Nepal | August 03, 2020

‘I will do my best to get the TRC bill amended’

Himalayan News Service
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Minister of Law, Justice and Parliamentary Affairs Sher Bahadur Tamang faces the task of putting in place some important legal frameworks to complete the process of transitional justice and to implement the constitution. He is also overseeing efforts to implement the newly enacted civil and penal codes that will herald significant reforms in the country’s legal system. Minister Tamang’s recent statements related to the judiciary and judges, including his statement that the judiciary should not accept foreign assistance and judges should make their asset details public, drew flak from the main opposition Nepali Congress and civil society. Ram Kumar Kamat of The Himalayan Times discussed some key legal issues with him. Excerpts:

Interview with Minister of Law, Justice and Parliamentary Affairs Sher Bahadur Tamang, in Kathmandu, on Sunday, July 1, 2018. Photo: Balkrishna Thapa Chhetri/THT

To what extent have you achieved the priorities you had set when you assumed office?

We have prepared framework laws for provinces and drafted a number of bills to facilitate implementation of the constitution, including fundamental rights guaranteed by the new constitution. Some bills are in the final phase of the drafting process. We will ensure passage of all the relevant laws by September 19, before the three years’ deadline ends.

How many bills need to be drafted to facilitate the enjoyment of some fundamental rights?

We need to draft 37 types of bills to implement fundamental rights. We have already drafted 25 bills so far. The total number of bills could be fewer than 37 as we might need to cover more than one issue in one bill.

What are the key provisions of the draft bill seeking to amend the Truth and Reconciliation Act?

We have brought a new draft keeping in mind the concerns of victims. Consultations in this regard are being held with stakeholders. I do not think this draft will satisfy all the sides, but my effort will be to win the confidence of the maximum number of stakeholders. The draft proposes a reduction of sentences for those perpetrators who confess their crimes and pledge not to repeat them in future. Such waiver will not be granted to perpetrators who do not confess their crimes and who are convicted by the courts.

The victims will get compensation from perpetrators and reparations from the government. We have introduced provisions to address the concerns of families of security personnel and victims of rape and other sexual assaults. These concerns are not addressed in the existing laws.

What are the provisions relating to serious human rights violations?

We have categorised conflict-era cases into two types — serious human rights violations and other crimes with the provisions of amnesty applying only to ‘other crimes’ when perpetrators help investigators and the court reach a conclusion. Perpetrators of serious human rights violations will not get amnesty.

In other crimes, such as the capture of individual property, we have proposed to send the perpetrators to open jails with the provision of community service. Perpetrators of other crimes will face reduced sentence if they confess their crimes.

Will the perpetrators of serious human rights violations qualify for a waiver of the sentence?

If perpetrators of serious human rights violations do not help investigators and the courts, then they will not get the waiver, but if they help and pledge not repeat such incidents again, they will get up to 75 per cent waiver on their punishment. Even under the current legal system, an offender gets waiver up to 50 per cent. We have decided to increase the waiver by 25 per cent keeping in mind the issues of transitional justice.

What has been the reaction of victims to the new draft?

Conflict victims are little concerned about the proposed punishment and understandably so. They feel that the sentence does not correspond with the crimes.

Are you sure that the draft bill will keep the chance of universal jurisdiction applying to Nepali nationals at bay?

We have prepared the draft keeping in mind international law and precedents set by the Supreme Court. We have followed all the international measures in the draft as far as the punishments proposed for the perpetrators are concerned. Every country has its own penal system with some still retaining the death penalty and others abolishing it.  We are cautious that no Nepali national accused of conflict-era rights violations cases, should appear before the international court to contest their cases as happened with Colonel Kumar Lama.

Civil and penal codes will come into force on August 17. Has the government made enough preparations to implement these laws?

These two laws will replace our General Code (Muluki Ain). The government needs to create wider awareness regarding this in society. We will continue sensitising the public even after August 17.

Some say that there are discrepancies in the two laws.

We are reviewing the provisions of the two laws. I admit that there are some gaps in these laws which need to be bridged. For example, polygamous marriage will be automatically annulled, but the codes do not stipulate what will be the status of a woman if she was tricked into marrying a married man. It is not clear whether she will get property from that man or not.

The state also must think of children’s fate when their parents end their marriage. The state should not allow separation of children from their parents.

Similarly, there is another issue we need to address through the new laws. If a female who was sexually assaulted by her own family members reports the case after a long time, suppose after 40 years, it is not clear whether the statute of limitation should apply or not to such a case.

We are also thinking of limiting judges’ discretion relating to the quantum of punishment.

You were criticised for your statement against judges. What do you say?

My criticism was not uncalled for. For example, there is a case with Rs 1.86 amount in question and the court lets a defendant post a bail of one million rupees. If s/he has not committed a crime of cheating, then why should the court seek any amount as bail? Some view your statements as detrimental to the independence of the judiciary.

None of the organs of the state is independent; rather they are supplementary to one another.

The conventional theory of separation of power which aims to divide powers between the three organs of the state — executive, legislature and judiciary — does not apply anymore because almost all states have created other constitutional bodies such as the National Human Rights Commission and the Election Commission to serve the public. Independence means one organ of the state should work in tandem with other organs without meddling with others’ work.

Conflicts arise when the executive imposes a certain tax on individuals and entities and the court gives immunity to them or when the court imposes sentences on individuals and the executive does not execute the court’s judgment. If the judiciary makes a mistake, people have the right to raise the question about the same in a democracy.

Sometimes ruling party’s lawyers appear to be issuing threats to judges, albeit indirectly, saying that they command a two-thirds majority in the Parliament and they could easily impeach erring judges. Isn’t that wrong?

We should not issue threats to judges, but we are right when we expect them to do their job independently and show their accountability to the public. The judiciary has to deliver verdicts in a way that the victims feel that the cause of justice has been served.

People are saying that common people are not getting easy access to justice. The judiciary should belie accusations labelled against it through its work and verdicts.

How do you react to the Supreme Court’s recent decision to turn down UNDP’s offer of assistance worth Rs 460 million?

If the Supreme Court needs money to train its staff or additional human resources, the government is ready to provide the same provided the SC seeks assistance through the executive without seeking any foreign assistance directly.  What happened in the past was wrong. There is no record of some of the assistance that government bodies have received.

Judges have said that the government has not been providing the minimum one per cent budget to the judiciary.

The Supreme Court should not say it needs one per cent of the budget. In fact, the judiciary should seek budget on the basis of its programme in a certain fiscal year and it should not prepare its programmes after seeing the allocation of the budget.

Why is the government trying to control I/NGOs?

Time has come to make I/NGOs accountable and nobody should take the government’s effort to regulate I/NGOs otherwise because the government believes the I/NGOs committed to helping the cause of development should spend their money in a judicious and transparent manner. We were told that 70 to 80 per cent of the money that the I/NGOs bring to Nepal return to the donor countries as they hire their own people as consultants. A lot of money is spent on unproductive things.


A version of this article appears in print on July 02, 2018 of The Himalayan Times.


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