‘The UN Secretary-General should encourage expedited reforms and a diligent search for solutions to Nepal’s peace process:’ Tika P Dhakal

‘India’s role will decide which way Nepal’s transitional justice goes as it was the key factor behind landing of the Maoists into democratic polity. India will have to come forward positively on the matters of human rights.’

NL Today

  • Read Time 15 min.

It has been seventeen years since the signing of the Comprehensive Peace Agreement (CPA) between the Government of Nepal and the Maoists in 2006. Nepal has seen two Constituent Assembly elections during this period, with the Second Constituent Assembly promulgating a new constitution. The Maoists transitioned from a militant force into a political entity through a demilitarization and disarmament process. However, one critical issue remains largely unresolved: transitional justice. Despite being a fundamental element of the CPA, it has not received the attention it deserves on the government’s agenda. Many victims of the armed conflict continue to grapple with unresolved trauma, with justice seeming to slip further from their grasp. The visit of United Nations Secretary-General Antonio Guterres starting tomorrow is set to refocus the Nepali Peace Process and the unfinished agenda of transitional justice. In this context, Nepal Live Today engaged in a discussion with Tika Prasad Dhakal, a former advisor to the President of Nepal and one of the leading experts on the subject of Nepal’s transitional justice. Here are key excerpts:

Over the past 17 years, the issue of transitional justice in Nepal has remained unresolved. The government established the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons. However, both commissions failed to complete their work and have since been dissolved. At present, there are neither functional commissions nor a consensus between political parties. Why has the matter of transitional justice become so convoluted and complex?

You have rightly pointed out that the issue of transitional justice in Nepal, one of the major promises of the Nepali Peace Process, has remained unresolved for the past 17 years. It is primarily due to four key reasons. First, there is a noticeable lack of a sound understanding and commitment to this issue among political leadership, which may be described as our collective shallowness. Why I say this is linked to our history. Many of our political movements, be it the 1950 or 1962 (going to autocracy) or 1990, concluded in compromises to “forgive and forget” the past and promised to start anew. But, such a fresh start always failed to materialize. On the contrary, the 2006 CPA mandated for a unique opportunity to address the legacy of the past, which makes it stand out from previous arrangements. So, the CPA did not settle for business as usual, which our political class has completely missed out.

The second reason involves the delicate balance between peace and justice, a topic also of significant academic value and a common trajectory for post-conflict societies. In the years immediately following the CPA, decision-makers were hesitant to engage in justice discussions, fearing that it could jeopardize the hard-won peace. Since the Maoists still retained their arms and combatants, any substantial investigation was seen as a potential threat to returning to conflict. The third reason is that the CPA primarily represents a compromise between perpetrators, with little involvement from the victims. After the CPA, both the Maoists and the governing political parties became part of the political establishment, leaving victims to struggle for justice while the government leadership largely remained apathetic to their demands. This situation has led to a continuous challenge for victims to force the government to prioritize justice. The fourth reason is the initial lack of clarity regarding the principles, foundation, and implementation processes of transitional justice, despite its global recognition as a concept to address post-conflict trauma. While there is a lot of clarity regarding the second and fourth reasons, the first and third challenges continue to persist in the case of Nepal.

You appear to be theorizing some of the core issues here. Would you clarify further?

Let’s continue from the discussion about the tension between peace and justice, for it perpetuates and impacts the others. There exists a substantial body of academic literature on this topic. When politics provides a platform for academia, it can aid in finding an informed “compromise,” which must then be carried forward by political actors themselves. However, we are not there yet, and there is no guarantee that we will ever reach that point. Let me provide you with an example. In the first week of September 2023, Ana Caterina Heyck Puyana, the Magistrate of Colombia’s Special Jurisdiction of Peace, visited Nepal. I bring up this example because a few months earlier (in April 2023), a Nepali delegation comprising Subas Chandra Nembang, Pradeep Gyawali, Ramesh Lekhak, and others had visited Colombia to observe the status of their peace process. While many may not have paid close attention to what Puyana said in Nepal, academics will not forget her words: “Colombia has no peace and no justice; Nepal has peace but no justice.” This succinctly summarizes the dilemma faced by many post-conflict societies where transitional justice is pitted as a zero-sum game between peace and justice. In Nepal, we’ve been witnessing this for seventeen years. Ensuring victims’ right to truth, justice and reparations out of the pact between perpetrators entails a long arduous struggle, where civil society, human rights defenders and victims must stand together to draw up a compromise, through which justice options are balanced by other transitional incentives like reparations, truth, memorialization and so forth.

