12-POINT UNDERSTANDING (December 9, 2010)

Source: ASPECT NEPAL

Q1) As you must be aware, more than 50 peace agreements have been signed in the last five years since November 2005, but the implementation is hard to come by. Where do you think the problem lies:
i. In the unfavorable political situation and the myriad variables that complicate it; or
ii. Do you find the drafting of the agreements itself fallacious?

Let me begin by clarifying the situation. You must know that, what was agreed at the time of negotiation was done in a very political manner, and the situation was very charged up. If you take the 12-point Understanding as an example, it was concluded in a clandestine manner and was handled by leaders keeping it off from the general public. The process was also facilitated by India though it was not a signatory to the document. There are two main aspects of the 12-point Understanding. First, it was the very first agreement [in peace process], yet the document is more of a political statement. Second, India assisted the negotiation process to reach the agreement for its own reasons. The Maoists were looking upto India for legitimization and the other seven political parties were also brought on board. But India’s role was only in the background and did not come at the forefront. Now, knowing the circumstances under which the 12-point Understanding was signed, we must understand that the parties did neither want to create any clear jural relationship with each other, nor any machinery for its enforcement had been envisaged. Again many of its provisions were drafted ambiguously – with a deliberate intention. An instance of the ambiguity is regarding one of the terms of the agreement, which was to abolish the “autocratic monarchy.” This can be interpreted in different ways. To the people who wanted constitutional monarchy to continue, it simply meant that the king is going to be stripped off the executive power that he had unconstitutionally assumed. For the republicans, it meant abolition of monarchy per se.

Q2) You mentioned some of the clauses in the 12-point Understanding were drafted ambiguously on purpose. Could you elaborate on that?

Purposeful ambiguity can be seen and could be attributed mainly to the lack of trust and uncertainty in the then political situation. Many political leaders at that time were not very certain about their own stand on some issues. For example, Girija Prasad Koirala, for a long time, spoke about establishing a cultural king, thus giving the impression that the issue about monarchy was still unsettled in-spite of the Understanding. Only towards the end of his life, when he was offered by the Maoists to be the first President of Nepal, did he actually stop talking about constitutional monarchy and clarified the issue finally. Another example of ambiguity is the use of a term “full democracy”. The Understanding mentions “full democracy” to constitute of plurality, multiparty system and rule of law. But the Maoists did not ever have this understanding of “full democracy” though they have signed it.

Q3) Is the definition of “full democracy” binding on the parties in a legal sense?
One of the aims of the Understanding was establishing “full democracy” and it was proposed to be done through the following”:
1. Bringing absolute monarchy to an end
2. Restoring the parliament
3. Forming a “power full – party Government” by the decision of the parliament
4. Hold election of the Constituent Assembly on the basis of negotiations with Maoists
But today we find the Maoists and other political parties at loggerheads while defining the term “full democracy”. Do you think the terms of this agreement, more specifically points 1, 2, 4 and 8 can bind the parties to a common basic definition of “full democracy”? The Seven Party Alliance (SPA) and the Maoists had agreed to all the terms of the Understanding and signed it. So if we interpret the question in black and white manner, they are accountable for it. However, for all the parties involved, the Understanding meant different things, and consolidated their own strategic positions in the post-conflict scenario. As there is no enforcement mechanism, we cannot really bind the parties, even if we discover their real intent. It was more of a political document than a legal document and the parties had no intention to enter in jural relations with each other. In that sense, they signed only a manifesto and not an agreement. And thus from the very beginning had no real intention of enforcing it.

Q4) How do you think these peace agreements can be enforced and implemented?
Implementation is difficult because of the current political stalemate. Even when they drafted the interim constitution, there was no political will for the entire process to be monitored; only some lofty principles were drafted. Their intention was to take the process as political and not legal.

Q5) Since the 12-point Understanding, as other peace agreements, is a public document, can Nepali citizens enforce its implementation by filing a petition at the court?
I agree that the Understanding is a public document but at the same time you must remember that it is also a political document. The political leaders made it the basis of transition in Nepal. So in a way they should be accountable for its implementation. But the problem is that even if the petition is filed in the court, the court cannot issue mandamus [a writ in Latin. Literally means “we command”] for the same, after all this was a supra-legal process. The courts lack the authority to enforce these documents. The entire transition process was decided politically while ignoring the basic tenets of the rule of law. Q6) What role could Supreme Court take up for the enforcement of these agreements? The Comprehensive Peace Accord (CPA) has been annexed to the Interim Constitution and thus should be considered the fundamental law of the land. But the CPA has its own political arrangement for the implementation and monitoring of its terms and conditions. There is no explicit commitment to the jurisdiction of the ordinary courts of law in this regard. The judiciary can do little in implementing these agreements because even if it gives a decision for enforcement, as an activist court, for example, there is a little chance that it will be respected. For proper enforcement of judicial decisions in a case like this, backing of a stable government and general political legitimacy is required. Recent example would be regarding the oath of the Vice President in Hindi, which was challenged before the Supreme Court. The court held it as unconstitutional as the oath was required to be in the national language Nepali. The court directed the state to take the oath in Nepali within a week’s period, nonoccurrence of which lead to reelection of the Vice President post. But the decision of the court was not enforced and the Vice President in spite of not taking the oath in the required period continued to be in office. The Constitution was amended in favour of the defaulting vice-president. Thus to uphold the prestige of judiciary, the Supreme Court might try to escape from such intensely political matters.

