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Hundreds of thousands of Nepal Communist Party (NCP) cadres are struggling to pick sides between Prime Minister KP Oli-led faction and the one jointly led by Pushpa Kamal Dahal and Madhav Kumar Nepal. For some guidance, they are waiting for the Election Commission’s (EC) decision on election symbol and party name.

Each of the two rival factions has staked its claim on the old party name and election symbol. Both want the sun, which had been the election symbol of the then CPN-UML starting with the 1991 general election. The symbol—which UML had borrowed from left leader Padma Ratna Tuladhar who had used it when contesting Panchayat-era elections—became popular among voters after the 1994 UML-led government introduced various social security measures including elderly allowances.

The NCP decided to adopt the sun as its election symbol following the UML’s merger with the CPN (Maoist Center) in 2018. The combined outfit has all but split less than three years after that formal unification. But the legal dispute over party ownership is expected to be long and arduous, say observers.

It has been nearly a month since former Maoist commander Dahal severed ties with Oli after the prime minister decided to dissolve the federal lower house and call for fresh election at the end of April and early May. Each side held its separate factional meeting after the House was dissolved. Dahal-Nepal faction expelled Oli as party chief. In Oli’s place, former UML leader Madhav Nepal, who joined Dahal camp after the division, was appointed co-chairperson. In response, the Oli faction took away Dahal’s executive power as co-chairperson and amended the NCP statute to give Oli more rights.

The Dahal-Nepal faction summoned the Election Commission to legitimize its claim over the NCP, arguing that it had the support of the majority of the party central committee members. After submitting the signatures of 287 central committee members to the commission, Dahal said he could even invite all signatories to the commission if it so desired. Oli, meanwhile, formed an 1,199-member general convention organizing committee incorporating many new central committee members, which in turn gave him two-thirds majority support in the party.

Burden of proof

Although neither faction accepts the accusation of instigating the party split, leaders from rival camps have claimed their own outfit as official, putting the commission in a fix. The NCP statute has a provision whereby a party decision is validated only when both party chiefs—who, on paper, are still Oli and Dahal—endorse it.

In the past the election body used to officially recognize the outfit with the majority support of central committee members at the time of split. But the ruling party’s strange dispute has complicated the process. Neither faction says the party has split and the effort of each is focused on showing it has majority support.

Raj Kumar Shrestha, the commission spokesperson, says no one has informed the constitutional body about a formal split. “Both sides have asked us to update their decisions in party record with the commission. We have asked them to validate their decisions on legal grounds,” says Shrestha. “We can’t declare which faction is official NCP and which is a splinter party based on their current claims.”

According to its officials, if and when the commission decides a faction is legitimate, the party name and election symbol will go to that faction. The constitutional commission will thus legitimize the decisions of only one faction.

Are there chances of invalidating the claims of both the sides? An EC official, requesting anonymity, says it is one of many options on table. “If the commission finds that neither side’s decisions are in line with party statute and rules, both claims could be invalidated,” he says. The commission has given a clear message to the two factions that neither side has solid legal ground to back its claims.

The commission’s invalidation of these competing claims may technically unite the NCP. However, a de facto unity is unlikely in the bitterly divided party. What next then? Another option will be for the factions to claim support of 40 percent lawmakers or majority central committee members in order to formally split the party.

Selective Acts

Amid the dispute the commission has been following Section 51 of the Political Parties Act instead of Section 43 and 44 of the same Act; the latter two would have been invoked if the commission believed the party had formally split. But Section 51 is related only to updating political parties’ decisions on changes in party statute, name, election symbol, or office bearers.

In separate letters sent by EC to the two factions on January 7, it cited Rule 25 (4) of the Regulations on Political Parties. This rule too is limited to updating party decisions in commission records.

“We have asked the two sides to update their claims citing laws, rules and party statute provisions under the Rule 25 (4) of the Regulations on Political Parties,” says spokesperson Shrestha.

No faction has thus far claimed the official NCP status with the signatures of at least 40 percent central committee members.

