A month before the second round of Constituent Assembly election, the Nepalese civil society members were heavily supporting the outcry of an Adhikari couple, on a fasting over several months, showing their protest of the government, which was reluctant to provide the couple with the post-conflict justice. Again, the news of the fast-unto-death of the Adhikari couple is flooding the media. It has become a topic of peer discussions. The Adhikari couple are demanding proper investigation, from the time of the Bhattarai government, into the killing of their eighteen years old son Krishna Prasad Adhikari nine years ago. The hunger strike caught the eyes of the media and civil society, which have showed great concerns. Yet, the voices of the Adhikari couple are still going unheard. Recently, their hunger strike entered the100th day and then crossed it.
Nepal is in a transitional phase. Conflict cases like Adhikari couple's are yet to be settled. The ordinances on Disappearances and Truth and Reconciliation Commission were brought to address these cases. However, the constitutional validity of the said ordinances was challenged by rights activists. The recent decision of the Supreme Court in Madhav Kumar Basnet vs The Government of Nepal held certain provisions of TRC as unconstitutional and directed the government to amend them accordingly. The proposed TRC was challenged as unconstitutional for its provision of blanket amnesty to war crimes under section 23. Furthermore, the court, addressing the victim's right to effective remedy, rejected the provision of limitation of 35 days for filing a case to the commission. The tenure of 35days, it said, was not sufficient and would violate fundamental rights of the victims and was also against the principle of justice. In addition, the court suggested formation of a separate commission of Inquiry on Enforced Disappearances of Persons.
The court cleared a long lasting confusion as to whether the regular criminal law is to be followed or TRC will be applied to incidents of armed conflict. The court opined that armed conflict mentioned in the ordinance does not mean that the ordinance would cover all issues arising out of armed conflict. In such scenarios, other laws should be used to address the issues. The court cleared the understanding that all offences, happened during conflict, cannot be termed as part of armed conflict per se. During the time of conflict, if there are offences which are not political in nature, then such crimes do not come under this ‘conflict’ category. The Supreme Court rejected the presumption that those incidents of offence which would not be investigated because of the existing circumstances, does not mean that criminal law will not be applied to such incidents. The court further said every incident that arose during the armed conflict does not mean such incident was part of conflict. It opined that political and criminal acts should not be kept in the same footing, just because they happened during the armed conflict. So, those punishable incidents which happened during the armed conflict cannot be said to be part of armed conflict, thus, these incidents should be addressed by regular criminal justice system. In addition to this, the court said the commission was not a replacement of criminal law, rather it was a supplementary law.
Despite the Supreme Court order to amend the proposed ordinance to bring it in line with the international practice, the government reintroduced the ordinance by ignoring the verdict. It is quite surprising to see the then government led by the Chief Justice was ignoring the verdict of the Supreme Court, which is the law of the land under Article 116 of the Interim Constitution. Furthermore, Sub Clause of Article 116 emphasizes that the government and the lower courts are bound by the principles laid down by the Supreme Court.
New Political Scenario
After Constituent Assembly Election, Nepali Congress and CPN-UML have received strong mandate from people to draft the constitution and conclude the peace process. The recent agreement with CPN-UML, on government formation and power sharing, has resulted in a Nepali Congress government under Sushil Koirala. Since 2008, the issue of conflict victims has been seriously ignored. However, political parties in their election manifesto have promised to address the transitional justice mechanism. Despite their commitment in the election manifesto, parties have yet to work in addressing the voices of conflict victims properly. More than 15,000 people lost their lives in a decade long conflict and the whereabouts of more than 1,000 people are still not known, in addition to this, thousands were direct and indirect victims of the decade long conflict. With the new political development, can we expect adequate justice for conflict victims through proper and meaningful transitional justice mechanism?
However, there has been a little twist in the whole mockery of justice: recent investigations of Nepal police have found involvement of Rudra Acharya, who had been residing in United Kingdom since 2005. So Nepal Police, being a member of INTERPOL, has requested for cooperation in the form of diffusion notice, which is generally used to request the arrest or location of individual or additional information in relation to a police investigation.
On other hand, Maoists are arguing in favour of not initiating investigations on war crimes. In fact, when the government started investigation into the murder of Krishna Prasad Adhikari, a senior leader publicly argued the government should arrest him for war crimes. Does not the statement of such a senior leader hold significance, sometimes, I feel we lost an opportunity to investigate and ensure justice to the victim. One sided Maoist objection to the arrest for offence related to insurgency, whereas on the other hand, citizens deprived of justice continued to protest and demand justice. It’s a bittersweet situation.
The Adhikari couple are crying for justice with an expectation that the government will address their demands. I am not sure investigating shall secure justice to Adhikari couples. Would a delay of nine years in investigation render a proper outcome? However, the government cannot stand by and wait for Adhikari couple to end their strike. The government must come ahead and convince Adhikari couple about proper investigation and resolve the issue. Most importantly, the government should come up with a proper TRC mechanism, according to international practices. However, it’s very unfortunate to see such a scenario and if such situation continues and citizens should seek justice by means of protest and hunger strike, then credibility of the rule of law will be lost.