By TON Research Desk

On Friday, the Nepal’s government registered bill seeking changes in Act seven years after top court ruling that struck down amnesty provisions in serious human rights violations. Amendments to transitional justice law ‘reformist but not satisfactory after seven years of the Supreme Court’s orders for amendment.

The government on Friday registered a bill at the parliament secretariat to review the Commission of Inquiry on enforced missing, Truth and Reconciliation Commission Act 2014, which the conflict victims and human rights activists say is progressive but far from reasonable level .

As per the court’s verdict in February 2015, the bill has listed out non-amnesty cases of grave human rights abuses, which comprise “cruel murder” or murder after torture, rape, enforced disappearances and brutal or cruel torture.

It has separated the cases of human rights violations and serious human rights violations which is not the case in the current Act. The law has registered all criminal acts, from rape and killings to burning and plundering, as grave human rights defilements and has ambiguities for pardons in all the acts except rape.

The bill has the provisions that the provisional justice commissions will make suggestions to the Attorney General’s Office to start trial of cases of grave human rights defilements. A Special Court consisted of three judges from high courts will take conclusions in cases of serious human rights violations filed by the Attorney General’s Office within six months of the suggestions from the two commissions.

Criminal cases from the decade-long insurgency that are under trial at the district and high courts will be moved to the Special Court. Any decision from the Special Court will be ultimate with no provision for an plea to the Supreme Court.

The bill has been equipped following to the Supreme Court’s verdict, the international principles of human rights and the response from conflict victims and civil society. It focuses on truth looking for, right measures and prosecution in grave human rights violations.

In 2015, a full bench had annulled the amnesty provisions in the Act, ordering the government to modify the law. The former government in June 2018 had made public a draft to the modification in the Act for the deliberations. It, though, was never listed in Parliament after the subsequent oppositions from the sufferers, human rights protectors and worldwide human rights groups.

On Friday, previous to making the bill listed, the law ministry had held discussions with conflict sufferers, human rights protectors and officials from security forces. Some of its provisions need amendment before it gets through the parliament.

The bill require to get through both Houses of Parliament before it comes into implementation. Its necessities can be reviewed in Parliament or in the parliamentary committee earlier to ratification. The provision that only “cruel murder” or murder after torture or rape will be indicted shows there can be amnesty in other murders and there are risks that all sorts of murder will be listed as amnesty crime.

There are serious reservations over the provision that the cases moved to the Special Court from other courts will be promoted to the transitional justice commissions to determine whether they are the cases of grave human rights violations or not .

Although, the bill has many liberal provisions, it is very weak when it comes to trial because amnesty is its due focus. The bill permits the government attorneys to file the cases with abridged sentencing if a committer discloses the facts they have in a specific case, collaborates in disclosing the reality behind the case they were intricate in, and admits to and say sorry for the crime they have committed.

The bill also says the punishments in every grave human rights violation from the conflict era will be abridged equated to that of the current practice. The People of Nepal have serious concerns with several provisions in the bill though it is liberal compared to the present Act. However, it is not at parity with the expectations. The bill fails to include crimes against humanity, war crimes and ethnic killings that occurred during the insurgence as non-amnesty crimes.

The provision to decrease punishments in all cases of serious human rights violations and not including pleas against the Special Court’s verdict to the higher court needs to be reviewed. The warfare criminalities and wrongdoings against humanity fall under the universal jurisdiction of human rights, which can be prosecuted in any country, if Nepal fails to sort them out through the provisional justice mechanism.

The bill envisages indicting serious violations of human rights based on the Penal Code that came into effect in 2018. The enforced disappearances and torture were criminalized for the first time by the code.

However, the code doesn’t have retrospective ambit to cover the cases from the insurgency. The code needs an amendment,” she told the Post. Sharma sees a problem in the composition of the Special Court, which, as per the bill, will be composed by the government in consultation with the Judicial Council.

The court must be constituted by the council and must have more than three judges. The bill has proposed setting up a fund to support reparations and compensation to which all three tiers of government, then warring parties, any domestic organization or Nepali citizen, foreign governments or international organizations can chip in.

The government wants to wrap up the entire process within two years as the bill proposes a one-year tenure of the chairperson and members of the commissions with the possibility of extension by another year. Similarly, the Commission of Investigation on Enforced Disappeared Persons and Truth and Reconciliation Commission will have a maximum extended tenure of three years.

On Friday, the government increased the terms of the two commissions by three months, expecting that the amendment bill will be endorsed by the parliament within that period. The tenure of its chairpersons and members, however, has not been extended.

Through the amendment, the government wants to hire new sets of chairpersons and members for the commission. There is no possibility of investigating thousands of complaints in just two years. The truth commission has received 63,718 complaints while the number of cases is far lower—just 3,223—at the disappearance commission.

However, the disappearance commission is conducting investigations into only 2,484 cases saying others do not fall under its jurisdiction. The bill is targeted at providing amnesty with little attention to prosecution and sentencing.