The standard response to human rights violations in Nepal has been to establish a commission of enquiry and pay ex gratia compensation to victims. Over the last few decades dozens of such commissions have been established, which have been used to defuse demands for accountability for human rights violations. In the same spirit of superficiality, the cabinet decided in 2007 to establish a TRC by executive decision and even handpicked the commissioners. The government later retracted the decision after widespread protests. Yet, it continued to ignore the demands of both the conflict victims and human rights organisations that the TRC be set up by a parliamentary law, so that its mandate and power, and the appointment of its commissioners could be defined by law, making it less vulnerable to political interference.
Another major demand of the victims and the human rights community was for the legal framework to be designed through a consultative process. It was hoped that the inherent limitations of transitional justice could also be balanced by allowing victims and larger society to participate in such a process. Instead, in 2008, the parties in government picked ‘experts’ (who, in fact, had no proficiency on the subject) to draft a TRC bill. This opaque process resulted in significant national embarrassment when victims and national and international organisations railed against the proposed amnesty. Their main objection related to the parties’ attempt to include a blanket amnesty for the Maoists for actions committed ‘to achieve political objectives’, as well as those committed by security forces while ‘performing their duty’.
Nepali political party leaders had drawn inspiration from the South African TRC model. But they used a distorted understanding of it, equating it with a mechanism to provide amnesty. The South African TRC did exchange amnesty for truth, but the trade-off was specifically designed to balance the legal and political demands of the time, while seeking to make it acceptable to a broad range of actors. Nepali leaders used a partial interpretation of this to match their own interests, but more importantly failed to grasp the significant changes that had occurred in the global legal context since the South African TRC had tested conditional amnesty.
The lack of transparency regarding international assistance has also been controversial. In the absence of documentation, it is difficult to discern very precisely the role played by international partners early on in the transition. But this author experienced first-hand the rising levels of mistrust between human rights activists and victims on the one hand, and international actors advising the parties on the other. One such instance was when the ‘Holland and Knight Memo’ was leaked to activists in 2008. Issued by Holland and Knight, a US-based law firm working with a senior international peace advisor working in Nepal at the time, the 60-page document discussed key aspects of transitional justice. According to some human rights activists, the memo was meant to assure political parties that Nepal had no legal obligation to prosecute conflict-era cases of human rights violations, except in instances of torture (and here, committed only by the state apparatus, not by the Maoists) and genocide. And even in such cases, it outlined the possibility of amnesty accompanied by reparations to the victims.
Echoing the concerns of local activists and victims, a number of international organisations responded to the memo, stating that the legal analysis in it was fundamentally flawed. This incident not only contributed to eroding trust between some international actors involved in the peace process and the Nepali human rights community, but some local human rights activists saw it as misinforming how Nepali political actors perceived the role of transitional justice and the TRC in the peace process.
Under intense pressure, the Ministry of Peace and Reconstruction (MoPR) finally agreed to hold consultations on the 2008 TRC bill. Although there were concerns over how these were designed and undertaken, the consultations were nevertheless seen as a positive step and were supported by victims as well as national and international human rights organisations. The MoPR conducted 19 rounds of consultations in different parts of the country. It then drew up separate bills to establish the TRC and the CIEDP and presented these in the Legislature-Parliament in February 2010. The TRC draft provided it with wide powers and, importantly, prevented it from recommending amnesty for certain gross human rights violations, even as it opened up possibilities in other areas.
Both bills received nearly a hundred amendment proposals from parliamentarians. But in late 2012 the government withdrew them, dismissing the entire process. Instead, in March 2013 the Ordinance on the Formation of a Commission for Truth and Reconciliation was promulgated, ostensibly because this was the only way to set up the body given the disparate positions of the different parties. However, victims challenged both the process and the content of the Ordinance, as it had removed the provision prohibiting the commission from recommending amnesty for those involved in certain egregious violations. The Supreme Court rejected the ordinance both for being unconstitutional and for contravening international standards on transitional justice.
In May 2014, seven and a half years after the CPA, the Government of Nepal passed the Commission on Investigation of Enforced Disappearances, Truth and Reconciliation Act (hereafter the Act), providing the legal framework for the TRC and CIEDP but without any regard for the previous decisions of the Supreme Court. Feeling betrayed by the process and by the intent of the political leaders, more than 230 victims from different districts challenged the Act in the Supreme Court, particularly since the Act was very similar to the Ordinance that the Supreme Court had already ruled against. Major human rights organisations backed the victims’ petition and decided to boycott the transitional justice process, pending the Supreme Court decision. The UN and other major international human rights organisations expressed dismay over the Act and how it had been reached, arguing that it was against international standards and best practice, and asked the government not to establish the commissions until the Supreme Court had decided the case.
However, the government and the parliamentary parties ignored these various calls and moved ahead with forming the two commissions. In February 2015, the Supreme Court found that the Act indeed violated the constitution and Nepal’s international obligations, and ordered several amendments. In early 2016, the UN wrote officially to the government expressing its inability to support these mechanisms in the prevailing circumstances International donors and major human rights organisations have kept their distance from the work of the TRC and CIEDP. Neither the amendments required by the Supreme Court nor the support requested by the commissions have since been offered.