The commission’s correspondence with the NCP factions also suggests a possibility of invalidating both the claims. Yet both the factions are confident of their win. If the commission is seen as doing injustice to one faction, it is certain to knock apex court doors.

How long would the EC take to reach a final decision then? The EC, interestingly, isn’t obliged to give its final decision on the issue until the end of next week.

Chief Election Commissioner Dihesh Kumar Thapaliya is considered an Oli loyalist. But the CEC is in the minority in the commission as two other commissioners are not siding with Oli. Narendra Dahal, who was loyal to Oli until a year ago, has felt alienated after Oli appointed Thapaliya as chief commissioner, informs an NCP source. Another commissioner Ishwari Prasad Paudyal, who was nominated to the EC by Nepali Congress, is also likely to stand against Oli.

Interestingly, the Oli-led Constitutional Council on Dec 30 had recommended two other EC commissioners. For the purpose, the government had amended the Constitutional Council Act through an ordinance even amid the NCP dispute. Oli recommended Ram Prasad Bhandari and Janaki Tuladhar as the two other election commissioners. They are expected to assume office after January 28: In the absence of parliamentary hearing they need not face lawmakers’ scrutiny. They nonetheless have to wait for 45 days to be appointed by the president.

After the new commissioners assume office, CEC Thapaliya is expected to have a comfortable decision-making majority. That, speculates the NCP source, could work in Oli’s favor. 

Hidden majority

There is also a possibility that lack of clarity over competing claims coupled with the EC’s desire to avoid any controversy could make it withhold the NCP name and election symbol from both factions.

But, again, the Oli faction is confident. “From the old party, we have the chairperson, the general secretary and the party institution. So the Election Commission is bound to endorse our decisions,” says PM Oli’s legal adviser Baburam Dahal.

Ram Narayan Bidari of Dahal-Nepal faction is as confident that the EC will confer official name and symbol on his faction as it had the support of a clear majority of central committee members when the House was dissolved. “There is no doubt we will get the election symbol and official name as we have on our side nearly two-thirds of the original central committee members,” he added.

The Election Commission meanwhile is struggling to establish majority either way. It seems confused over whether to make a final decision based on the number of central committee members before House dissolution or after it.

The commission’s decisions could also be affected if the Supreme Court issues a stay order on a writ challenging Oli’s appointments in the election body. Advocate Om Prakash Aryal has filed a writ against the ordinance that allows the Constitutional Council (which appointed the EC commissioners) to make decisions on majority basis. Yet another writ challenges the council’s appointments at various constitutional bodies.

The Oli-led faction has already started its election-themed programs, holding mass gatherings and cadre-training programs all across the country. Oli wants to impress on the party rank and file that he has the backing of the Election Commission.

On the other hand, the rival Dahal-Nepal faction is busy protesting parliament dissolution. It is yet to start any election-focused program as it reckons the Supreme Court will reinstate the parliament and the question of elections will be rendered moot.

However you see it, this dispute isn’t going away any time soon.

Nepali politics has entered a new phase of turmoil following Prime Minister KP Sharma Oli’s dissolution of the federal lower house and call for a fresh election. Soon after, the ruling Nepal Communist Party (NCP) split, after only 31 months of merger, with both KP Oli and (Pushpa Kamal) Dahal-(Madhav Kumar) Nepal factions now claiming to represent the authentic NCP.

The NCP’s student wing, the All Nepal National Independent Student’s Union (ANNISU), is similarly divided. Following the 2018 merger of CPN-UML and CPN (Maoist Center), the two student wings had also formally started the unification process. Yet the mother party has now been split even before the merger of the two student wings could be completed.

As is the case with top party leadership, student leaders are bitterly divided on recent events. Most blame the leaders of rival factions, and each is busy protesting its own case.

“It is crystal clear that Dahal-Nepal camp sowed troubles in the party as well as in the government under the influence of external actors,” says Birendra Rawal, central committee member, ANNISU. For him, election is the only way out of the current political logjam. “Why does the Dahal-Nepal camp want to get to power through the back door? Why isn’t it ready to go to the people and get their mandate?”

