KATHMANDU, JAN 15 -
The government’s ordinance on the Commission on Investigation of Disappeared Persons and the Truth and Reconciliation Commission is ‘draconian’ and could jeopardise the whole transitional justice system by granting amnesty to serious war-era abuses, according to experts.
The view comes at a time when Prime Minister Baburam Bhattarai has been saying that the onus on the formation of the transitional justice mechanisms lies with President Ram Baran Yadav. President Yadav has put the ordinance sent to Sheetal Niwas by the Bhattarai-led Cabinet on hold since August. “As a human rights defender, I am happy that the ordinance has not been approved by the President,” said Mandira Sharma, the Chairperson of Advocacy Forum.
“The ordinance will provide amnesty not just to light abuses but also to serious cases of rights violations.” Human Rights defenders are of the view that the provision empowering the commission to recommend amnesties for gross violations of human rights is inconsistent with Nepal’s legal obligations under international law. The commission can recommend to the government amnesty for a perpetrator if deemed reasonable, Article 23 of the proposed ordinance says.
The proposed ordinance also empowers the commission to initiate the reconciliation processes in the absence of a request by the victim or the offender. Article 22 of the ordinance says that even when there are no requests from the victim and the perpetrator for reconciliation, the commission will not be restricted from undertaking the reconciliation.
The ordinance authorises the commission to ask the perpetrator to make an apology with the victim. Similarly, it can make the perpetrator provide compensation for the damages caused to the victim.
The commission may organise reconciliation functions in conflict-ravaged areas by involving perpetrators and victims and their families. The ordinance also says that the commission can make arrangements for statues or memorials in memory of those killed during the armed conflict with the involvement of the perpetrator and the victim and his/her family.
It says that victims and the perpetrators can be motivated to reconciliation through publication of various articles, essays, songs, arts, among others, relating to reconciliation. Human rights principles require that reconciliation processes have the consent of both the victims and the offenders.
According to the UN Office of the High Commissioner for Human Rights, the proposed ordinance has a limited focus on justice and restricted procedures for initiating prosecution. In its analysis released last month, the OHCHR had said that the government has the duty to ensure that criminal investigations and prosecution of alleged perpetrators for serious rights violations committed during the conflict are essential part of the transitional justice process. Though the commission may recommend legal proceedings, it should be “a fully competent criminal court to determine the guilt or innocence of the alleged perpetrator,” the OHCHR noted in its analysis of the TRC ordinance.
The human rights debate has taken centre stage since the arrest of Nepal Army Colonel Kumar Lama in the UK for his alleged involvement in two counts of torture dating back to the Maoist conflict. The fresh debate comes amid a highhanded approach taken by Prime Minister Baburam Bhattarai and Attorney General Mukti Pradhan on criminal proceedings against the murderers of Dailekh-based journalist Dekendra Thapa.
Under the instruction of the PM, AG Pradhan has directed the district attorney and the police office in Dailekh to halt the probe over Thapa’s murder. Bhattarai has been arguing that conflict-era cases must not be dealt in a ‘piecemeal’ and has asked the President to endorse the ordinance proposed by the Cabinet to allow the formation of the TRC.
Rights activists, however, want the government to cancel the ordinance and bring a new one based on political consensus and that meets the international standards. President Yadav, who faces pressure from rights groups and the international community to ignore the ordinance, has urged Bhattarai to garner political support in favour of the bill. According to human rights activists, the ordinance that combines the disappearance and truth commission was drafted by the Ministry of Law last year by ‘hijacking’ the role of the Ministry of Peace and Reconstruction. Two separate bills on the TRC and the disappearance commission proposed by the Peace and Reconstruction Ministry were under consideration of the parliament’s Bill Committee for two years. However, it was withdrawn before the CA’s dissolution in May and after a tacit understanding among major party leaders. The then UCPN (Maoist) lawmaker Ekraj Bhandari, who was a member of the taskforce to negotiate the TRC legislation, said top leaders of the UCPN (Maoist), Nepali Congress, the CPN-UML and PM Bhattarai were responsible for the bill deadlock.
“We had already reached an agreement that the TRC would not provide amnesties to genocide, extrajudicial killings, rape and enforced disappearance. Had the government not created a hurdle by floating an idea of the merger of the commissions, we would have passed the two bills in the parliament,” said Bhandari, who is the chairman of the association of families of disappeared persons and now a CPN-Maoist leader.
Posted on: 2013-01-15 08:16