6 February, 2019
Twelve years after the Comprehensive Peace Agreement (CPA), Nepal’s transitional justice process which is an integral part of the peace process failed to move ahead in a credible and meaningful way. The Truth and Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons completed their initial mandate of two years and their mandate was extended to two more years on two separate occasions. The mandate is expiring on 9 February 2019. However, the government has not been able to frame necessary laws in accordance with the constitution, international treaties and conventions that Nepal is party to and the orders of the Supreme Court of Nepal to prosecute those involved in grave violations of human rights. These commissions have not been able to conclude even a single case among around 65,000 cases filed at both commissions.
With the commissions’ tenure about to end, there has been serious concerns and uncertainty regarding the way forward for transitional justice process. Stakeholders, including conflict victims, human rights community and civil society have been demanding that no law should be framed to provide amnesty and immunity to perpetrators involved in serious crimes including war crimes, crimes against humanity, rape and sexual violence and that a meaningful and wider consultation should be followed for the amendment process of the law. The government, however, has been ignoring these demands.
In this context, there is a need to take lessons from the obstruction and failure in transitional justice and carry out a serious review. Just extending the tenures of the commissions without reforming laws, mechanisms and processes will not fulfill the main purpose of the formation of the commissions. This kind of patchy and ad hoc step will not only fail to guarantee victims’ rights to truth, justice and reparation but also further institutionalize the entrenched culture of impunity. We, human rights organisations, rights activists and members of civil society reaffirm our past views and confirm our position on the amendment process of the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act, 2071 (2014) and on the restructuring of the commissions which are as follows:
1. Amendment of the Act is the main demand of the stakeholders including victims, human rights community and civil society. The Supreme Court of Nepal has also issued a landmark decision on this issue. The Act needs to be immediately amended in line with Nepal’s Constitution, the Supreme Court orders, Nepal’s obligations under international treaties ratified by the country and established standards of transitional justice to advance the TJ process in a credible manner.
2. Comprehensive and meaningful consultation with stakeholders including conflict victims, human rights community and civil society should be ensured during the amendment process of the TJ Act.
3. The Nepal government had provided the draft of the amended Act to the stakeholders in June 2018 and different national and international human rights organizations including the victim community, civil society, human rights community, National Human Rights Commission and the United Nations Office of the High Commissioner for Human Rights had expressed serious concern on the draft. We strongly object to the fact that the same draft has been taken forward. The Act amendment process should progress only after incorporating the suggestions from the national and international human rights community.
4. Law amendment in line with international standard and jurisprudence established by the Supreme Court of Nepal as well as based on consultation with the stakeholders and restructuring of transitional justice commissions should be the basis of the transitional justice process from hereon. The transitional justice commissions should be restructured in line with international standards and made free of political interference, be victim-centric, impartial, independent, autonomous and competent. Independent and competent commissioners should be selected based on a transparent and impartial process and the commissions should be restructured. There should be a guarantee of no conflict of interest in the appointment process.
5. All the complaints, evidence and documents registered at the commissions should be put under the protection and monitoring of National Human Rights Commission until the restructuring of the commissions.
6. There is an immediate need of framing the laws to end the legal vacuum on criminalizing all past grave violations of human rights including war crimes, crimes against humanity and on punishing the guilty. Moreover, there should be no statute of limitation for the crimes mentioned above.
7. Victims of sexual violence and torture have not yet received interim relief. Immediate relief and interim reparation should be provided to them.
Lastly, the state must deal with the current obstruction in transitional justice process and the interventions from perpetrators and should guarantee the protection of victims and human rights defenders. The National Human Rights Commission and international human rights community should carry out continuous monitoring in line with the CPA to make the transitional justice process independent, impartial and effective.
Name list of human rights organisations and members of the civil society
