Truth or Reconciliation Mechanism: Comprehensive Peace Agreement
5.2.5. Both sides agree to set up with mutual consent a High-level Truth and Reconciliation Commission in order to probe into those involved in serious violation of human rights and crime against humanity in course of the armed conflict for creating an atmosphere for reconciliation in the society.
8.4. Both sides express their commitments that the Interim Council of Ministers may constitute and determine the working procedures of the National Peace and Rehabilitation Commission, the Truth and Reconciliation Commission, the High-Level State Restructuring Recommendation Commission and other mechanisms as may be necessary for the implementation of this Agreement, the Interim Constitution and all the decisions, agreements and understandings reached between the Seven Parties or the Government of Nepal and the CPN (Maoist).
No action was taken towards establishing the Truth and Reconciliation Commission (TRC).
The interim constitution provided for the creation of a TRC, in order to investigate the violations of human rights and crimes against humanity that took place during the course of the conflict. It was hoped that a TRC would help create an environment that promoted reconciliation. The constitutional provision regarding the TRC reads as follows:
RESPONSIBILITIES, DIRECTIVE PRINCIPLES AND POLICIES OF THE STATE
33. Responsibilities of the State: The State shall have the following responsibilities:
(s) To constitute a high-level Truth and Reconciliation Commission to investigate the facts regarding grave violation of human rights and crimes against humanity committed during the course of conflict, and create an atmosphere of reconciliation in the society.
According to the OHCHR-Nepal report to the Human Rights Council, “the new Government appointed a five-member High-Level Commission of Inquiry, chaired by former Supreme Court judge, Krishna Jung Rayamajhi, to investigate human rights violations and abuse of State funds since 1 February 2005, including those committed during the April 2006 protests. Its report was submitted to the Government on 22 November, reportedly with over 200 names of individuals against whom action was to be taken. The Council of Ministers appointed a committee to study the findings. However, the Government has resisted repeated calls to make the report public."1
According to the Human Rights Watch Report, a draft Truth and Reconciliation Commission bill was tabled in June 2007. The report contended that the bill proposed to establish a commission with a mandate to investigate gross violations of human rights and crimes against humanity committed during the civil war, between 13 February 1996 and 21 November 2006. The HRW report claimed that “amnesties can be granted even for gross human rights violations if these acts had a political motivation, if the perpetrator made an application indicating regret, or if victims and perpetrators agree to a reconciliation process.”2
Even if the government had drafted the bill, the commission was not established in 2007, so it would not have come into effect.
- 1. "Report of the United Nations High Commissioner for Human Rights on the human rights situation and the activities of her Office, including technical cooperation, in Nepal," UNHCR (A/HRC/4/97), January 17, 2007.
- 2. "World Report," Human Rights Watch, 2008, accessed August 4, 2011, http://www.hrw.org/legacy/wr2k8/.
According to the UN Secretary General’s report, the Ministry of Peace and Reconciliation continued to work towards establishing a Truth and Reconciliation Commission. However, the OHCHR-Nepal insisted on a comprehensive and inclusive consultation process.3
In an effort to establish the TRC, the Council of Ministers on 25 June 2008 singed an agreement that recommitted their parties to establish several commissions, including the TRC.4 This recommitment, however, did not materialize due to the delay in the formation of the government.
The creation of a TRC was delayed because a necessary balance between peace and justice had yet to be reached and further inclusive consultations with stakeholders needed to be held. In this regard, the OHCHR-Nepal reported that the Ministry of Peace and Reconciliation consulted together to draft the bill.5 Although the bill fell short of international standards, the government sent a draft bill to the Legislature-Parliament for consideration in November 2009. The bill assigns criminal responsibility to those involved in acts of disappearances.6 However, the TRC was not established in 2009.
- 5. Report of the United Nations High Commissioner for Human Rights on the human rights situation and the activities of her office, including technical cooperation, in Nepal, A/AHC/10/53, 3 March 2009.
- 6. "Report of the United Nations High Commissioner for Human Rights on the human rights situation and the activities of her office, including technical cooperation, in Nepal," UNHRC (A/HRC/13/73), February 5, 2010.
The bill to establish the TRC remained pending in the legislature-parliament.
The TRC bill was still pending. A TRC had not been established as of 31 December 2011.
In March 2012, three major political parties (CPN-Maoist; Nepali Congress and CPN-UML) agreed to finalize the TRC bill and establish the TRC commission.7 In April, three major parties agreed to form the TRC and Commission on Disappearance by adopting a reconciliation approach. Parties also agreed to discuss two bills related to the formation of these two commissions.8 The bills were pending at the Bill Commission for the past two years. On 19 April 2012, however, parties agreed to integrate two bills into one and propose a single commission. Because the proposed bill focused only on reconciliation and removes provisions on prosecution, the proposed bill was sharply criticized by Human Rights Watch as well as the International Commission of Jurists.9 Because the Constituent Assembly was dissolved without promulgating the constitution on 28 July 2012, the provision related to TRC commission was never implemented. The bill remained pending until the dissolution of the Constituent Assembly.
No progress was made this year.
Some significant progress was made on issues related to establishing a truth and reconciliation commission. In January, Nepal’s Supreme Court ordered the government to form a separate commission for truth and reconciliation, and one for disappearance. The court also asked the government to draft a bill in consultation with victims and stakeholders, and scrap the provision for blanket amnesty. On 7 April 2014, major political parties forged an agreement for the establishment of two separate commissions.10 Accordingly, on 10 April, the government tabled two bills in the legislature parliament on the formation of the Truth and Reconciliation Commission (TRC) and the Commission of Inquiry on Enforced Disappearance.11. Because the TRC law could permit amnesty for serious crimes, rights groups and victims groups opposed the bills.12 Notwithstanding these oppositions, the parliament passed the TRC bills on 26 April 2014. As provided by the TRC bill, a special court will be established to handle war-era cases, and the government attorney must file cases forwarded by TRC.13
The government appointed a committee on 16 June to recommend names of five officials for each commission. This process continued this year and therefore these commissions have not been formally established as of December.
Upon recommendations of the commission formed to recommend names for the members of each commission, the government appointed Leela Udashi, Krishna Subedi, Dr. Madhavi Bhatta and Manchala Jha as members and a former secretary general at the parliament secretariat Surya Kiran Gurung as the chairman of the TRC commission. The government appointed Bijul Bishwokarma, Prof. Dr. Bishnu Pathak, Narakumari Gurung and Aai Bahadur Gurung as members of the CIED commission with former appellate court's chief justice Lokendra Mallik as the chairman. Each commission has two years to submit work and the deadline can be extended for a year if the commissions fail to produce reports within two years.14 Further details on works of these commissions are not available.
- 14. “Cabinet appoints Gurung as TRC chairman, Mallik as CIED head,” Rising Nepal, Feb 11, 2015.