important to give formal and informal education not only to school going children but also to all family members. At the same time it is important to aware people. Daughters must be given education. The trend of dropping out of male students from the school and going to the wrong path is rampant and there can be reduction in violence if we are able to minimize it. It is important to formulate policies and program along with its implementation to end women violence. It is seen that modern technologies is also playing role on violence and it is important to aware pros and cons of technology. It is important to teach responsibility along with rights.

Sushma Chaudhary

Vice-Mayor, Bansgadhi Municipality Bardiya

Still now in our society, child marriage, polygamy, allegation of being witch, domestic violence is rampant among women just because they are women. In these incidents, the data shows that women are maximum victims. These incidents are happening in the name of old social norms. At present, the constitution has provided equal rights to women as men and despite of this, the problem still prevails in our society. It is important to break this trend and move forward.

The newly elected representatives are preparing to move forward by making especial policy in women sector similar to others. For this, in Basgadhi municipality, I am planning to move ahead with especial policy for women. Awareness is essential on ending women violence and making women rights friendly family and community. Along with this, capacity building, financial increment, skilled training operation and providing expert women health professional for women is under planning.

Similarly, freedom for women, opportunity and establishing their rights along with the implementation of Act for this is underway. From now on, the monitoring will be evaluated to make it more effective and accountable. This will give stress on effectiveness. I have made planning to implement the policy and regulation based on rights provided by the constitution on women rights to minimize women violence in the society. It will be coordinated with the concerned authority and stakeholders so as to move further ahead.

Manju Bhandari

Vice- Mayor, Dharan sub-metropolis, Sunsari

I have a planning to make Dharan sub-metropolis a women friendly. It will be enforced soon after passing it through city council. No one will have to be the victim of gender violence just because of being woman. We have stressed on women empowerment for creating such environment and we are working for it. We have given priority to women especially from rural area to enhance their capacity. The municipality will give priority to provide justice to the women victim. For this, the mechanism will be made in city along with planning. The programs will be operated to make women empowered and financially capable.

Sharmila Gurung

Vice-Mayor, Gharpajhong Rural Municiaplity, Mustang

This is a Hilly district with minimum population. Most of the Janajati people live in this area. In this district, there are 47% women and most of them are busy, independent and professional and may be because of that, the women violence is minimum in this district. However there are still some women violence due to the lack of education and awareness. As a representative, what I want to say is, this district, village and society itself is very beautiful and exemplary. I would like to urge everyone not to do violence or atrocity. Please inform the concerned body if someone conducts violence against women. Till now, there has been no news of violence reported in our office. We would like to show our commitment that we will give priority to the victim of women violence. I am always ready to drag those in legal boundary who commits women violence.

(Presented by: Man Datta Rawal-Jumla, Binod Pandey-Banke, Man Bahadur Chaudhary-Bardiya, Shekhar Dhakal-Sunsari and INSEC regional Office, Pokhara-Mustang)

The Truth and Reconciliation Commission(TRC) and Commission on Investigation of Enforced Disappeared People(CIED) which was supposed to be formed within six months after the Comprehensive Peace Accord along with the end of 10 years of Maoist insurgency was formed after ten years. The Human Rights activists and conflict victims are suspicious on getting justice through commission showing their discrepancy on its forming process. Both commissions had announced to lodge complain from the first week of April. The complaint lodging process is extended until the end of July. The extended period is about to end. The conflict victims are still not sure of getting justice by looking at the number of complaint lodged at commissions. In this context, some victim�s conception is presented here.

 

Shalik Ram Paudel, Kaski

Eyes have not dried yet from the time my son was disappeared by the state actor during decade long armed conflict. I would have performed rituals if the description was made public even if he was murdered. I want to see those culprits, whoever they are, being punished. There must be provision of education, employment and health for those dependent families. Many complaints were lodged at many places, seeking for justice. I have filled the form despite of any expectation of getting justice. We are victim. Getting or not getting justice depends on state.

 

Hiramoti Shah, Syangja

I heard the news of his murder by former Nepal army after arresting him on charge of being Maoist while he was returning home after receiving pension from Indian pension camp on December 296, 2001. After that, the army again came in our house and gave us mental and physical torture. However, while filling up the form, I have included only complaint of murder. I do not have any hope of getting justice, even though I have filled the form. I do not have any hope on getting justice and reparation looking at the formation of these commissions and its work. Despite of this, I have filled the form so that it may include in document.

 

Durga lamichhane, Kaski

My support for the future, my son was disappeared. We do not know whether he is alive or dead. I do not have anyone to support me. I do not have any employment and my life has become very hard. I want them to make my son�s whereabouts public. I would have at least felt peace inside to see those perpetrators being punished. Only this much I hope from the commission.

 

Arati Sharma, Tanahu

My husband was disappeared. Do not know either he is dead or alive. Even if he is dead, I could not perform any rituals. I have a family responsibility in other hand i worry about my children�s future. I am happy that commission has been formed even after a long time. But I am not sure whether it is really formed to give justice or just for the sake of forming. I have however filled the form demanding for justice.

 

Sabitri Khadka, Baglung

There is no provision for providing secret description of incidents on rape and sexual violence in commission. There were many such incidents occurred in village and remote parts of the country. The commissions have not accessed to those people to collect complaints. The victims are in dilemma to lodge complaints as most of them do not have any evidences to prove the violence. There should be an environment where all the victims can lodge complaints.

