Nepal | July 09, 2020

Act amendment process snail-paced

• Transitional Justice

Roshan S Nepal
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  • Law ministry plans to finalise draft before the start of the winter session of Parliament

Kathmandu, October 25

Although the Ministry of Law, Justice and Parliamentary Affairs had said it would initiate discussions with stakeholders — including political leadership and victims — on the draft amendment to Transitional Justice Act after Dashain, the process has not moved ahead as expected, thanks to various reasons such as transfer of officials concerned.

Ramesh Dhakal, who had been overseeing the process until he was with the ministry as joint secretary, has now been promoted to secretary and transferred to the Office of the Prime Minister and Council of Ministers a month ago.

Secretary at the law ministry Rajib Gautam said consultations would be expedited once Dhakal’s replacement was named.

“Currently, the process has stalled. Dashain has just concluded, so we will soon expedite consultations,” said Gautam.

The ministry now expects to finalise the draft amendment to Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act 2014 before the start of the winter session of the Parliament which is likely to begin no earlier than January. “We expect the draft to mature before the start of the Parliament session,” he said.

The ministry has been saying that the amendment would be done on the basis of six factors — Comprehensive Peace Accord; Nepal’s national and international obligations related to human rights; fundamental principles of transitional justice; decisions and orders of the Supreme Court; sentiments of conflict victims; and Nepal’s legal and political processes.

The Supreme Court has ordered the government to amend the act in line with international standards.  The apex court has ruled that there should not be amnesty for grave human rights violations such as extra-judicial killing, enforced disappearance, torture, rape and other acts of sexual violence; the statute of limitations for grave offences must be removed; cases recommended by the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons must be prosecuted; torture and enforced disappearance must be criminalised through the enactment of laws; cases before court cannot be transferred to the TRC or the CIEDP; dignified and respectable reparation for victims; and reconciliation cannot be made without the consent of victims.

The TRC and the CIEDP, which were formed in February 2015 to investigate conflict-era rights violations, have so far failed to completely investigate even a single case. And one of the major reasons for this failure is lack of necessary legislation, besides crunch of human and financial resources.

Of more than 63,000 complaints filed with the TRC, it has carried out preliminary investigation into just under 3,000 complaints.

As far the CIEDP is concerned, it aims to complete first-phase of detailed investigation into around 1,700 complaints before Tihar festival. Of the 3,197 complaints the CIEDP has received, it has recommended 2,512 complaints for detailed investigation.

The two commissions have said they can function well only if they are ensured act amendment, adequate budget and human resources.

Conflict victims say along with the law formulation, the government should also work to win victims’ trust and ensure their ownership of the transitional justice process. “The state has so far failed to win our trust. The present situation is we are just a weak service seeker,” he said. “The government is only making offers to us without ascertaining what we actually need.”


A version of this article appears in print on October 26, 2018 of The Himalayan Times.

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