In sharp contrast, Jack Aryal, an ANNISU cadre from Gorkha, labels Oli’s move a “coup” and holds him entirely responsible for the current mess. “Oli affected this constitutional coup under the designs of India and the US,” he avers. 

It won’t be wrong to say that right now, instead of playing a constructive role—for instance in helping the two factions bridge their differences, or in shaping the post-split ideological debate—the rival student leaders are only parroting the top leaders they back. 

For Rachumani Luitel, ANNISU Kathmandu District Committee Member, KP Oli is the main culprit as well. “Oli wants to control both the party and the government and to impose an authoritarian rule,” he says. 

Blaming Oli for undercutting communist ethos and violating the national constitution, Luitel questions the need to dissolve the House. “Other avenues could have been explored. Yet Oli’s authoritarian mindset was not ready to seek the suggestions of others in the party,” he says.  

Sandeep Luitel, an ANNISU leader at Baneswor Multiple Campus, echoes Rachumani. He cannot understand how Oli could have dissolved the House when there is no constitutional provision to do so. “Dahal had only brought a proposal for party reform. And look how childishly Oli acted on it!” 

Student leaders supporting Oli faction say party split and House dissolution happened because the rival faction forced the prime minister’s hands. On the other hand, Ashmita Thapa, an ANNISU Central Committee member, thinks “impatience and irresponsibility prompted the split and House dissolution.”

Ujjwal Khadka, an ANNISU RR Campus Committee member, foresees turmoil in Nepali politics after the NCP split. Unlike other student leaders, he holds all top party leaders equally responsible. “The problem is, even the second-rung leaders succumbed to their greed for power,” he says. 

He says the future of the ruling party and Nepali polity are both in the hands of the Supreme Court.

Thapa says it was inevitable that the fission at the top percolated into the student union. But she thinks student leaders should not blindly favor their previous role model leaders. “The students should their raise voice against what is wrong, irrespective of who commits the wrong,” she says.

Students of neither faction were confident that the party could be put back together, or that the two sets of students can coordinate on anything immediately. “For now, protesting for our faction is the only way to be loyal to our leaders,” Aryal of the Dahal-Nepal faction adds. For his part, Rawal of the Oli faction says, “We did try to find a middle-way out with the other side, to no avail. Now, an election is the only way out.”

Khadka, one of the rare ANNISU student leaders caught in the middle, advises student leaders to work towards ensuring political stability in the country rather than getting themselves enmeshed in “some stupid power struggle”. 

Most student leaders APEX talked to said they believed in the power of student politics to bring change and added that it was their duty to raise voice against what was wrong. Whatever they say, the gulf between the two sets of student leaders appears as wide as the one between their senior leaders.

The new Nepali constitution completes its five years as the country battles an unprecedented health crisis. The national charter envisions a high level of coordination between federal, provincial, and local governments. But such coordination has been conspicuously absent in the fight against Covid-19. The constitution has empowered provincial and local governments to deal with such a crisis. But it is the District Administration Offices (DAOs), temporary coordinating bodies that are holdouts of the previous centralized state, that are at the frontline of the Covid-19 battle. The DAOs are still accountable to federal government and not to provincial and local governments, flouting the principles of federalism. Provincial interior ministries don’t even have the right to mobilize police to enforce prohibitory measures.  

Similarly, as provincial and local governments lack adequate health infrastructure, they have to rely on the federal health ministry to meet their health needs.

But despite some shortcomings the country’s political course is by and large headed in the right direction, say constitutional experts. They point to the many achievements in constitution implementation.

Bright spots

Senior advocate and Nepali Congress National Assembly member Radheshyam Adhikari says local governments are gradually becoming stronger as they have started exercising their constitutional rights. “A lot remains to be done but we are also steadily strengthening the federal setup,” says Adhikari. Now, the three-tier federal structure is functioning and is on course to complete its first five years.  

