July 26, 2022
KATHMANDU – International human rights bodies have called for an amendment to Nepal’s transitional justice bill saying in its current form the bill to amend the existing transitional justice law will not fully provide justice to victims or meet Nepal’s obligations under international laws.
Issuing a joint statement, the Amnesty International, the Human Rights Watch, the International Commission of Jurists and TRIAL International have demanded an amendment to the transitional justice bill, which has been registered in Parliament.
“Victims and their families who have waited anxiously for amendments to the law, hoping that their demands for truth and justice will be met, are disappointed,” said Mandira Sharma, senior international legal adviser at the ICJ, as per the statement. “Despite the promise of reform, this bill, if implemented as it is, would shield many perpetrators from being brought to justice.”
After the Supreme Court ruled that the current law fails to meet Nepal’s domestic and international legal obligations on several grounds, including that it empowers the two transitional justice commissions to grant amnesties to perpetrators of serious violations of international laws, the transitional justice process has been stalled since 2015 causing deep distress to conflict victims, and continuing to undermine human rights and the rule of law, the statement reads.
The rights bodies have pointed out major sections of the bill that violate international law—Section 2(5) categorises violations to make it possible to grant amnesties to perpetrators of gross violations of human rights, crimes against humanity and war crimes, while Section 29 (5) provides that verdicts of the Special Court, which will try transitional justice cases cannot be appealed to the Supreme Court, in violation of international fair trial guarantees.
Besides, it has also pointed out some significant omissions in the bill.
“The bill does not establish any special investigation unit in the transitional justice commissions or the prosecutor’s office tasked with evidence collection. Investigation units with expertise in human rights violations would ensure that investigations are prompt, thorough and effective in accordance with international human rights law and standards and that victims can access effective remedies,” the group states.
It also said the bill does not clarify the principle of non-retroactivity of criminal law in a manner consistent with international laws. “This omission makes it unclear how the Penal Code can be used to prosecute conflict era crimes, as stipulated by the bill, and allows the operation of statutory limitations for the crime of rape.”
Seven years after the Supreme Court’s directives for amendment, the government on July 15 registered a bill at the parliament secretariat to revise the Commission of Inquiry on Enforced Disappeared, Truth and Reconciliation Commission Act 2014.
The ruling coalition that includes the then warring parties the Nepali Congress and the CPN (Maoist Centre) had picked advocate Govinda Sharma Bandi from outside the Parliament as law minister in a bid to give momentum to transitional justice.
As per the court’s verdict of February 2015, the bill has listed out non-amnestiable cases of serious human rights violations, which include “cruel murder” or murder after torture, rape, enforced disappearances and inhumane or cruel torture.
The bill has segregated cases of human rights violations and serious human rights violations which were not included in the Act. The bill has listed all criminal acts, from rape and killings to arson and looting, as serious human rights violations and has loopholes for amnesties in all the acts except rape.
The rights groups have said 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 law including war crimes and crimes against humanity.
Victims’ groups and civil society organisations have issued statements calling on the Ministry of Law, Justice and Parliamentary Affairs and the Federal Parliament to amend the bill, to ensure that it respects international law and the aspirations of victims which were expressed during recent, brief, consultations organised by the government.
“The endless wait by the victims of conflict, and indeed all Nepalis, for truth and justice which political leaders first pledged in the 2006 Comprehensive Peace Agreement is already getting to a critical point,” said Dinushika Dissanayake, deputy South Asia director at the Amnesty International. “This bill should be urgently amended to address its serious weaknesses, because in its current form it cannot address Nepal’s long wait for a credible and lawful transitional justice process.”