 

Kalpana Subedi, Parbat

My husband was disappeared by state actor. There is no information about his whereabouts. It has been a long time now. I feel like I have forgetten this incident due to the busy schedule of my work. But people ask about it and again those past memories hurt me. My healing wound is being opening up again. I have not received any relief or compensation from anyone. Commission has called for the lodgement of complaint. There is some hope of getting justice however we are worried about the security. How can we be sure of security? State must manage our security.

 

Sita Kaini, Tanahu

My husband was taken by the former Nepal army personnel from our house asking him for interrogation. We came to know later that he was murdered. That particular army man involved in an incident calls and threatens us not to include his name while lodging complaint at the commission. Only 74 people have lodged complaint out of 206 victims in Tanahu district. This is may be because of the threatening that they are receiving. The victims cannot come out freely unless their security is ensured. There is no hope of either getting reparation or compensation neither punishment to the perpetrator. If the victims feel secured then only the numbers of complaints will rise.

 

Jamuna Baral, Kaski

In 2002, my husband was arrested by the police. He was living his life by driving taxi. I went to District Police Office with food after knowing that he was kept there. They did not allow me to give him a food. Next day when I again went to see him, I was told that he is not there. Afterwards, I was taken to various places by police in their vehicle. There was no limit of torture and foul language. Later they left me in Amarsingh Chok. I have no idea where my husband is. I have not received any support for upbringing of my children. Can i get justice after filling up this form? Can I get compensation against torture that I had received? I don�t know at all. However I have lodged a complaint.

 

Jamuna Sharma, Kaski

My father-in-law was taken and murdered by the then Maoist rebels. But, until now we do not know the reason for his murder. The murderers were in masks. No one could be recognised. My mother-in-law is still in tear. The complaint lodging process is also challenging as we feel insecure from those perpetrators. In such situation who will give us security? How can we be ensured of getting reparation and justice?

With the ongoing discussions concerning citizenship provisions in the draft constitution, Ramesh Prasad Timalsina collected views of leaders of political parties and women rights activist regarding ‘Citizenship in the name of mother’. Excerpts:

 

Khim Lal Devkota, UCPN-M Leader

Citizenship is directly linked with nationality. This issue has been put forward with a view that we must be very serious and strict regarding citizenship. Discussions have been held with the perspective that nationality will be diminished if we are flexible on this issue. When we held discussions through the Party Cooperation Mechanism to find out the crux of this matter, we did not find such views to be true. It is not that being strict or loose on issue of citizenship weakens or strengthens nationality.

No Nepali people should be deprived of citizenship. Women must be given a right of patrimony and patronym. Let us implement the policy of non-discrimination between boy and girl in citizenship as well. The first citizenship act is “Citizenship Act 1952”. In this act, there is a provision of getting citizenship in the name of father or mother. After that, the constitution of 1962 has also provision of getting citizenship in the name of father or mother. The constitution of 1990 stated father and mother requiring father mandatory while getting citizenship. This means that one is entitled to citizenship only if his/her father is a Nepali citizen at the time of his birth. It does not talk about the nationality of mother. That is why the journey of citizenship has been regressive since 1990. The Interim Constitution of Nepal 2007 has also stated “Father or Mother” ; however its implementation has been dominated by the mentality of 1990 constitution. So, if we could move forward by amending the provision in constitution of 1990, an environment of issuing citizenship in the name of either mother or father can be created. It is necessary to move forward in this direction in the coming days.

 

Sapana Malla Pradhan, Senior Advocate

Citizenship is a fight for identity. It is also a fight women’s independent existence. Women are also a citizen and they are eligible for equal rights as citizens. Previously, only women fought for their right but now men are also with them. Women’s father, husband and son are with them in this fight. Men are in front-line to end discrimination in citizenship. None of the human rights document in the world has accepted the rule and behavior of inequality. All of them have followed the principle of equality. We are in third phase in the campaign of human rights movement. While reaching this phase, numbers of human rights laws have developed. The nationality is the right of every individual and the right to nationality has been recognized worldwide. Now it has also been recognized that the state must adopt the policy of non-discrimination and not accept statelessness. The guarantee of child and women rights has also been accepted. The European Convention of 1997 has clearly stated that the state should not discriminate its people on the basis of naturalized and citizenship by descent. We talk about making democratic constitution but at the same time we are making undemocratic drafts. We want an progressive policy. These are our present challenges. We are making a new constitution and at the same time we are trying to be strict in citizenship issue. This will take us in opposite direction. If we want to choose the way of progression, we need to adopt the policy of non-discrimination. There should not be discrimination in citizenship. The means to get citizenship either in the name of mother or father must be made easy.

 

Jitendra Sonar, TMLP Leader

The constitution that we have envisaged is non-discriminatory. Not only in case of citizenship, but in any sector there should not be any discrimination. The discrimination in a sensitive issue like citizenship is absolutely unacceptable especially when we are envisaging a state and society without discrimination. Citizenship is not only to be a citizen, it is necessary to be born, to get married, to get opportunity and even to die. If we are not sensitive on this issue, this may show that we are enforcing instead of stopping discrimination. That is why, the process of getting citizenship must be made easily accessible. For this, instead of word “father and mother”, “father or mother” will play a crucial role. At first, I would like to say that the word “and” must be replaced with “or”. The word ‘or” will solve the problem. The second thing is mentality. The mentality may spoil the process even though the policy is effective. That is why it is necessary that the mentality of state must change. In Terai region, women (mother) normally do not care about citizenship. They feel the importance of citizenship only to achieve elderly allowance after reaching the age of 65. Otherwise they do not feel the importance of citizenship. The new law must have provision to give citizenship either in the name of mother or father. It is the responsibility of all political parties and leaders to provide citizenship to a eligible Nepali.