The constitution’s acceptability has increased, too. In the initial days of the constitution promulgation, the Madhes-based parties vowed to disown the national charter. But they later accepted it with reservations. They had initially boycotted the 2017 local elections held under the aegis of the new constitution but later took part in the provincial and federal elections, and now run a government in Province 2.

Similarly, they supported KP Sharma Oli’s candidacy for prime minister in 2018, with the hope that he would amend the charter. They withdrew their support after his government took no initiative to fulfill their demands. The Madhes-based parties have never given up their demand for amendment. Similarly, the international community, and India in particular, had initially expressed their reservations with the constitution. India repeatedly called on Nepal’s political parties to amend it—but no more. Now, there is full international support for effective implementation of Nepal’s federal setup outlined in the constitution.

Constitutional law expert Bipin Adhikari says, in totality, the process is working. “But it has failed to gain the expected momentum, nor has the constitution been fully implemented. This is also partly due to the failure of the opposition party to play an effective role,” says Adhikari. “In the initial years, there was good progress in formulation of laws and their implementation but the momentum has slackened,” he adds.

Fiscal decentralization: Still a mirage

A vital aspect of Nepal’s 2015 constitution is the shift of rights and financial resources from federal government to provincial and local governments, making Nepal the most decentralized country in South Asia. There has been transfer of various kinds of funds to provincial and local governments, which is good, but there are also obstacles hindering the process of effective decentralization.

The constitution envisioned the National Natural Resources and Fiscal Commission in order to transform the old unitary state into a federal one. The commission’s formation should thus have been the first priority of political parties. Yet it wasn’t until two years later, in 2017, that the National Natural Resources and Fiscal Commission Act was finalized, with the commission coming into being on 28 December 2017.

A year and a half after the commission’s formation, the federal government, on 21 March 2019, appointed Balananda Poudel as its chairman. But four other members of the commission are yet to be appointed. The government has also ignored the commission’s suggestions on distribution of economic resources to provincial and local governments.

“In the past five years, we have made a lot of progress in institutionalizing fiscal federalism but there are still many loopholes, both in law and in practice,” says fiscal federalism expert Khim Lal Devkota. He says a law to differentiate revenue rights of three governments as well to ensure equity in revenue distribution is desperately needed. Yet the commission’s report on distribution of resources among three governments has been ignored. The Federal Ministry of Finance still controls the commission’s functioning, which, again, goes against the principles of federalism.  

Problematic law-making

The process of making laws to implement federalism remains incomplete. Radheshyam Adhikari says three areas of law-making need to be considered. First, many laws formulated to implement constitutionally-guaranteed fundamental rights of citizens don’t have mandatory bylaws.

Second, laws are yet to be formulated on some key areas. For instance, the parliament is yet to endorse the new Citizenship Act, in line with the new constitutional provisions on citizenship. The draft law is pending at the State Affairs and Good Governance Committee of the federal lower house as parties are yet agree on a viable citizenship model. Similarly, the Civil Servant Act has been gathering dust at the Parliament Secretariat.

In the absence of the Civil Service Act, provincial governments have been unable to set up their own public service commissions to recruit staffs, and still have to rely on the Federal Affairs and General Administration Ministry for staff and other resources. Both provincial and local governments are short on staff. Provincial governments want to recruit their own civil servants but can’t do so without relevant laws.

Third, some laws upend the principles of federalism. “The constitution has devolved rights but several subsequent laws retain the rights in the hands of central government,” says Adhikari. The laws on health and education, for example, suggest the federal government is trying to retain its control in these areas. But these sectors fall under the jurisdiction of the provincial and local governments.

Besides, several media-related Act are pending at the parliament secretariat, and so is a bill to amend the law on the Public Service Commission.

Marginalized voices

The Madhesi and Janajati constituencies having been asking for constitution amendment since its promulgation, marking the constitution day as a ‘black day’. Of late, some lawmakers affiliated with the Janata Samajbadi Party Nepal and Nepali Congress have pushed separate amendment bills to address the pending concerns of Madhesi people.  

