TRC Can't Recommend Amnesty To Perpetrators Surya Kiran Gurung Gurung

Since the signing of a 9-point agreement between two major political parties, CPN-Maoist (Center) and CPN-UML, there has been an intense debate on whether the Truth and Reconciliation Commission and the Commission on Forced Disappearances should work

June 3, 2016, 5:45 p.m. Published in Magazine Issue: Vol.9 No 22, June 3,2016 (Jesth 21)

Is there any provision for amnesty in the act?

There is no provision for amnesty in the TRC Act. The commission cannot recommend amnesty to anybody involved in serious violations of human rights, rape and sexual assault to women and children. Of course, the problem is very complex and difficult. I am confident that we will settle all the problems.

Do you believe that those involved in the human rights violations will be tried?

We can bring offenders to the door of justice and to provide relief to the victims. In many incidents in the conflict period, individuals with criminal background were involved. They were involved in rape, sexual exploitation, killing and torture. Similarly, there were incidents of torture and disappearance following detention and incidents of confiscation of property. We recommend strong actions against those who were involved in such incidents. There is no room for amnesty on such grounds.

What is the role of TRC?

Our role is to see the Comprehensive Peace Agreement logically concludes. Our effort will be to end the prolonged conflict and create conducive environment for peace in society through reconciliation between victims and offenders. We are committed to protect the rights of women and children. With our activities, victims are coming to us with confidence that they will get justice.

How much pressure do you feel?

Along with the victims, international community is watching the activities of TRC very carefully. The commission needs to assure the victims and international community members that the commission is independent and impartial to punish those involved in serious violation of human rights. As I have mentioned earlier, the commission cannot recommend amnesty to those persons involved in serious incidents of human rights violation, rape and sexual assault to women and children. If our recommendation does not meet the international standards and international community does not accept our recommendation, everyone allegedly indicted in the rights violations will be arrested in any part of the world.

Given the current 9-point political agreement, how do you see the role of TRC?

There is nothing to do with the 9-point political agreement and jurisdiction of Truth and Reconciliation Act. The 9-point political agreement and some clauses mentioned in the agreement are unacceptable to the Commission. The aim of the Commission is to create a situation where people can reconcile and live together in harmony once again. The TRC in Nepal has been formed along those lines.

As per the 9-point agreement, the government will revoke the cases pending in the court. How do you look at this?

Almost all agenda of the 9-point agreement are related to TRC. I have already mentioned that the international community cannot accept any effort to give amnesty to anybody involved in serious breach of human rights.

How do you see the state of filing the complaints to TRC?

TRC has already distributed over 19000 firms by May 27 and received 11000 complaints. We are expecting that more complaints will be filed by the end of our deadline.

At a time when the international communities are demanding broader commission with international representation, what is your opinion?

Unlike other conflicts in the world, Nepal’s conflict and peace process are unique in nature. Actors of Nepalese conflict are the parties of peace process and they agreed to come to the Comprehensive Peace Agreement under their own initiative. This shows our peace process is very indigenous and different from the peace process of Sri Lanka, Cambodia or other African countries, for that matter. The 12-point political agreement between Maoists and seven political parties is the foundation of CPA.

Don’t you think there is the need to learn from the experiences of other countries in transition?

We are studying and discussing the best practices of those commissions and what would be the best thing suited for Nepal. Our next step will be to hold consultations with civil society members, human rights activists, and other experts.

Some argue that there is a need to change the TRC Act’s provisions on reconciliation following the decision of the Supreme Court.

We have already requested the government to take necessary steps on the decision of Supreme Court as it has already declared some clauses as null and void. We are waiting for the response of the government. As a student of law, what I can say is that we need to respect the verdict of the court as it gives its verdict based on national laws and international conventions that Nepal is party to.

The parties involved in the conflict have been saying that the international law is not applicable in the context of Nepal, how do you look at this?

