Despite opposition from a coalition partner, opposition parties and human rights organizations, the government of Nepal has introduced legislation on disappearance through an ordinance. The ordinance criminalizes an act of disappearance and provides provision for high-level commission of inquiry. However, it significantly fails to incorporate the international law standards and Supreme Court directives.

The two major concerns regarding the ordinance are the process and the substance. Introduction of a legislation through an ordinance not only undermines the democratic process but also intends to escape the debate that is one of the paramount elements for a transitional law. The political opposition is mainly based on this point of view. Dissatisfaction with the substantive provision is basically based on the international law standards, jurisprudence and comparative practices.

The SC ordered, in June 2007, the government to enact an Act for the protection of the disappeared person, making provision to criminalise an act of disappearance, making provision for Inquiry Commission in the Act for inquiring into the causes of their disappearance, and their status by forming a powerful commission to carry out in-depth and comprehensive inquiry and thereby submit the report of the same, and thus accomplish a criminal investigation on the basis of the report and thereby decide to prosecute concerned persons on the basis of the propriety and necessity.

National and international human rights organizations including the UN Human Rights agencies have submitted their concerns over the government’s draft. Suddenly, an ordinance was brought, stating its urgency, right after the parliamentary session of the CA was over. This poses a serious question about the government’s intention.

The Interim Constitution empowers the government to promulgate an ordinance if legislative parliament is not in session. In April 2007, the Interim government had registered a bill with respect to disappearance and abduction at the Interim Legislature. However, the parliamentary committee of the Interim Legislative Parliament instructed the government to withdraw that bill as it was not in line with Nepal’s obligation under international law and SC ruling.

But, the government did not register the bill in the parliament even though the cabinet had approved the bill about one and half months before. In this context, how does the government justify the ordinance?

The ordinance also provides provision for a Commission of Inquiry and reparation to the victim. Both Commission of Inquiry and reparation programme are non-judicial approach of transitional justice. Transitional justice is part of the peace process and often requires consensus among the concerned parties. It cannot be decided by a ruling party, particularly when the same party has been involved in the conflict.

With regard to the substance, the ordinance is much complicated. The main objective of the ordinance seems to have legal arrangements on punishing the perpetrators. It therefore has retroactive effect. However, the Interim Constitution has explicit provision on it. It says that no one shall be punished for an act which was not punishable by law when the act was committed. If Section 5(3) of the ordinance is challenged, the SC may void this provision. This would apparently institutionalise impunity.

While criminalising disappearance, the ordinance does not include the widespread or systematic practice of enforced disappearances which constitutes a crime against humanity under international law. Exclusion of crime against humanity in the ordinance would free the entire perpetrators of disappearances during the armed conflict. This may be one of the reasons for bypassing the parliament.

The other troubling section of the ordinance is about the penalties. The section 6 of the ordinance provides that a person who commits the crime of enforced disappearance will be imprisoned for up to five years and fined up to 300,000 rupees. This virtually means that a person who is responsible for disappearance of hundreds of people can not be sentenced for more than 5 years and potentially can be freed in a couple of days/months.

With regard to the provision on the formation of the inquiry commission, the bill provides a committee comprising Chairperson, International Relations and Human Rights Committee of the Legislative-Assembly and other two persons designated by the Government of Nepal from civil society. However, the ordinance does not provide any procedures for the selection of the members of the committee and also commissioners. If the commission is formed under this ordinance, there is potential risk of politicization of the commission. Consequently this commission will substantially fail to address the problem of disappearance that occurred during the decade long armed conflict. It therefore seems to be a hopeless attempt.

Bandi is a human rights lawyer