A welcome proposalThat disappearance and torture have been criminalised for the first time is good news
There is now cautious optimism over recent developments on the transitional justice process. After much dithering, Parliament yesterday gave a year’s extension to the two transitional justice bodies—the Truth and Reconciliation Commission (TRC) and the Commission of Investigation of Enforced Disappeared Persons (CIEDP). But it is still unclear whether the political parties will give the much-needed legal teeth to the two bodies, which have found their mandates constricted with the parties giving them conflicting signals about the closure of outstanding cases of human rights violations.
Still, 10 years after the end of the armed conflict and two years after the formation of the transitional justice bodies, there is finally some degree of legal clarity regarding disappeared persons. Though it took a long time, the move augurs well for Nepal’s much delayed transitional justice process.
According to a proposed law, the incidents where the people in question never appeared (‘continuous disappearance’) will come under the purview of the CIEDP. The new definition is likely to halve the number of incidents of enforced disappearances (currently, close to 3,000). If a ‘disappeared’ person returned home after being in illegal detention or if their death has already been established, the case will fall under the TRC’s jurisdiction.
The move comes almost two years after a Supreme Court order asking the government to define the term ‘disappearance’. The government has now readied an amendment bill to the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act-2014. The amendment is important to move the transitional justice process forward.
A maximum of 20-year jail term has been proposed for perpetrators of murder and disappearance. The proposed bill has also ensured a 15-year jail term along with a fine of Rs500,000 for rape cases. Similarly, a five-year incarceration will be slapped on perpetrators of torture that occurred during the insurgency.
This is a landmark decision in the annals of post-conflict Nepal, as it struggles to come to terms with its war-era past. It is the first time that disappearance and torture have been criminalised. Equally important, disappearance and torture are now categorised as crimes of grave nature for which amnesty is not possible. The first amendment has also categorised incidents of looting, seizure, breaking or arson of private and public property and forceful eviction from house and land or displacement as “incidents of rights violation.” Currently, they are categorised as serious rights violation for which amnesty is not permissible.
The amendment bill prohibits the transitional justice bodies from recommending amnesty to perpetrators of crimes of a grave nature, which is in line with international laws and transitional justice mechanism. The draft, expected to be endorsed in a couple of weeks by Parliament, has also ended speculations about the government’s possible move to whitewash conflict-era crimes for now.