• FACE-TO-FACE
The Ministry of Law, Justice and Parliamentary Affairs is trying to amend the Truth and Reconciliation Act that remains unimplemented for almost eight years. The ministry also wants to secure passage of some key bills, including the citizenship bill, in the current session of Parliament. Ram Kumar Kamat of The Himalayan Times had a one-on-one session with Minister of Law, Justice, and Parliamentary Affairs Govinda Bandi on the progress his ministry has made with regard to the drafting of the Truth and Reconciliation (Amendment) bill and some other issues his ministry is dealing with at present. Excerpts:
Your ministry had started consultations with the conflict victims and other stakeholders on the draft TRC (Amendment) Bill. Where has the process reached?
Conflict victims have not got justice due to delay in the conclusion of the peace process. Two commissions were formed to deal with conflict era cases of rights violations but as the TRC Act could not be amended for long in accordance with the Supreme Court order that said amnesty could not be granted in serious human rights violation cases, these commissions could not work effectively. Victims had filed cases against the new TRC law that was enacted eight years ago. The SC ruled in 2014 that some legal provisions of the Act were against Nepal's treaty obligations. In the last eight years, the TRC Act could not be amended and now we are trying to amend that law in accordance with the SC order. Since the issues of the peace process have to be discussed with top leaders of political parties, we are consulting them on these issues. The government is of the view that endlessly extending the deadline of the Truth and Reconciliation Commission (TRC) and Commission of Investigation on Enforced Disappeared Persons (CIEDP) won't be a solution. I joined the Cabinet as Prime Minister Sher Bahadur Deuba asked me to do so to complete the peace process. I am of the view that the TRC Act could be amended only after broader consultations with conflict victims and other stakeholders. We have completed consultations with victims and stakeholders in all seven provinces and within a few days we will hold national consultations in Kathmandu where we will present the main points raised during our consultations in the provinces. We will finalise the draft bill after national consultations and table the bill in the current budget session of the Parliament. I hope the bill will be passed in the current session of Parliament.
The government has stated in its programmes and policies that TRC Act will be amended and institutional reforms will be carried out in the transitional justice mechanisms. The budget has also allocated Rs 1.4 billion for reparation to be paid to the victims. The victims are however doubtful the peace process will conclude anytime soon. What do you have to say to that?
I know that conflict victims have some doubts about the process because they have been waiting for justice for too long. But our initiative of amending the TRC act has given them some hope. Our ministry is clear that there cannot be amnesty in serious human rights violation cases. When the SC ruled that there could not be amnesty in cases of serious human rights violation, the SC had a reason for it because that is also Nepal's treaty obligation. But here we also need to understand that all conflict era cases do not go to regular trial courts. Transitional justice cases are different from regular justice process. The main purpose of transitional justice is to seek truth and to find what was the root cause of conflict. Some emblematic cases would go to regular trial courts and all sides should be ready for that. We also need to be aware of the fact that courts adjudicate cases on the basis of evidence. It is yet to be seen how much evidence the investigators can gather to secure conviction. There are two extreme views of the process because some think that all conflict era cases should go to regular courts and others think that all cases should be referred to transitional justice mechanisms.
Will the government extend the deadline of the TRC and CIEDP yet another time?
The tenure of these t w o transitional mechanisms will end in mid-July and we are of the view that these two mechanisms will not be able to do the work because what they have done thus far has not been satisfactory. Therefore, after the TRC amendment act is passed by the Parliament, a new process will begin again. The new process that will be initiated in accordance with the new law will decide what to do next. New faces can be recruited in the two transitional justice mechanisms after consultation with top political leaders.
The government is preparing to pass the citizenship bill from the budget session but it has not moved the process ahead yet. Why?
The State Affairs and Good Governance Committee of the House of Representatives has finalised the citizenship bill, but there is one major difference between parties and that is about seven years waiting period for foreign women marrying Nepali citizens to obtain matrimonial naturalization. Majority members of the House panel have Okayed seven years waiting period. The Nepali Congress and Madhes based parties have opposed the seven years waiting period proposal. The political balance that existed at the time when the House panel took the decision related to seven years waiting period has changed now with some groups supporting the proposal now being part of the five-party ruling alliance where the parties that opposed the proposal are also coalition partners. The government is trying to forge consensus at the top level. One option could be to drop the controversial provision and move the bill for its passage. The government thinks that if the bill is move ahead in a manner where no parties could feel that it has to compromise on its earlier position, then that will be good. The government wants to move the bill ahead in the House next week.
Recently the home minister told the National Assembly that the government was mulling granting all rights, such as right to open bank account, apply for formal sector jobs, enrol in educational institutions, and obtain driving licence, to eligible citizens who have not been able to obtain citizenship due to non-passage of the citizenship bill. Does that mean that the government is apprehensive that this bill may not be passed soon?
What the Home Minister said in the House is a matter of debate. The government has not reached any conclusion on the issue yet. We, in the government, believe that passing the citizenship bill could take a month or more so for the period from now to the period when the bill will be passed, such provisions of allowing eligible citizens to get certain rights would ameliorate their plight. The SC has also ruled in multiple cases that till eligible citizens get their citizenship, they should be allowed to enjoy these rights and those eligible citizens who have not knocked the door of the courts, have not been able to enjoy these rights. If what the home minister said were to be implemented, then the government would have to bring an executive order. This has raised concern that it could set a bad precedent, so we are still debating what would be the best option.
What is your ministry doing to address allegations of corruption against judges in light of the corruption scandal involving Kathmandu District Court Judge Raj Kumar Koirala?
The key to rid the judiciary of current anomalies is to ensure that right candidates are appointed as judges. There are widespread allegations of corruption in the judiciary. In the past, everybody involved in the appointment process only wanted to bring their own people instead of looking for the suitable candidate. The Judicial Council is investigating allegations of corruption. I will try my best to implement the recommendation made by the Justice Hari Krishna Karki-led committee. If that happens, most of the problems seen in the judiciary will be resolved.
Has the Judicial Council failed to deter bad judges?
When we talk about discouraging corrupt behaviour in the judiciary, we should also be mindful that we do not do anything that could overly deter judges. If judges fear prosecution all the time, they may not be able to fairly decide cases. The Commission for the Investigation of Abuse of Authority sometimes tries to create deterrence to control corruption, but same level of deterrence may not be good for judges.
A version of this article appears in the print on July 1, 2022, of The Himalayan Times.