Q7) In such a situation where there is no political will and judiciary lacks the authority, could third parties play an important role in the enforcement of peace agreements?
Yes, the civil society can play an important role in such a situation. Drafting of the Interim Constitution was one chance that the people had to decide on an enforcement mechanism for peace agreements, but even in that there is no mention of it.

Q8) Do you think international community could help in facilitating enforcement?
Nepal is in a very precarious situation. It is considered a “yam between two huge boulders.” The reference is to India and China. They do not trust each other. India and Maoists had good relations with each other until monarchy was abolished. After that they have moved apart. The Chinese government is also sensitive about what is going on here. The UN can play a role. But its presence here is not something that everybody has liked. Increased UN role means more space to the western powers. So there is triangular distrust.

Q9) How would you interpret the last line of clause 3:?
“We also expect for the involvement of a reliable international community even This can be interpreted to mean a presumed role for the UN in the future. It was something India potentially did not want and thus perhaps it has not been worded very clearly.

Q10) How would you interpret clause 6 and 7?
Clause 6: “Making a self-assessment and a self-criticism of the past mistakes and weaknesses, the CPN (Maoists) has expressed its commitment for not allowing the mistakes and weaknesses to be committed in future.”

Clause 7: “Making a self-assessment towards the mistakes and weaknesses committed while staying in the Government and parliament in the past, the seven political parties have expressed their commitment for not repeating such mistakes and weaknesses now onwards.”

These clauses apparently relate to the violence and atrocities during the People’s War. The government wanted Maoists to agree to stop the violence. So they included Clause 5 and 6. But the Maoists also demanded a reciprocal obligation on the part of the government thus Clause 7 must have been drafted.

Q11) Even after the Understanding, there was continuation of violence by people affiliated to both Maoists and other political parties. Can this be considered nonconformity with the agreement?
Since the CPA and the Interim Constitution has been in place, all the cases of violence by political parties are treated like any other criminal case. It is the criminal law of the country that applies. But then the parties have been decisive in sorting out all these breaches, and the law has not been able to take its course.

Q12) The Truth and Reconciliation Commission Bill is still pending before the house since 2007. What would you say about this? Is there any hope for transitional justice in Nepal?
It will remain pending because the UCPN (Maoist) is not eager to open up the issue as they have committed more atrocities than anybody else during the war. So there is a lot of resistance from the Maoists, as also from the army. Again, the national army will continue to have a very crucial role in the stability of the country in the foreseeable future. So probably any government in power will want to wait and see if TRC would be a good option to address transitional justice.

Q13) Keeping this in mind, what kind of transitional justice would you as a lawyer suggest in the context of Nepal?
I am not in favor of Truth and Reconciliation Committee (TRC) because it is more of a settlement and a peace process rather than a justice delivery mechanism. However other methods like trials and reparations would not work in the Nepali context because of the unique situation and the complete lack of commitment by any political party as well as the faith of the people in them.

Q14) Assuming trials at an international tribunal were held in Nepal, and many would be guilty of some or the other criminal activity, would not it create a political vacuum in the country?
The international humanitarian law does not track down people at the grass-root level. Only the top-notch leaders who were in the position of power and committed or allowed atrocities are charged and tried.

If the trial is conducted in a gradual manner, then the possibility of political vacuum can be averted. For example in Cambodia, a tribunal for the Khmer Rouge trial was set up in 2006, almost 27 years after the conflict. By the time the trial began, leading perpetrator like Pol Pot was already dead. But it was possible after such a long time to take into custody senior leaders of the regime like Kaing Guek Eav, Nuon Chea and Khieu Samphan among others. So trials in Nepal could be possible in a gradual manner, once new leadership emerges so that political vacuum can be averted.

Q15) Would you elaborate on the negotiation process at the time of drafting of these agreements?
It is usually done by people in leadership position. In case of 12-point Understanding, there were rumors about the draft coming from India and the Nepali leaders merely signing the same. But these documents, as far as common knowledge goes, were drafted by the leaders themselves. K.P. Oli had made a public statement that the first draft was penned down by him. All this is done behind closed doors and there was no access to public.

Q16) What should be the ideal process in drafting a peace accord?
In case of Nepal, peace agreements have become completely obsolete now, they have run over time. The doctrine of pacta sund servanda (in Latin: “agreements must be kept”) has hardly been accepted by the parties concerned. Political developments have gone far ahead and sincere efforts demand one to start all over again except in case of Maoists combatants.

Q17) What have been the trends in the way peace agreements have been drafted since 2005 to date?
Every agreement signed was done in piecemeal situation, but it is not too strange since it happens in every peace process. But yes, the parties did not have any comprehensive understanding while drafting these agreements, and they were mostly done only to overcome the current pressing situations. There is no trend or extra seriousness as such that can be seen in these agreements. The 12 Point Understanding as well as the recent agreements lack the level of commitment needed for its implementation.
Q18) As a lawyer, how do you define the significance of the peace agreements as conflict resolution tool?
The physical violence is no more present and this can be considered the biggest change and achievement of the peace agreements. But I believe the rest of the issues are same. A lot depends on whether the Constituent Assembly is successful or not in devising a new constitution that not only protects Nepal’s national interests, but also the rule of law and constitutional democracy. The peace agreements could act as efficient conflict resolution tool, but the other supporting factors must also be in place.

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