PM Oli has repeatedly said, without elaborating, that the national charter would be amended only ‘on the basis of necessity and relevance’. As the constitution is yet to complete even its first five-year election cycle, Oli and those close to him think, it is too early to make substantial changes in it.

Though NCP co-chair Pushpa Kamal Dahal is said to be positive on Madhesi demands, Prime Minister Oli is not. A recent Standing Committee meeting of the ruling party discussed the remaining aspects of peace and constitution drafting process without even touching the amendment topic.

Political analyst CK Lal says the main purpose of the new constitution was to secure the privileges of the old ruling elites and strip the rights of Madhesis and Janajatis, the rights the interim constitution 2007 had bestowed on them. “And both the purposes have been served,” he says.

Adds Vijay Kant Karna of the Center for Social Inclusion and Federalism, “the issues raised by Madhes, Janajati and other marginalized communities remain unaddressed”. Nor does he see any chances of amendment during the tenure of this federal parliament.

Inclusion still elusive

Among others, the new constitution ensures the inclusion of all castes and communities in state organs. But except in areas dictated by the law such as representation in parliament and political parties, the inclusion of Madhesi, Tharu, women, Dalit and marginalized communities remains dismal in state mechanisms. For instance, of the 22 cabinet ministers, there are only three women in the Oli-led federal government.

It’s the same story in the constitutional commissions and provincial cabinets. Not only women, representation of Madhesi, Dalit, Tharu, Janajati and other marginalized communities are dismal too.

The federal government has been most reluctant to empower the constitutional commissions as well. A law on the formation of the Tharu Commission was brought in 2017 and Bishnu Prasad Chaudhari was appointed chair after its formation in 2018. Other commissioners are yet to be appointed; nor has the commission been able to function independently. The fate of Madhes and Inclusive commissions is pretty much the same.

The constitution has envisaged Indigenous Nationalities Commission but it is yet to come into being. Dalit Commission and Women Commissions are functioning without the full quota of their office-bearers. “A key feature of the 2015 constitution is inclusive representation of marginalized community in state organs, which is still a distant dream. Just look at the current state of our constitutional commissions!” says analyst Karna.  

No check and balance

The constitution provides for check and balance among judiciary, executive and legislature, but there have been systematic efforts to disturb this balance and to minimize the autonomy of constitutional commissions.

Another analyst Geja Sharma Wagle says PM Oli has shown his anti-federalism bias by concentrating all powers in his hands, and thereby poses a serious threat to the constitutional order. “Not only opposition parties, even his close aides such chief minister of Gandaki Province Prithvi Subba Gurung and that of Province 1 Sher Dhan Rai have objected to PM Oli’s anti-federal activities,” says Wagle. 

Karna says there are examples of clear defiance of the constitutional order. “The constitution envisages the parliament’s oversight over the government. But in practice, just the opposite is taking place,” says Karna. For instance, the government passed the Constitutional Council Act allowing PM Oli to make key constitutional appointments on majority basis, without any opposition party representation.

Similarly, the government in July prorogued the parliament’s budget session without consulting speaker Agni Prasad Sapkota. There have also been attempts to curtail the rights of the National Human Rights Commission. “If you analyze the laws promulgated to implement the constitution, over 90 percent of them defy basic principles of federalism and checks and balance,” says Karna. 

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Key dates

September 2015: A new constitution is promulgated. The Madhes Movement intensifies and India imposes economic blockade.

October 2015: KP Oli becomes the first prime minister to be elected under the new constitution.

January 2016: First amendment of the constitution to address the demands of Madhesis and Janajatis.

February 2016: India lifts blockade, and Madhes-based parties withdraw their movement.

July 2016: PM Oli resigns after the Maoists withdraw their support to his government.

August 2016: CPN (Maoist) Chairman Pushpa Kamal Dahal becomes prime minister.

June 2017: Nepali Congress President Sher Bahadur Deuba becomes prime minister.

May-Sept 2017: Three-phase local elections.