International human rights law is applicable at all times, whether it is in times of conflict or other times. All international human rights conventions and humanitarian laws, which Nepal is party to, will be applicable in Nepal. Going by international practices, there are certain serious types of crimes for which there can be no amnesty. In any case, the TRC is not responsible for prosecution, the government is.

As almost fifteen months have passed since the constitution of your organization, how did you proceed with your work?

Even before the constitution of the commission, the government started the distribution of relief to the victims through the peace committees in 23 districts. Following the formation of our commission, we visited various districts and discussed with victims, district level government officials and peace committees. We inquired about the relief mechanism. Our visit was very fruitful. This also helped to establish our own credibility.

How do you see the performance of your commission?

I am satisfied with the performance of the commission. Of course, the problem is very complex. There is also the need to address the suspicions of the victims towards the TRC process. There is no provision to give amnesty to the perpetrators by the Commission. We cannot prosecute, what we do is recommend for amnesty and recommend for necessary action against perpetrators of gross human rights violations.

If TRC cannot prosecute and give amnesty, what is the role of your organization then?

The TRC is only responsible for finding out the truth about cases and providing recommendations based on laws that can be evoked in those cases. We cannot recommend reconciliation in grave violations of human rights; this would raise questions about the relevance of the Commission itself. For gross violations, we will recommend punishment based on the witnesses’ accounts and case details.

Rights groups and victims’ community have certain reservations over the TRC process. Maoist-Center has said that it disregards the transitional justice process. How do you plan to win their confidence?

We are winning the confidence of victims of conflicts and rights organizations. This is the reason there is a wave of people coming to file complaints. I have repeatedly assured that those who violated the human rights will be punished in the competent court and the commission cannot recommend for amnesty for those who committed gross rights violations, including rape and killing. If a person is tortured after taking into custody by any group, the group members are subject to punishment. In the case of conflict, we found the involvement of criminals. Such criminals need to be brought to justice.

What you have been doing now?

We are reaching out to all parties that have grievances and to the maximum extent possible, based on our rights and jurisdictions. Our efforts to reach people will continue. This is a constitutional commission and we will welcome all.

At a time when the government has already decided to withdraw the cases where the court has already given its verdict, the Maoist parties have said that such cases should be decided by the TRC. How do you look at this?

As the Supreme Court has already given its verdict, the government has to work accordingly. As I have mentioned, we too have requested the government to clarify the stand of the court which declared certain clauses null and void. The TRC Act has been formed by political parties and we expect cooperation from them. But at the same time, we would like to appeal to them to not interfere in our work.

How do you plan to tackle cases that have been filed at the UN Human Rights Committee or in other international bodies?

As Nepal is the party of many international human rights laws and conventions, nobody concerned can escape punishment. We have already seen how a person who was allegedly involved in the incident of Kapilvastu can be punished in London. Many people rightly argue that had the TRC been formed earlier, Col Kumar Lama, for instance, would not be under house arrest in the UK. If the commission fails to fulfill its responsibility as per the international standards and credibility, it will be a disaster for Nepal.  If Nepal cannot punish and act against the human rights violators, they will be charged at international level. Unlike in the past, human rights are not an issue of national jurisdiction, now they are under universal jurisdiction. If one country does not prosecute human rights violations, another country can do so, if the countries are party to various conventions on human rights.

Do you see any hurdles at the moment for you to start work?

The TRC has been mentioned in the CPA and the Interim Constitution. The TRC Act is based on those documents and we will work in its spirit. But there are certain things that we are also not clear about and are discussing ways to move ahead. For instance, the TRC has been given the power to demand papers from the court with regards to cases that have been filed there and investigate them.

What other challenges do you see before the TRC?

As it has been eight years since the end of the conflict in Nepal, it could be difficult to gather evidence on various incidents. Then, there could be problems pertaining to cases you mentioned above, about court verdicts and political parties’ rejection. There are also contentions about whether events occurred during the conflict period or whether they were purely human rights violations or not or if they took place during combat or not.



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