You mentioned civil society, human rights defenders and victims. But, to arrive at a current point, how responsible is the instrumentalization of transitional justice for the pursuit of personal and group interests by political parties, civil society, and even the international community?

The role of civil society and the international community in the context of Nepal’s transitional justice has generally been positive, though not without occasional limitations. They are the primary drivers of creative solutions, alongside the victim communities. It’s essential to recognize that the Nepali Congress, the Nepal Communist Party (Maoist Center), and the Nepal Communist Party (Unified Marxist-Leninist) are three major political parties that significantly impact the outcomes of transitional justice. The Nepali Congress and the Maoist party were directly involved in the conflict. Congress was responsible for suppressing the insurgency, running the army, and conducting operations like “Romeo” and “Kilo Sera Two,” while the Maoists raised weapons against a democratic state. Interestingly, even after the peace agreement, both of these parties have remained continuously in government. There hasn’t been a time when either of these two parties have not been in power. This reflects their role in the transitional period, where they have effectively chosen to overlook each other’s past atrocities and crimes. In contrast, the CPN-UML’s lesser role in the conflict provides it with moral and political grounding to uphold human rights and democratic principles, though it may not have done enough in terms of transitional justice. However, UML has been an effective check on the Maoists, both ideologically and politically. It’s worth noting that, in recent times, transitional justice has been employed as a geopolitical tool to influence and, at times, manipulate Nepal’s political power dynamics.

What kind of geopolitical tool? Would you elaborate more?

We find ourselves amidst a significant transformation in the international political landscape. Even for those who perceive change as the sole constant in the global order, the present state of international politics and the global economy has increasingly adopted a multipolar character. While the world’s military power structure still largely adheres to a unipolar framework, it encounters formidable competition from numerous actors. Not even the Cold War imposed the kind of strain on the global system that we are presently witnessing. The focal points of this shift are in our neighborhood, both to the north and south. India and China are on the path to becoming great powers. For the world we live in, this is an entirely new environment, one that exerts direct and visible influence on our domestic politics. Consequently, this has created pressure on the Maoist party and Prime Minister Pushpa Kamal Dahal, who, despite lacking long-term political gains, is compelled to collaborate with the Congress party and use transitional justice as a means to maintain an unlikely coalition. The Congress and Maoist equilibrium therefore is not driven by expectations or aspirations. The primary reason behind this unprincipled alliance is geopolitics. Any political equation that is not based on principles only spreads depression as we see today in our economy, education, health and society. It makes opportunism a norm.

Prime Minister Pushpa Kamal Dahal has oftentimes said he would prioritize bringing closure to the Transitional Justice during his current tenure. As someone watching this process closely, don’t you think his efforts are rightly placed?

Transitional justice isn’t a task that the Prime Minister can tackle single-handedly. Prime Minister Dahal, who has held the office on two prior occasions, is not alone in seeking a resolution to this issue. Even his comrade of the past, Baburam Bhattarai, who rose to the premiership from the same party, initiated efforts to bring this chapter to a conclusion. But what’s at stake here? They’ve been striving for closure with impunity concerning all human rights violations from the conflict era. Prime Minister Dahal’s current priority appears to be pushing a flawed law and pursuing amnesty via pliable commissions, despite his repeated public assurances against such amnesty. The stark disparity between his words and actions is evident in the ongoing process to amend transitional justice law in parliament, where he supports pardoning cold-blooded murders, maiming, and sexual violence. The driving force behind his current enthusiasm as Prime Minister is the influence he wields through coalition partners like the Nepali Congress in the legislative process, subsequent commission formation, and even court trials, all aimed at absolving himself and his associates from past transgressions. His supposed promise of initiative is therefore rooted in blatant dishonesty.