Pushpa Bhusal, Nepal Congress Leader

The provision of “Manusmriti” makes woman dependable on others. As soon as she is born, she is sheltered by her father, after marriage she is being taken care by her husband and in an elderly stage she is made dependent on her son. The issue of giving citizenship to one’s children in the name of the mother is motivated by this. Giving citizenship in the name of father or mother was in practice since 60 years. This has not affected the issue of nationality. It is useless to link the issue of citizenship with nationality and intellectuals should not follow such rumors. Democracy in the 21st century does not accept discrimination. In my opinion, citizenship by descent is the right of a citizen. Naturalized citizenship is the responsibility of the state. The new constitution must not have discriminatory provisions in order to adopt principle of equality in the democratic, republic constitution by ending the past discriminations. The discrimination must end, be it in citizenship by descent or in naturalized citizenship. We must maintain equality according to the UDHR and international laws regarding women rights. We do not have any rights to make law against them.

A version of this View Point appeared in the August, 2015 edition of INFORMAL

Various issues of rights and freedom have been discussed within the jurisdiction of human rights. United Nation has adopted various treaties to ensure Civil and Political Rights, Economic, Social and Cultural rights worldwide. Human Rights has been listed in the Universal Declaration of Human Rights adopted in 1948. Champions of right to food have advocated it as the first right of individuals.

 

In another words, right to food is the right of the common people to have unhindered and easy access to adequate food on daily basis . The International Covenant on Economic, Social and Cultural Rights 1966 has recognized the right to adequate standard of living, including right to be free from hunger. Article 25.1 of the Universal Declaration of Human Rights 1948 has also ensured right to food.

 

Clothes, shelter and food are the basic human rights of people. These rights must be fulfilled by the State. Right to food with nutrition has been accepted as right to food. Facts related to gross violation of right to food of the common people due to food crisis and lack of government� policies regarding food have come out occasionally. While discussing about the right to food, the issue of food sovereignty cannot be viewed separately. In 1966, the farmer�s association of 148 nations (Via Campensina) forwarded the seven principles by presenting the concept of food sovereignty. The association gave major importance to agrarian reforms, protection of natural resources, re-building of food entrepreneurship, eradication of global hunger, social peace and democratic control by forwarding the right to food as basic human rights. The Interim Constitution of Nepal 2007 has guaranteed human rights as fundamental rights of the people.

 

Before saying that the State has not ensured right to food, the issues regarding agriculture and land management should be advocated with importance. Ministry of Agriculture and Co-operatives is the line ministry responsible for food security. However, the policies are prepared by the National Planning Commission. Therefore, coordination between these two agencies is necessary. Only proper management of land, the policy regarding modern and commercial agricultural production can guarantee the right to food. Ramesh Prasad Timalsina collected views of right to food activists for �INFORMAL�.

 

Birendra Adhikari

The class deprived from right to food are workers and poor who cannot feed themselves and are not able to ensure their food security. There is malnutrition. Especially these groups are known to be deprived from right to food and without food security. In legal term, the right to food has been included in the constitution. If other laws are made it will be the issue of protection and prosperity of right to food. The critical issue at present is that the right to food sovereignty has been provided in the Interim Constitution of Nepal but it states that this will be enforced only after making laws. However, we are saying that the right to food must be ensured constitutionally. It cannot be said that it will be enforced only after making laws. This is the legal hurdle in achieving the right to food while there are technical difficulties as well. We are not independent in terms of food production. Even for buckwheat and millet, we have to rely on other countries. We are in such a situation that even fruits, meat and vegetables are being imported from foreign land. Everything is being imported. We have very little commodity that can be exported. Not even 5% is exported as compared to imported goods. This indicates that in coming 8-10 years we are going to suffer from more poverty due to food. The growth in economy due to remittance is temporary. To have a full stomach and nutritious diet, we need to promote agriculture, industries and employment which will make the country�s production sustainable. We believe that the country can only develop if all its people, including post-partum women, children can eat to their fullest and have nutritious diet. But the situation is different and adverse.� The government�s attention must be focused on this issue.

 

 

Chitra Raj Timalsina

It is more necessary to know about �duty to food� rather than right to food. People need to work first before demanding for right to food. We need to advocate for unconditional guarantee of right to food of senior citizens, people with disabilities and children. Those people, who do not work, spend their time without doing any productive work should not ask for their right to food. The farmers themselves are not able to consume the food they produce. They are compelled to sell their produce in wholesale price and buy the same in retail price. That is why the right to food must be implemented firstlyon the farmers. The government must bring micro finance program targeting small farmers rather than big ones. Only then it will be easier to translate right to food into practice.

 

 

Budhi Ram Tharu

The issue on right to food has been discussed aplenty since long in Nepal. It is normal that even now this issue is the subject of discussion. It is necessary to view right to food beyond the food security as the food security includes only technical aspects.There are four pillars of food security – availability, adequacy, accessibility and acceptability. We all know that the production is very less in our country. We have been importing produces from other countries since 25/26 years. The first thing necessary is to increase production or productivity. The production has been affected due to the lack of manure, seeds and proper irrigation. So we need to focus on what measures can be adopted to increase the productivity. Firstly, it is necessary to reform the technical aspects. Secondly, policy-level decisions at political level are needed.Government must somehow create an environment of relief to small farmers and ensure their food security and right to food. The ill practice of wasting food is on the rise these days. We can see this in big restaurants and hotels or in receptions. These wastes can be reduced with proper management to ease food availability. If employment and skill are imparted to the citizens, mainly youths and other people can generate income which will ease the food import.

