Bill seeks to bring under transitional justice cases now in court or in UN system

Published On: June 22, 2018 05:10 AM NPT By: Bhadra Sharma

KATHMANDU, June 22: The government is preparing to withdraw cases now being investigated by the courts and bring them under the transitional justice mechanisms.

The government is also proposing to request the United Nations through diplomatic channels to send cases being investigated under the UN Human Rights Committee back to Nepal, as part of efforts to resolve them through  domestic transitional mechanisms. 

A draft bill for amending the Enforced Disappearance Enquiry, Truth and Reconciliation Commission Act-2014 proposes bringing cases pending at domestic courts and the UN bodies under the transitional justice mechanisms.

The bill also renames the Act as the Transitional Justice Related Act-2018, and it was shared with stakeholders on Thursday for their feedback. 

The draft is being prepared in direct consultations with the attorney general, the law minister, main opposition Nepali Congress and former rebel Maoist leaders with legal backgrounds as well as former attorney generals. It aims at investigating the conflict-era cases through domestic transitional mechanisms—the Truth and Reconciliation Commission (TRC) and the Commission of Investigation on Enforced Disappeared Persons (CIEDP).

If the proposed provisions are endorsed without much change, the Transitional Justice Related Bill-2018, which was formulated to amend existing transitional act, cases pending at the district courts, the National Human Rights Commission and the Nepal Police will be transferred to the two transitional bodies. Experts involved in the law revision process claim that  application of universal jurisdiction will effectively end if the bill is endorsed. 

Sources said the Ministry of Foreign Affairs, with consent from the Office of the Prime Minister, will take the lead in withdrawing cases from the UN system.

As many as 350 cases are said to be  sub judice at various courts in the country. Informed sources claim that some 400 cases are under investigation under the UN system, in accordance with universal jurisdiction. 

The cases filed by  police during the armed insurgency, which are mainly against Maoist leaders and cadres, will be withdrawn with the consent of district courts and forwarded to the transitional justice bodies. However,  court cases filed by the victims themselves will not be transferred to the transitional justice bodies. 

Experts involved in drafting the bill to amend the transitional justice law claim that these cases were supposed to be withdrawn immediately after the signing of the Comprehensive Peace Accord-2006 (CPA). But the  withdrawal process was delayed due to lack of sincerity on the part of politicians. 

According to the existing transitional justice act, cases pending in court do not fall within the jurisdiction of the transitional bodies. Serious friction emerged in the past between insurgency victims and the government when the government tried to transfer sub judice cases to the transitional mechanisms—Truth Reconciliation Commission and Commission of Investigation on Enforced Disappeared Persons. Those  victimized by the Maoists are mostly against forwarding the sub judice cases to the transitional bodies.

Amid a row whether to bring sub judice cases under transitional justice mechanisms, the Supreme Court had ordered that  such cases be dealt with under the regular criminal justice process. On the basis of this, some politicians involved in the killings of Ujjan Kumar Shrestha and Dekendra Thapa were sent to jail. 

Defining rape and other kinds of sexual violence, torture, extra-judiciary killings and enforced disappearance as serious human rights violations, the draft bill declines to allow amnesty for these offenses, in line with a previous Supreme Court ruling. Perpetrators of kidnapping, mutilation, looting of private property and internal displacement can, however, be granted amnesty if the perpetrators disclose the truth and apologize to the victims themselves. 

Officials involved in drafting the law believe this will ensure accountability in other cases of violence as well.

The bill has revamped the mandate of the commissions so that they can analyze the trends and patterns of rights violations and find out the truth independently, and  the truth thus found out cannot be used as evidence against the suspects for the act of revealing the truth. “This is to ensure  truthfulness without fear, with a guarantee of no prosecutions. This principle does not apply in cases of serious human rights violation that go for detailed investigations,” said a source privy to the bill drafting process. 

Government officials claim that the draft bill has envisioned a genderfriendly and victim-centric approach, with victims of rape and sexual violence to receive special treatment for privacy. They will qualify  for reparations based on their oral statements alone. 

The draft obtained by Republica states there will be a national museum to memorialize the conflict era and a final report will be made public and sent to the national archeology office. There will be a national record of the victims for keeping at the museum. 
With a view to encourage the perpetrators to come clean, the draft proposes reducing sentences through restriction on movement with the seizing of passports for three years, community service for three years, fines of up to Rs. 500,000, and  restrictions on contesting elections, nominations for public positions or promotions for three years.

A separate Transitional Justice Special Court will finally prosecute perpetrators once  commission-level investigations are complete. Judges from the high courts recommended by the Judicial Council will man the special court. 

A person who does not tell the truth at the commissions but reveals it at the designated court will receive a three-year sentence in an open prison in case of his or her conviction. Likewise, somebody who denies  guilt but is convicted by the court  will receive 60 percent less imprisonment. “This provision is meant to encourage the alleged perpetrators to come forward either to tell truth or face the court for reduced sentences,” said the source.

The draft has introduced circumstantial evidence as  grounds for prosecution, opens up the scope of retrospective application of the law for serious offenses, removes the statute of limitations and opens up the scope of international human rights law and the principles of transitional justice, according to those involved in the drafting process.

Separate units on truth seeking, investigation, reparation and serious crime are proposed at the commission. 

Interim Relief Fund 
The draft bill has proposed an Interim Relief Fund at the commission that supports victims’ requirements, and also community mediation to ensure retroactive justice. It envisions funding from donors and the government.

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