Since judicial proceedings of the criminal acts committed during the insurgency will not be stopped/halted by courts and these acts can not also be condoned by Truth and Reconciliation Commission (‘TRC’), the prestige of peace process will be saved by the uninterrupted investigation of Dailekh incident.
By Narayan Wagle in Himal Magazine via NNLP (see at the end for more. Pic Prakash Adhikari via Kantipur)
Tuesday, 2nd Magh, 2069 Bikram Sambat
15 Jan 2013
When the cadres of Maoist party accused in the killing of Dekendra Thapa – Dailekh based Journalist – confessed before investigating authorities that the killing of the journalist was as per the decision taken by the District Committee of the Maoist Party, Prime minister of Nepal, Baburam Bhattarai was badly hurt (worried).
The confession of Maoist cadres shook Baburam in such a way that he got involved in false interpretation of peace process with a motive of sticking to the chair of Prime ministership. He attributed the legal proceedings of initiating a criminal case against the accused as a trap against the peace process. The barking/roaring at Kathmandu by Bhattarai was meant to be a warning to Dailekh Police and Public Prosecutors to back out from the legal proceedings. When a team consisting of representatives from Nepal Press Council (Nepal Patrakar Mahasang) went to have a dialogue with the Prime minister, the team of journalists were subjected to a rather one-sided Baburam-monologue on interpretation of Comprehensive Peace Agreement (‘CPA’) and Interim Constitution. In this process, PM Bhattarai even managed to provide intentionally falsified details and malicious interpretation to the national and international civil communities.
The first lie told by PM Bhattarai (‘BRB’) is about the verdict handed by Hon’ble Supreme Court (‘SC’). BRB relies on the single bench judgement of Justice Awadeshkumar Singh of SC where the court said, (as per BRB’s interpretation) “Since the CPA and Interim Constitution of Nepal (‘ICN’) states that TRC will be created, the case of Keshav Rai – former Constituent Assembly member from Maoist Party – can not be tried as as per principles of criminal justice mechanism.” Based on this wrongful interpretation, BRB stated that courts can not try/decide any incidents/crimes committed during insurgency.
At a first sight/hearing, the above statement sounds as if it is spoken by a leader committed to uphold the supremacy of judiciary, constitutionalism, and peaceful agreements. However, while stating above, PM BRB has made a conscious effort to conceal another verdict passed by Justices Prakas Wasti and Ramkumar Prasad which had overruled the earlier verdict – handed by a single bench. In the second judgement passed by two judges bench, it has been clearly stated in unambigious words that the provisions of the CPA and the ICN can not/will not nullify the criminal justice administration/procedure and therefore, the judgement has clearly written that the case should be investigated by Police based on the compliant and the matter be brought before the Courts of Law for trials.
In a criminal matter involving Maoist Leader Agni Prasad Sapkota, the Division Bench (or Joint Bench/संयुक्त इजलास) had issued an order directing the police to submit the report of the investigations before courts in every 15 days as the accused was a minister in a cabinet and thereby, was in a position to affect/influence a fair investigation of criminal investigation. The Joint Bench, in the absence of any legal provisions, did not force the accused to resign from the post of minister but left the matter at the moral conscience of the accused and the Prime minister.
The intention of passing such orders by SC was to send a message that the legal investigation and the judicial remedy can not be stopped and there can not be an environment to stop the investigation solely taking the stance of matter being connected with insurgency period.
It must be based on the above judicial precedents that the Appellate Court, Surkhet (‘AC’) asked a reason/show cause from the Nepal Police why the investigation was not conducted and the accused were not arrested in the matter of murder of Journalist Dekendra Thapa even after receiving a complaint where the culprits have been named. Once the accuseds were arrested and were interrogated by Dailekh Police, the matter has come out the accused kidnapped an innocent civilian, tortured the Journalist for a period of one and half month and buried the Journalist alive when they saw the untiring determination of deceased.
This has given a chilling rude shock to Nepali Maoist Prime Minister Baburam Bhattarai. Nepali Maoist Prime Minister Baburam Bhattarai has lost his peace because of the fear that when the facts come out like this in other incidents, the more dead bodies will be exhumed. This will expose more inhumane crimes against humanity committed by Maoists and the edifice of Maoist party based on fear and terror will start crumbling.
The PM BRB has displayed without any shame that he has wedded to the lies in another issue concerning enactment of TRC (regarding the ordinance/bill on Truth finding and Reconciliation Commission & Commission for Investigation of Disappearances). He has accused the President that the President is unwilling to sign and promulgate the TRC Bill drafted in agreement with all parties and the bill is pending before President for approval for the past seven months. However, what we must understand is that the bill is pending in SitalNiwas (Office of the President) solely on the reason that there is no consensus of the parties on TRC Bill.
The truth PM BRB is deliberately hiding is that there were two separate bills/ordinances on two separate Commissions. However, after killing the Constituent Assembly, the government led by PM BRB drafted a single bill where it made provisions to grant amnesty for heinous Crimes of Rape, Torture, extra-judicial killings and disappearance. Though these grave crimes can not be condoned under any circumstances, PM BRB is determined to alter the basic structure/fundamental principle of those bills and this is where the other parties have objected to the bills and it is pending for promulgation.
After cabinet led by PM BRB sent the drafts to the President, the International Human Rights Organisation and the ambassadors from the Western Countries even approached to the President and requested not to issue the faulty bills. That was when the Deputy-Chairman of Nepali Maoist and Deputy Prime Minister cum Foreign Minister, Narayankaji Shrestha requested foreign ambassadors not to cross the diplomatic channels – meeting President alone and directly without recourse to Foreign Ministry.
