Denial of Justice

(Courtesy: Prakash Gnyawali and Dipendra Jha)

Justice evokes powerful images of setting things right, creating equal opportunities, rectifying the wrongs and restitution. Without justice, wounds from past conflict cannot be healed and they continue to fester. It also represents the search for individual and group rights for social restructuring and restitution which is inter-linked with peace at large.

Justice encourages applying the principles of prosecution. Crime deserves punishment whatever the nature of offence may be. But the government authorities have been denying receiving complaints from victim's families in various districts. One of the examples can be taken from Kavre district. A month back, the District Police Office (DPO) of Kavre refused to file a complaint against Maoists who allegedly killed 48-year-old Arjun Lama of Chhatrebanjh VDC-5. He was killed after abduction on 29 April 2005 . An urgent appeal issued by the Asian Human Rights Commission (AHRC) on 13 July 2007 states that his wife Purnamaya had tried to register a First Information Report (FIR) at the DPO on 28 June and again on 5 July, but the DPO refused to register them. Then on 8 July, the District Administration Office (DAO) endorsed the FIR but handed over a letter to Purnamaya stating that the was no proof on details of the incident and such case can be investigated under the Article 33 of the Interim Constitution, 2007 that provisions for an establishment of Truth and Reconciliation Commission (TRC).

This incident has signified a total absence of justice mechanism in the country, which is undergoing transition to "democratic governance and peace". In this context, justice has been missed from each and every angle of the process. How the government authorities have given up their obligations, instead of ensuring justice to the victims, is a matter of serious concern at this stage. The above case has clearly given a message that the state authorities are unwilling to fulfil their obligations under the internationally recognized principles of human rights and the rule of law. Justice has been largely denied to the victims of past human rights abuses, which may lead to a situation where those groups eventually become more frustrated and develop hatred towards the state mechanisms.

The most serious aspect of the above case is that the DAO clearly instructed the police authorities not to accept the case providing a logic that the Interim Constitution, 2007 has a provision of constituting a high-level TRC to investigate the facts regarding grave violation of human rights and crimes against humanity committed during the course of conflict and create an atmosphere of reconciliation in the society. What is the relation between the TRC, which is yet to be set up, and registration of the complaint against a case of grave human rights violation that constitutes an abduction and later murder? Why did the DAO sideline the FIR by referring the constitutional provision of establishing a TRC and diminished the possibility of having the case endorsed for police investigation process towards seeking truth and justice? Does the reference of a future TRC really matter to the victims who have been seeking justice for years? It has already been two years that the family of Purnamaya has been languishing for a proper investigation of the killing of their dearest.

Justice requires due process of law to bring the worst offenders to justice, which guarantees the non-repetition of such crimes. Concerning the case of Kavre , the AHRC's urgent appeal has stated that the case is not the first incident where the Nepalese Police have been reluctant to file an FIR and thereby obstruct proper investigation into a case. The relevant police officials have violated their duty to be responsible for cases presented to them and carry out immediate, effective and impartial investigations. Although the decision to form TRC is a step in the right direction, it is yet to be formed and it cannot be used as a loophole and an excuse for unresponsive police officials who refuse to investigate certain cases. Recent draft bill on TRC has further jeopardised the issue of ensuring justice in Nepal in the days to come. The TRC seems, as proposed in the bill, to be a commission for providing amnesty to perpetrators which would certainly ignore victims' rights.

The rejection to file the case was because the allegations were made against Maoist central member Agni Sapkota, the then district secretary Suryaman Dong, among others, claiming that they were involved in the killing of Lama. The kin of Lama have claimed that he was killed after three months of his abduction and buried in the field of a local peasant. Rejection of registering the complaint by the DAO has significantly reflected the political dimension of the transition in Nepal , which has been largely ignoring the issues of justice. The above case exposes the general intention of Nepal 's political parties, the Maoists and complete lose of confidence among the authorities. High level of fear from Maoists and largely ignored voices of the victims of human rights abuses are the basic characteristics of the present rule, which needs a drastic reform to ensure that the cases are dealt with due process of law allowing the victims their basic rights to have access to justice. Creating a sense of confidence among security agencies and judicial as well as quasi-judicial bodies of the state is another aspect that needs to be addressed at the soonest.

There is no attempt to integrate justice mechanisms into the political agenda of the peace process in Nepal . Since the perpetrators have been rewarded and are still holding public offices, the peace process and justice efforts have proceeded largely on separate tracks despite vigorous efforts by civil society to bring them together. This raises issues related to the credibility of both the political leadership and their commitment to ensure justice and end impunity.

In a situation where all the political parties and other stakeholders have been reiterating their commitment to "New Nepal", the serious concerns of victims of human rights abuses and their initiatives to seek justice have to be duly respected at all levels. Otherwise, it will trigger long-term problem.

Why the DAO, in the particular case, referred to proposed TRC to side-step the victims' concern is another issue that needs to be studied. It shows that the government authorities are trained under a concept that the establishment of TRC is not to allow people and in particular the victims to have access to justice. Is it the intention? Is there a political motive behind establishing the TRC in Nepal ? How come the DAO, as a local administrative body, interpret the mandate of a mechanism which is yet to be established, and does not entertain the complaints from the victims?

It is noteworthy that the Maoists are now part of the state and the state has primary responsibility of ensuring peace, security and justice to its citizens. Establishment of these three pillars of democracy is difficult if the state fails to take actions against the wrongs of the past, including the brutal killings of the people during the armed conflict. It is also equally important to fulfil the primary obligation of the state, specifically by the government and its line agencies, to investigate those cases of human rights abuses and bring the perpetrators to justice; and provide victims with proper reparations and the perpetrators with no excuse unless the victims are agreed upon. International human rights instruments have provisions that justice should not be ignored by any state party. Being a party to a number of international instruments, the Government of Nepal must be convinced of those obligations and act upon accordingly. The practice, however, explicitly exemplifies that the government has been intentionally causing a failure of state mechanisms in providing justice to its citizens.

One of the morally binding principles set by the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly resolution 40/34 of 20 November 1985 states that the victims are entitled to access to the mechanisms of justice and to prompt redress. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms. It is sad to note that the authorities in Nepal have largely ignored these principles and values while dealing with the victims and their families.

The authorities, if they respect the rights and dignity of victims, should provide proper assistance to victims throughout the legal process and avoid unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims as stipulated in the Declaration of 1985. But, the reality in our context is characterized by a reversal of these standards. How we head towards a state of justice largely depends upon the level of transformation in the practice of state institutions in dealing with such cases.

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