The country's ongoing peace process has been disrupted again after the Recommendation Committee (RC) failed to make recommendations for the appointment of officials to the Transitional Justice (TJ) Commissions. In the wake of the failure of the commissions formed twice in the past, the RC for the appointment of the Chair and members of the Truth and Reconciliation Commission, and the Commission for the Investigation of Disappeared Persons was formed under the Chair of former Chief Justice Om Prakash Mishra on October 18, 2024.

In the backdrop of third amendment (September) 2024 of the Commission on Investigation of Disappeared Persons, Truth and Reconciliation Commission Act (2014), the RC constituted under the Section 3(3) failed to recommend the Officials of both commission within a period of two months, and made official request to the Council of Ministers to resume the recommendation process from the scratch stating that the RC lacked to reach into unanimous decision of recommending names for the Commissions. It states that "the commissions formed twice in the past have not been able to complete the tasks of the peace process and the Officials of the Commissions should be selected only after analyzing the reasons behind it and its objective."

The statement further mentioned that "the lack of consensus on some issues within the RC, the decision of the majority and minority to conclude the peace process that could have a far-reaching impact, the process of appointing the Chair and members to be appointed to the Commission should be made more comprehensive and effective by making the search for suitable persons for the chairman and members of the Commission more comprehensive and acceptable." The RC's statement has raised widespread doubts about its independence and autonomy, which is suspected of being influenced from undue political interference.

This act of failure to recommend the officials undermines the norms and spirit of the November 2006 Comprehensive Peace Agreement (CPA), which aims to ensure justice and reparation for the victims of the conflict, and to bring the alleged perpetrators into judicial process and hold them accountable for their involvement in human rights violations through independent and impartial process.

The process that the RC has developed for the selection of the commission's officials can be considered reasonably transparent and participatory in compare with previous ones. It has adopted the procedures that preferred impartiality and professional competence to some extent. The consultation with victims and its concern stakeholders on the draft procedure, calling for an open application, and producing shortlisted applicants through public media and observing their presentations can be considered transparent and public process.

However, these processes became rhetoric as previous and the RC was unable to exercise its independence and autonomy as the law guarantees. These efforts couldn't reach beyond formalities. The "benefit of doubt" provided by the victims were again betrayed while making attempts to the formation of institutions of fair, credible and acceptable TJ Commissions. Furthermore, the RC's request for the resumption of the appointment process demonstrates its influence from political entities and loyalty to political powerholders in leu of victims. It means that the RC's incompetency to recommend officials has again derailed TJ process and further institutionalized the trauma of the victims of conflict.

Continue Amendment of the Law

TJ process is a complicated one which should be combined as core elements of politics, peace and justice. It shouldn’t be nowhere close to court process. But it must go through independent and impartial process carried out by competent authorities. The amendment of the law should be continuing process and needs to carry out as per necessary. It means that the existing law should not be obstacle to deliver justice and reparation for the victims.

The recent amendment has sorted out several disputed issues that were objectionable to the victims. However, the victims and stakeholders have still strong reservation on several provisions of the law, including the definition of 'human rights violation' and 'serious human rights violation,' statute of limitation on reporting rape and sexual violence cases, reduction of sentencing, etc. Despite disagreements, the victims have demonstrated positive cooperation, resilience and participation in the appointment process of the commissions' officials, which undertaken as serious blow to the resilience of conflict victims. Therefore, the government must consider to address the concerns of victims through amending laws since the appointment process is prolonged, while 48 victims comprised of both sides have filed petition in the Supreme Court demanding the suspension of the provisions that were included through the recent amendment.

Considering the persistent pain of victims, the government has no excuse to further delay TJ process. But there are reliable public rumors floating around that the government has failed to find a Chair of the RC, which must be former Chief Justice of the Supreme Court in accordance with the existing law. It creates additional chaos for the resumption of TJ process. These anomalies seen in the formation of the RC have hugely disappointed the conflict victims.

In this circumstance, the government must be proactive to restructure the RC through the amendment of law, and reimagine the composition of the RC. It could be formed under the Chair of the senior most judge of the Supreme Court if not Chief Justice of the Supreme Court. If the law is not re-amended, it can be expected additional hurdles to smoothly run the country's TJ process under the basis of the Country's Criminal Code, the February 2014 Supreme Court Directive, and internationally established principles of TJ process.

Strengthening the Recommendation Committee

The failure of the RC to recommend officials for both Commission can be a big lesson to establish TJ mechanisms that can function efficiently, professionally and effectively. It is reported that the RC couldn’t make unanimous decision to recommend the Chair of the commission out of shortlisted candidates. There was an allegation against those candidates about their competency and previous background by the stakeholders, particularly victims of conflict. If the victim groups lacked confidence to those candidates, there is always a chance to compromise justice promoting immunity to perpetrators. Due to changed political dynamics since the end of conflict in November 2006, the perpetrators are continue getting stronger and politically powerful. The lack of confidence of victims towards TJ mechanisms jeopardizes the spirit of the CPA, which envisions peace, justice, reconciliation and non-repetition.