 

 

Khom Prasad Ghimire

Food is indispensable to a human life. To have easy access to food is the right of an individual. Fruits and vegetables are specially needed food materials in everyday life. Special care should be given from the production to distribution of fruits and vegetables. Safe, quality and pure goods should be brought to the consumers. Farmers and entrepreneurs should be engaged in creating such environment. Nowadays, the use of pesticides in fruits and vegetables is rampant. This has curtailed the people�s right to consume pure food. It is necessary to focus on how to produce pure and edible foods in the context of increasing use of pesticides. It is high time everyone focused on organic production of food. Right to food is not only the people�s right to consume, it is related to the right to life. This is an issue related to health. Some plans of the government have come up. However, their implementation needs to be taken to the people�s level.

The hearing of Nepal’s second periodic review report on ICCPR 1966 has been held in Geneva, Switzerland in a 110th meeting of United Nations Human Rights Committee from March 17 to 19. Government of Nepal submitted its first periodic review report to Human Rights Committee on 1994 after ratifying the Covenant in 1991. Nepal submitted its review report of the period of 1995-2010 in 2012 though there is a provision of submitting the report in every five years. The HRC had already recommended the government to implement the rights protected by the covenant. The recommendation directs the government to implement these provisions such as impunity, National Human Rights Commission, violence against women, caste discrimination, extra-judicial killings and arbitrary arrest as per the provision of the treaty. What effects will Nepal have after the discussion held in Geneva and the recommendations provided? Here are the viewpoints of Human Rights activists and conflict victims, compiled by our representative Ramesh Prasad Timalsina.

 

Bhawani Prasad Kharel,

President, National Human Rights Foundation

In United Nation’s 110th review meeting, the civil and political rights of the country have been reviewed. The questions posed to the representatives of Nepal from the international community have pressurized Government of Nepal to fulfill its human rights commitments and its obligation towards human rights and I think it will be beneficial to Nepal.

 

BP Adhikari,

INHURED International

The government submitted its periodic review after a long time. At the same time the shadow report has been presented on behalf of civil society of Nepal. The discussion has been held regarding this report on March 17, 18 and 19. They take the cases from civil society in serious manner. That is why the government representatives were grilled with many questions in a meeting. The UN sends recommendations to the government. It also monitors the situation and recommends government to follow it up via human rights view point and keeps on monitoring the issue. If the government is unable to fulfill its commitment, it can raise a question at an international platform for not fulfilling the obligations of treaties and conventions. The international community will give a tremendous pressure on the government. After expressing its commitment towards human rights at an international level, the government cannot brush it aside once it makes pledge at the international platform.

 

Professor Kapil Shrestha

Former National Human Rights Commission Member

The Government of Nepal has not demonstrated its seriousness towards the issues of human rights and implementation. From the beginning, Nepal has been accused of hurrying in ratifying the United Nations and other international treaties but lacking the will on their implementation and adherence. The report presented by the Government of Nepal is bit a surficial. Nepal is a country having a high potentiality of gaining achievements. However, in absence of willingness and honesty in politicians, administrators and law makers, Nepal has always been in an awkward position and been embarrassed in the international arena. This trend has not stopped. I am very worried as a human rights activist. Is it not a time to correct ourselves? It is not that our leaders, administrators and law makers don’t know that. The only thing is that we are not serious about it. Nowadays, the other countries are taking these issues very seriously.

 

Shri Ram Adhikari,

Officer, National Human Rights Commission

The main job of National Human Rights Commission is to exert pressure on the state. Nepal, being a state party to ICCPR, is obliged to address the recommendations provided by Human Rights Committee. The provisions in the Covenant state that a state party has an obligation to submit its periodic report every four years and has a responsibility to implement these recommendations of the report. It is the state’s responsibility to amend the law, establish Truth and Reconciliation Commission or enforce law, if necessary. It is not necessary for Nepal to wait for the recommendation from United Nations to prosecute the perpetrators of human rights violation. However, it is an additional pressure on the government to receive the HRC recommendations from while the state is showing its insouciance towards violation.

 

Laxmi Pokhrel, ICTJ

The issues regarding the Civil and Political Rights have been discussed in the meeting and the HRC has given its recommendations in specific subjects. The Committee has spoken about the job needed to be done by Government of Nepal regarding transitional justice and the violence against women and also has asked the government to give feedback within a year whether it has fulfilled its responsibility and liability or not. As for being a state party to ICCPR, Government of Nepal is obliged to fulfill the recommendations issued by the HRC. If not, the state will be perceived in the international community as incapable of fulfilling its obligation.

 

Manjima Dhakal,

Daughter of Rajendra Dhakal an Enforced Disappearance Victim

This is simply a business. May be it is right from their side to raise the issue to the serious international community. I don’t think that the people who came back from Geneva can heal our wounds because they can’t feel our pain. I want this business to end as soon as possible by creating a better human rights situation in the country. We want our pain to be addressed. The Universal Periodic Review has made the government aware and made them realize that the government has to face the questions from international community for failing to meet its obligation. However, I don’t see the concerned authorities are serious and sensitive about this issue. If they were serious we would not have to go through this situation.

 

Suman Adhikari,

Son of Muktinath Adhikari, killed by Maoists during the armed conflict

We think the recommendations that came up after the discussion in the HRC will have a positive effect. Government cannot lie to international community like it does to us. The state does not have any moral power to lie after the discussion that was held in Geneva. The victims of serious human rights violation hope that the government would work to improve the situation of human rights in Nepal. We have a hope that our case will be addressed by the state in coming days.

