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If transitional justice decided on majority basis, the case may be 'reopened' in future: Tika Dhakal (interview)

Sagar Neupane

Sagar Neupane

 |  Kathmandu

Tika Dhakal, an expert on transitional justice, is a member of a martyr’s family. During the Maoist insurgency, his brother Mohan Prasad Dhakal was killed by security personnel in Arubote of Panchthar on October 22, 2001. Dhakal, who has a master's degree in English and Political Science from Tribhuvan University and obtained higher education in conflict mediation from the US, recently worked as a communication expert for President Bidya Devi Bhandari.

Dhakal, who is involved in studies and research on international affairs, transitional justice and geopolitical issues, has experience working in various international organizations. The bill registered by the government to settle Nepal's transitional justice is currently being discussed in the parliament and at the public level.

The government has started trying to advance the bill through fast track. The MPs of UML are dissatisfied with this. In the past, some MPs from parties that are not in parliament have objected to the bill brought by the government. The conflict victims suspect that the transitional justice, which is about to conclude after 17 years, may be obstructed due to some MPs. Against this backdrop, Nepalkhabar talked to Dhakal on this issue. Excerpts: 

You had said in an article that Nepal's transitional justice has become a double-edged sword. Why?
It has multiple meanings. I symbolically used a term double-edged sword to mean that it will hit the target, if wielded well. Otherwise, it will bounce back and turn out to be fatal to thee user. I mean, there are specific reasons behind saying this.  

Nepal's transitional justice has been under the grip of two extreme debates since the very beginning. One extremism says you should move ahead on the principle of 'forgive and forget'.

On the contrary, the other extremism says that Nepal's transitional justice should be decided through criminal prosecution. However, it is not possible to conclude transitional justice of Nepal through both of these processes.

The solution found between these two is the pragmatic solution of Nepal's transitional justice. That is why it is called transitional justice. This cannot be resolved through regular criminal proceedings as it has the dimension of international politics and relations, and the dimension of legitimate demands of stakeholders including conflict victims.  Security personnel, security mechanisms also fall within this dimension. The transitional justice should not be considered only as a general judicial process. These cases cannot be tried by the courts under the regular judicial process.

Currently, the amendment bill of this act is sub-judice in the parliament. Will it be endorsed now?
The strength of Nepal's peace process was its transformative agenda – it ended the conflict and transformed the rebel Maoist party into a peaceful polity. However, that transformation could not be sustained. This is a huge mistake in reviewing.

The government of Nepal and political parties have been deviating from the obligation that they had promised to do so.

Does it mean that political parties are mired in biases and prejudices?
The legitimacy of the Comprehensive Peace Agreement (CPA) has been institutionalized in Nepal. The agreement was approved by the politics of the time. The Interim Constitution considered it as an organ. The present constitution automatically assumes its ownership. In doing so, great legitimacy is established there. That peace process continues to guide today's politics in one way or the other.

Similarly, there are about 200 examples of transitional justice in the world. Even now, there are 48 of what we call active transitional processes. Among them, Nepal's transitional process is close to consensus. However, it still needs to be made victim-centric, guidelines of the Supreme Court should be followed and international standards should be met.

Second, when Nepal's transitional justice is done appropriately, it itself meets international standards. And, the rest of the world can also consider the practice and application of Nepal's transitional justice as an example.

Video: Bishal Karki and Saroj Nepal

The first thing is that they could not agree with the fast track process. We must be clear about why the Commission for Enquiry, Truth and Reconciliation Act on Disappeared Persons needs to be amended. There are some specific reasons for this amendment.

It is not that we do not have the law even now. However, that law did not work out. That is not the only reason for revision. The Supreme Court disagreed with the basic provisions of that Act and ordered to fix specific criteria and amend it. That supreme standard is our fundamental guide.

It also has procedural issues. There are also matters of content. In the process of making laws, it means to proceed with extensive discussion, consultation and debate with the victims and other concerned bodies. It is said that certain standards of law making must be met. We have our own method of law making. Legislature makes laws but the role of process is important in it. For example, when KP Oli was the Prime Minister, two-three parliamentarians were sent questionnaires in all the seven provinces.

Later, when Govinda Bandi became Minister of Law, he took that consultation process forward in a way. They were made at different times for different legislative processes. It is not that the same process will be repeated. But who are the stakeholders of this process? It is known. Who is the stakeholder of transitional justice in Nepal? First, the political parties of Nepal, especially Nepali Congress, CPN (UML) and CPN (Maoist Center). Second, those affected by the conflict. Thirdly, the Nepali Army is its stakeholder. Fourth, the international community is also its stakeholder.