On one side, some view certain civil society groups as hindrances to achieving full transitional justice, while you argue that Prime Minister Dahal and his party are reluctant to find a solution. Aren’t both sides essentially pursuing the same goal of preventing a closure here?

What I am saying is that Prime Minister Dahal is currently pursuing objectives that are in stark contrast to the Main Opposition CPN-UML, certain civil society groups, victims of the conflict, human rights activists, and the international community. CPN-UML, as an opposition party, may have its own political considerations that prevent it from yielding ground to the ruling coalition. However, the victims of the conflict maintain a consistent position and enjoy substantial support from civil society, the international community, and human rights defenders. Finding common ground is where our focus should lie, a feat that may become more attainable when Prime Minister Dahal exhibits flexibility. We must not expect the victims to compromise on the principles of justice, as those who have suffered injustice should not be burdened with further inequities.

Part of your question is on civil society. The diversity of ideas within civil society reflects the plural space that democracy provides. Pursuing uniformity in civil society is therefore a futile endeavor. When civil society homogenizes in its ideas, the logical step would be to encourage them to form a political party. Therefore, in the context of transitional justice, empowering and representing the victims remains the primary duty of civil society. Their proximity to certain political parties is often issue-based and tends to be shifting.

Returning to the politics behind transitional justice, a protracted situation without conclusion would be detrimental to Prime Minister Dahal and his Maoist party. Then, why shouldn’t he take the bill straight to the House when he is in the position of advantage?

Transitional justice is the process of achieving lasting healing for the wounds of conflict and addressing the painful legacies of the past. Neglected wounds can worsen, requiring more intense and costly treatments. There is an argument that Prime Minister Dahal and his Maoist party, having initiated the conflict, must face the guilt according to the Law of Natural Justice. Yet, I stand for a different perspective as long as the spirit of the Comprehensive Peace Agreement remains relevant.

‘Prime Minister Dahal’s current priority appears to be pushing a flawed law and pursuing amnesty via pliable commissions, despite his repeated public assurances against such amnesty.’ 

The Maoist insurgency posed a significant challenge to Nepal, and the peace process required collective resolution, including addressing issues of transitional justice. However, Nepal’s political landscape is on the brink of transformation, and we might soon reach a turning point where the Maoists may be burdened with the entirety of the insurgency’s consequences. This could come at a substantial cost to them, with the nation bearing its share of the burden too. This is why I say Prime Minister Dahal must come across with flexibility on the law before taking it to the House floor.

Recently, the Subcommittee of the House of Representatives’ Committee on Law, Justice and Human Rights has drafted a report regarding the amendments to the Transitional Justice bill. The report highlights that there are still four unresolved issues, but many contentious points have been addressed. Is it possible for this to progress into a viable and acceptable law?

The subcommittee’s meticulous seven-month scrutiny of the government’s bill is commendable. While delving into the bill to seek a compromise, it becomes imperative to distinguish between the bill’s ‘substantive’ and ‘technical’ elements. The primary emphasis should remain on the substantive matters, where Prime Minister Dahal himself must demonstrate flexibility. It is essential to underscore that mere technical competence does not suffice to ensure the bill’s standard. Progress on substantive issues is more vital. Following the subcommittee report, six substantive concerns persist. Firstly, the bill categorizes murder, severe sexual violence (excluding rape), and maiming as amnestiable offenses, classifying them as human rights violations, which is completely unacceptable. Secondly, it neglects the question of witness protection, despite referencing the rights of victims under the ‘Act on the Rights of Crime Victims, 2018.’ The establishment of witness protection mechanisms is mandated by various Supreme Court orders, making it an imperative that the bill cannot afford to overlook. Thirdly, the bill retains the prevailing definition of enforced disappearance without elevating it to the status of a grave human rights violation. Fourthly, it fails to address the critical issue of child soldiers. Fifthly, the legislation lacks a legal foundation for the Commission to provide recommendations for action in cases of severe human rights violations. Lastly, it allows for amnesty without the consent of victims in cases of human rights violations, a matter categorized by the subcommittee as warranting further discussion.