INSEC has been standing alongside the victims in their fight for justice & will continue to do so. Through various non-violent measures in this course. Activist & opinion bulders were sought opinion on “what measures should Nepal Government take to render justice to the victims of enforced disappearance”.

 

Om Prakash Aryal

Lawyer

We don�t think that the Government of Nepal is serious on measures it has to take rendering justice for the victims of enforced disappearance. The government has intentionally delayed the formation of a disappearance commission, it has been diluting the issue-. For example, it passed an ordinance to merge disappearance commission with the truth commission. This ordinance ignores the norms enumerated in the constitution and international law. We therefore must put pressure on the government to uphold state�s legal obligations towards victims of armed conflict.� Particularly, following recommendations are offered to the Government of Nepal to ensure justice to the victims of enforced disappearance:

• Revoke the ordinance which merged the disappearance commission with truth commission, enact a separate law to form an independent, impartial and competent commission of inquiry on disappearance and criminalize enforced disappearance.
• Implement the Supreme Court�s landmark judgment on enforced disappearance dated 30th May 2007, which has passed a number of binding orders (mandamus), such as the requirement to initiate criminal as well as disciplinary proceedings against government officials responsible for the enforced disappearances of Rajendra Dhakal, Bipin Bhandari and Dil Bahadur Rai; and the murder of Chakra Bahadur Katuwal following his enforced disappearance.
• Proceed to become a state party to the UN convention relating to enforced disappearance with the aim to prevent such crime in future.
• Ensure that reconciliation and amnesty shall not be allowed in the serious crimes, including enforced disappearance.
• Provide adequate reparation to the victims and their family members.
• Proceed to make a vetting law with a view to prevent persons involved in abuse of human rights, including enforced disappearance, to contest election or any public posts.

 

Raju Prasad Chapagai

Chairperson, Justice and Rights Institute-Nepal (JuRI-Nepal)

Regrettably, there is increasing hopelessness of justice for the victims of conflict-era violations within the country, in particular, for the victims of enforced disappearance. In such a situation, it is natural for victims and rights activists to seek options at the international level- e.g. jurisdiction of foreign courts and the UN human rights committee. The support of human rights community to such efforts beyond the border appears to have been aimed at generating pressure upon the State to implement on its repeated commitments to ensure justice within the Country. The Government must take such quest for justice seriously bearing in mind that the legal remedy for the victims of the serious violations including enforced disappearance is not a matter of mercy or prudence but an immutable right of the victim guaranteed under national and international law. Against this backdrop, it is high time for the government and responsible political parties to abandon their hidden policy of de facto impunity and undertake the following steps towards ensuring justice to the victims of enforced disappearance:

• Initiate a constructive engagement with stakeholders including victim groups and garner their confidence that there can be a joint action with a view to advance justice to the victims of enforced disappearance.
• Offer adequate interim relief and reparation measures to help the families of the disappeared to enjoy their fundamental right to live with human dignity.
• Devise a victim and witness protection program and implement it to create a conducive environment for the victims to seek justice.
• Acknowledge the fact that the State committed a mistake by adopting the Ordinance on Disappearance and TRC that undermines the notion of justice and initiate the process to replace this with one that is into line with the Supreme Court decision, international legal standards and best practices.
• Make sure that all apparatus of the Government accept their complementary role of transitional justice and criminal justice and they fully cooperate with the justice system including enforcing arrest warrants and conviction decision issued by the courts in relation to past human rights violations.
• Take concrete initiative to enact a law which criminalizes enforced disappearance

 

 

Ram Kumar Bhandari

Coordinator, NEFAD

Chairperson, Committee for
Social Justice

 

Since the disappearance, families have demanded:

1. a) the disclosure of the truth,
2. b) the return of human remains,
3. c) public acknowledgement and
4. d) respect for family rights: (the right to know the truth, justice, reparation and family peace)

However, these demands go unanswered and as the time passes, it becomes difficult to sustain the necessary pressure on the government to hold the perpetrators accountable. The government is not serious about addressing the legacy of disappearance. Hope for a strong independent commission for the investigation of enforced disappearances has been abandoned. The new Truth and Reconciliation Commission Ordinance has failed to define disappearance as a crime against humanity and to provide victims� family any support or for the exhumation process, and, instead, has made perpetrators eligible to receive amnesty.

 

Following the end of the conflict, the families of the disappeared started to unite in hopes of achieving justice through a disappearance commission. Now the commission itself has disappeared. Instead of providing answers or admitting the disappearances, the Nepali state distributed monetary compensation, taking advantage of the victims� economic needs, and tactically diverted the truth agenda. Instead of creating sustainable transitional justice mechanisms, the government drafted a Truth and Reconciliation Commission without consulting the victims, thus strategically diverting the justice agenda. Instead of addressing the needs of the victims and the delivery of justice, the state followed the prescriptions of donors, diverting the victims� needs and agency in the name of superficial peace and reconciliation. This not only betrays the legacy of disappearances but also neglects the victim families� right to know the truth. History will neither not forgive those criminals nor forget those who were disappeared. To create a transitional justice environment, enforced disappearances need to be made a national and family agenda to ensure respect towards the victims� dignity.

