December 7, 2022

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The Legal System

Amendments to transitional justice law ‘progressive but not satisfactory’

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Seven years after the Supreme Court’s directives for amendment, the government on Friday registered a bill at the parliament secretariat to revise the Commission of Inquiry on Enforced Disappeared, Truth and Reconciliation Commission Act 2014, which the conflict victims and human rights activists say is progressive but far from satisfactory.

As per the court’s verdict in February 2015, the bill has listed out non-amnestiable cases of serious human rights violations, which include “cruel murder” or murder after torture, rape, enforced disappearances and inhumane or cruel torture. It has segregated the cases of human rights violations and serious human rights violations which is not the case in the existing Act. The law has listed all criminal acts, from rape and killings to arson and looting, as serious human rights violations and has loopholes for amnesties in all the acts except rape.

The bill has the provisions that the transitional justice commissions will make recommendations to the Attorney General’s Office to start prosecution of cases of serious human rights violations. A Special Court composed of three judges from high courts will take decisions in cases of serious human rights violations filed by the Attorney General’s Office within six months of the recommendation from the two commissions.

Criminal cases from the decade-long insurgency that are sub judice at the district and high courts will be transferred to the Special Court. Any decision from the Special Court will be final with no provision for an appeal to the Supreme Court.

“The bill has been prepared adhering to the Supreme Court’s verdict, the international principles of human rights and the feedback from conflict victims and civil society,” Minister for Law and Justice Govinda Sharma Bandi told the Post. “It focuses on truth seeking, reparative measures and prosecution in serious human rights violations.”

In 2015, a full bench led by Justice Kalyan Shrestha had struck down the amnesty provisions in the Act, directing the government to amend the law. The erstwhile KP Sharma Oli government in June 2018 had made public a draft to the amendment in the Act for the discussions. It, however, was never registered in Parliament following objections from the victims, human rights defenders and international human rights organisations.

Prior to preparing the bill registered on Friday, the law ministry had held consultations with conflict victims, human rights defenders and officials from security forces.

“I have objections to the bill, though many of our recommendations have been incorporated in it,” Suman Adhikari, whose father was killed by the CPN (Maoist) in 2002 and who is a founding chairperson of the Conflict Victims Common Platform, told the Post. “Some of its provisions need revision before it gets through the parliament.”

The bill needs to get through both Houses of Parliament before it comes into implementation. Its provisions can be revised in Parliament or in the parliamentary committee before endorsement. Adhikari said the provision that only “cruel murder” or murder after torture or rape will be prosecuted shows there can be amnesty in other murders and there are chances that all sorts of murder will be listed as amnestiable crime. He also expressed his reservations over the provision that the cases transferred to the Special Court from other courts will be forwarded to the transitional justice commissions to ascertain whether they are the cases of serious human rights violations.

Human rights activists say while the bill has many progressive provisions, it is very weak when it comes to prosecution because amnesty is its due focus. The bill allows the government attorneys to file the cases with reduced sentencing if a perpetrator reveals the information they have in a particular case, cooperates in revealing the truth behind the case they were involved in, and confesses to and apologises for the crime they have committed.

The bill also says the penalties in every serious human rights violation from the conflict era will be reduced compared to that of the existing practice.

“I have concerns with several provisions in the bill though it is progressive compared to the existing Act,” Nirajan Thapaliya, director at Amnesty International Nepal, told the Post. “It is not at par with our expectations.”

Thapaliya added that the bill fails to incorporate crimes against humanity, war crimes and tribal killings that happened during the insurgency as non-amnestiable crimes. The provision to reduce sentencing in all cases of serious human rights violations and barring appeals against the Special Court’s verdict to the higher court needs to be revised, he said.

Thapaliya, however, lauded some provisions which enlist reparations as the rights of the victims and focus on truth seeking.

Human rights experts say the war crimes and crimes against humanity fall under the universal jurisdiction of human rights, which can be prosecuted in any country if Nepal fails to sort them out through the transitional justice mechanism.

Mandira Sharma, a senior international legal adviser at the International Commission of Jurists, said the bill envisions prosecuting serious violations of human rights based on the Penal Code that came into effect in 2018. The enforced disappearances and torture were criminalised for the first time by the code.

“However, the code doesn’t have retrospective ambit to cover the cases from the insurgency. The code needs an amendment,” she told the Post. Sharma sees a problem in the composition of the Special Court, which, as per the bill, will be composed by the government in consultation with the Judicial Council.

“The court must be constituted by the council and must have more than three judges,” she said.

The bill has proposed setting up a fund to support reparations and compensation to which all three tiers of government, then warring parties, any domestic organisation or Nepali citizen, foreign governments or international organisations can chip in.

The government wants to wrap up the entire process within two years as the bill proposes a one-year tenure of the chairperson and members of the commissions with the possibility of extension by another year. Similarly, the Commission of Investigation on Enforced Disappeared Persons and Truth and Reconciliation Commission will have a maximum extended tenure of three years.

On Friday, the government increased the terms of the two commissions by three months, expecting that the amendment bill will be endorsed by the parliament within that period. The tenure of its chairpersons and members, however, has not been extended.

Through the amendment, the government wants to hire new sets of chairpersons and members for the commission.

Advocate Om Prakash Aryal said there is no possibility of investigating thousands of complaints in just two years. The truth commission has received 63,718 complaints while the number of cases is far lower—just 3,223—at the disappearance commission. But the disappearance commission is conducting investigations into only 2,484 cases saying others do not fall under its jurisdiction.

“The bill is targeted at providing amnesty with little attention to prosecution and sentencing,” Aryal said. “We are against it.”



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