Problems and Challenges Inside the

Commissions(TRC and CIEDP) of Nepal

Presenter: Sarthak Khanal

Roll no: 05
Section: A
BALLB
Introduction
• In pursuant to the clause 5.2.5 of Comprehensive Peace Accord (CPA) between Government of Nepal and
then Nepal Communist Party (Maoist) on 21 November 2006, the high- level Truth and Reconciliation
Commission (TRC) has been set up to investigate on the cases of human rights violations and crimes
against humanity, and to create enabling environment for social reconciliation.
• It was on March 14, 2013, through an ordinance passed by Nepal’s President Ram Baran Yadav a
Truth and Reconciliation Commission was then created in accordance with the Peace Accord.

However, the ordinance was prepared without much input from the victims or the human rights institutions.
• It therefore faced numerous criticisms and also numerous problems were identified regarding the mandate
and structure of the Commission and it was only two weeks later that the Supreme Court (Justice Sushila
Karki) issued an interim order against the new law after concerns that it could allow for the granting of
amnesties to those convicted of serious crimes.
Mechanisms generally followed regarding Transitional Justice

• War crime tribunals are perhaps the best-known mechanism but are by no means the only one.
• Some mechanisms are judicial, such as tribunals. Others are nonjudicial, such as trauma-healing
programs, reconciliation projects, reparations, or memorials.
• Whatever form it takes, transitional justice has the same fundamental rationale: by addressing the
past, the future will not be scarred by wounds that make it difficult for peace and security to
grow.
• The rationale is sound but the task enormous; healing a society after atrocities and abuses is almost
always a complex and long-term undertaking.

So in the context of Nepal, the commission would investigate both known human rights violations as well
as violations brought to its attention by or on behalf of a victim. Some hearings may be public and upon its
conclusion the Commission would release a report on their findings and recommendations for individual
perpetrators to be either granted amnesty or prosecuted by the Attorney General in Nepal.
The Commission would also provide recommendations to the Nepalese government on the appropriate
compensation for identified victims.
Problems and Challenges of the Commission
• Structurally, the Commission lacks guarantees of impartiality and independence that are required to
ensure a meaningful and effective process for national reconciliation. These concerns stem in part from
the requirement that the Commission to obtain government permission before obtaining any
international support, which effectively serves as a built in Commission dependency on the government
for funding and resources. 
The chairs and members appointed on the political sharing cannot provide justice to the conflict victims
• The Government still remains undecided over the amendment to the Act as per the 2015 decision of
the Supreme court to remove the provisions related to giving blanket amnesty to those involved in gross
human rights violations like torture, rape and murder.
Conflict victims, the human rights defenders, and the officials at the commissions have been demanding
the amendment as per the apex court’s verdict which directed the government to revise the amnesty
provisions in the Transitional Justice Commission
Continued…….
• The extension of the term of the commission is itself not a solution and has shown no any signs of change till now.
Victims believe that the government’s move to extend the terms of the commissions portrays the government’s
insensitivity towards them.
The evaluation of the performance of the previous year and the progress report should be evaluated by the government
before making decision of the extension of the term of commission.
• Majority of cases have been filed against Dahal and also against the current Prime Minister Sher Bahadur
Deuba. The highest number of cases of disappearance were reported when Deuba was Prime Minister. The fact that
Deuba was Prime Minister most of the time during the insurgency, he and Dahal are the major stakeholders when it
comes to transitional justice. But, they both being in the central power showcases cases incapable of being
investigated and prosecuted impartially and independently.
• The inherent power upon the Attorney General to prosecute or not prosecute the cases related to Transitional Justice
as recommended by the Commissions.
• Lack of political will of the concerned political parties to adjudicate upon the issues.
• Failure to make distinction as to the different types of complaints filed. And make provisions for the speedy disposal
of the issues that comprises minor matters than those concerning serious and gross violation of human rights.
https://www.amnesty.org/en/latest/news/2020/01/nepal-recent-steps-undermine-transitional-justice/
Victim’s say on the matter
• Devi Sunuwar, whose 15-year-old daughter, Maina, was captured by the army in 2004, tortured with the live
wire of a water heater and eventually killed, scoffed when asked if the Truth and Reconciliation Commission
had been working on behalf of victims. The commission is so underfunded, she said, it can barely afford
refreshments at events organized for victims.
• So since a commission which can barely afford black tea at programs organized for Victims to investigate and
prosecute on the matters seems to be far fetched if the same is to continue in the days to come as well.
Issues as seen by the Secretary of
CIEDP(Interview)
• The decision given by the Supreme Court is yet to be implemented.
• Lack of trained and expert human resources to investigate upon the matters.
• Questions have been often raised regarding the formation of the Commission itself. The formation of
Commission if questionable among the citizens then it can barely stand up to the expectations of the
people.
• The Commission has not been able to record and preserve the documents in a systematic manner itself.
• The inclination of the members of the commission towards a particular ideology has at most times been
an obstacle and hindrance in carrying our the acts of the Commission.
• Lack of coordination between the Commissions and the NGOs and other organizations working for the
same purpose.
• The recommendations made by the Commissions have not been given enough consideration by the
Government.
• There has been the distribution of identity cards to the victims but for what purpose is it given is still
unclear and uncertain.
• The failure to investigate properly on the matter itself (one instance where a complaint
was filed regarding the disappearance of a person where in fact he had run away to India
during the Conflict period and started a new family there)
• Discrimination among the victims themselves have been one major problem as well
• With regard to CIEDP, we still lack resources and funding to excavate and find the bodies
of deceased from suspected areas as well