 

The Supreme Court passed a decision on disappearance cases on 1 June 2007, but none of the components of that decision has been implemented. The Court ordered that the government enacts a law to criminalize enforced disappearance in line with the International Convention for the Protection of all Persons from Enforced Disappearance, establishes a high level commission of inquiry on disappearances in compliance with the international criteria on such commissions of inquiry, require investigations and prosecutions of persons responsible for disappearances, and provides adequate compensation and relief to the victims and their families. The families of the disappeared demand to the government of Nepal immediately:

• to implement past agreements and
• to execute Supreme Court decisions

 

In the name of charity and assistance, the government has offered monetary compensation, essentially placing a price on the people lost during the conflict. Money was offered in return for silence; silence regarding the lack of justice in our post conflict transition and silence about the difficulty, hardship and inequality that is perpetuated throughout Nepali society on a daily basis.

 

 

Sunil Kumar Pokharel

Secretary General,

Nepal BAR Association

During the armed Maoist insurgency in Nepal, cases of enforced disappearance occurred massively. Enforced disappearances were carried out by both state and non-state actors. This kind of serious human right violence created bad face of Nepal in international community.

 

In the Comprehensive Peace Agreement (CPA) and promulgation of Interim Constitution 2007, cases of enforced disappearance were considered as serious issue to be dealt about.

Article 33(q) of Interim Constitution has mentioned about formation of disappearance commission and proper compensation to victim�s family.

 

Supreme Court, too, in its ruling on Rajendra Dhakal v. Nepal Government, Ministry of Home Affairs, among others cases, has issued directive orders in the name of government to make necessary arrangements to provide justice to victims, formulate necessary laws to address the crime against humanity and for formation of inquiry commission to find out truth of cases of enforced disappearance occurred during the conflict.

 

In spite of above constitutional provisions and Supreme Court�s ruling, victims of enforced disappearance are still struggling for justice. Hence, Nepal Government, without any delay, must take following initiatives to render justice to the victims of enforced disappearance.

 

Make public of whereabouts of disappeared person or disclose their status Immediately

Formulate effective laws or amend existing laws to guarantee of no repetition of the cases of enforced disappearance

 

Provide necessary financial support to victims’ families and make necessary arrangement for education to children and employment to the victims’ spouses.

 

Make necessary arrangement for rehabilitation of the families, whose loved ones were subjected to enforced disappearance and those who have lost their lives in quest of justice.

 

Prosecute those who were involved in perpetrating enforced disappearance

 

 

Rameshwar Nepal

Director, Amnesty International Nepal

 

Nepal witnessed a serious trend of disappearances during a decade long conflict between 1996 and 2006. The number of disappearances reached at the top and this country was known as �country with highest number of disappearance in the world� in 2003 and 2004. The fate and whereabouts of more than 1,300 possible victims of enforced disappearance are still unknown.

 

Victims, their family members and human rights organizations are campaigning regularly, urging Nepali government to ensure that the investigations to determine the fate and whereabouts of disappeared persons are carried out without further delay, and that those suspected of criminal responsibility for these gross violations of human rights are brought to justice in fair trials. But the progress to that end is almost non and not a single person suspected has been brought to justice.

 

The Government of Nepal and Communist Party of Nepal (Maoist) signed the Comprehensive Peace Agreement (CPA), which committed both parties to investigate and reveal the fate of those killed or disappeared during the armed conflict within 60 days. Both parties promised they would �not protect impunity� and vowed to safeguard the rights of families of the disappeared. More than six years later, the promises made in the CPA have still not been fulfilled. Instead, the government has actively protected and even promoted those accused of committing human rights violations.

 

Early this year, the President approved an ordinance to establish a Commission on Investigation of Disappeared Persons, Truth and Reconciliation to investigate human rights violations committed during the armed conflict. However, the establishment of the commission was temporarily halted after the Supreme Court issued a stay order in April following legal challenges. The proposed commission is not in compliance with international law and standards on commissions of inquiry, to effectively discharge Nepal�s duty to provide remedy and reparation to victims because the Commission has wide discretion to recommend amnesty for crimes under international law, including enforced disappearance, which violates a number of Nepal�s obligations under international law. Similarly, the Commission would not have the power to recommend prosecutions against suspected perpetrators.

 

The ordinance to establish a Commission on Investigation of Disappeared Persons, Truth and Reconciliation is the result of a bargain between political parties, and seems designed to enable those suspected of criminal responsibility to avoid accountability for human rights violations and crimes under international law. Enforced disappearance is not recognized as a crime or even defined under Nepali law.

In such a complex scenario, the government must take meaningful initiatives to address its human rights obligations. Ending impunity, ensuring accountability, and strengthening the rule of law are essential for a durable transition from armed conflict to sustainable peace in Nepal.

 

The government of Nepal has to begin following steps at a minimum to ensure justice to the victims of disappearance:

• Ensure that any transitional justice mechanisms established to address conflict era violations do not replace judicial proceedings and are in accordance with international law and standards and do not have the power to grant or recommend the granting of amnesties for crimes under international law;
• Respect court orders calling on the police to investigate human rights violations and crimes under international law and, if there is sufficient admissible evidence, prosecute those suspected of criminal responsibility in trials that meet international due process standards;
• Define and criminalize enforced disappearances in domestic law in line with international standards;

Promptly accede to the International Convention for the Protection of All Persons from Enforced Disappearance and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, without making any reservation or declaration amounting to reservation.

