NEPAL: Revamp transitional justice legislation before extending tenure of Commissions

The mandate for The Truth and Reconciliation Commission (TRC) and the Commission of Inquiry on Enforced Disappeared Persons (CIEDP) is fast approaching their end. With February 9 as a deadline to complete work, only a week left in hand, bringing confusion not only to Commission members, but also conflict victims.

The Commissions were established two years ago to investigate conflict-era cases. As per the existing law, the Commissions’ term can be extended by one year if deemed necessary. The CIEDP has already requested the government for extension of its tenure by one year.

However, the term extension is also not going to be of much help as the two commissions are constrained due to lack of required legislations.

The TRC has received 58,052 complaints related to human rights violence committed during the conflict period by the State and the then Maoist rebels. The CIEDP has received 2,888 complaints. However, the Commission has not been able to speed up its work due to delay by the government in promulgating the required legislations. This has delayed justice to conflict survivors and the Commissions have not been able to carry out their works effectively.

The conflict victims have even lost hope due to lack of legislation for addressing legal problems like not granting general amnesty in cases related to serious violation of human rights. TRC has not been able to carry out its work, other than collecting complaints, due to the lack of human resources and the necessary legislation. It has not been able to carry out investigations despite opening offices in all the seven provinces. The government has recently released a budget, but there is confusion in the opening up of provincial offices as their tenure is coming to end.

In January 2015, the Supreme Court had struck down a dozen provisions of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, which were inconsistent with international laws and transitional justice practices.

The amnesty provision of the Act must not be forgotten. The court verdict ruled out amnesty to serious crimes, including murder, torture, disappearance, and sexual assaults. Nevertheless, the government has not streamlined the provisions in line with the verdict, which has created doubts about its intention to prosecute perpetrators.

The TRC has taken a stance that it will not seek one-year extension of its tenure if the government did not amend the laws and enact new legislation. Majority of TRC members have sought time-bound guarantee of legal reforms and logistics before initiating investigation into the complaints registered by conflict victims.

The government is yet to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act in the last two years as ordered by the Supreme Court, never mind enacting laws criminalizing the act of disappearance and torture. The CIEDP has more challenges ahead, as the act of disappearance has not been criminalised in Nepal. The government has been holding onto the draft of the bill the Commission had forwarded last year, seeking to criminalise the act of disappearance.

The government is yet to criminalise torture. An anti-torture bill has been registered at the Parliament Secretariat two years ago, as the government was in a hurry to initiate repatriation of Nepal Army Colonel Kumar Lama, who was arrested in the United Kingdom under universal jurisdiction. As Colonel Lama has already been released in September 2016 due to the lack of evidence to prove him guilty beyond reasonable doubt, the process of endorsing the bill is distant in current circumstances.

If the Nepalese government continues to ignore calls for legal reforms and logistics, these commissions can neither recommend action against the culprits nor initiate reconciliation efforts. Moreover, it will be useless to start investigation into the registered cases due to this lacuna. Therefore, there must be firm commitment from the government to fulfil legal prerequisites and logistics on time before they grant extension to these Commissions.

The government is to blame for failing to keep its promises to amend the law in line with the international laws and standards of transitional justice process. The incumbent Maoist government came in power in August 2016 with promises to expedite the transitional justice process and conclude the remaining tasks of the peace process.

The national and international human rights community sidelined itself from engaging in the process, as there are still legal lacunae in the transitional justice act that are not up to international standards. Rights defenders and organizations have been demanding amendments to the Act, but the government has been ignoring calls for legal reforms.

Given the preparation and progress made so far, the TRC and the CIEDP will not even begin formal investigation into the incidents of the conflict period by the time their mandate expires.

It has been too long a wait for justice. The government should be responsible for the consequences if the ongoing transitional justice process, which is half way through, fails without result.

It comes as a no surprise that the government may extend the term without taking care of other issues, as the Commissions were set up to whitewash crimes committed during the war. The conflict victims do not trust these commissions as they were formed without consulting the victims and by even ignoring the Supreme Court verdict that directed the process be made victim-centric.

With no decision in place, and with their tenure ending on February 9, conflict victims are increasingly worried about whether justice will ever be served. Victims want closure to their cases, and end the fiasco. The government must amend the existing transitional justice acts, and bring required legislations before providing extension to these Commissions. It will help facilitate the investigation process, and earn the trust of conflict victims.

Document Type : Statement
Document ID : AHRC-STM-006-2017
Countries : Nepal,
Issues : Administration of justice, Freedom of expression, Judicial system, Legislation, Rule of law,