| July 19, 2019

We may have to dig up graves of suspected ‘disappeared’

Setting up of Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP) has brought a ray of hope among families of those ‘disappeared’ during the armed conflict. But how will these transitional justice mechanisms, and in particular CIEDP, work? What are its jurisdictions? Mahabir Paudyal and Nabin Khatiwada had caught up with CIEDP Chief Lokendra Mallick at his new office at the Ministry of Peace inside Singha Durbar.

It’s a month since you assumed office. What have you accomplished so far?

We face a number of problems. First of all, we have not been able to finalize this Commission’s name. Newspapers call it Commission on Enforced Disappearance. But the Ministry of Law, Justice, Constituent Assembly and Parliamentary Affairs suggested three names: Inquiry Commission on Enforced Disappearances, Inquiry Commission on Involuntary Disappearances and Inquiry Commission on Involuntarily Disappeared Persons. However, none of these reflects the nature and mandate of the Commission and the provisions enshrined in the Truth and Reconciliation Act.  Name is important because we have to correspond with foreign stakeholders and the media. We are thinking of Commission of Investigation on Enforced Disappeared Persons. Perhaps this will be the final name.


Then our office has not been set up. There is a legal provision for Ministry of Peace to avail us facilities for office such as transportation services and human resources. But we have been confined to a single room since we assumed office. There is inadequate space. Until these requirements are met, it will be hard for the Commission to conduct its activities. Despite these constraints, we have accomplished a couple of tasks in the last thirty days.

What are they? 
We have divided work among us five commission members. It is essential to formulate rules as per the mandate of the Act. Some of us are working to frame rules and terms of reference (ToR). It is also necessary to separate the jurisdiction of our Commission from TRC’s. Two members are working on it. When the draft of rules is complete we all will review and finalize it. This won’t be enough. The Act has many loopholes.

We are trying to frame rules with consultation with victims. We are planning to go to the field and take views of victims, legal professionals and journalists. We will then submit the draft to the government, which will send it back to the Ministry of Law with feedback. It will then be sent to the cabinet. The rules will come into effect only after cabinet’s approval. Only then we will be in a position to start our work. But rule-making and infrastructure-building should go side by side. Otherwise, the process will be delayed.

You hinted at overlapping jurisdiction of TRC and CIEDP. What differentiates you from TRC?

Our mandate is clear. We investigate cases of enforced disappearances. But we may also have to do a number of other things in the process of investigation. We may have to dig up graves of suspected ‘disappeared’ persons. We might find their remains in the process. In that case, we will send the remains to forensic lab for investigation and if it is established that these remains belong to suspected persons, it becomes a criminal case and it will be transferred to TRC.

Jurisdiction issue may arise in such cases because there is no provision of transferring case from one Commission to the other in TRC Act. The Act states that in case of disputes, TRC and CDIEP shall refer to Government of Nepal and cases will move forward according to government decision. We are discussing how to resolve such complications.

Victims complain that they were not consulted. How will you address their concerns?

If you carefully study the Act you will find that it has provisions to address their concerns. Yes, there is no specification of what kind of punishment is to be given to persons responsible for ‘disappearing’ people. There is no provision regarding this even in existing laws. But since CDIEP can recommend framing of the laws, such problems can be resolved.

Victims had reservations over appointment of office bearers in both Commissions. Recent Supreme Court verdict has vindicated some of their claims.
Victims have the right to air their concerns and grievances. But we have to work according to the mandate of TRC Act. We cannot go beyond the jurisdictions set by law. We will work as per the mandate of Interim Constitution, TRC Act and the rules to be framed by our Commission. Regarding the question of our credibility, it is too early to judge us since we have not started the work yet. We want to make everyone assured that we will work with honesty. 

Supreme Court verdict has not limited our jurisdiction, even though it may have set some constraints on TRC. The verdict has changed only one thing. Earlier there was a provision of recommending action to the guilty through the Ministry. The new verdict requires us to recommend action to the Office of the Attorney General directly. 

Statistics of the disappeared persons vary.  How will the Commission arrive at exact data?

I agree. Ministry of Peace has one data set and National Human Rights Commission other. We will study their data but this won’t be the sole basis of our investigation. We will issue public notification through all national dailies, radios and TV channels to victims to file complaints and will allocate sufficient time for this. We will appeal to the victims to file detailed complaints. Besides, we will ask district based authorities such as Chief District Offices to collect applications and send them to the Commission. There will not be regional or district offices as such but our team will reach out to every victim household to collect information, if needed. We will initiate investigation only after collecting reliable data.

We also understand that families of the disappeared have been going through a lot of hardships. It has also affected their socio-economic conditions. In this context, the Commission cannot limit itself to investigation. It will also work to provide reparation and compensations for victims.  

Cooperation from state actors some of whom might have been involved in rights violations during the conflict will be vital for CIEDP. How will you ensure this?
First of all, we will appeal to all for cooperation. This is a national issue; everyone must cooperate. Some of those actors may have already been retired. But if they are implicated they will be held to account.  If they do not cooperate, there are provisions in the Act to deal with them. If this does not work, we will seek government’s help.

How long do you think the Commission will take to complete its work?

It depends on the number of complaints. If we receive few complaints, we may be able to complete our work earlier than expected. If we receive many, it might take longer. We will probably start taking complaints in the next four months. The picture will be clear then.