लास गाडेको ठाउमा यदि त्यति बेला सानो विरुवा रोपेको थियो भने पनि त्यो अहिले ठु लो रुख भैसके को
अवस्था हुने भएकोले लास भेटिने अवस्था नै नरहेको र पहिचान गर्न नि सम्भव छैन,
गैरसरकारी निकायहरु पनि जति छन् तिनीहरु पनि यहि विषयलाई लिएर आफ्नो संघ संस्था चलाएको हुदा
उनीहरु पनि यो कु राको चाडै समाधान होस् भन्ने साच्चिकै चाहन्छन् कि नाई भन्नेमा नै प्रश्नचिन्ह उठेको छ |
Probable Solutions
• Determine jurisdiction:
The debate over whether the regular courts or the TRC should have jurisdiction over
wartime crimes needs to be resolved openly and promptly. The act that established the TRC
gives the commission jurisdiction. The Nepal Supreme Court, however, has ruled that it has
jurisdiction over cases already lodged and that such cases cannot be transferred. The Court
has also invalidated a general immunity provision in the TRC act. To date, no decisions
have been discussed or made to amend the TRC in accordance with the Court’s orders. Lack
of resolution undermines rule of law.
•Allocate resources:
The government needs to commit adequate resources for the TRC and the CEIDP to function
effectively and begin working. Resources include everything from logistical and administrative
support to experienced and expert personnel. International donors are not interested in funding
unless the government can show compliance with international legal obligations. The government
must commit to providing adequate financial support or find a way to satisfy international donors.
•Consider parallel mechanisms:
Policymakers should recognize that the TRC and CEIDP cannot realistically handle tens of
thousands of cases. To deal with the backlog, parallel mechanisms could be set in motion.
Determining jurisdiction could clear the way for a division of labor whereby the courts would handle
the most serious crimes. Those accused of serious crimes would be tried by jurists well versed in
crimes arising from armed conflict. Victims’ families would benefit by seeing their cases dealt with
far more promptly than now.
References:
•https://www.bbc.com/news/world-asia-21996638
•https://kathmandupost.com/national/2021/02/04/government-decides-to-extend-tenure-of-two-transitional-
justice-commissions-till-mid-july
•https://www.amnesty.org/en/latest/news/2020/01/nepal-recent-steps-undermine-transitional-justice/
•https://www.nytimes.com/2017/01/29/world/asia/a-decade-after-nepals-maoist-rebellion-little-justice-for-
victims.html
• https://thehimalayantimes.com/nepal/maina-sunar-murder-three-army-officials-sent-jail-life
• https://ijrcenter.org/2013/04/09/flawed-truth-and-reconciliation-commission-for-nepal/
• Journalist Binod Ghimire of Kathmandu Post