5th September, 2022
- We, the conflict victims community have been cautiously observing the latest development in the transitional justice process. It is a commonly known that the victims’ community has been continuously demanding the amendment of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act 2014 (TRC Act) as per the decision issued by the Supreme Court of Nepal in 2015 since its formation
2.With the appointment of an expert in the field of Transitional Justice as the Minister of Law, Justice and Parliamentary Affairs (Ministry hereafter), we had hoped for justice. Accordingly, the victims’ community supported the Government in the consultations organized to receive feedback on the TRC Act. However, the Ministry registered the Bill to amend the TRC Act at the Parliament on 15 July 2022, overlooking the suggestions provided by the victims and the precedents established by the Supreme Court. The victims’ community, civil society, and the concerned stakeholders have expressed deliberate objection to the faulty provisions in the TJ Bill that jeopardize victims’ access to justice.
3.Since the Bill was made public , we have repeatedly raised our concerns around the problematic provisions with almost all the major duty bearers including the Prime Minister, the Minister, the Chairperson of the Law, Justice and Human Rights Committee of the Parliament, top leaders from both the ruling and opposition parties, and the National Human Rights Commission. We have been raising our concerns for the amendment in the TJ bill from the street as well.
4.We urge the government to take notice of the concerns from all dimensions regarding some of the extremely flawed provisions of the Bill such as the wrongful categorization of crimes under “violations of human rights” and “serious violations of human rights” Likewise, the provision of no appeal on the decisions from the Special Court to be constituted to settle the conflict-era crimes is a heavy compromise on constitutional as well as the international guarantee of the right to a fair trial. The short statutory limitation of six months for the Office of the Attorney General to file cases at the Special Court will ipso facto render it impossible for many complex cases of rights violations to require a long period of investigation – because of the need for exhumation, forensic and DNA reports, etc. to be litigated at the Special Courts. This provision should be compulsorily corrected ensuring the prosecution can be made after six months as well in the special cases of requiring further investigation.
5.The Bill also provisions that the Special Court will hear only cases of “serious human rights violations” meaning that less serious crimes listed under “human rights violations” cannot be litigated anywhere even if the victims do not consent to reconcile with the perpetrators. It seems
this provision promotes the culture of impunity. Misguiding intention will amount to denying the constitutionally guaranteed right to access justice.
6.Cosmetic changes aimed to deny victims access to justice and shielding perpetrators from accountability not only denigrates Nepal’s commitments to international human rights but also pushes the victim’s community into further pain and isolation degrading mental health.
7.On 23rd August, the Minister for Law, Justice, and Parliamentary Affairs tabled the Bill Prepared to Amend the Investigation of Enforced Disappeared Persons and Truth and Reconciliation Commission Act, 2071 (the Bill) in the parliament for discussion and approval. Now, the Bill is under the jurisdiction of the Parliament. It’s the critical moment of test of the Parliamentarians as the representatives from the people. - Do you stand in favor of the victims’ right to truth, justice and reparation, or do you stand in favor of giving immunity to those involved in serious human rights violations and abuses that have been rooted for decades? Not only us but the world is watching you closely. It is our wish that you should not let your conscience become a hostage to party interests, ill intention or any other hidden purpose and that you can maintain your self-respect and independent status and that you can confidently go to the people and ask for votes from the people for the next term as well.
9.Conflict victims have been raising concerns that if the current bill is passed in its current form, it will severely undermine the victims’ right to access justice and promotes impunity. We have also submitted the issues of the amendment (Chaar Mahale) with our concrete suggestions to all the honorable members of both the Houses of Parliament and other concerned authorities. They are the major demands from victims and CSOs. We herewith reiterate that it is only after the amendment of the Bill as per our suggestion that the TJ law will be in compliance with the verdicts of the Supreme Court and Nepal’s international human rights obligations. - After submitting the Bill to the Parliament, the Ministry of Law, in the presence of the Law Minister and the Attorney General, discussed with the representatives of the victims and human rights community how to amend the controversial provisions of the Bill in an acceptable manner. Including murder, torture, extortion and other serious sexual violence, crimes against humanity in the list of serious crimes that cannot be pardoned, ensuring that the case can be prosecuted after six months from the date recommended by the Commission in special circumstances, in any cases that cannot be reconciled and are not suitable for amnesty, it was agreed that the case could be trialed in a special court. Likewise, we would like to remind that it has been agreed that provisions such as providing a special bench to the Supreme Court for appeals against the decision of the special court, leaving it to the court’s discretion to reduce or not reduce the sentence by evaluating the circumstances that increase or decrease the seriousness of the crime, etc. will be included in the amendment bill. In the discussion, the victims felt being pressurized to be convinced as the political parties do not agree. We would like to re-emphasize that the law should be amended to pave the way for justice according to the feelings of the victims, as the attempt to amend the law only in terms of not amending these minimum things in the bill and to make it acceptable to the political parties will frustrate the rights of the victims.
11) Transitional justice is not only for the victim community. It should be accepted as a process of very important national importance and national pride that can change the direction and condition of the country itself. Rather, it is important to all the citizens of this country because we
need to collectively heal from the wounds of past conflicts for our collective well-being, progress and progress.
12) The responsibility of amending the amendment bill submitted by the government and passing it to ensure justice has come to the hands of the sovereign parliament. The meeting of the House of Representatives has already decided to send the bill to the parliamentary committee for quarterly discussion. We call upon the parliamentary committee and all the honorable MPs to be sensitive and responsible towards the situation of the conflict victims who have been deprived of knowing the truth about the incidents of murder, disappearance, torture, rape, mutilation etc. on themselves and their relatives for decades, and who are suffering from constant pain and injustice.
13) It is our joint request to immediately amend the flawed provisions in the transitional justice amendment bill registered in the parliament as per the feedbacks from the consultations and orders of the Supreme Court and not to ignore the minimum demands of the victims and the valid principles of justice, the order of the court. 14) We sincerely request all the honorable members of the Parliament and the Government to play a constructive role in passing the amendment of the minimum issues pointed out in the Char Mahale document by the victim community in this ongoing session of the Parliament. Also, we appeal to make the bill a law as soon as possible and appoint independent and competent commissioners in the commission through a credible process to pave the way for the remedial work of ensuring the rights of the victims to truth, justice and compensation. 15.Furthermore, we urge all the stakeholders who are involved in this process to play a creative and meaningful role in ensuring the victims’ -overdue rights to truth, justice, and reparation.