On May 5, 2016, the CPN-UML and the UCPN (Maoist) made a nine-point deal to continue the current government. The third, fifth and seventh points in the deal between two major ruling parties contradict with Supreme Court (SC) verdicts and adversely affect the Truth and Reconciliation Commission (TRC). On top of that, execution of such deal will not only lead the country on the path of impunity but it will also threaten judicial supremacy. Below is the brief analysis:
Seventh point of the nine-point agreement states:
To immediately initiate the process to withdraw or give clemency on insurgency-era cases and other politically motivated cases filed on various occasions.
This seventh point violates the section 4 (7) of TRC Regulation 2016, which states:
The commission shall order concerned bodies to take over cases filed at any of agencies except courts.
In other words, TRC cannot take over the cases which are sub justice at various courts.
Similarly, the 7th point also breaches section 29 (1) of the TRC regulation that has given authority to the TRC to recommend for prosecution of those found to have involved in serious human rights violations through investigation.
On top of that, it also contradicts with the verdict of Supreme Court on February 26, 2015, which in order 069-WS-0057, ruled in favor of 234 victims of the conflict by upholding the primary role of the courts in delivering justice for criminal acts committed during the conflict.
The special bench of three justice – Kalyan Shrestha, Girish Chandra Lal and Hon. Acting Chief justice Sushila Karki — had given this order of the Supreme Court. Even the judicial review of this case is not possible as the general trend is that the order of the special bench of the Supreme Court cannot be reviewed. Any change in regulation or act, which contradicts with Supreme Court’s order, is subject to void.
Likewise, there are other Supreme Court orders such as in Liladhar Bhandari and others Vs Government of Nepal in writ number 0863 (2008), and January 7, 2009, the division bench of SC clearly says: “Impunity of conflict-era rights violation cannot be tolerated: the government has a responsibility to ensure a remedy for rights violation including unlawful seizure of properties by the non-state actors during the conflict. This order has been violated as well in the fifth point of the ninth point deal, which states:
To register the ownership of the lands that were transacted on the basis of household documents during the conflict period.
Even to get clemency on insurgency-era cases, certain criteria and procedure must to be completed as per section 28 (1 & 2) of TRC Regulation. Upon receipt of the applications from either of the parties, TRC shall hold consultations between the applicant and another party for reconciliation. The reconciliation between the victim and perpetrator can be initiated as per the legal provision. And if both the parties voluntarily agree to reconcile, TRC shall mediate for the reconciliation between them by making the perpetrator to apologize the victim and regret for the wrongdoing. The seventh point in the deal between the UML and Maoists supersedes the mandatory procedures for clemency on insurgency-era cases.
Hence, it will consequently lead the TRC totally dysfunctional if the government implements the seventh point within 15 days as per the third point in the deal, which says:
To initiate amendment and other procedures within 15 days with a time-bound plan on transitional justice as per the spirit of the Comprehensive Peace Agreement.
The execution of the deal that contradicts with the Supreme Court’s verdicts will threaten rule of law in the country. Impunity will be strengthened and judicial supremacy, which is basic norms of democracy, will be collapsed as well. It is time for all the stakeholders to speak against the deal.