A fast-unto-death by parents of a teenager killed during the Maoist insurgency in 2004 has forced the Prime Minister’s Office to direct the Home Ministry to launch investigations into the crime. While the government move could break Nanda Prasad Adhikari and Ganga Maya Adhikari’s hunger strike, experts say that given the lack of political consensus on larger transitional justice issues, any progress in justice delivery is very unlikely.
The government issued the directive, rather reluctantly, following a warning from the National Human Rights Commission (NHRC) that it would be held responsible if anything happens to the Adhikari couple whose health condition was critical on the 13th day of their fast on Monday.
The Adhikaris have been demanding action against the killers of their 19-year-old son, Krishna Prasad. Though Krishna’s parents filed a police report in 2004, accusing Maoist cadres of murdering their son, the police have been refusing to launch a probe, citing a government decision against going ahead with any war-era crime case.
The government has so far been citing two main reasons for its decision to not take ahead war-era crimes. Firstly, government officials, and also the major political parties, argue (as mentioned in their official correspondences) that in line with international practice, any crime that occurred during the Maoist war (1996-2006) should be dealt in line with the principle of “transitional justice” that demands special and more flexible mechanisms such as the proposed Truth and Reconciliation Commission. This school of thought draws upon the provisions in the 2006 Comprehensive Peace Agreement where the parties to the conflict committed to withdraw all conflict-era cases and allegations. Citing these premises, the Cabinet on June 12, 2006 issued a circular across its line agencies asking them “not to proceed with any war-era crime.”
Second, the government cites a crucial Supreme Court verdict issued in 2010 that said war-era cases cannot be investigated or adjudicated through the normal criminal justice system, but through the TRC as proposed in the CPA.
In that verdict, a single bench of Justice Abdesh Kumar Yadav (now retired) stayed an arrest warrant issued by the Okhaldungha Court against Maoist leader Keshab Rai, saying the case should be dealt better by the TRC. Rai is accused of murdering one Padam Bahadur Tamang in 2005. However, according to experts and rights defenders, the government argument is grossly flawed. The government and the parties cannot shy away from their responsibilities by referring all conflict-era cases to the TRC, while at the same time indefinitely postponing the formation of the same TRC, says advocate Hari Phuyal. The CPA mentions that the TRC would be formed within six months of the date of signing the agreement (2006). Seven years down the line, the TRC is nowhere in sight.
The Supreme Court order to the government to deal with war-era crimes through the TRC is factually wrong, says Advocate Govinda Bandi of the International Commission of Jurists. “There has been a series of decisions from the apex court, correcting its own decision to allow the government to not investigate conflict-ear crimes.”
In 2010, a higher bench of the Supreme Court overturned its own decision (on Keshab Rai’s case), saying that the government has the duty and enough legal and constitutional ground to investigate all kinds of crimes, including those committed during the Maoist conflict, through the normal judicial process.
Records show that in its landmark decisions, the apex court has already ordered the government to handle around 150 emblematic cases, such as the murder of Maina Sunuwar, Dekendra Thapa, Chakra B Katawal and Ujjan Kumar Shrestha through the normal system.
“In fact, there are no legal problems in the government addressing the past crimes,” says Gauri Pradhan, spokesperson of the NHRC. “An NHRC recommendation, which is mandatory, should be enough.”
Records, however, show that the government has not implemented a single NHRC recommendation, calling for prosecution of officials indicted of war-era crimes.
Given this longstanding culture of impunity, experts say that while the Adhikari couple’s fast-unto-death could be handled legally for now, the larger problem is unlikely to be settled unless the government and the parties take a broader political decision on how to deal with the darker past. “Adhikari’s case is one of the several thousand war-era cases; it is more than just a lawyerly issue,” says Bishwo Kant Mainali, former president of Nepal Bar Association. The Maoists are the most vocal among the parties in arguing that no other than the TRC should deal with war-era crimes. Former Prime Minister Baburam Bhattarai’s announcement of his party’s position in Adhikari’s case through Twitter on Sunday reveals the gravity of the issue. “An early formation of the TRC is the only solution; beware those politicking on dead body,” Bhattarai twitted minutes after the government directed the Home Ministry to initiate investigations into Krishna’s murder. Sources say the Office of the Attorney General (OAG) has assured the victim’s family that an investigation would be launched within three days. “The OAG may resume the investigations, but since this is not only about an individual, it may get complicated and flare up a bigger controversy when political parties start disagreeing,” a source said. NHRC officials are, however, more hopeful that the government would keep its promise this time around. “We are told that the PMO has already taken action,” says Gauri Pradhan.
