Almost three years after the Supreme Court verdict, the government has drafted a bill on the amendment of acts of Commission on Investigation of Enforced Disappeared Persons and Truth and Reconciliation Commission. The draft, currently under discussion, would govern the transitional justice process after the Parliament endorses it. Mukul Humagain and Binod Ghimire met with Attorney General Agni Kharel to discuss what the new draft constitutes and whether they consulted all stakeholders while preparing it, and why it took so long to prepare it? Excerpts:

You were the Minister for Law and Justice when the draft amendment of the Transitional Justice Act began, but it took two more years to complete it. What delayed it?

Accomplishing transitional justice (TJ) is the remaining task of the peace process that is taking too long. After the end of the armed conflict all political parties came together leading to the promulgation of constitution possible. The other issues of the peace-process were completed as per the Compressive Peace Accord (CPA), but providing justice to the war era victims and bringing the truth to the fore remained unaddressed for long.

There are many reasons for not completing the transitional justice process according to the CPA. Lack of political will is probably one of them. The longer the delay, the more the victims suffered. This denied long-awaited justice to the victims. The new government, led by Prime Minister KP Sharma Oli, took this issue seriously and completed the draft as per the spirit of Supreme Court verdict.

What was the problem? Do you think this government has the will to accomplish the task?

There could be multiple reasons why it took so long. We might have underestimated the issue. Only after giving justice, relief and reparations as per the victims’ needs we can end this long-pending issue. We did our best to complete the draft amendment earlier, but we could not do it. The draft encompasses the process we started two years ago, we believe, we had taken the right path then. Regarding the issue of where did we started, prime minister is committed complete this process along with all stakeholders.

As easy as it would be to make the law victim centric in order to ease the process, it would be equally difficult if we did not make one. The Supreme Court verdict rightly told the government to make a distinction between cases of severe and not so severe human right violations.

The draft proposes substantial changes to the existing provisions. Do you think a new Act would have been a better idea?

There are many implications for the new Act. There was a proposal to rename the Act to ‘Act to Manage Transitional Justice’. There were several issues right from the process of investigations and dates regarding transitional justice. Therefore, we proposed it as law regarding transitional justice and in the past, the commission had its jurisdiction regarding its rights and responsibilities. Perhaps, the people displaced and affected due to the armed conflict, children, security personnel and disqualified combatants should be included since families of security personnel too are victims.

Another issue is regarding the limitations of the statute. The issue here is that the topic of no statute of limitations to file the case against the perpetuator of serious human rights violations is being raised. Cases of serious human rights violations are those remaining four out of nine incidents that I mentioned earlier. There should be no statute of limitations for acts on those four crimes. The draft also proposes setting up a Special Court to look after the cases to expedite transitional justice process.

Will it oversee all the cases regarding the transitional justice?

The proposed Special Court as per Special Court Act 2002 would have the authority to deal all the TJ cases. All the cases that are sub-judice in district and high courts would be transferred to Special Court, however, cases with the Supreme Court would continue to be under its purview. The proposed Special Court would enjoy the authority of the district and high courts.  We have competent judges in the high court with expertise on transitional justice.

The draft proposes concessional penalties for convicted perpetrators that range from community service, reduction of prison terms by 60 percent or 75 percent. What is the basis to categorise the perpetrators?

We ask for community service of the culprits by observing their behaviour from the beginning of the investigation; signs like whether he is hostile or cooperative. The provision of TJ is not to send all cases for litigation. The state does not go through such situations often; therefore, it has treated it with circumspection looking at its future as well. As the TJ, bodies have some cases that more than two decades old, it might not be possible to find evidence for such cases to put the perpetrators on trial. There would be actions in emblematic cases, but no victims would be deprived from justice and their rights to reparation.

The concern of the victims is that only a few emblematic cases would be tried and even the punishment would be very mild. This is tantamount to escape. What is your opinion on this?

After legal investigation, cases with severe violations would eventually show up, and in the manner of coming out of facts, and his/her way of asking forgiveness would depend on the type of punishment he/she receives.

We are on course to set new jurisprudence for TJ. If we go hard after the culprits by promising severe punishments, we cannot guarantee that he/she would speak the truth during investigation. The severity of the punishment is not universal. It might be country specific. We have considered this aspect while proposing penalties.

Earlier you said that there is political commitment, but were the Army, civil societies and the international community consulted before completing the draft? How consultative was the process?

This is a zero draft that was floated for the further discussions and the consultation process is still ongoing. I have met the victims’ representatives several times to get their feedback. I have observed that the victims do not want it to linger and wish to put an end to it positively. There have been rounds of consultation with other stakeholders including civil societies and national and international human rights organisations. We are still open to feedback and recommendations. By the time it is endorsed by the Parliament it would be a complete document.

Could the Army and other security personnel be exempted from trial? They say they did not do anything intentionally. They were just following orders from the governments then in power.

Army has its own law. The civil law also looks at the nature of crime. If they were found guilty in the Army court and had received sentences, we might have to reduce their punishments. We have to look at the sensitivities of the side that fought for the state and against it as well. Our major focus should be adopting the process that assures non repetition.

The international community including the UN had some reservations on the existing Act? How confident are you that the international community would accept the upcoming Act?

I have met ambassadors from many countries including representatives from the UN. We have incorporated many suggestions from all parties. Suggestions of many I/NGOs, experts with experience in these fields have been taken into consideration before the finalisation. The draft adheres to spirit of international practice in TJ while also has some home grown concepts.

The Act is only going to provide the legal basis; the real implementing agencies are two the transitional justice commissions that have so far failed to perform. How confident are you that the remaining work would be accomplished by existing commissions in next eight months they have?

There has been some criticism of the commissions over their non-performance and the commissioners are well aware of the fact. I believe they understand the severity of the cases and do not want the victims to suffer further. I do not think it is appropriate to comment any further on this matter now.

One of the major parts of the TJ was that of child soldiers. Many issues were raised, yet this hasn’t been incorporated in this document either. Why so?

We have used the word ‘disqualified combatants’ that brings child soldier to its ambit. The minor combatants would be treated as disqualified. We will not address it in any other way. They would get the government assistance at par with other disqualified combatants.

In a recent interview, while talking about TJ, the Chairman of National Human Rights Commission made a strong comment that investigation into the war era crime cases might even lead to the fall of government. What is your opinion on this?

Well, I cannot have my say over someone else’s statement. Please ask the person who said it, as I cannot take responsibilities of something I have not said.

The reason why it came forward is that NHRC is the monitoring stakeholder of the transitional justice.

Of course, NHRC is monitoring. For example, if someone says that, he/she could not receive enough reparation, or one might always feel unjustified and then there should always be a place to go and complain; that place is the NHRC. It obviously has a monitoring role even if the two TJ bodies are not in place.