Conflict victims and their families are still hopeful that they will be ensured justice. They have understood the provisions of the transitional justice mechanism included in the Comprehensive Peace Agreement as the reliable means in this connection. Following the dissolution of the Constituent Assembly, the government of Nepal has taken step towards forming the truth and reconciliation commission and the disappearances through an ordinance. INFORMAL had collected stakeholders� perspectives on the Ordinance. Different individuals working for conflict victims in an organized way had expressed their views. Excerpts:

 

Janak Raut

Chairperson

Conflict Victims� Society For Justice- Nepal

 

As the Ordinance on the TRC has been put forth by the government at a time when parliament does not exist in the country it has to be invalidated. The caretaker government should not have dared to bring such type of ordinance as per its discretion.

 

It was brought by the government without consulting with the conflict victims. Therefore, its process is illegitimate. Also, the government did not publicize the ordinance before recommending the president for its approval. I think, the ordinance is one sided. I, therefore, do not see any guarantee that this will do justice for the conflict victims.� Currently, the Ordinance is pended at the President�s. We have even requested the President not to approve it but it will be unfortunate if he endorses without revising its contents. Hopefully, he will heed our concerns and problems.

 

This Ordinance seems to have been brought so as to exculpate the perpetrators of armed conflict and it is politically motivated at the same time. As they were also involved in the human rights violations during armed conflict in the past, other political parties too do not want to form the commissions in reality. They are scared that the would-be formed commission on the TRC and on the disappearances if formed by adopting due process it might punish them. Many commissions formed by the government in the past failed since their recommendations were not followed by the political leaders. If the commissions in question are trying to be formed on the basis of the political division, these will also fail. As these are supposed to provide justice to the conflict victims based on the transitional justice, they should be quite different from those commissions formed in the past.

 

The interim Constitution of Nepal 2007 and the CPA provides that an independent commission would be formed to investigate into the incidents committed during insurgency in the past. Although legislations to investigate into the general incidents related with the criminal activities are in place in Nepal, no legal provisions are there to investigate into the incidents of enforced disappearances. Hence, a commission as such is indispensable. Conflict victims, in addition to many organizations working for them, have been advocating for separate two commissions.� We have also urged the government to include the cases of enforced disappearance under the criminal cases as per the international standards.

 

The current ordinance on the TRC has proposed that Attorney General can be active while implementing the recommendations of the commissions. In our country, Attorney General is appointed by the parties in governance.� So, I doubt these ruling parties will prosecute their own leaders and cadres who were involved in grave human rights violations in the past. Politically and comparatively, the number of victims representing the UCPN Maoist is more than that of other political parties. Therefore, the party should have been sensitive towards victims� issues. Surprisingly, however, the party has disregarded its own cadres and the conflict victims in general.

 

On behalf of the conflict victims, I would like to ascertain that conflict victims are not seeking for any space in the commissions. Our concern is that the commissions as such should not be formed to exenorate the perpetrators of grave human rights violations without victims� permission. However, at least one member from among the conflict victims should be included in the commission because he/she knows the problems of the conflict victims more than other outsiders do.

 

We are still hopeful that the government will take positive steps for us. We are also optimistic that political parties will resolve our issues sooner or later. The sooner the better.� The family members of the victims are looking forward to performing their beloved members� final rituals as per their cultures. Many family members are still awaiting justice. If the government goes against our pains and concerns, we will organize national and international campaigns to ensure that we are we will be justly dealt.

 

Suman Adhikari

Chairperson

Conflict Victims� Society, Nepal

 

We, the conflict victims, have opposed the name of the commission itself. The Nepali phrase used in the title of the commission does not strictly mean that the government is forming a commission to investigate into the persons subjected to enforced disappearances, rather, it gives an impression that the commission is set to investigate into the persons voluntarily disappeared during armed conflict.� This ordinance is different from the previous two bills tabled by the government in the parliament, which we had accepted with slight changes. The government, this time, has proposed only one commission by merging the commissions on disappeared persons and the TRC. We were not consulted while preparing this ordinance. It seems that the government has tried to exonerate the perpetrators rather than prosecuting them. However, as the ordinance is still pending at the office of the President, we should not be that much anxious in this regard.� Also, conflict victims and their organizations have reached an agreement that they would not accept the ordinance until and unless it is revised as recommended by the conflict victims.

 

Concerned stakeholders are not seen to have been serious towards the issues of conflict victims. The Maoist party which is one of the sides of the armed conflict in the past and which now leads the government, is also not providing justice to its party cadres victimized during insurgency. As the conflict victims were compelled to undergo similar mental, emotional and physical situations during armed conflict, we tend to see the issues of the conflict victims holistically and do not divide the issues based on political ideologies. Other parties have either forgotten or used our state of affairs tactically.�They raise our issues just for the public consumption especially to win public sentiment. So far as the current pended ordinance on the TRC in relation to the non-Maoist parties is concerned, they have implicitly accepted the ordinance. Hence, these parties too do not seem to be in favor of bringing the human rights violators to justice.

 

We simply want justice. We want to know the truth and to get reparation, sustainable peace and the rule of law, which are also the components of the transitional justice. We want the perpetrators of the gross human rights violations not be exonerated. These all should be possible only through legitimately formed TRC and other related commissions. Hence, we are against any commissions that are formed on our issues through ordinance. We know that the commissions formed in this way� will never provide justice to the conflict victims. However, conflict victims, over time, are seen to have been divided in line with the corresponding party politics.� As we cannot stand through division unity is essential.

 

As we believe in the rule of law, resorting to violent means for justice is not acceptable for us. We are optimistic that we will get justice one day.� We will never backtrack from our genuine demands; rather, if we are not heeded by the government, it might be pertinent for us to expect solidarity and support from the international communities to have our demands fulfilled.