The government issued the directive, rather reluctantly, following a warning from the National Human Rights Commission (NHRC) that it would be held responsible if anything happens to the Adhikari couple whose health condition was critical on the 13th day of their fast on Monday.
The Adhikaris have been demanding action against the killers of their 19-year-old son, Krishna Prasad. Though Krishna’s parents filed a police report in 2004, accusing Maoist cadres of murdering their son, the police have been refusing to launch a probe, citing a government decision against going ahead with any war-era crime case.
The government has so far been citing two main reasons for its decision to not take ahead war-era crimes. Firstly, government officials, and also the major political parties, argue (as mentioned in their official correspondences) that in line with international practice, any crime that occurred during the Maoist war (1996-2006) should be dealt in line with the principle of “transitional justice” that demands special and more flexible mechanisms such as the proposed Truth and Reconciliation Commission. This school of thought draws upon the provisions in the 2006 Comprehensive Peace Agreement where the parties to the conflict committed to withdraw all conflict-era cases and allegations. Citing these premises, the Cabinet on June 12, 2006 issued a circular across its line agencies asking them “not to proceed with any war-era crime.”
Second, the government cites a crucial Supreme Court verdict issued in 2010 that said war-era cases cannot be investigated or adjudicated through the normal criminal justice system, but through the TRC as proposed in the CPA.
In that verdict, a single bench of Justice Abdesh Kumar Yadav (now retired) stayed an arrest warrant issued by the Okhaldungha Court against Maoist leader Keshab Rai, saying the case should be dealt better by the TRC. Rai is accused of murdering one Padam Bahadur Tamang in 2005. However, according to experts and rights defenders, the government argument is grossly flawed. The government and the parties cannot shy away from their responsibilities by referring all conflict-era cases to the TRC, while at the same time indefinitely postponing the formation of the same TRC, says advocate Hari Phuyal. The CPA mentions that the TRC would be formed within six months of the date of signing the agreement (2006). Seven years down the line, the TRC is nowhere in sight.
The Supreme Court order to the government to deal with war-era crimes through the TRC is factually wrong, says Advocate Govinda Bandi of the International Commission of Jurists. “There has been a series of decisions from the apex court, correcting its own decision to allow the government to not investigate conflict-ear crimes.”
In 2010, a higher bench of the Supreme Court overturned its own decision (on Keshab Rai’s case), saying that the government has the duty and enough legal and constitutional ground to investigate all kinds of crimes, including those committed during the Maoist conflict, through the normal judicial process.
Records show that in its landmark decisions, the apex court has already ordered the government to handle around 150 emblematic cases, such as the murder of Maina Sunuwar, Dekendra Thapa, Chakra B Katawal and Ujjan Kumar Shrestha through the normal system.
“In fact, there are no legal problems in the government addressing the past crimes,” says Gauri Pradhan, spokesperson of the NHRC. “An NHRC recommendation, which is mandatory, should be enough.”
Records, however, show that the government has not implemented a single NHRC recommendation, calling for prosecution of officials indicted of war-era crimes.
Given this longstanding culture of impunity, experts say that while the Adhikari couple’s fast-unto-death could be handled legally for now, the larger problem is unlikely to be settled unless the government and the parties take a broader political decision on how to deal with the darker past. “Adhikari’s case is one of the several thousand war-era cases; it is more than just a lawyerly issue,” says Bishwo Kant Mainali, former president of Nepal Bar Association. The Maoists are the most vocal among the parties in arguing that no other than the TRC should deal with war-era crimes. Former Prime Minister Baburam Bhattarai’s announcement of his party’s position in Adhikari’s case through Twitter on Sunday reveals the gravity of the issue. “An early formation of the TRC is the only solution; beware those politicking on dead body,” Bhattarai twitted minutes after the government directed the Home Ministry to initiate investigations into Krishna’s murder. Sources say the Office of the Attorney General (OAG) has assured the victim’s family that an investigation would be launched within three days. “The OAG may resume the investigations, but since this is not only about an individual, it may get complicated and flare up a bigger controversy when political parties start disagreeing,” a source said. NHRC officials are, however, more hopeful that the government would keep its promise this time around. “We are told that the PMO has already taken action,” says Gauri Pradhan.
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