Impunity through immunity

The Maoist Conflict lasted 10 years but has been over for 16. Two commissions to address transitional justice were set up following the enactment of the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation, 2071 (2014), but families of the victims and survivors have got neither truth nor justice.

And now a Bill to amend the Act further threatens to narrow the scope of criminal accountability. In fact, some provisions are direct attempts to exempt or provide immunity to perpetrators.

The Bill unfairly classifies torture as humane and inhumane, and has made torture other than inhuman and cruel torture eligible for amnesty. This is against the Convention against Torture, to which Nepal is a party.

Even killings are divided into 'brutal' and 'ordinary'. The killing of an unarmed person or a non-combatant, or even the killing of a combatant after taking such person hostage is a war crime, and cannot be selectively categorised to bypass criminal accountability.

To exclude such killings from the scope of serious crimes is a violation of international legal standards and jurisprudence including under Geneva Conventions as well as International Covenant on Civil and Political Rights (ICCPR).

The amendment further proposes that the decision of the special court be final. But there should be a provision that guarantees the right to appeal. The Supreme Court could be entrusted with the jurisdiction for finality of decision.

And if punishment had already been imposed by any court established under the existing law of that time, a provision in the Bill does not allow for further investigation. Such a provision should only be applicable to ordinary courts.

Another issue with the Bill is the time limit for prosecution: it stipulates that a decision to prosecute or not to prosecute must be made within six months of the recommendation by the Commission. A thorough investigation is needed to gather evidence on such a complex matter after all these years and this limit is just not enough.

The provision risks turning prosecution into a mere formality. Even if the case is prosecuted, there may be a low chance of conviction by the court.

To be sure, there are some positive aspects of the Bill. The right to reparations is guaranteed and creating a fund for inquiry related purpose and reparations are good. The Bill also says that reconciliation and amnesty can take place only with the free consent of the victim. There are also provisions for interim relief.

An important suggestion raised in the recent consultation was the re-appointment of officials for both Commissions. While re-appointment has been addressed, the selection process is ambiguous enough that it opens doors for politicisation of the selection process, as was the case in the past. Reappointment alone is not enough, how the appointments are made makes a big difference.

A must-needed amendment to the 2015 Act is therefore a transparent process for appointing new commissioners to the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons.

In short, the Bill is flawed in terms of punishment, serious crimes and amnesty. It must be brought into conformity with Nepal’s and international human rights law obligations, and based on the spirit of the Supreme Court's past precedents.

Now is the high time for the law makers of the Federal Parliament to scrutinise the provisions of the bill wisely and fix the flaws in light of the Supreme Court rulings and international legal standards. There should be no compromise in terms of the standard-setting.

Otherwise, thousands of families will continue without any closure, truth or justice. Nepal will never resolve conflict-era heinous crimes. And Nepalis will perpetually be in a state of confusion and hurt. All of this will tarnish Nepal’s international standing irreparably.

Based on a conversation with Raju Prasad Chapagai, who is a practitioner in the field of constitutional and human rights law.

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