13-19 March 2015 #749

Justice adjourned

Nepal’s conflict victims have got legal relief, but it is unlikely their quest for justice will be addressed
Anurag Acharya
Last month, the Supreme Court gave a landmark verdict on the case filed by more than 230 conflict victims against the Government of Nepal that changed the course of transitional justice from a political imperative driven by the spirit of the 2006 Comprehensive Peace Agreement to a victim-centered judicial process driven by universally accepted principles of human rights.

After years of disappointment, victims on both sides have a slender hope that justice may finally be served. The three- member special bench instructed the government: make immediate necessary amendments to the existing act to ensure it is consistent to the interim constitution, international treaties and earlier court decisions.

The elaborate verdict which runs into 85 pages meticulously considers submissions made by both sides, as well as several international landmark cases and treaties before scrapping provisions of Article 26(2) and 29 (1), and instructing amendments to Articles 22(1), 24, 25 (3), 25 (4) and 26(5).

On Article 26(2), the verdict states that the commission should not be looking for any grounds to grant amnesty in cases of grave human rights violations because such grounds simply don’t exist.

The judgement expresses concern that controversial provisions in the act provide room for amnesty to perpetrators of grave human rights abuse to petition and secure amnesty even without the victim’s consent. And that, Article 25 (4) of the act, in particular, allows perpetrators in the state security forces to escape accountability by facing flimsy departmental action, without being brought to the civilian judicial process.

It is evident that the presiding judges were gravely aware about the national and international interest in the case, as well as its political implications for the country. The verdict derives a strong authority under the Article 107 of the Interim Constitution which gives the apex court right to scrap any law that it deems unconstitutional and issue a writ to safeguard public interest and individual’s fundamental rights.

Taking exceptional note of the violation of its 2 January, 2014 ruling while promulgating the controversial act, the decision also instructs the government and the newly formed Truth and Reconciliation Commission (TRC) and the Commission on Investigation of Enforced Disappearance (CED) to revisit its earlier decisions and abide by them while making amendments.

Addressing the commissions directly, the verdict reads: ‘To say nobody must escape the accountability for grave human rights violation is also to say nobody should aid the perpetrators. And anybody who dares to do so must ultimately face the consequences. This bench believes that legally appointed bodies like the commissions will not indulge in such activities.’

National and international rights bodies have welcomed the SC decision and urged the government to implement them at the earliest. But in private conversation they all admit political conditions are not favourable. If the NHRC and SC push for its implementation, they will be on a direct collision course with the political leadership.

As the constitutional drafting process remains deadlocked over contentious issues of governance and federalism, the opposition Maoists have been further discomfited by the verdict. Not surprisingly, both Pushpa Kamal Dahal and Mohan Baidya have issued a joint statement warning of grave consequences on the ongoing peace process. We can only guess that there must be worried faces at Army HQ and in the hierarchy of the ruling parties as well. We'll have to see how all this will play out in the days ahead when PM Sushil Koirala sits with the opposition to resolve the deadlock.

Nepal’s peace process is unique because it brought together two warring sides into a power sharing agreement, where the power balance has benefited perpetrators on both sides. None of the political forces command the moral authority to demand accountability for their atrocities resulting in this shameful silence.

Although Supreme Court decision has provided legal relief to conflict victims in Nepal, it is unlikely that their quest for justice will end so soon.

Read also:

Maoists protest SC ruling

Who doesn’t want a TRC?, Om Astha Rai

Where is the justice?, David Seddon

Remembering Maina

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