Kathmandu, October 21

The Supreme Court today expressed serious concern about some provisions of a draft bill prepared to establish a new Special Court for handling transitional justice cases.

A full court of the Supreme Court raised a number of questions related to jurisdiction and tenure of the proposed special court, a source at the apex court told The Himalayan Times.

According to the source, the SC is likely to send its opinion to the Ministry of Law, Justice and Parliamentary Affairs on Sunday.

The draft bill proposes two benches for the Special Court for transitional justice one with trial jurisdiction and another with appellate jurisdiction. As per the bill, the verdict of the appellate bench can’t be appealed in any other court, including the Supreme Court. The apex court has reservations regarding this provision.

“This provision is against judicial norms as the Supreme Court has the final appellate jurisdiction,” the source added.

THT has obtained the draft bill, but it has not been able to independently verify it.

Likewise, clause 2 (e) of the draft bill mentions that insurgency-era cases, including those sub-judice at various regular courts, will be transferred to the Special Court.

It’s not clear whether the proposed Special Court will have jurisdiction equal to that of a district court, an appellate court or the Supreme Court. The source said this was a matter of concern for the full court of the Supreme Court.

“If its jurisdiction is of trial court or the high court, then how can cases sub-judice at the Supreme Court be transferred to the Special Court?”

Similarly, the apex court has pointed out the flaws of the draft bill, where punishment for war-era crimes will be guided by the

Truth and Reconciliation Commission Act. The TRC Act has not mentioned punishment for insurgency-era crimes.

The source said the full court wondered what would happen if all the cases were transferred to the Special Court as per the bill, and after such transfers, the Special Court was dissolved without adjudicating those cases.

The Office of the Attorney General had earlier shared copies of the draft bill with relevant stakeholders, including justices of the Supreme Court, which the full court discussed today.

The draft bill was designed to set up a separate Special Court to handle insurgency-era rights violations cases. It proposes two benches at the Special Court as was the case with the conflict-ridden African country Sierra Leone.