Mukti Rijal

The chronic cases related with transitional justice lying pending in the Supreme Court of Nepal indicate that the festering conflict era incidents of the alleged human rights violations are yet to be dealt with and settled. Needless to say, most of such cases of alleged human rights abuses and violations are taken care by Truth and Reconciliation Commissions (TRCs) which are generally constituted in the conflict torn countries like Nepal to bring out the truth and confirm what had happened during the conflict with special emphasis on reconciliation in contrast to retaliation, revenge and retribution. The reconciliatory approach has been seen as a harmonious, positive and successful way of dealing with untoward incidents and human rights violations occurred during the conflict.

Mandate
In Nepal too, TRC was established over six years ago pursuant to the Truth and Reconciliation Commission Act, 2014. The Commission was mandated to inquire, ascertain and bring to fore the cases , events and incidences of the violation of human rights committed in the course of the armed conflict between the State Party and the then Communist Party of Nepal -Maoist from 13 February 1996 to 21 November 2006.
The Commission was established pursuant to the spirit of the comprehensive peace accord ratified by the state and the CPN- Maoist in 2006 with a view to creating an environment conducive for democratisation and sustainable peace by enhancing spirit of mutual good faith and tolerance through reconciliation and reparation to the victims of the conflict.

Moreover, the commission is also mandated to recommend legal actions against those involved in the heinous offences and crimes amounting to gross violation of human rights. But the TRC’s reconciliation functions are envisaged to be carried out with recourse to truth telling, forgiveness (amnesty), dialogue and trust building, reparation to the victims of the conflict, trauma healing and ending impunity and non-repetition of violence. Reconciliation function by its very nature has been an iterative bottom up dialogic process aimed at building harmony and peace in the society.

The previous Commission in its four years of extended tenure received 63,718 complaints and completed a preliminary investigation that involved the recording of statements from only 3,787 of the complainants. New sets of office bearers have been appointed in Commission during the previous years and it is expected that the new commission in its current shape would complete the unresolved issues of transitional justice.
However, the Commission has not been able expectedly to carry out its mandate despite repeated extension of its term and change in its structure and composition. Taking note of some of the key issues constraining the work of the commission will be in order in this context. As TRC is the body constituted in the country like ours lacking any precedence, practice and experiences to draw from, the commission has to work from the scratch. Moreover, as the commission was constituted with much hesitation and greater reluctance on the part of the political stakeholders, it did not receive meaningful and willful support and backing from the governments of the day.

It needs to be mentioned that amending the existing laws related to transitional justice in line with the Supreme Court ruling has been a long standing demand of the conflict victims and stakeholders concerned. The Supreme Court in February 2015 had directed the government to revise the amnesty provisions in the Enforced Disappearances Enquiry, TRC act 2014 in compliance with Nepal's international obligations to human rights. However, successive governments have not acted to adhere to the SC ruling, and have failed to amend the Act which as insisted by the victims and human rights organisations.

Moreover, the Commission suffers from the shortage and inadequacy of the logistics, resources and personnel needed to carry out its mandates. The Commission sources complain that the available human resources in the body do not possess the requisite skills, motivation and competence to carry out its mandates in an efficient and effective manner. Similarly, the Commission has not been able to mobilise and secure the support of broader spectrum of civil society including the organisation of the conflict victims. Neither is the Commission effectively engaged with the political stakeholders whose support is crucial for amending the Act nor is completing its mandates.

The incumbent coalition government that took office nearly two months ago, in its common minimum programme, has committed to take the transitional justice process to its logical end as a subject of its key priority. The programme also commits to revise the existing Transitional Justice Act without delay and provide necessary resources to the commissions.
In order to take up the issues with the government and political stakeholders, the Act as a bridge between the Commission and conflict victims that have been agitating long for justice and enhance legitimacy of the Commission itself, independent civil society organisations needs to engage in the actions as to contribute towards addressing the issues that complicate the transitional justice issues in the country. The independent civil society organisations as in many other countries can help take stock of the work undertaken by TRC so far and work together with commission to fast track the process in consultation with conflict victims and other stakeholders.

Reconciliation
They can organise dialogues and consultation with the ministries concerned, parliamentary committees and other stakeholders to orchestrate the support for the commission to address the issues relevant to TRC. They can also conduct community based dialogues for documentation, reconciliation and rapprochement and provide support to the commission in sorting out and reaching assistance out to the conflict victims. As articulated in the common minimum programme of the incumbent government, focus should be placed in resolving the transitional justice issues redressing the existing issues and constraints that have created impediments in accelerating the pace of the work of TRC.

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)