To be sure, the draft amendment has addressed the four fundamental principles of transitional justice: truth, reparation, conviction and commitment to not repeat war crimes. It is also largely in tune with a Supreme Court verdict, which is against granting amnesty to perpetrators of gross human rights violations: extra-judicial killing, torture, enforced disappearances and rape.
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But the new bill has taken a leaf out of Colombia’s ‘restorative justice’ system, which focuses on reconciliation and reparation instead of punitive measures. It guarantees conflict victims the right to reparation, but it also proposes to reduce jail terms by up to 75% if perpetrators help the investigation, apologise and express a commitment to not violate human rights in future. Even if the accused does not admit to the crime, sentencing can be reduced up to 60% depending the condition in which the incident took place.
For example, if an ex-guerrilla or soldier is convicted of kidnapping and murdering a civilian and is slapped with a 20-year jail term, he/she will have to spend only five years in jail. As per Nepal’s criminal law, one day is made up of 12 hours, not 24 hours. So, a five-year jail term would actually be 2.5 years. And, based on ‘good behaviour’, the sentence can be shortened by another 60%.
Those convicted of war crimes could end up spending less than a year behind bars.
The new bill also introduces the concept of ‘open prison’ and ‘community work’.
Convicted murderers can even spend their reduced jail-terms at home, or do ‘social work’.
“If this is how those who took away my husband will be punished, I don’t want justice,” says Laxmi Khadka. The two ex-Maoists who kidnapped her husband are roaming free. “It means I will have to continue living with them even after they are convicted, there will just be more bad blood.”
Human rights activist Subodh Pyakurel says the new bill is full of vague provisions that can be used by the State to manipulate the amended transitional justice act and indirectly allow perpetrators to get off the hook. He says: “It would be too risky to accept a transitional law laden with so many loopholes, especially after the UML-Maoist merger.”
Pyakurel also criticises the bill for lacking provisions that could hold political commanders responsible for the war crimes they committed or abetted. “If this bill is passed as it is, Deuba and Dahal will not even have to say sorry, let alone face jail sentences,” he says. “Why should they be allowed to enjoy impunity?”
Suman Adhikari, ex-President of Conflict Victims Common Platform, says they are not totally against reducing punishment. “Punishment can be reduced if it serves the purpose of social harmony and reconciliation,” he says. “But the government should not have arbitrary power to decide whose sentencing to reduce and by how many years.”
What worries conflict victims is that ex-Maoist leaders, the military leadership and the main opposition NC have given their nod to the bill. The Maoists have filibustered transitional justice process for a long time, and are now washing their hands of blood after the merger with the UML.
They are now part of modern Nepal’s strongest government ever, so they want to use their positioning to conclude the transitional justice process by pushing through a diluted law.
A lawyer involved in drafting the bill admitted to us: “Given our political environment and the power that ex-Maoists wield, this is the strongest document we could come up with.”
Conflict victims accept that the bill does address their rights to reparation, but Human rights lawyer Mandira Sharma says even this provision is flawed.
She says: “If victims are denied reparation, they cannot seek justice. The bill does not envision a mechanism where victims denied of reparation can go.”
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