 

Ram Kumar Bhandari

Chairperson

National Network of Families of Disappeared and Missing

 

Comprehensive Peace Agreement (CPA) has mandated to form two separate commissions i.e. truth and reconciliation commission and the commission on disappeared persons. However, present ordinance brought by the government on the Truth and Reconciliation Commission has merged these two concepts. Hence, we have viewed that the commission formed in this way will only exonerate the perpetrators of armed conflict by leaving several other transitional justice related issues aside.

 

Political parties are trying to exculpate the perpetrators of grave human rights violation committed in the past in the pretext of reaching political consensus. We organized several informal talk programs among the stakeholders with the aim to show how the TRC Ordinance is not victim-friendly. However, opposition parties did not condemn the government�s move relating to the TRC. It is because some of the parties in addition to the one in government were also the perpetrators when it comes the issue of armed insurgency in the past. Therefore political parties are trying to exhaust conflict victims by prolonging transition.

 

Similarly, conflict victims have also been divided; they are playing the role as the interest groups of different political parties. I am also one of the members of the families of the disappeared persons. We want to know the whereabouts of our beloved members. If they were killed in the jail or custody, we have to be shown graves as deaths have many things to do with our cultures. The government is not serious about our concerns.

 

We, the families of the disappeared persons, have laid emphasis to address the cases of disappeared persons taking them as a crime against humanity. The Supreme Court (SC) of Nepal also ordered the government to form an independent commission as per the international standard to address the cases of disappeared persons. The SC order was one of the best orders for the conflict victims. However, the bills proposed by the government in the past and also the present ordinance do not include these concerns. In our opinion, the ordinance has not been issued to address the concerns of the conflict victims and, therefore, we have spoken publically that if the government does not hear our concerns, we will boycott� the mandate of the Ordinance. We are lobbying, advocating for and organizing various campaigns to pressurize the government for the purpose.

 

The mandates of the existing constitutional bodies such as National Human Rights Commission (NHRC) have been shrunk by the government. It has not implemented the recommendations made by the NHRC. Therefore, the commissions formed as per this ordinance will also be ineffective.� The commission proposed by the government is likely to give pardon to the perpetrators of the insurgency. The ordinance has been brought to reconcile the victims and the perpetrators rather than to investigate into their cases. However, we will never accept the commissions that are formed under the control of the perpetrators.

 

During armed conflict in the past it was impossible for us to be united.� We could not raise our voice in unison. Situation has changed over time. We are now better united and are supported by many national and international organizations. Our concerns and issues are slowly moving towards different national and international societies. Nepal is not alone now. The issue of peace process is also connected to the international standard. Many cases of disappeared persons have been tabled at the Human Rights Committee of the United Nations.

 

I never imagine such type of commissions can be formed as per the ordinance proposed by the government. We have also handed over a memorandum to the President. He has assured us that he would not pass the ordinance unless the conflict victims agree with it.� In this context, I would like to request the concerned stakeholders to change the nature of the discourse of conflict victims. We are waiting for justice, not the bad commissions.

 

We are in favor of the bills on the TRC and the Disappeared Persons. The TRC Ordinance in question should be dismissed and new bill should be passed in a democratic way ensuring that conflict victims such as the families of the disappeared persons are accounted for. We oppose the present ordinance also because the proposed ordinance was worked out inside Singh Durbar without victims� participation. There was no participation of the concerned stakeholders and the representatives of different organizations that have been working for conflict victims. There should be victims� participation in all the processes of forming such commissions. The issues should be led by the conflict victims. Active participation of civil society members; human rights defenders, among other stakeholders, should be ensured while forming such commissions.

 

Rubi Shrestha

Conflict Victim

 

The TRC is directly related to conflict victims. However, this ordinance has not taken the conflict victims into account.� They want their participation be ensured in all the processes of formation of commissions that are meant for the conflict victims. We have opposed this ordinance mainly because we were not consulted while preparing it.

 

The ordinance on the TRC was brought by the government following the dismissal of the CA just to overshadow the issues of conflict victims. If political parties were really interested to address the issues of conflict victims, they would, of course, converge on the issue seriously. They have underrated the contribution of the conflict victims. All conflict victims are with the similar problems does not matter which warring side was responsible for the victimization. Therefore, the issues of the conflict victims should not be politicized.� However, rather than taking steps towards supporting victims by bringing the perpetrators to justice the latter are being hailed by political parties.

 

Establishing the TRC the way it has been tried will not be possible. Court should speak on this issue. It can at least put forth its idea relating to the criteria the commission as such has to fulfill.� The perpetrators of serious human rights violations should be punished following the decision of the commissions and those who were not involved in the incidents of serious human rights violations can also be exonerated. These all should be done on the basis of the nature of the incidents. The commissions in question should be provided with the mandate to decide which incidents are serious and which are not.

 

I am a member of the UCPN-Maoist party. Waging war was not easy for us. However, our leaders� patriotic views and speeches incited us in such a way that individual life for us was meaningless in relation to the broader national issues. Therefore, we were ready to sacrifice our lives for the sake of nation but my party has failed to fulfill its so many promises including the promise on the guarantee of food, shelter and cloths to all people. Over time, our party led the government and surprisingly, the Constituent Assembly (CA), which was primarily the result of the CPN-Maoists� efforts, dissolved during Maoists premiership itself. My husband was disappeared and killed while working for the party during wartime. I was about 21 years old at that time. It is really difficult for a woman to live in the society without her husband. However, I am still hopeful that I will get justice one day.

Views collected by Ramesh Pd. Timalsina