In that context, we have to see the dissatisfaction of nation states which were active proponents of ICC (Treaty on International Criminal Court/Rome Treaty?). This dissatisfaction led to the protest against possible request of Visa by Chief of Nepal Police – Kuber Rana, the refusal of visa to Maoist Leader Agni Sapkota, and the arrest of Colonel Kumar Lama in Great Britain. This was also a reaction and response by the international community against the Maoist’s policy of granting amnesty to those perpetrators involved in unpardonable criminal activities.
The deliberate malicious attempt by PM BRB to stop the investigation of the murder of Dailekh based Journalist Thapa has been thwarted for the time being by the unflinching support and pressure created by Dailekhi People, Human Right Organisations and by Patrakar Mahasang (Nepal Press Council). However, there is no guarantee that such attempt of PM BRB has been thwarted at its bud and therefore, there is an every possibility that PM BRB may please himself again and again by interpretation of peace process based on his sweet wills and moods in anticipation colourful dreams of being an authoritarian regime.
Against such authoritarian attempts of PM BRB and of his party, there would certainly be international reactions and the pride, prestige and future of Nepal and Nepali will bear the brunt of PM BRB’s dictatorial lawless ambitions.
The Road to Hague
There were protests against Maoist during the period of insurgency itself from “Mother Group” and despite winning many Hilly Districts in Constituent Assembly Election, Maoist Party was defeated in both/two election constituencies of Dailekh. At present, the Maoist fear has been exposed by Dailekh and the fear is of being indicted in “The Hague” in a city of the Netherlands. The Maoist Party Chairman – Puspa Kamal Dahal – was already likely to be incriminated before “The Hague” – the International Criminal Court and PM BRB has successfully added his name in the list of possible culprits in the crimes against humanity.
As per the international civilised nations’ norms on “Truth Finding and Reconciliation”, there are no provisions which let the criminals unscathed in the crimes of Rapes, Tortures, Extra – judicial killings and disappearance. However, PM BRB continuously rants only the language of “general amnesty”. The bill/ordinance which the cabinet of PM BRB wants to be passed is against the international civilised nations’ norms and there will be increasing doubts of outside world on the effectiveness of such bills. If the provisions relating to “general amnesty to all” is incorporated in the bill because of Maoist’s pressure, or because of fears in the Leaders of Nepali Congress and CPN UML – who were in the executives during the insurgency, and because of need of safety to people involved in law and order (Army and Police), the international community will expedite the “refusal of Visas” to many.
If, due to any reason, other political parties succumb to the Maoist pressure and if they agree on “general amnesty to all Criminals”, the international communities would start punishing many war criminals in a way Colonel Lama has been prosecuted.There is enough doubt in what scale the TRC which is in itself of temporary nature, can sit for judicial proceedings and to what scale it can finalize the matters when its members are appointed on the basis of balancing individual political party’s self interests. On the top of that, no Commission can act as an alternative to courts or as a judicial forum and matters must be brought before the regular justice administration bodies. Therefore, the regular investigating and judicial authorities on the matters of crimes have to be naturally active in investigation of cases of murder of Journalist Thapa. Even after setting up of TRC, the criminal justice mechanism can not be stopped on the ground of incidents of insurgency. We must look for judicial pronouncements from Nepalese Courts. If we run away from our domestic legal forums, the alternative destination will only be “The Hague”.
The realization of Political Parties
The Political Parties who have stood by the Present Government in condemning the arrest of Colonel Lama in Great Britain and who have linked the issues of Human Rights with the Sovereignty of Nepal have only made themselves unreliable when it comes to their commitment of “Crimes Against Humanity”. It has been already pointed and noted by the United Nations Human Rights Commission (“UNHCR”) that there is no agreement among the Political Parties in Nepal in relation to the Ordinance on TRC. We should not forget that United Nations Human Rights Commission is a very experienced Organisation on this issue as it has recorded/documented (and investigated) more than 40 incidents on “War Crimes” and “Crimes Against Humanity”. It is to be remembered that the Danish Ambassador on behalf of the European Nations to Nepal had written a letter to all the political parties in Nepal during the course of debate on TRC in Constituent Assembly and has cautioned the parties not to make provisions for “General Amnesty” in the bill.
The ordinance recommended by the cabinet headed by PM BRB has brought a tremor in the international community since the bill grants “general amnesty” in all the crimes – even in the grave crimes of Rapes, Tortures, Extra-judicial killings, and Disappearances.In this situation, it is futile for PM BRB to talk about TRC by blocking/interfering in the criminal investigation in this country and this incident of continuous advertisement of TRC will be watched by community of nations with more suspect.
The first step to TRC and towards the upholding of Human Right will be to create an environment in Dailekh so that Dailekh Police can investigate the matter without any fear and bring the matter before the courts for judicial proceedings. Only the fair investigation of Crimes in Dailekh can restore the prestige, pride and meaning of oft-quoted peace process. This will also provide an another opportunity for the political parties to correct their actions and rectify their understanding and future actions on TRC.
Narayan Wagle is the former editor of Nagarik and Kantipur dailies.
[UWB: The Nepali version of this article, titled The Lies of the Prime minister and the fear of Maoists, originally appeared in the Magh 1-15 (January 15-30) issue of fortnightly Himal Magazine. Read it here. This article was translated by a blogger at the blog Nepal and Nepali – Literature & Politics. Read the article, along with the translator’s introduction, here]