Nepalis on TRC


JAN 28 – In the wake of the arrest of Nepal Army Col Kumar Lama in London, the Nepal government and all political parties have strongly voiced strong opposition to the UK government’s move. The case, followed almost immediately by the arrest of four on charges of murdering Dailekh-based journalist Dekendra Thapa, has once again brought to the forefront the issue of transitional justice. As a Deputy Prime Minister and Foreign Minister, Narayan Kaji Shrestha has been lobbying for the repatriation of Col Lama’s since the arrest. In conversation with the Post’s Bidushi Dhungel, Shrestha spoke on the infringement of national sovereignty, and as Vice Chairman of the UCPN(M), about the upcoming General Convention and the party’s future course. Excerpts:
After the arrest of Col Kumar Lama in London, all parties, including the UCPN (M) reacted in the same way, citing an infringement of Nepal’s national sovereignty. Could you explain this sentiment?
There are two points to be made here. First, we need to examine the spirit of the Convention Against Torture (CAT) which has a clause that allows for domestic laws to be created in line with the Convention. The spirit of the CAT is to book a runaway who is charged in one country and is going to face a penalty there, but escapes to another country. That is not the case with Col Lama. If we are to look at cases like his, then the UK would have to file cases against more than 100,000 people. The second point that we need to examine is whether all options for justice were already exhausted in the home country—in this case, Nepal.
Were all options for justice not exhausted?
Looking at Lama’s case from this viewpoint, it is clear that the UN-witnessed peace process’ integral document is the Comprehensive Peace Agreement (CPA). A fundamental part of the CPA is the TRC and a transitional justice
mechanism. Nepal has already moved forward on the transitional justice mechanism. We put forward a bill in parliament before the CA was dissolved, and later, we forwarded an ordinance to the President’s office. The international community, including the UK, is well aware of this progress. But despite it, the UK decided to take measures into its own hands. They can’t claim that there was no chance for justice in Nepal as the transitional justice mechanism is so integral to the entire peace process framework underway.
Sticking to the issue of sovereignty, can you please explicitly explain how Col Lama’s arrest breaches national sovereignty as you’ve argued?
In the case of Col Lama, it is also a matter of double jeopardy. The Kapilvastu court has already punished Col Lama and departmental action was already taken according to the court’s ruling in Nepal. According to the universality of international law, double jeopardy is not accepted. For that reason, it is also an issue of national sovereignty. Second, the provision in Article 6 of CAT has been defied. After preliminary investigations, Nepal should have been called upon to better understand the situation and allegations. But that didn’t happen. Nepal should have been notified, according to CAT, of the reasons for investigation and trial, and the person detained must be put in contact with Nepal. That didn’t happen either.
What is the plan so far as the Government of Nepal is concerned with regards to the case, especially since the trial has already begun and Col Lama has been denied bail?
We protested at first. We have now started dialogue at diplomatic and political levels as well. We also said that we are willing to fight a legal case, and that is what we’re doing.
The Government of Nepal has hired the former lawyers of Chilean dictator Augusto Pinochet. Are there reasons for Pinochet’s lawyers being chosen? The choice seems ironic given that current Prime Minister Bhattarai has compared himself with Salvadore Allende, someone who was killed in a coup by Pinochet’s soldiers.  
We have no interest in who Pinochet’s lawyers were. We just wanted to find a competent and reputed law firm in the UK that would be able to deliver results. And the Nepali Embassy in the UK suggested the lawyer citing his skills. That’s how it was decided.
Here in Nepal, many in the human rights fraternity at home and abroad are upset by the government’s reaction to the arrest. Some are also skeptical about the TRC and think that waiting for a transitional justice mechanism is futile.
If the case were such that all recourse to justice in Nepal had already come to close, then it would have been one thing to arrest Col Lama. But that’s not the case. However, from the victims’ point of view and their right to justice, its right to say that transitional justice is taking too long. But late doesn’t mean never. Whatever we think about the TRC, it has already been agreed that the crimes committed during the conflict years will be dealt by one, which would investigate the truth and persecute as well. There is no option to forming a TRC to dig out the truth and persecute the guilty. The peace process will not be complete until the transitional justice process is complete. Dissent over the delay is understandable, but the country’s transitional period has been extended and the delay in TRC is also a result of that. If activists want to push for speedy action, then there are other means — they can encircle political parties and their leaders, the President and the state. I would even join them in that endeavour. But for them to celebrate Col Lama’s arrest in London is unfathomable.
The Nepal government has sent an ordinance for the TRC to the President already. However, there are many concerns within the human rights fraternity that it doesn’t meet international norms and standards, and that it grants blanket amnesty even for the most heinous of crimes.
I respect the concerns raised by the international human rights organisations as well as Nepali human rights activists and organisations. If necessary, we need to be ready to reform the content of the TRC ordinance. At the same time, I also want to clarify that the ordinance was sent after a general agreement among all political parties. There is also no provision in the ordinance for general or blanket amnesty. The main spirit of the ordinance is reconciliation—that’s not forced either. If the victims and Commission recommend prosecution, then that will be taken up by the courts. Still, if the ordinance requires revisions, then we have to be ready to make those revisions too.
So the ordinance on TRC will be revised?
What we do have to keep in mind is that it’s for Nepalis to decide how transitional justice should be handled here—not anyone else. If things go haywire, then we have to deal with it ourselves. That’s why we have to decide what’s best for us, and not let others decide for us. What are international standards and norms anyway? If you take the example of the Maoists, we were considered “terrorists” by the international community some time ago. Later, parliamentary forces united with us “terrorists” to fight together for democracy. There is no example of that anywhere in the world. We did it in Nepal and it worked for us. So we have to define for ourselves what norms we need.
Moving on to a different topic, just before the President left for India some time ago, it looked like a package deal was struck between political parties. What went wrong?
In Nepal, the tendency focus on outside powers has dominated the political leadership. If we don’t separate ourselves from this tendency, and start making decisions ourselves, this stalemate won’t be broken, democracy won’t be institutionalised and the country cannot develop properly. The first necessity is an end to the deadlock, and a resumption of the peace and constitution-writing processes. But that’s not possible as long as Nepalis don’t have the right to self-determination and the leaders don’t safeguard that right. There is a weakness on that front. If leaders really are convinced that they are the ones to decide the fate of the country, and not outside forces, then the issues will be resolved within an hour. When Nepal’s leaders themselves are not convinced that they are the ones deciding, then of course, outside forces will capitalise on that weakness. I would like to bring to the attention of outside forces that they shouldn’t capitalise on that weakness, but the major blame lies squarely on us. With regards to the agreement, there’s no point in getting into the knitty-gritty of what didn’t materialise in the end. We were, however, very close.
Moving on, the General Convention of your party is coming up. What can we expect insofar as the party’s political line is concerned?
We are clear on one thing. We have to move forward by writing the constitution and ending the peace process. That is how we can institutionalise gains so far and move towards the path of societal transformation.
Through the General Convention, will the party’s structure change to move towards collective leadership?
In the party, we will establish collective leadership. But the centralised opinion of the collective leadership will be formed under the main leader, under Comrade Prachanda. But other leaders will have equal responsibilities. We need to reform and change our party because our ideals of socialism, equality, communism, radical change and working for the poor are slowly eroding.