Uncertainty looms over transitional justice amid delays in tabling billAs conflict victims, rights activists and international rights bodies cry foul at some provisions, those involved in drafting the bill say there’s a lack of political will.
When the Ministry of Law and Justice held a series of consultations with conflict victims with a view to moving forward the transitional justice process, they were optimistic. Human rights activists were also encouraged.
The transitional justice process has remained stuck for years largely due to the failure to amend the Enforced Disappearances Enquiry, Truth and Reconciliation Act 2014 in line with a 2015 Supreme Court order and international standards. The themes for the consultations were designed jointly by the representatives of the victims, human rights activists and officials at the ministry.
Accordingly, a bill to amend the Act was registered at the Parliament Secretariat on July 15. It was made public the following day, to the disappointment of the conflict victims as well as rights activists.
They said that while the bill did incorporate some of their suggestions and was progressive to some extent, it largely aimed at shielding those involved in serious human rights violations from prosecution.
As many as 41 organisations of conflict victims and 39 human rights organisations have already demanded that the government revise “problematic” provisions in the bill, categorically pointing out their reservations about several of the issues.
International human rights organisations too have joined the league.
On Monday, Amnesty International, Human Rights Watch, the International Commission of Jurists and TRIAL International said the bill in its current form cannot fully ensure justice to the victims and meet Nepal’s obligations under international laws.
“Nepal’s government and Parliament should revise the amendment bill to align the law with international legal standards,” the rights organisations said in a joint statement.
“Although the new bill removes some of the previous amnesty provisions, it would still be difficult or impossible to prosecute those responsible for serious violations of international laws including war crimes and crimes against humanity.”
Now that the bill is facing criticism, it has become uncertain when it will be tabled in Parliament.
Minister for Law and Justice Govinda Sharma Bandi has on several occasions said that the amendment bill would be tabled in Parliament by mid-July and subsequently presented for deliberations “soon.”
It has been more than 10 days since the bill was registered, but the government is not sure when it will be tabled for discussions and endorsement.
“The tabling of the bill has been delayed following criticism from different quarters. We are not sure when it will be tabled,” said a senior official in the ministry. Ministry officials said they could not prepare the bill independently, and several of the provisions were included under pressure from political parties.
In his briefing to victims and human rights activists on July 17, Bandi said the bill was a document of compromise and he too was not satisfied with some of its provisions.
“He, however, called for our support to the bill saying it will at least bring the transitional justice process on track,” Suman Adhikari, the founding chair of the Conflict Victims Common Platform whose father was killed by Maoist insurgents in 2002, told the Post. “We expressed our reservations about some of the provisions and demanded revisions.”
A day after the bill was registered in the Parliament Secretariat, the terms of the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons and their officials ended on July 16.
The government though extended the terms of the commission for three months invoking Section 42 of the Act, the terms of chairpersons and members were not extended, rendering the two bodies headless effective from July 17.
Last week, Minister Bandi told the Post that he would appoint chairs and members to the commissions before he retires as a minister. Appointed on April 7 from the non-lawmaker category, he has less than two and a half months to serve as minister. The delay in tabling the bill will also delay appointments to the commissions. The terms of the two commissions end on October 17.
“Uncertainty once again is looming large over the transitional justice process. The bill should get through parliament as soon as possible after a revision of the provisions that intend to give amnesty to perpetrators,” said Adhikari. “Lingering the process to amend the Act will further delay justice to the victims. The victims must not be victimised further.”
Victims and human rights organisations have expressed their reservations about the list of non-amnestiable crimes in the bill.
The bill says “cruel murder” or murder after torture, rape, enforced disappearances and inhumane or cruel torture committed against unarmed or ordinary people during the insurgency are serious human rights violations and are non-amnestiable. It, however, doesn’t list war crimes and crimes against humanity under serious human rights violations.
The bill has opened the door for amnesty for murder by saying only “cruel murder” will be non-amnestiable, thus providing a loophole to define all murders as non-cruel and grant amnesty for all murders.
They also have said the provisions that the verdict of the Special Court cannot be appealed to the Supreme Court is against international fair trial guarantees. They also object to the provision that the cases of human rights violation from the insurgency from 1996-2006 that are sub judice in the district courts and high courts will be sent to the two commissions to ascertain if they are the cases of serious violations of human rights.
Those involved in—and familiar with—the drafting of the amendment bill say the political parties created barriers to incorporating provisions on a par with international laws and Nepal’s obligations. The provision to bar the appeal of the Special Court decision to the Supreme Court was introduced at the behest of the parties, according to them.
“We had to struggle hard to get the bill to this shape. Parties don’t want stern provisions in the bill,” an official involved in the drafting process, told the Post requesting anonymity fearing retribution. “The Law Ministry made every attempt to incorporate the suggestions from the victims and human rights defendenders.”
Former officials at the commission say they are worried that the entire transitional justice process could become more complex.
Ganesh Datta Bhatta, whose tenure as the chairperson of the truth commission ended only recently, said the government raised the hope of the victims and other stakeholders by making tall promises. “However, the amendment bill is not even close to the commitments the government made,” he told the Post. “I can say the law minister failed to understand the complexities of the issue.”
Conflict victims say if the bill is tabled in parliament, there is a scope for a revision as the lawmakers can file amendments to the bill. However, delay in its tabling could lead to a situation when the Act could be amended through an ordinance, according to Adhikari. “In that case, the government can bring the law as per its wish,” he said.
The government is preparing to announce the election date for the federal and provincial elections soon. And it is possible that the term of the House will end shortly after the election date is announced.
Officials at the Law Ministry, however, say they will table the bill in parliament “at a convenient time.”
“I believe the bill will be tabled in parliament after consultations at the Business Advisory Committee at a convenient time,” Man Bahadur Aryal, a joint secretary at the ministry, told the Post. “Yes there are some reservations from different quarters, which I believe can be sorted out after discussions.”