Nov-Dec 2017: Federal and provincial elections.

February 2018:  KP Oli becomes prime minister again.

March 2018: Bidya Devi Bhandari is re-elected president under the new constitution.

September 2018: The first meeting of the seven chief ministers is held in Pokhara, supposedly to establish a common front against an uncooperative federal government.

December 2018:  Prime Minister Oli holds first meeting of the Inter-state Council, a coordinating body of chief ministers.

March 2019: Madhes-based parties withdraw their support to government as PM Oli fails to amend the constitution.

November 2019: By-elections are held on November 30 for the 52 vacant positions at all three federal levels.

April 2020: Rastriya Janata Party Nepal and Samajbadi Party merge to form Janata Samajbadi Party Nepal.

June 2020: The new party registers its 9-point constitution amendment proposal.

Every year, August 30 is observed as the International Day of the Disappeared. It’s always a somber occasion, including in Nepal. According to the International Committee of Red Cross (ICRC), 1,326 people are still missing in Nepal from the time of the Maoist conflict (1996-2006), with thousands more awaiting truth, justice, and reparations. Tellingly, this year, neither the federal government in Nepal nor any of the major political parties organized a formal program to commemorate this day, or even issue a message.

But on the day 41 organizations of conflict victims came up with a charter of 11 points, calling on the government and other stakeholders to undertake steps to reinvigoration the Transitional Justice (TJ) process, and adopt a transparent and consultative mechanism.

This is not the first time conflict victims have made such demands. They have been vocal about their plight since the signing of the Comprehensive Peace Accord (CPA) on 21 November 2006 to formally end the Maoist war. Other vital aspects of the peace process such as integration and rehabilitation of Maoist combatants, and constitution promulgation have been completed. But transitional justice, the last crucial component, remains incomplete. The TJ mechanisms are paralyzed, the law amendment process is in limbo, demands of conflict victims unaddressed, and there is an ever-present risk of internationalization of wartime cases.

Paralyzed mechanisms  

The CPA envisaged the two transitional justice mechanisms within six months of its promulgation. But only in 2015 could the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) could come into being. It is widely believed that the two bodies were formed just to fend off domestic and international pressure, and political parties are not committed to their effective functioning.

At the start, both the TRC and the CIEDP faced logistical hurdles. Of late, there has been some improvement on this part, but the two commissions still don’t have sufficient financial and other resources.

Successive governments have been reluctant to amend commissions-related laws in line with the 2015 Supreme Court verdict (more on this later). Without amending the laws, the commissions cannot go beyond the preliminary investigation of the cases filed with them.

Moreover, the commissions’ autonomy has been compromised due to constant political meddling. Speaking to APEX, both incumbent and past TRC commissioners say heavy political meddling makes it difficult to investigate war-era cases independently. In some instances, politicians have even put pressure on officials not to investigate particular cases.

Then there are the disputes within these commissions. As their members are appointed on political basis, there is a lack of unity. “The commissions have been held hostage to internal disputes since their formation,” confirms former TRC member Manchala Jha.

An incumbent senior TRC member speaks of how such disputes contribute to indecision. “In public, politicians commit to take the TJ process to a logical end but they often try to control our functioning,” says the TRC official. Similarly, there is lack of coordination between commission members and staffs. It does not help that members often seek the suggestions of politicians, often those directly involved in the civil war.

The TRC has so far received 63,000 complaints from victims, and preliminary investigations have been completed in 3,700 cases. Through its offices in seven provinces, the TRC has finished sorting these completed cases into three sections: those that need to be put on hold, those that need to proceed with reparations, and those needing further investigation.

The Covid-19 pandemic has further hampered the commission’s task. At the current rate, it could take many years to complete all investigations. In a brief comment to APEX, TRC chairperson Ganesh Dutta Bhatta says vital progress was being made on investigations when the Covid-19 crisis impeded work.