This is why we have signed many international treaties, agreements. We are committed to their specific provisions. Therefore, it is also our responsibility to fulfill those conditions. After consulting to a certain level, a stakeholder will be satisfied, it is the responsibility of the Parliament to complete it in consultation with others.

In that case, Fast Track does not fulfill these conditions. Going through the fast track violates the guidelines given by the Supreme Court. Violation of the Supreme Court order raises another question. Credibility is questioned.

Therefore, the current bill introduced by the government will be taken to the committee, extensive discussion will be held and the committee itself can make a law in consultation with the stakeholders who have not been consulted yet.

Earlier, a commission was formed and complaints were called for. The victims filed complaints, and the commission itself was dissolved. There is again a call for resolving it but there is no consensus within the parties. How long will it last? Here the victims are desperately waiting for justice.

In terms of transitional justice, we have our own experience, international norms and practices, only to follow them. Recently, Kosovo created its national strategy to deal with transitional justice.

It is the task of setting a roadmap of how we will decide when we take it to the process. According to the law, the term of office of the commission is two years, it will take at most three years. Second, taking it to the committee does not mean it will get stuck.

What we have to understand in the context of the Supreme Court is that the Executive, the Judiciary and the Legislature are separate organs of the state. They have their own responsibilities. Legislation is done by people's representatives. However, if the law is not compatible with the procedure or if it contradicts with the original law or violates the constitution or our international commitments, then the court will cancel it. So all these three organs are independent in their place. We must act judiciously.

There are also examples of the laws made by the people's representatives being rejected by the courts.

That's why judicial principles and legal principles procedures should be duly completed. Some of the stakeholder's complaints may persist till the end. It is not possible to address all at once.

Even then, the majority and the minority emerge, don't they? The decision has to be taken on the basis of the majority. 
There is a minority-majority, but a broad consensus can be reached. I emphatically say even now - NC, UML and Maoist Center should not be left out of this process. In this process, the agreement of these three parties is the minimum agreement. There are specific reasons for this.

Laws can be formulated by the majority, they are made and gone. The question may arise whether the process that has been closed once can be reopened or not. The best example of this is in Argentina.

The military rule was imposed in Argentina in 1976. A large number of people were killed and went missing. The transitional process started after about seven years. In 1998, the government enacted the Full Stop Law after going through several stages. Some were punished. The court decided something. After that, the government introduced a full stop law which was subsequently endorsed by the parliament. It was announced that there would be no discussion on this matter.

However, as soon as the new government stood against it, the cases were opened. In 2005, the court itself ruled that the full stop law is illegal and unconstitutional. It's been 50 years now, the cases are still ongoing.

That's why I said - don't try to decide the transitional cases based on the majority. At least there is room for agreement between the three parties. We have to realize that this is a national issue and resolved it through consensus. There are some flaws in the current bill. If amended, it becomes a standard bill.

It is also said that because of the geopolitical maneuvers to strike a balance of power, they are trying to linger it with new obstacles? 
If we leave some kind of loopholes in domestic politics, geopolitics will take up what we leave behind. The peace process was immediately concluded in the agreement. Comrade Prachanda was the Prime Minister in 2065 BS. Under his leadership, the peace process was supposed to be brought to a conclusion.

The Act establishing the Commission reached the Parliament in 2069 BS. He didn't bother it during his tenure. With the dissolution of the Constituent Assembly, it collapsed.  

As you said, NC and Maoist Center are ready to finish this process. Subas Nembang, deputy leader of the UML Parliamentary Party, said that UML was ready to conclude it. But why is there a delay?
What culture has been developed in the political parties, of late, is that after the majority in the parliament, the bill should be pushed through even if it is by force. It does not carry the dignity that our system and system seeks to uphold. It is an attitude contrary to the principles of this system. It should be understood that the majority should be used for the benefit of the people, not for the interests of the party or a particular leader.

They made a mistake in bringing the amendment bill, they should not do it again. Especially regarding the transitional law, there is still space for the victims. Where it is in the parliamentary committee, the committee can lead it.

Krishna Bhakta Pokharel, when he was the chairman of the Law, Justice and Human Rights Committee, held many talks with the stakeholders. The bill itself reached during the last term of Parliament. But now the parliament is just starting. If it is taken to the committee now, I don't think it will take much time. It shouldn't take long. There should be a lot of discussion on this in the parliament. Parliamentarians should be given time to speak.

At the same time, the committee is also responsible for negotiating with its stakeholders and resolving issues. There are some points in the bill that need to be raised. There is a matter of definition of human rights violations and serious human rights violations. The definition contained in this bill cannot be accepted. It cannot be accepted for two reasons, firstly, it is against the decision of the Supreme Court. Secondly, it is against our international commitments.



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