The Asian Human Rights Commission (AHRC) objects to the remarks made by the Government of Nepal that it is not going to amend the Truth & Reconciliation Commission (TRC) Act. The Act was adopted on 4 May 2014, despite it being in contravention of the 2 January 2014 Supreme Court directives.
The government has argued that none of the clauses allow the Commission to provide blanket amnesty to perpetrators without the victim´s consent. The Ministry of Law and Justice has strongly defended the Act in a written statement to the Supreme Court. Sadly, the Government has not been sincere in addressing the legitimate concerns of the Act’s critics.
More than 230 conflict era victims have challenged the Act and filed a case in the Supreme Court of Nepal. Human rights defenders and lawyers in Nepal have been supporting these victims and their case. The hearing date on the case was scheduled for 10 July 2014. However, in line with the established culture of delays and postponements in Nepalese courts, the hearing has been postponed.
The AHRC has been objecting to this version of the law since it was conceived in 2006. The process of establishing the TRC is faulty as it is not in line with Nepal’s Supreme Court directive and international law and standards. Last week, the OHCHR released an 8-point technical note, which details faults that need amending. It concludes that a number of provisions of the TRC Act violate Nepal’s obligations under international law, and allow amnesty for what are grave crimes under international law.
A joint press statement by 5 UN Special Rapporteurs (Pablo de Greiff, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence; Ariel Dulitzky, Chair-Rapporteur, Working Group on Enforced or Involuntary Disappearances; Christof Heyns, Special Rapporteur on extrajudicial, summary or arbitrary executions; Rashida Manjoo, Special Rapporteur on violence against women, its causes and consequences; and Juan E. Méndez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment) has also voiced serious concerns about the Act and asked the government to amend it, as per Nepal’s Supreme Court directive and international laws. In other words, the UN has flatly rejected the flawed Act. Civil society and human rights organizations in Nepal have also been raising strong objections to the Act. All these objections have gone unaddressed by the Government.
There appears to be a disconcerting trend even beyond the TRC Act. The Government of Nepal appears to be on a spree of introducing flawed acts. The Government recently tabled the Contempt of Court Act in Parliament, for which it has received wide condemnation. And, it is working to propose a law governing non-governmental organizations, which is already being criticised. The Government of Nepal is trying to use such Acts to restrict democratic values, and thwart avenues to a just and open society.
In terms of the TRC Act, being a state party to the United Nations, if Nepal denies the objections and criticisms, it will be tantamount to it standing apart from the international community. It is a breach of international law and standards to ignore national and international calls to amend the TRC Act. Also, a state dependent on international support and financial assistance is only going to suffer in dismissing valid criticism. It is not a good sign for the peace, prosperity, and future development of Nepal.
Nepal’s donors that have been active on human rights issues have, of late, conveniently shifted their priorities towards “poverty alleviation” and developmental activities. They have kept quiet on impunity and the TRC process. One cannot imagine developing a nation in absence of the rule of law. This is a very crucial time in Nepal; the peace process needs to be brought to a logical conclusion. There is no way other than taking a firm position in contributing to address impunity, promoting equality, and strengthening the rule of law in the country, pre-requisites for sustainable development in Nepal.
Nepal’s donors should remember the promise they made last year, when they expressed being unable to support transitional justice mechanisms that do not meet international standards. They should take a stand and decide not to support the TRC established under this flawed law. It cannot become a part of the process that strengthens impunity in Nepal and curtails victims of their rights. The TRC Act must be amended; and the government should make amendments only after meaningful consultation with victims, families of victims, members of civil society, and the National Human Rights Commission.
