24 Feb - 2 Mar 2017 #847

The real truth about the Truth Commission

Nepal’s transitional justice process was delayed, now it is doomed
Om Astha Rai

Om Astha Rai
GATHERING DUST: The TRC meeting room has remained unused and is gathering dust since its tenure was extended on 9 February. The nameplate of TRC Chair Surya Kiran Gurung shows he is out.

After the extension of the tenure of the Truth and Reconciliation Commission (TRC) two weeks ago, its Chair Surya Kiran Gurung has all but vanished from public sight.

Three days after the government gave a year to the term of the TRC Gurung appeared in one event in Kathmandu to mark the death anniversary of Reena Rasaili, allegedly raped and killed by Nepal Army soldiers in Kavre, and has not been seen again.

Later that week, Gurung was invited to the death anniversary of Ganesh Chilwal, who was slain by Maoist guerrillas. He did not attend.

Rasaili and Chilwal were killed by opposing forces in the same week of February in 2004. Rasaili, then 18, was found dead near her home, and the Army claimed she was killed in battle, but her family still maintains it was an extra-judicial killing.

As Chair of the Maoist Victims’ Association, Chilwal had been burning effigies of Maoist leaders in Kathmandu and was gunned down by two guerrillas on 15 February 2004.

As Chair of the TRC, Gurung would have been expected to attend either both or neither of these two anniversaries. But it is an indication of the polarisation in the human rights and justice sphere in Nepal that he attended just the one that favoured the ruling Maoist party.

“We felt humiliated,” said Gopal Bahadur Shah, a Maoist victim who helped organise Chilwal’s death anniversary. “The TRC Chair should not have attended a memorial to a Maoist suspect if he did not have time for a Maoist victim.”

Although Gurung was brought in to head the TRC because of his supposed neutrality, his impartiality has lately been called into question. Last year when TRC members visited Madi of Chitwan where 38 villagers were killed when Maoists bombed a bus in 2005, Gurung asked the victims: “Is it not true that there were some soldiers in the bus?”

TRC member Madhavi Bhatta (pic, right) had objected to Gurung’s question because it implied that the terrorist attack was justified. The rift between Bhatta and Gurung grew, and had become irreconcilable by the time the TRC’s mandate was about to expire earlier this month.

Gurung wanted a commitment from the government to amend the Enforced Disappearances, Truth and Reconciliation Act 2014 and more autonomy before asking for an extension. Bhatta thought Gurung was waffling, and never pushed for justice during the last two years.

Many felt Gurung was under the sway of Shree Krishna Subedi (pic, right), another TRC member handpicked by the Maoists who had earlier defended Maoist leader Agni Sapkota in the Arjun Lama murder case before being appointed as a TRC member. Subedi did press for a stronger law to investigate war-time atrocities, but also argued that the TRC should just forward them to the National Human Rights Commission.

Bhatta accused Subedi of conspiring to sabotage the TRC, and blamed Gurung for not putting his foot down. Sources said she got Sher Bahadur Deuba to call Gurung and rebuke him for not pursuing cases in which the Maoists were implicated.

Gurung felt humiliated, and stopped coming to office. His deputy Lila Udasi is also on leave. Of the five TRC members, only Bhatta, Subedi and Manchala Jha have been attending the office in Babar Mahal since the TRC was extended on 9 February.

Gurung is said to have met Prime Minister Pushpa Kamal Dahal and threatened to resign if Bhatta was not sacked. Dahal has promised to form a committee led by a former Chief Justice to probe allegations against her – a prerequisite for removal.

Bhatta herself is sure to move the court if she is fired, and Gurung is likely to resign if she stays. Either way, the TRC is doomed by the conflicting interests of the two former enemies who are now partners in the coalition government.

Gurung has failed to reconcile partisan interests in the TRC even though he himself is said to have political axes to grind. He was previously close to the NC, but the Maoists were convinced that he would not single them out.

The international community has muted its criticism of Nepal's delayed and flawed transitional justice process reportedly because they still hope that Gurung can salvage the TRC.

“If this TRC fails, it will take years to form another one, and justice for conflict victims will be further delayed,” says Hari Phuyal, an expert in transitional justice. “So the problem of politicisation has to be resolved.”

Read also:

JUSTICE DELAYED, JUSTICE DENIED, Editorial

Trust and the TRC, Guest editorial Charan Prasai


58,000 complaints

The only significant accomplishment of the TRC in its first two years has been to collect complaints from conflict victims. It received over 58,000 of them in the past year, and is seeking more time to investigate them.

However, instead of starting to probe them the TRC is mired in an internal strife, and files of war-time atrocities are gathering dust inside 24 steel lockers (above). Last week, a fire in the TRC premises nearly spread to the files prompting the TRC secretariat to instruct staff to turn off all electric equipment when not in use.

“The longer we take to investigate these cases, the greater the risk is to these files,” TRC member Madhavi Bhatta told us. “There is no one to guard these important files. Anyone can come into our office, set the files on fire and flee.”

The TRC secretariat has since sought police protection, but some of the complaints are against the police themselves.


Legitimate questions

Apart from the internal stand-off, the TRC is struggling for legitimacy. Relatives of war victims question its credibility because it is composed of political appointees.

The United Nations and international human rights organisations did not recognise the TRC because of its law that contained provisions for blanket pardon. After the Supreme Court ruled last year that amnesty cannot be granted to perpetrators of gross violations of human rights, the government is amending the TRC law.

However, there is still a suspicion that the amended TRC law may have its own definition of gross human rights violations. Prime Minister Pushpa Kamal Dahal’s statement that Nepal’s transitional justice will be ‘unique’ has also fueled suspicion that perpetrators of gross violations of human rights will get amnesty.

Dahal assured UN resident coordinator Valerie Julliand last week that Nepal will comply with international laws, but sources at the meeting told Nepali Times the UN delegates were not convinced.
Says former Attorney General Hari Phuyal: “The draft of the amended TRC law has not yet been shared with stakeholders and experts. It would be wise to consult them before passing the amended law.”


Disappeared

The TRC was born with a twin:the Commission of Investigation on Enforced Disappeared Persons (CIEDP). Though formed through the same controversial law, the CIEDP has been able to engage the National Network of the Families of the Missing and Disappeared (NEFAD) in preparing a manual to exhume mass graves – the first major step in the investigation of the 3,400 complaints of enforced disappearances.

“Despite our objections to the TRC law, we decided to support the commission because most of the families of disappeared are more concerned about reparation, and less about punishment for perpetrators,” says NEFAD President Ram Bhandari.

The international community has refused to support the TRC unless its law is amended in compliance with international conventions of human rights. But the International Committee of the Red Cross has provided a facilitator for the Forensic Coordination Committee of the CIEDP.

Immediately after its tenure was extended, the CIEDP has put out its annual plan, beginning in April to exhume human remains and interrogating alleged perpetrators including Prime Minister Pushpa Kamal Dahal and his coalition partner Sher Bahadur Deuba.

Activists argue that the reason the CIEDP is making more progress than the TRC is because most of the victims were disappeared by state security, and it is the Maoists calling the shots now. They say the CIEDP would be toothless in the absence of a law that criminalises enforced disappearances.

Says Charan Prasai of the Accountability Watch Committee: “The best thing this commission might do is to name people behind enforced disappearances, but they will not get punished because disappearance has not been criminalised yet.”

Read also:

Truth without justice is an insult, ROBERT GODDEN

True reconciliation, George Varughese and Tamar Luster

Toothless commission, Om Astha Rai

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