Flawed laws

The Supreme Court in its 2015 verdict has flagged some points of The Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071(2014) that stand in the way of making the two commissions fully independent and compliant with international standards. There are for instance legal provisions that authorize amnesty even on grave human rights violations. The SC wants to incorporate a clear provision that the commissions cannot recommend amnesty in these cases.

Section 26(5) of the Act says: “… the Commission must decide to make a recommendation for amnesty upon considering agreement and disagreement of the victim as well as the gravity of the incident for granting amnesty to that perpetrator.” The SC finds the word ‘disagreement’ problematic as it may allow for amnesty even if conflict victims don’t agree to it.

Another issue that needs to be addressed is investigating war-era rape and sexual violation cases. As per existing laws, FIR in rape cases should be registered within six months of the incident and there is nothing on sexual violence. Moreover, there are no records of most conflict-era sexual violence cases.

There are other ambiguities in the Act as well. According to it, “gross violations of human rights” include murder, abduction, and taking of hostage, enforced disappearance, causing mutilation or disability, physical or mental torture, rape and sexual violence, looting, possession, damage or arson of private or public property, forceful eviction from house and land or any other kind of displacement, inhuman act inconsistent with international human rights or humanitarian law, and a crime against humanity. The fear is that such a broad definition could leave no room for reconciliation.

According to the TRC official, international practice is to enlist under grave rights violations incidents of extrajudicial killing, rape and sexual violence, disappearance, and torture. But Nepal’s law defines looting and arson of private property as grave rights violations as well.

Expressing its displeasure with the apex court verdict, the government had filed a review petition. After four years of deliberation, on 26 April 2020 a full bench of SC rejected the petition for a review of its 2015 verdict. In the petition, the government had questioned if the SC verdict was in keeping with the spirit of the CPA and the 2007 interim constitution. The petition aimed to nullify the verdict and restore the provision of amnesty and reconciliation at the discretion of commissions and government rather than on informed participation of victims. There is no alternative for the government to amend the law in line with the verdict.

Constant political meddling

Since the start, there has been a systematic effort to politically influence the TJ bodies. Otherwise, politicians fear being slapped with charges of grave rights violations. So they want the TJ process completed under their close watch. Both the ruling Nepal Communist Party as well as the main opposition Nepali Congress believe reconciliation should be sought by honoring the CPA’s spirit—which means no prosecution on war-era cases.

Top political leaders know blanket amnesty is unviable due to national and international pressure. So, perhaps, there could be prosecutions in some token cases to showcase them before the international community?

The ruling party taskforce has now proposed a political mechanism to conclude the transitional justice process, inviting fierce criticism of conflict victims. Experts say the government move is against principles of jurisprudence and transitional justice. Similarly, the taskforce says local and provincial governments shall be motivated to successfully conclude the transitional justice process. This shows political parties want to control the process and settle it as per their wishes. “The ruling party taskforce is silent on justice. It is more focused on reparation and compensation. But the latter is not possible without the former,” says the senior TRC officer.

Piecemeal approach

Since the start of the peace process, a section of politicians, rights activists, and conflict victims have taken a more prosecution-oriented approach, along the lines of criminal justice jurisprudence, while others, including former Maoists, are in favor of blanket amnesty. Transitional justice is caught between the two extremes. “The current debate and functioning of mechanisms are not in keeping with the spirit of a holistic transitional justice process,” says Charan Prasai, a human rights practitioner.

The first component of transitional justice is truth-seeking or fact-finding. But the SC order fails to identify clear working procedures of truth-seeking in war-era rights violations. The two commissions have started looking into some war-era cases but they are struggling in the absence of a comprehensive investigation procedure and detailed action plan. The current path does not guarantee justice, truth, or preservation of state memory.

The second key component is the provision of prosecutions of serious rights violations. A special court is provided for but there is no specific working procedure on its functioning. The law should be clear on the state's duty to investigate, prosecute, and punish.

Another vital pillar of the TRC is related to reparations. The apex court verdicts have from time to time spelled out reparations as the victim’s right, and said that there can be no discrimination in granting reparations. The first step is to classify conflict victims, as not all are likely to get similar reparations. Further steps include ensuring memorialization, provisioning of identity cards, and ensuring livelihoods for poor victims. 