Appointment of competent officials to the Commissions is possible only by ensuring the independence and autonomy of the RC, which should be empowered in both law and practice. It is mainly important to ensure that there is no political or any other kind of interference in their legally defined responsibilities. However, there is a tendency of appointing the RC officials depending upon proximity political parties for the purpose of recommending their politically or personally allied individuals in the Commission. Such forms of kleptocratic regime must be ended for the sake of enabling peace and justice in the country. But these chronic forms of nepotism and favoritism has totally defamed the country's democratic system and its functional institutions, including peace process.

Independence and autonomy of the RC is a must for the functional TJ mechanisms. This will make easier for the RC to formulate selection criteria for recommending independent, impartial, credible, competent, acceptable, efficient and professional persons in the Commissions. Those recommended officials must be knowledgeable and expertise on subject matters, including the country's conflict and peace process, as well as political and justice mechanisms and demonstrated high social integrity in their workspace. At the same time, the reputation, social acceptability and efficiency of such officials appointed to the Commissions determine the credibility and legitimacy of the commissions in which the competent RC is required. The empowerment of the RC can only be done through the amendment of law and attitudes of political actors.

The Elevation of the Commission

TJ can only be concluded if the competent commissions are formed through meaningful participation of the victims. The commissions integrity is determined by the quality of the Officials with its high-level of public credibility and acceptability. Therefore, it is worth to review the status of the commissions and its officials. The composition of the Commission may be modified as required. For example, if arrangements can be made to appoint people who have worked in specific areas of human rights or various fields of national life in addition to the former Chief Justice of the Supreme Court to head the commission, then the integrity of the commissions will enhance and its work will get legitimacy and credibility at the national and international level. Even though it doesn't seem possible from current political dynamics, the merger of two commissions with expansion of members will be wiser decision for effective and efficient TJ process.

As per the current law, the qualifications for chairperson and members included in sub-section (d) of section (4) requires the person worked in the field of human rights, peace, law, conflict management or sociology. Furthermore, the sub-section (f) states that "he/she has worked as a justice of the Supreme Court or Chief Judge of the Appellate Court, worked at the post of special class of the Nepal Judicial Service or possesses the qualification for the justice of the Supreme Court in the case of the Chairperson." It envisages that only persons with a legal/judicial background would be eligible for the Chair's position of the Commission, while leaving the scope of TJ process ambiguous.

The existing provisions of the Act have restricted the involvement of competent persons from other fields of the country in the Commission as Chair of the Commissions. It undermines their professional competency, integrity and efficiency of vast majority of professionals in the country. It clearly favors academic qualification guided by nepotism and favoritism over competence in the Commission. At the same time, it ignores the integrated and distinctive nature of the country's peace process and TJ mechanism envisioned as integrated approach of politics, peace and justice. Unfortunately, the Act may be construed as an attempt to make the TJ process in a court structure, which creates challenges to the RC for recommending the officials wisely, impartially and professionally.

It will be much easier to make the commission effective if it can modify this existing system of law considering an ongoing dilemma for the formation of the RC. As an alternative, the provisions of the National Human Rights Commission (NHRC) Act can be made its reference for the amendment. It will be relevant to include the qualifications of the Chair of the NHRC as mentioned in Article 248 (6) (a) of the Constitution. It provides that apart from the judicial background, a person who has "rendered outstanding contribution to the protection and promotion of human rights or being a renowned person having been active for at least twenty years in and rendered outstanding contribution to the protection and promotion of human rights." shall be eligible for the Chair. This will help to appoint competent persons to the Commission and make the Commission's functions effective.

Conclusion

Although 18 years have passed since the end of the conflict, the victims of the conflict are continue searching for justice and peace of mind. While seeking for justice and reparation, the suffering of victims is increasing by multiply or quadruple. In retrospect, the perpetrators are enjoying immunity, and spending a dignified life in the society. It undermines trauma of victims and justice system of the country. Without properly assuring justice and reparation of victims, the foundations for a lasting peace in the country cannot be laid and the peace process cannot be considered meaningfully concluded. It is only possible through an effective, functional and credible TJ process that can be ensured only by the appointment of the professional and competent officials in the Commissions.

The process of appointing officials to the TJ mechanisms must be acceptable to conflict victims and stakeholders, and their accessibility must be ensured. The meaningful participation of conflict victims in the TJ is a prerequisite throughout TJ process from the amendment of the law to the formation of the Commissions and its operation. The appointment of independent, impartial, competent and credible persons with high social and professional integrity is considered a prerequisite for making the Commissions result-oriented and ensuring justice and reparation to the victims of conflict.

The author is widely known as peace, human rights and public security expert.