Amendment proposal stirs a fresh debateA draft of amendment to the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act has proposed to restore constitutional rights of the attorney general to decide whether the perpetrator is to be prosecuted as directed by the Supreme Court.
A draft of amendment to the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act has proposed to restore constitutional rights of the attorney general to decide whether the perpetrator is to be prosecuted as directed by the Supreme Court.
The proposed amendment has increased the chances
of perpetrators being punished as recommended by the transitional justice bodies—Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP).
The existing Act has curtailed the discretionary power of the AG in implementing recommendations made by the transitional justice bodies. As per the Clause 29 of the Act, the commissions, after investigation into the conflict-era cases, are required to forward recommendations for prosecution of perpetrators to the government.
The government then decides the cases to be forwarded to the AG for prosecution through the Ministry of Peace—a coordinating agency between the government and the transitional justice bodies.
The victim community as well as rights defenders have opposed the provision, saying that the government should not be allowed a final say on the cases recommended by the commissions. The provision was introduced, they claim, to whitewash the crimes of political figures.
Stakeholders’ doubts stemmed from the government’s past records. The successive governments formed after 1990 and 2006 movements had set up Mallick Commission and Rayamajhi Commission respectively to investigate atrocities meted out on the protesters. But, neither commission made the reports public nor did they questioned the accused.
The victim community challenged the provision in the SC arguing that the gate keeping of the recommendations made by the transitional justice bodies was ill-intended and deprived the victims of their right to effective legal remedy.
The SC in January last year had issued an order recommending amendments of almost a dozen provisions to the Act. “We have seen the government shelving recommendations made by commissions formed on different occasions,” said Advocate Raju Chapagain. “The lengthy process of forwarding cases through the government also deprive the victims of effective remedy.”
As per the amended proposal, the transitional justice bodies recommend the AG for action against perpetrators of serious rights violation. The AG Office will proceed the case through a proposed Transitional Justice Special Court, which consists of three judges at trial court and three justices in appeal court.
The civil society has been demanding that the number of judges be increased to five instead of three.
Attorney General Raman Kumar Shrestha said the draft has incorporated SC verdicts as well as international standards and norms of transitional justice. “We have also incorporated a provision for the transitional justice bodies to exercise their discretion to decide compensation amount,” he said.
The government has set the compensation amount at Rs300,000, which rights advocates and victims termed as outrageous.
According to Shrestha, the ceiling for compensation has been removed. The proposed draft has even empowered the commissions to provide interim compensation to victims as and when necessary.
The rights advocates have also been emphasising on pluralistic approach for reparation, instead of focusing on monetary offer. Of late, the TRC has formed a committee to draft a reparation policy, which according to the commission, will lay out detailed programmes and packages.