According to existing laws a maximum of Rs 300,000 can be provided in reparations but the basis of such an amount has not been clarified. “In the past five years, the TJ mechanisms have failed to formulate a policy on reparations, which shows not enough attention has gone into making the process holistic,” says Prasai. Conflict victims want immediate social, cultural, economic, psychological, and legal support.

Guarantee of non-recurrence is another vital aspect of transitional justice. It calls for deep structural reforms, digging deep into the causes of the conflict. The law does not envision institutional reform, nor has there been any discussion among political parties on how to reform state mechanisms. After the signing of the CPA, there was some discussion on restructuring Nepal Army but nothing happened. “If we fail to address this issue we will set a bad precedent, and the same mistakes could be repeated in future conflicts,” says Prasai.

Risks of internationalization

If credible domestic mechanisms are not set up, there is a risk of internationalization of Nepal’s transitional justice process as per the universal jurisdiction of human rights. Nepali leaders could be arrested abroad. Some rights violation cases have already been internationalized. In 2012 Nepal Army Colonel Kumar Lama was in the UK under universal jurisdiction. Mainly, it is the Maoist leaders who fear arrest when they go abroad. “War-era cases can be internationalized under two circumstances: state reluctance to settle them, and incompetence of domestic mechanisms to deliver justice, and Nepal meets both the criteria,” says Prasai.  

In 1998 London Police arrested Gen. Augusto Pinochet, army officer, and dictator of Chile, on rights violation cases. British courts rejected Pinochet’s claim he was entitled to immunity and ruled that he could be extradited to Spain to stand trial.

Post-conflict South Africa, East Timor, and Cambodia formed hybrid commissions with representations from the United Nations and other rights organizations and yet they failed.

Nepal’s election as a member of the UN Human Rights Council puts it under added pressure to act responsibly and accountably on rights issues. Suman Adhikari,  the founder chairperson of the Conflict Victims Common Platform (CVCP), argues this is a humanitarian issue that cannot be confined within national borders, and so the option of knocking on the doors of the international community is always there.

Revitalizing domestic process

Experts say war-era cases should be resolved domestically by securing the trust and confidence of all stakeholders. Currently, conflict victims feel alienated. They complain that they are ignored by the TJ mechanisms, the government, as well as the political parties. Similarly, the United Nations and the international community are not lending their support to TRC and CIEDP. “One thing is crystal clear. The two commissions cannot function effectively without the active support of all national and international stakeholders,” says Prasai.

The UN and other international organizations have been urging Nepal to make the domestic process inclusive, transparent, and victim-centered. The CPA has given the UN the right to monitor rights situation until the end of the peace process. Article 9 of the CPA says: “Both parties agree to give continuity to the task of monitoring provisions related to human rights mentioned in this agreement by the United Nations Office of the High Commissioner for Human Rights, Nepal.” Perhaps this is why it has sought some stake in Nepal’s transitional justice process.

There seem to be slight differences in international perception though. European countries and the US have similar positions on Nepal’s transitional justice. The European Union is of the view that Nepal should steer its own course. In a statement on 24 January 2019, the EU said: “In particular, we support a Nepali-designed, Nepali-led process that is consistent with the 2007 and 2015 judgments of Nepal’s Supreme Court and the country’s obligations under international law.”

The UK is of the view that it is for Nepal, the Nepali government, and political parties to decide. In an interview with Republica daily on 3 February 2020, Nicola Pollitt, the British ambassador to Nepal, said: “We would like to see a victim-centric approach and that it would be in line with international practice in these areas. At the same time, we recognize that these things take time and it is not easy. Such a process anywhere in the world takes time. It is our role to support in any way we can but without interfering in what must be the Nepali process.”   

India and China have not spoken much on Nepal’s transitional justice. Based on the experience of past five years, it is important that the concerns of both national and international stakeholders be addressed. For this the entire process should be revisited to ensure its broad ownership.