Transitional Punishment

(Nepali version published in NAGARIK DAILY : March 21, 2013, Chaitra 8, 2069).

People are in dilemma about the punishment to the perpetrators of grave crimes committed during the conflict. It is hence necessary to be clear on this. Discussion on the transitional justice would be incomplete without the provision of transitional punishment. Decision of the Truth and Reconciliation Commission only will not suffice. Firstly, the TRC cannot grant amnesty in incidents of grave human rights violations and war crimes. Even if amnesty is granted, the civilized world will not recognize it. International jurisdiction is drawn to situations when justice cannot be delivered within the country. Relatives of victims, human rights organizations can file complaints in the United Nations Human Rights Committee. Nepal's Supreme Court has given verdicts time and again that "Eye of the justice is never shut; door of the courts is never closed". Relatives of the victim can make appeal to courts within the country.

The right to make final decision on whether an incident is of criminal nature or not rests on the court in any country that follows democracy and rule of law. The court, by taking into account the nature of the crime, can reduce the punishment to the culprit in situations when he cooperates. 20 percent discount in the punishment to former minister JP Gupta under this same provision is still fresh. The gross misinterpretations of our stands by our leaders and specially UCPN-Maoist leaders/cadres proves that they suffer from 'autocratic disease' of taking themselves beyond law, people and constitution. Or they refuse to take simple effort to understand simple things. They believe that the human rights activists are plotting to take all of them behind bars. Meanwhile, we wish to resolve the disputes within our country ourselves and that the solutions would be permanent. We wish that the solutions would come from the inner heart and it would open doors to sustained peace.

The other truth is that the perpetrator should admit truth openly for sustained peace. They should offer apology from their conscience. The victim and their family and the society should accept the apology after being convinced. This would be impossible until the victims are certain that the past atrocities would not be repeated. Such efforts and processes to convince the victims might be different according to their capacity. Processes like the senior leaders, commanders offering apology publicly by considering the wide effect of the actions taken under their command, undergoing symbolic punishment have been recommended in this context. The transitional punishment has been propounded for the permanent solution of these theoretical, legal, practical and psychological issues. Transitional justice has envisioned dissolution of conflict following symbolic punishment after the crimes admitted by an open heart is formally registered in conditions when the perpetrator solemnly wins the heart of the victim, the society accepts it and the politics and state show interest in creating such national circumstances. It aims to document the admittance of the perpetrator and respect the victims and protect their identity.

This is based on the provision of discount in the punishment when there is cooperation to justice and the procedure to gain social confidence as a medium of transitional justice. The current provision of discount in the above stated instance can be increased to 99 percent from 20. The right to recommend maximum discount in punishments according to the standards in situations when the perpetrator has won the heart of the victim in incidents of transitional phase and when the society has accepted it can be given to the TRC. It should also be given responsibility to create such a situation. It is essential to incorporate various aspects while establishing the TRC and Commission of Inquiry into Disappearances. Among those is the provision that perpetrators should not be granted amnesty under any pretext in incidents of grave nature and war crimes as per the international law. The classification of cases of grave nature has been stated in the article 2 of the Commission on Investigation of Disappeared Person, Truth and Reconciliation Ordinance 2013.

In the present context, opinions have been divided over whether an incident is crime or not, punishment should be given or not, on what basis and how much discount should be provided if it is given to the perpetrator. However, this issue falls only under the jurisdiction of the court. Thus a special court should be established to issue court decision by considering all recommendations of the Commission of Investigation of Disappeared Person, Truth and Reconciliation, and special laws should be made so that this court concludes tasks in this matter.

The office of the Attorney General can act as a bridge between the commission and the special court. The victims unsatisfied with the special court's decision can always make appeal at the Supreme Court.