The government's failure to prioritize the transitional justice process is likely to further delay the appointment of officials to both vacant Truth and Reconciliation Commission (TRC) commissions (Investigation into Disappeared Persons and Truth and Reconciliation).

The Truth and Reconciliation Commission and the Commission for the Investigation of Enforced Disappearances were relieved of their posts by an ordinance issued on 19 Baisakh. However, the process has been further complicated by the fact that even after more than a month, the government has not shown any interest in selecting new office bearers and the dispute has reached the Supreme Court.

It seems that the process has been stalled for some time as the Constitutional Bench including the Chief Justice has fixed a date and called the government for discussion. The office bearers who were appointed only on 28 Baisakh 2082 did not get to work for even a year despite having a four-year term.

The conflict victims were expressing dissatisfaction that the then KP Sharma Oli-led government had recommended the office bearers of both the commissions based on political division, when the Balendra Shah-led government removed them from their posts through an ordinance.

The chairpersons and members of both the commissions were removed from their posts after the ‘Special Provisions Ordinance Concerning the Removal of Public Officials, 2083’ was enacted. Suman Adhikari, former president of the conflict victims' association Sajha Chautari, has commented that even though the government has issued public notices for the appointment of officials in various bodies including Gorkhapatra, Press Council Nepal, and Nepal Airlines Corporation, these two commissions have not been given priority.

The conflict victims understand that the process may be further delayed if the dispute reaches the Constitutional Bench of the Supreme Court while the government itself is in confusion.

Adhikari said that they also felt that the delay was due to the government's tendency to wait rather than move forward while the case is pending in the Supreme Court.

'Even when there is such a delay, the government seems to have an excuse after the case reaches the court. We have been victims for years. We still have to continue to be victims,' Adhikari said, 'We have not even been able to meet the government ministers till now.'

He said that they expect an impartial commission to be formed and the transitional justice process to be completed soon.

But the government has claimed that preparations are underway to form a search committee even though the case has been filed in the Supreme Court. The government has started internal preparations to form a search committee to select office bearers after a written response has to be submitted to the Supreme Court and victims have also started raising questions publicly.

The Ministry of Law, Justice and Parliamentary Affairs, which is a taluk ministry, has started such preparations, said Parashwar Dhungana, Secretary of the Ministry of Law. According to him, the process related to the formation of a search committee to select office bearers of both the commissions will move forward within a week.

‘The Ministry of Law is preparing to move forward with the process to form a search committee from next week,’ he said, ‘We are currently in internal discussions. The process will proceed to a conclusion by exercising the powers granted by the TRC Act.’

The process for appointing the commission’s office bearers is provided for in the Act on the Investigation and Truth and Reconciliation of Enforced Disappearances. Section 3 of the Act contains provisions regarding the formation of both commissions.

According to the Act, there is a provision to form separate independent, impartial, accountable and high-level commissions to investigate and investigate the truth of human rights violations and serious human rights violations committed during the armed conflict and make the real facts public, to facilitate reconciliation between the perpetrators and the victims, to provide redress to the victims and to recommend legal action against those involved in serious human rights violations.

Sub-section (2) provides that both commissions shall have five members, including at least one female member, as chairperson and four members.

There is a legal provision to form a search committee under the leadership of a former Chief Justice of the Supreme Court to recommend the office bearers of these commissions. Sub-section (3) of Section 3 of the Act states that a five-member search committee shall be formed, consisting of a chairperson designated by the Government of Nepal from among the former Chief Justices, the chairperson of the National Human Rights Commission or a member designated by him, and at least three members from among human rights activists, psychologists, lawyers, jurists, conflict experts, sociologists, women's rights activists or people involved in the peace process.

The search committee must select qualified persons based on the criteria and procedures mentioned in the Act. Earlier, the search committee has been formed twice under the leadership of former Chief Justice of the Supreme Court Om Prakash Mishra.

The last time the search committee led by Mishra recommended the names of former High Court judge Mahesh Thapa to the Truth and Reconciliation Commission on 28 Baisakh 2082 and former Chief Secretary Leela Devi Gadtaula to the Commission for the Investigation of Enforced Disappearances. The government appointed them after the recommendation of the search committee. But after the Shah-led government revoked their appointments through an ordinance, both commissions became vacant again.

Who is the chairman of the search committee?

Although the government claims to have intensified the search for a chairman and members to lead the search committee, it seems that there has been a delay due to the lack of suitable candidates.

Since the legal provision requires the chairman of the search committee to be a former Chief Justice of the Supreme Court, the government has limited options.

Although Law Secretary Dhungana said that the ministry is in the process of preparing, an official from the Law Ministry said that the government has not yet finalized a suitable candidate to take the responsibility of chairman of the search committee.

‘The law has provided that a former Chief Justice of the Supreme Court should be the chairman,’ the official said, ‘but no decision has been made on who to make him.’ The delay is being caused because there are limited number of former Chief Justices without controversy.'

According to him, Damodar Sharma, Ram Kumar Prasad Sah, Gopal Parajuli and Cholendra Shamsher Jabra, who became Chief Justices after 2066 BS, are linked to various controversies, so other options need to be found.

In this way, the government has the option of giving responsibility to one of Min Bahadur Rayamajhi, Kalyan Shrestha, Om Prakash Mishra, Harikrishna Karki, Vishwambhar Prasad Shrestha and Prakash Man Singh Raut. However, it is said that Shrestha and Mishra are less likely to accept the responsibility. Shrestha has already delivered judgments in cases related to transitional justice, while Mishra, who has led the search committee twice before, is in a state of mind not to sit for a third time, according to sources.

Constitutional bench asks reason for removal of officials

Kumari Kaushalya Ojha, then member of the Commission on Disappearances, filed a writ petition in the Constitutional Bench on 30th Baisakh, challenging the government's decision to remove the officials through an ordinance.

The writ petition, which had not been filed for a long time, was heard for the first time on 13th Jestha after the new Chief Justice Manoj Kumar Sharma took office.

A bench of Chief Justice Sharma and Justices Hari Prasad Phuyal, Nahakul Subedi, Binod Sharma and Mahesh Sharma Poudel issued a show cause order and ordered the government to submit the basis and reasons for the removal of the officials of both the commissions in writing.

Although the writ petitioner sought an interim order, the Constitutional Bench has given priority and set a date for hearing the verdict on 27th Jestha.

Since both the ordinance and the TRC are matters of serious constitutional interpretation, the Constitutional Bench has decided to summon an amicus curiae.

In the writ petition, it has been claimed that the appointment of the officials was not only based on the decision of the Council of Ministers but also on the recommendation of a search committee formed under the leadership of a former Chief Justice of the Supreme Court, so it is illegal and unconstitutional to remove them through the ordinance.

Bar sends names of amicus curiae

Nepal Bar Association and Supreme Court Bar Association have sent names of senior advocates for amicus curiae as requested by the Constitutional Bench.

Supreme Court Bar Association has sent the name of senior advocate Govinda Sharma 'Bandi' while another name is yet to be sent. He is considered an expert on transitional justice issues. He is also a former Law Minister.

The Nepal Bar Association has recommended the names of senior advocates Chandrakant Gyawali and Tejman Shrestha. Both of them are experts in constitutional law. Shrestha is also a professor at Nepal Law Campus.