Rayamajhi Commission Report: Beginning with a bang and ending with a whimper
The government has publicised the Rayamajhi Commission report to get the boisterous civil society off its chase rather than with the intention of taking action against repressors of people's movement.
By Sanjaya Dhakal
By stating that the government has already taken actions against those named in the report, Home Minister Krishna Prasad Sitaula has signaled an end to the year-long raucous debate revolving around the Rayamajhi Commission.
The government, on August 3, publicised the report by Rayamajhi Commission – the high level judicial body formed to investigate allegations of repression against last year's People's Movement – eight months after it was presented to the government. And during this eight month period – the mood of the nation and its people has swayed from an euphoric post-Loktantra high to despondency post-Terai and other troubles. By delaying publicising the report, the government has defeated the very purpose for which it was formed in the first place.
But, as legal experts point out, the public were kept in the dark from the very first day when the politicians formed the Rayamajhi Commission – ostensibly to take action against the King and other big fishes of the erstwhile royal regime.
Having formed it under the Commission of Inquiry Act, the government gave it a limited mandate even as it tried to extract maximum political mileage by touting it as the testimony of its intention to right the past wrongs. Hounded by civil society to take action against repressors of the people's movement, the government used the Rayamajhi Commission as a shield promising all kinds of actions. But its promise has fallen flat with the passage of time.
"The status of Rayamajhi Commission was just that it could give recommendations to the government - nothing more nothing less," said former Attorney General, Badri Bahadur Karki.
Karki added that for legal purposes, the Commission was only a fact-finding team.
Echoing his words, constitutional lawyer Lalit Bahadur Basnet said, "Some might use the report as a tool for political vendetta, but from legal standpoint it was a commission formed to gather facts and present that to the government."
Senior journalist and political commentator Yubaraj Ghimire went a step further questioning the very credibility of this commission. "What government formed was not an investigation commission but a political commission with express instruction to frame up certain people it wanted to," he said.
Ghimire points at the 'pick and choose' manner in which the Commission interrogated nearly 300 persons and, later, exonerated 90. "There was a total nexus between the Commission and the Home Ministry," he accused.
In the words of senior journalist Ghimire, the Rayamajhi commission has given "merely some inputs, that, too, seriously flawed" for the government if it wants to take action against the repressors.
Another pointer of the government's intention could be the Interim Constitution of Nepal 2007, which was promulgated on January 15 – a good two months after the commission report was handed over to the Prime Minister (November 20).
The Clause 4 of Article 24 of the interim constitution states that no person can be penalised based on laws with retrospective effect. "No person shall be punished for an act which was not punishable by law when the act was committed, nor shall any person be subjected to a punishment greater than that prescribed by the law in force at the time of the commission of the offence," states Article 24 (4). For a government that wants to drag its feet, this provision can provide a perfect cover.
Enraged Civil Society
When it was formed on May 5, chairman of the commission, former Supreme Court (SC) judge Krishna Jung Rayamajhi had made tall claims. He had publicly stated that nobody was beyond the commission's jurisdiction. "We have the mandate of the people," he had trumpeted.
But when his report was made public, many eyebrows have been raised at the manner it let the King off the hook by mentioning that the latter had already corrected his 'mistakes' through his decision to restore the parliament on April 24, 2006.
Rayamajhi now claims that since the commission did not have authority to probe the King's actions, the report does not mention the King's name for action. "But the report has indicated that then head of the government was mainly responsible for the repression," he said.
In fact, immediately after the report was submitted to the Prime Minister in November last year, two members of the commission Ram Kumar Shrestha and Dr. Kiran Shrestha had expressed dissatisfaction over what they called as 'feeble' recommendation, particularly in relation with the action against the King and other top officials. They presented a separate note of dissent.
And now with Sitaula's announcement that the government has already taken action against those named in the commission as per the recommendations by the previous cabinet committee (headed by then deputy prime minister KP Oli) formed to study the report, it looks clear that the government wants to give a quiet burial to the Rayamajhi Commission. "I don't think any action is pending now. Even the security personnel named in the report have been penalised appropriately," Sitaula said.
But civil society actors do not seem to be in the mood to buy his argument. "We are angered by his statement. We strongly condemn the remarks and we demand action based on the recommendations of that report," said Subodh Pyakurel, president of Informal Sector Service Center (INSEC), a leading human rights organisation.
Pyakurel said that the government cannot run behind logics like "we don't have laws."
"If there is no law, then take recourse to the international human rights laws to which Nepal is a state party. As per our constitution, these international instruments have equal, even more, legal validity. One cannot let off criminals who have committed grave crimes just because there is no law. In special circumstances, evoke the Doctrine of Necessity and take action," Pyakurel said, warning that the civil society actors would not let the issue die so easily.
"If they do not take action now, we will see how they will face their voters during the election," he said.
Harihar Birahi, a member of the Rayamajhi Commission, also dismissed Sitaula's assertions that actions have already been taken. "We have not felt actions taken on the spirit of the people's movement," he said.
The report has recommended action against 202 persons including ministers, officials, royal advisors and administrators.
The report advises the government to formulate necessary laws to take action against then chairman of Council of Ministers (the King), and the cabinet members. It has also named five regional and 13 zonal administrators as guilty of repression. It has named 70 Nepal Police personnel including its then chief; 20 Armed Police Force (APF) personnel including its then chief; and Nepali Army personnel including its then chief for action. The report finds 22 civil service employees and 11 political appointees also as guilty.
But much before the report was released, the government had dismissed then Nepal Police chief Shyam Bhakta Thapa, APF chief Sahabir Thapa and National Investigation Department (NID) chief Deviram Sharma soon after the political change last year. Then army chief Pyara Jung Thapa and Nepal Rastra Bank (NRB) governor Bijayanath Bhattarai are facing investigations by the Commission for Investigation of Abuse of Authority (CIAA) on charges of financial irregularities during the people's movement. Ministers in the royal cabinet like Tulsi Giri, Kamal Thapa, Shrish Rana are also under CIAA scanner.
Fifteen months have passed since the government formed the Rayamajhi Commission promising to take action against repressors of people's movement. However, the inordinate delay and questions over its intentions have shrouded the report in controversy. The victim here is justice and accountability. Perhaps, even more, the victim has been the credibility of the eight parties - which assumes ominous dimension as it comes on the eve of Constituent Assembly (CA) elections and interspersed with their other grandeur promises like restructuring the state. nepalnews.com Aug 04 07
(Comments on this write-up can be sent to editors@mos.com.np. The writer can be reached at sandhakal@gmail.com)
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