Maximising Justice: Using Transitional Justice Mechanisms to Address Questions of Development in Nepal

• Author: Donna Lyons
• Position: LLB (Dub), LLM (International Legal Studies) (NYU)
• Pages: 111-132

MAXIMISING

JUSTICE:

USING

TRANSITIONAL

JUSTICE

MECHANISMS

TO

ADDRESS

QUESTIONS

OF

DEVELOPMENT

IN

NEPAL

DONNA

LYONS*

Introduction

Transitional

justice,

the

response

to

systematic or

widespread violations

of

human

rights,

1

seeks

to

provide

remedies

to

victims

in

post-conflict

societies

through

its

traditional

four

pillars

of

operation:

accountability,

truth-seeking

mechanisms,

reparations,

and

institutional

reform.

It

will

be

argued,

using Nepal

as

a

current

example,

that

such

mechanisms ought

to

expand

their

mandates

to integrate

socio-economic

justice

as

the

fifth

formal

pillar

of

transitional

justice

in

order

to

render

their

assistance

more

effective

on

the

ground.

Nepal

has

recently emerged

from

a

bitter

decade-long

2

civil

conflict,

the

primary

causes

of

which

were

the

widespread discriminatory

practices

against marginalised

groups

in

Nepalese

society. Therefore,

if

transitional

justice

in

Nepal

seeks

to

adopt

a

holistic approach

to

societal

reconciliation,

it

must harbour

a

development-sensitive

mandate,

that

is,

a

mandate

which

is

equally sensitive

to

both

social

and

economic

concerns

and to

civil

and

political

rights

violations.

This

paper

examines

the conflict

in

Nepal

and

uses

it

as

a

platform

to

contribute

to

the

transitional

justice

and

development

debate,

arguing

for

a

sequenced

approach,

which

is

development-sensitive

in

all

transitional

justice

undertakings.

The

author

concludes

that

transitional

justice

can

thereby

contribute

more effectively

*

LLB

(Dub),

LLM

(International

Legal Studies)

(NYU).

The

author

would

like

to

thank

Paul

van

Zyl, Gareth Walsh,

Emma Fenelon

and

Christopher

O'Hara

for

their

helpful

comments

on

an

earlier

draft

of

this

article. Special

thanks

also

go

to

Jayne

Huckerby,

Amna

Akbar

and

Odessa

Roberts

Matsubara

for

their

assistance

with,

and

untiring

dedication

to, the

Nepal

Caste

Discrimination Project

at

the

Center

for

Human

Rights

and Global Justice,

NYU

School

of

Law.

1

Transitional

justice

is

primarily

championed

by

the

International

Center for

Transitional

Justice.

See

generally

.

2

The civil

war,

also

known

as

the

"People's

War",

began

in

1996

and

ultimately

came

to

a

close

in

2006.

©

2010

Donna

Lyons

and

Dublin

University Law

Society

Trinity

College

Law

Review

to

pressing

discourses

on the

ground

and can

maximise

the

likelihood

of

justice

for

victims

in

the

long-term.

Nepal's

Conflict

and

Transition

to

Democracy

Social

Factors

Leading

to

Civil

War

in

Nepal

Nepal

is

a

country

plagued

by

social

divisions.

3

As

pointed

out

by

Tafadzwa

Pasipanodya,

such

divisions

"along

lines

of

caste,

ethnicity,

gender,

class

and

geographic

region...have

resulted

in

deep

inequalities

in

wealth,

education, health,

employment opportunities

and

political

power."

4

Such

divisive

practices

were some

of

the

primary

causes

of

the

country's

ten-year

civil

war.

In

this section, the

predominant

factors

leading

to

these

societal

divisions

will

be

analysed

prior

to

examining

the

prevailing

discrimination

suffered by

marginalised

communities

in

Nepal.

Religion

is

an

extremely

important

part

of

Nepalese

society,

with

Kathmandu

Valley

alone

housing

over

2,700

religious

shrines.

5

Hinduism

is

the

predominant

religion

6

and

many

of

the

country's

lines

of

social

division

originate

in

the

teachings

of

the

Hindu

faith.

The

principle tenets

of

Hinduism

are

the concepts

of

Karma

and

Dharma.

Karma

is

the set

of

laws

which

governs

the effects

of

deeds

both

in

this

life

and in

subsequent

lives.

Dharma

constitutes

the

set

of

laws

and

duties

which,

according

to

Hindu

teachings,

the

individual

ought

to

fulfil

for

the

good

of

her

society

so

that

the

path

she

follows

is

a

virtuous

one.

Reincarnation,

the

notion

that

the soul

is

immortal

and

that

its

future

form

depends on the

deeds

carried out by

its

possessor

in

this

life,

consistent

with

its

Dharma,

is

the

primary

justification

for

the

caste

system.YThe

caste

system divides

individuals

into

particular

categories

based

on

their

heritage.

Consequently,

"religious

and

cultural

justifications

are

used

to

distinguish

people based

exclusively

on

their

birth

into

a

particular

social

group."

8

Hindu

society

consists

of

four

large

castes:

Brahmins, Kshatriyas,

Vaishyas

and Sudras,

encompassing

several

thousand

sub-castes. One

3

See United

States

Department

of

State,

Country Report:

Nepal

<

http://www.state.gov/r/pa/ei/bgn

/5283.htm> (last

visited

30

January

2010).

4

Tafadzwa

Pasipanodya,

"A Deeper

Justice:

Economic

and

Social

Justice

as

Transitional

Justice in

Nepal"

(2008)

2

International

Journal

of

Transitional

Justice

378,

at

380.

5

Ibid.

6

Hinduism

is

observed

by

81

percent

of

Nepal's

population,

while

Buddhism,

Islam

and

various other

faiths

account for

19

percent

of

the

country's

religions,

ibid.

7

See

generally,

Konrad

Zweigert

and

Hein

Koetz, An

Introduction

to

Comparative

Law

(3

rd

ed.,

Oxford

University

Press,

1998).

8

Pasipanodya,

note

4,

at

380.

[Vol. 13