Restorative justice in Nepal: Restoring moral dignity

By Suvechha Adhikari (suvechha1@hotmail.com)

ABSTRACT

Nepal is in the process of achieving peace and democracy but if the Truth Commission envisaged by the government is not able to find out the truth, prosecute the offender and provide reparation to the victims of forced disappearances, it will be difficult to achieve the fuller democracy.

FULL TEXT

The 12-year-long conflict has finally come to an end with the signing of the Comprehensive Peace Agreement by the Government of Nepal and Communist Party of Nepal (Maoist). Both the parties are now committed to respecting the fundamental rights of the people and abiding by the concept of human rights, international humanitarian laws and basic principles and norms relating with human rights. During the period of armed conflict, the State party carried out maximum number of extra-judicial executions and forced disappearances. Even the United Nations Working Group on Enforced and Involuntary Disappearances in 2003 and 2004, recorded Nepal for having the highest number of cases of disappearances. The forced disappearance of people is one of the most atrocious human rights violations where the victim is totally in the control of the perpetrators of the crime and it inflicts severe suffering on the relatives and friends of the disappeared person.

Now that both the parties have agreed to the establishment of three major commissions – the National Peace and Rehabilitation Commission, State Restructuring Commission and High level Truth and Reconciliation Commission – the hopes of the victims and families of the disappeared of getting justice at the hands of these commissions have soared. Particularly through the Truth and Reconciliation Commission – an independent and impartial Commission which will investigate human rights abuses and political violence linked to the armed conflict, determine reparations for the victims and make recommendations for the future. The Truth and Reconciliation Commission often works in the principle of restorative justice – providing amnesty provisions for perpetrators if they could satisfy certain conditions laid down in the legislation establishing the Commission. But in certain cases – as in the cases of forced disappearances the approach of prosecutorial justice has to be adopted – where criminal prosecution and punishment are followed after the truth finding phase. As Kofi Annan in March 2003 stated “There are times when we are told that justice must be set aside in the interests of peace. It is true that justice can only be dispensed when the peaceful order of society is secure. But we have come to understand that the reverse is also true: without justice, there can be no lasting peace”. It is only through the approach of prosecutorial justice that victims of disappearances can get justice and reconcile effectively. The experience of Argentina shows how the findings of a truth commission CONADEP could make vital contributions to the prosecutorial approach to justice.

In Argentina after the war was over, The National Commission on the Disappearances of Persons (CONADEP) was created so as to investigate disappearances during the years of the “dirty war” and determine, wherever possible, the whereabouts of the victims. When the CONADEP concluded its work, it handed its case files directly to the prosecutors, allowing them to quickly build cases against most senior members of the previous military regime, with access to a large number of primary witnesses. The CONADEP also submitted the report to President Alfonsín, for immediate actions against those highest ranking military officials. This kind of interaction between CONADEP and the trials that followed were largely complementary. Similar kind of approach can be adopted in Nepal where the Truth and Reconciliation Commission (TRC) will identify the truth and pass on information and reports to the national prosecution authorities so that, where there is sufficient evidence, those suspected of being responsible can be prosecuted. This approach will expedite and facilitate prosecutions and therefore aid significantly in the achievement of retributive justice which is quite important in the case of Nepal to provide justice to the victims of forced disappearances. Nepal shouldn’t make the mistake of granting amnesties by sidelining justice in the concept of Reconciliation, if it happens there will be truth but it will not lead to any reconciliation. Therefore, the commission should allow the prosecutors to prove the security forces responsible for horrendous crimes of disappearing people.

Similarly, Reconciliation will be achieved only when the victims are acknowledged and given reparations, especially when the State makes a conscious effort to address their needs. Approaches and notions of reparation in the Truth and Reconciliation Commission varies, in some countries reparations are directly linked to truth commissions and other times they are taken care of by a special program; that is when the Truth Commission produce a record of victims – on which reparations program is built. In Chile, the Comisión de la Verdad y Reconciliación was formed to investigate the deaths and disappearances that occurred during the military regime, determine the whereabouts of the victims, and recommend reparations and reforms. The National Corporation for Reparation and Reconciliation was established to follow up the investigations of the truth commission and put its recommendations into practice and, in the report, it listed the beneficiaries who will be entitled to such a program and identified different levels at which reparations program will function. In the case of Nepal, reparation to the victims of forced disappearance is extremely necessary. Since the disappearance of loved one is an irreparable loss and moral and material reparation seem to be utterly essential to the transition toward a fuller democracy.

Nepal is in the process of achieving peace and democracy but if the Truth Commission envisaged by the government is not able to find out the truth, prosecute the offender and provide reparation to the victims of forced disappearances, it will be difficult to achieve the fuller democracy. In the transitional phase, the threat from people, who were responsible for the disappearances – who don’t want to see the conviction of its members and the justice to the victims of the disappeared – is high since they still retain significant power. This can impair the pursuit of justice and also limit in prosecuting those involved in the human rights abuses. And despite the commitment of the new government to the reestablishment of the rule of law, pressure exerted by those forces might result in granting amnesty, thus hindering the process of establishing judicial accountability. Therefore the commission which is going to be formed has to be independent and should respond to the challenge of and shouldn’t be influenced by those offenders. The commission should move toward acknowledging the truth of what has happened, prosecuting those responsible, restoring the moral dignity of the victims, and achieving a better quality of life for those families most directly affected.

(Ms. Adhikari is working as a Researcher in an Organization working for Nepal’s Transition process. Please send your comments to feedback@mos.com.np or suvechha1@hotmail.com)

Source:
Nepalnews.com- 2006

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