The technical aspects related to the Commission’s tenure and associated matters, while significant, do not enhance the overall quality of the bill. These concerns should find due consideration within the Committee on Law, Justice and Human Rights, and also in the parliament. For the benefit of readers less familiar with Nepal’s transitional justice landscape, it is essential to clarify that crimes categorized as ‘human rights violations’ are amnestiable, whereas those classified as ‘serious human rights violations’ are non-amnestiable, although their perpetrators may become eligible for reduced sentencing.

In this context, do you see the likelihood of the TRC bill being approved during this parliamentary session, with both commissions being formed at the very least?

Due to the limited efficiency of our parliamentary committees, our kind of arrangement requires the government to provide business to the parliament. In mature parliamentary systems, such business comes from both the government and the committees. Over the past seven months while the House has been in session, this government has struggled to create business, resulting in only two laws being adopted by the parliament. In fact, we had reached the point of House prorogation just before the Dashain festival. The parliament has been kept in session only to save transport costs for the required assembly of the Members of Parliament during the United Nations Secretary-General Antonio Guterres’ visit, where he is scheduled to address a joint session of both Houses. Given the need for further scrutiny of the transitional justice bill by the Law, Justice, and Human Rights Committee of the Lower House. It does not appear possible for the parliament to deliberate on the bill during this session. However, efforts of compromise can continue even when the House is in recess.

As you mentioned, UN Secretary General Antonio Guterres is visiting Nepal. One of the agendas of his visit is said to be the Nepali Peace Process of which Transitional justice is an integral part. Does this interest of the UN make any difference to our ongoing TJ process? What role do you see for other members of the international community?

United Nations Secretary-General Antonio Guterres’s  visit to Nepal is eagerly anticipated. His visit is only natural given Nepal’s potential role in climate change, the Sustainable Development Goals-2030, and contributions to peacekeeping operations through Nepali security forces. The agenda for his visit will likely encompass these issues. As mandated by the CPA, the United Nations has been closely monitoring Nepal’s peace process, which is also a natural focus of the Secretary-General’s visit. The role that Nepal’s Supreme Court played in the decisions related to transitional justice and Nepal’s international commitments conveyed through various treaties and the voice of victim communities has, to me, been unprecedentedly positive. The Secretary-General should encourage expedited reforms and a diligent search for solutions while respecting our ongoing legal process in the parliament. Support of the democratic world, including of the UN will be crucial for transitional justice to conclude as the last leg of Nepali peace process. I would like to emphasize here that India’s role will decide which way Nepal’s transitional justice goes as it was the key factor behind landing of the Maoists into democratic polity. India, also as a catalyst of the 12-point understanding and the CPA, will have to come forward positively on the matters of human rights. And as far as I know, it certainly will.  International community comprises also of international organizations of the democratic order, which have lent moral and material support for Nepal’s transitional justice. We as a nation have the responsibility to honor this goodwill through our actions.

If the issue of transitional justice remains unresolved, the peace process will not conclude. In such a scenario, what specific role can the United Nations play?

Our transitional justice process may be concluded as follows and in this order: amending the law by addressing all substantive issues, expression of collective commitment to the public by political parties in parliament, apology from the Maoists and state for their atrocities, forming competent and credible commissions, and ensuring that the commissions complete their work within a set timeframe. This is the final opportunity for us. For this, we need legal, financial, and material support from the international community, including the United Nations. After we know that the final opportunity no longer works, we need the international community to exercise universal jurisdiction.

There is an opinion that credits the NC and Maoists for their effort to conclude transitional justice. It sees the security agencies also as being supportive to the process, but alleges Main Opposition CPN-UML of double standard. What is your perspective?

Concluding the transitional justice process must not be mistaken for imposing a predetermined outcome that disregards the rights of victims. Those who perceive the Nepali Congress and the Maoists as driving the conclusion of Nepal’s transitional justice process may either lack an understanding of the intricate details or may be complicit in a scheme aimed at permanently obstructing justice. I challenge them to take the bill, along with the subcommittee’s report, to the House and witness NC and Maoist Members of Parliament defending heinous crimes such as murder, sexual violence, and maiming. I want to see them boldly proclaim on the House floor that these crimes should be made amnestiable by law. It is unthinkable for any rational mind to endorse such a proposition. This is precisely why the bill remains trapped in committee limbo, even though the ruling coalition enjoys a significant majority in the parliament.

