“The search for truth should be the first priority of the transitional justice process”


Sixteen years after the signing of the Comprehensive Peace Agreement, the victims of the decade-long Maoist insurgency are still waiting for justice. Lawyer Govinda Sharma Bandi April 7 was included in the cabinet of Sher Bahadur Deuba as Minister of Law, Justice and Parliamentary Affairs with the primary responsibility of accelerating the transitional justice process. Since last week, his ministry has begun consultations with victims to amend the existing transitional justice law. In this context, Swiss Post Binod Ghimire sat down with Bandi to discuss how the transitional justice process will move forward and his plans.

The interview has been condensed for clarity.

You have long fought for justice for the victims of the conflict. Why is there so little progress in the transitional justice process?

There was a lack of a common understanding of the transitional justice process at the political level. The comprehensive peace agreement said that an investigation would be carried out into cases of serious human rights violations and those implicated in crimes against humanity. The inquiry would also create an environment conducive to reconciliation. The Provisional Constitution of 2007 contained the same provision. However, there were different parties with different interpretations of the provisions at the time of the preparation of the law. While some said atrocities committed during the insurgency were part of the political process and there could be no prosecution in such cases, others said anyone implicated in such acts should be held to account. responsible. This is the reason for the delay in drafting a law governing the transitional justice process.

Walking a middle course, an ordinance was issued in 2013 which provides that those implicated in gross human rights violations will be held accountable while there will be amnesty and reconciliation in other cases. The Supreme Court abandoned it because it did not define what serious breaches meant. The Commission of Inquiry into the Missing Persons Truth and Reconciliation Act was enacted in 2014, but the court later ordered the government to remove some of the amnesty provisions by amending the law. Despite some attempts, it could not be amended because there was no consensus on the definition of gross human rights violations.

Similarly, the victims of the conflict, the main stakeholders in the transitional justice process, refused the two transitional justice commissions, expressing their dissatisfaction with the appointment of chairpersons and members. Civil society and international communities have done the same.

Now, political leaders agree that the law should be revised in accordance with the instructions of the Supreme Court, in accordance with the spirit of the Comprehensive Peace Agreement and Nepal’s obligations under international human rights treaties and conventions. of man. I am convinced that the transitional justice process will now move forward within the framework of a credible process.

Are you saying that the differences between the parties have been resolved?

Today, at least, there is a consensus that there can be no amnesty in cases of serious human rights violations. Furthermore, it is commonly accepted that such cases will be defined by an amendment to the law after consultation with the victims of the conflict and civil society, while taking into account Nepal’s international obligations and the decision of the court. However, we haven’t gotten to the heart of the matter yet. This will be done once the consultations have been completed.

Do you also count the CPN-UML when you say all parties?

Absolutely. I met KP Sharma Oli, the leader of the main opposition, and he assured us of his support. In fact, he was the one who pioneered this concept to create a credible transitional justice process and conclude it with consultation with victims, and I am very grateful to him for that.

And the security agencies?

Nepalese security forces have always supported all initiatives taken by the state. I am convinced that they will also do so in the future. I am in contact with them through various means and their response is positive.

Those who were involved in human rights violations in one way or another during the insurgency fear prosecution, therefore they do not cooperate with the transitional justice process. What do they think of your renewed efforts to conclude the process?

There is an awareness among all stakeholders that the past must be dealt with properly. There is no other alternative to this.

There are still two types of dominant views about it. Some argue that atrocities committed during a political movement must be forgiven while others say there must be prosecution. What do we do to arbitrate between these two dominant positions?

These are extremist views and both are wrong. Serious human rights violations must be investigated and there will be no amnesty in such cases. The Supreme Court said it clearly. All major political parties have a common position that heinous crimes must be investigated and the perpetrators must be held accountable based on the findings.

In some cases, we must adopt a reconciliatory approach permitted by international law if the victims are ready for it. Victims fear there could be an amnesty without investigation, even for heinous crimes. Whether there will be any prosecutions in such cases will depend on the findings of the investigation.

Currently, the common will of political parties, victims of conflicts, civil society and the international community is to carry out the process of transitional justice.

The judiciary has concluded different cases through the ordinary court process, while some are currently pending. Cases of the same nature are also dealt with by the transitional justice commissions. How can there be uniformity?

The search for truth should be at the center of the transitional justice process. We designed our transitional justice process with a rule of law approach similar to that of the mainstream justice process, which was a mistake. I take my share of responsibility for the flawed process, as do the others involved. The two transitional justice commissions were designed as prosecutors’ offices instead of entrusting them with the task of discovering the reasons for the conflict in the past, of investigating the root causes of human rights violations, of developing strategies for the non-repetition of these cases and to propose institutional reforms. .

The Office of the United Nations High Commissioner for Human Rights has documented approximately 3,000 cases of serious human rights violations. However, we have over 63,000 cases in our transitional justice commissions. Together, we have made the transitional justice process very complex. Against the very concept of transitional justice, we have developed two commissions as complaints handling agencies.

Now what we look forward to is designing the transitional justice process in a way that ensures accountability by focusing more on the search for truth. The whole process will be centered on the victim.

You yourself take part in the consultations with the victims. What is their major concern?

After holding consultations and meetings at the provincial level, I found that all stakeholders are now on the same wavelength, which was not the case before. There is a common understanding that it must be concluded now.

When will the Amendment Bill land in Parliament?

The mandate of the Truth and Reconciliation Commission and the Commission of Inquiry into Enforced Disappeared Persons will end on July 16. The bill will be registered before that. However, it may take some time before the parliamentary process approves it. The amendment will be carried out in accordance with victims’ comments, the Supreme Court’s verdict and international standards, giving priority to the search for truth. My plan is to put in place a credible transitional justice process before I leave my post as minister, which is about four months.

In addition to transitional justice, you also deal with parliamentary affairs. There are 61 bills including those relating to ordinances awaiting ratification. Is there a possibility to ratify them all?

I cannot guarantee the ratification of all bills. However, we will try to pass as many as possible. Although this is a budget session, we are going to turn it into a session on bills. The amendment of the Citizenship Act is our first priority after the approval of the budget which will be followed by bills related to the establishment of federalism such as the federal civil service, among others.

There is a demand for remove the limitation period in rape cases from different neighborhoods. What is your position on this?

We asked the Nepal Law Commission to do a thorough study and make recommendations. The department has not yet received any recommendations. I cannot assure you that the amendment to the laws concerning the statute of limitations will be tabled during the current session. The issue should be properly discussed before making changes to the existing layout. While it is undeniable that the situation of deprivation of justice due to the limitation period must end, we must also study its disadvantages. Removing it completely in any case is not a solution. Wait for recommendations.

What is the state of progress of the elaboration of a directive aimed at establishing criteria for the selection of judges that you have been advocating for a long time?

Misconduct in the appointment of judges is a major problem in the judicial system. In the Judicial Council, we agreed that political interference in the appointment of judges must end and that only those who are competent and of high integrity should obtain a place in the judicial system. For this, we have already drawn up guidelines which are being studied at different levels. We have received comments from the Supreme Court, the Supreme Court Bar and the Attorney General’s Office while we await suggestions from the Nepal Bar Association. It will come into force in a few weeks. In the future, only deserving candidates will become judges.


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