Regarding the CPN-UML, I disagree with the premise of your question. Within the subcommittee, UML MPs Subas Nembang and Mahesh Bartaula were the sole representatives advocating for substantial reforms in the law. The four issues included by the subcommittee as ‘questions yet to be addressed’ align with the UML’s position. Thus, I do not perceive any double standard here. In fact, I would go a step further–the UML should clarify its stance and, if Prime Minister Dahal desires, allow the bill to be presented in its current form. In this case, the UML should declare from the House floor its commitment to launching comprehensive reinvestigations into all conflict-era cases from scratch if elected to power in the upcoming elections, irrespective of the outcomes of this law. If Prime Minister Dahal wants to push the flawed law, my concern will not center on this legislation but rather on whether the UML will exhibit the resolve to take this additional step and pave the way for all conflict-era cases to be tried under regular judicial process. On security agencies, they follow the direction of elected leadership, and no political group in Nepal would ever contemplate compromising the institutional integrity of the Nepali Army.

Based on your statement, can we infer that the CPN UML had limited involvement in the conflict, and its leaders are unlikely to be associated with crimes from that era, leading them to take a hardline position against compromise? Is this interpretation accurate?

CPN UML’s minimal involvement in the conflict is a fact, giving the party a strong platform to champion human rights, justice, and the rights of victims. Yet, I’m doubtful about the party’s commitment to a clean transitional justice system. While compromise on TJ is necessary, we should ask ourselves: what exactly should be compromised? The Nepali Congress and the Maoists stand for a compromise that favors those responsible for past crimes, potentially leading to transitional injustice. I hope to see opposition parties like CPN UML and the Rashtriya Swatantra Party take a firmer stance against this.

Setting CPN UML aside for a moment, there’s a growing oppositional idea in society. It advocates for abandoning the concept of transitional justice entirely and instead pushing all conflict-era crimes through the regular judicial process. This viewpoint argues that the power balance has shifted since the Comprehensive Peace Agreement, with the Maoists no longer capable of resorting to guerrilla warfare. This suggests that prioritizing justice need not undermine peace in Nepal. Consequently, all conflict-era crimes should be resolved through regular legal process. My concern is whether CPN UML will fully embrace this approach.

‘Nepal holds a unique position in South Asia as the most open society and the only country where transitional justice is a subject of deliberation. To ensure the enduring strength of this democratic foundation we must address the sufferings of conflict victims.’

Furthermore, all our political parties appear to be in election mode, despite actual elections being some time away, as seen in their ‘Mission-84’ slogans. We can already sense that the next elections could pose quite a challenge for established parties. Even if the transitional justice law were passed today and commissions were formed in the coming months, their four-year tenure would leave unfinished business until the next elections. Hypothetically, if a new political party wins and legitimately repeals the transitional justice law, it could pave the way for judicial trials for all conflict-era crimes through regular judicial process. Those advocating compromise on an imperfect law should pay attention to this evolving scenario, which I believe would be most undesirable for Prime Minister Dahal. Victims on the other hand have nothing to lose.

To sum up, many scholars and activists including yourself have repeatedly said that Nepal’s TJ is at a concludable stage. How can the logical end of this process reproject the image of Nepal? 

When you look closely at the approximately fifty transitional justice processes currently underway around the world, Nepal’s situation appears relatively low-hanging fruit. To realize this potential, it is imperative that Prime Minister Dahal and his Maoist party refrain from pursuing a broad generalization of criminality and amnesty. It’s also crucial for the Nepali Congress, which would like to call itself a democratic vanguard, to avoid being swayed by the Maoist narrative. Successfully concluding the transitional justice process carries significant incentives, as it has the potential to redefine Nepal’s image, associating the country with a successful peace-building process. This achievement will instill newfound self-confidence in the nation and garner greater respect for the leadership that has steered the country through a tumultuous and complex political history. Such a transformation can positively recast Nepal’s overall national image and elevate its global standing, providing a successful example for others.

Nepal holds a unique position in South Asia as the most open society and the only country where transitional justice is a subject of deliberation. To ensure the enduring strength of this democratic foundation we must address the sufferings of conflict victims. This is a challenging yet attainable objective.