On 27 April, a major roadblock impeding the overdue delivery of transitional justice was cleared as five justices of the Supreme Court (SC) rejected a government petition to recommend amnesty for those accused of war crimes during the 1996-2006 conflict.
Citing an inability to implement prior Court decisions on enforced disappearances, the petition had been filed in 2015 by the then Sushil Koirala-led government.
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Victims, their representatives and international human rights organisations had been pushing for amendments to the ‘Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act 2014’ whose loopholes allowed amnesty for those accused of wartime excesses.
“Previous draft amendments did not reflect the spirit of the SC’s decisions. A task force should be set up to incorporate all of the court’s verdicts,” said Tika Dhakal, an expert on transitional justice.
While that SC decision has been met with national and international approval, victims remain cautious about government commitment to delivering transitional justice after years of inactivity.
“Yes, there are no more excuses left to delay transitional justice, but we are not sure if the government will duly commit itself to providing justice,” said Suman Adhikari, founder of Conflict Victims Common Platform, whose father Muktinath Adhikari was dragged out a classroom where he was teaching and executed by the Maoists in 2002 in Lamjung.
A commitment to deliver justice to victims of enforced disappearances through investigation and due legal process had been enshrined in the Comprehensive Peace Agreement (CPA) of 2006 that formally ended the decade-long conflict.
However, the provision was delayed numerous times in the 14 years after the end of the war. In 2013, a landmark ruling by SC Justices Khil Raj Regmi and Kalyan Shrestha ruled that enforced disappearances were criminally liable when acting on a habeas corpus writ petition filed by victims’ families.
In 2009 enforced disappearances finally made it to the agenda of the Constituent Assembly (CA). Two bills were promulgated three years later, but then the CA was dissolved and new elections held.
But the Truth and Reconciliation Ordinance 2013 formally endorsed by President Ram Baran Yadav and issued by the Khil Raj Regmi-led Interim Electoral Cabinet, contradicted Regmi’s own Supreme Court decision of 2007.
Families of victims including Ram Kumar Bhandari, whose father was disappeared by the security forces in Lamjung in 2001, took the ordinance to the SC, which ordered a rewriting of unconstitutional clauses under an 11-member task force.
However, the ‘Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act 2014’ still retained most of the clauses on pardons for war crimes from the earlier ordinance, and was immediately challenged in the Supreme Court by Suman Adhikari and 234 other conflict victims.
Once again the Supreme Court ordered a rewrite, urging lawmakers to ‘work within international guidelines, the constitution and the CPA and precedents set by previous Supreme Court rulings’. It also instructed lawmakers to ‘leave no provisions for amnesty and prioritise the interests of the victim at all times’.
It is this Supreme Court decision that the Koirala-led government petitioned to have overturned, and which was quashed on 26 April 2020.
“With no alternative left, the Act must now be amended to reflect the interests of the victims, the orders of the SC and the expectations of the international community,” said human rights activist Charan Prasai. “Previous draft amendments did not reflect the spirit of the Supreme Court decisions. A task force should be set up to incorporate all of those verdicts.”
Section 26 (2) gives broad powers to the Commission to grant amnesty to war criminals. It states: ‘the Commission shall not recommend amnesty to perpetrators of rape and other crimes of serious nature in which the Commission follows the investigation and does not find sufficient reasons and grounds for amnesty’.
The clause may be understood to grant pardons to those who are deemed worthy by the Commission’s investigation. This goes against international conventions and SC precedents on serious crimes, and needs amending so that no grounds for amnesty can exist for serious crimes.
Section 26(5) states ‘the consent, dissent of the victim and gravity of the incident’ must be incorporated in any recommendation for amnesty. The word ‘dissent’ implies that even if a victim disagrees, an accused may be recommended for pardon.
International law and the Supreme Court’s own rulings dictate that an amnesty cannot be provided if a victim’s consent is not received. The clause must incorporate ‘informed consent’ of the victim while making decisions about pardoning those standing accused.
Section 13(2) reads: ‘the Commission, in consultation with concerned courts or bodies concerning the cases under consideration, shall investigate the cases relating to the incidents that occurred during the armed conflict’ .
If this clause is interpreted to include pending cases being transferred to the Commission, it is a violation of the principle of judicial sovereignty. Any pending case in a court is barred from transferring to external commissions under this principle. The Section must reflect the courts’ ability to make decisions on conflict-era cases on their own.
Under Section 29, the Ministry of Peace and Reconstruction must write to the Attorney-General if the Commission recommends trying a convict accused of serious crimes.
‘There is no rational basis for the Commission not to make a direct recommendation to the Attorney General, who has the constitutional authority to prosecute cases’ reads a statement from the SC. The process only serves as a detour to timely justice and violates the ability of the Attorney-General to make the final decision on prosecuting cases on behalf of the government.
While these are some provisions needing amendment after the recent SC order, other key issues lie unaddressed. The statute of limitations in the prevailing law have created confusion as to how to prosecute rape and enforced disappearances. Cases of child soldier have also been left in limbo.
Victims and international organisations have demanded a restructuring of the TRC and CIEDP leadership because of political appointments of office bearers.
Former Chief Justice of the Supreme Court Omprakash Mishra chaired the selection committee, composed of one member chosen by the National Human Rights Commission (NHRC) and three others appointed by the Council of Ministers. The appointments were only made once all major parties approved of them.
The politicised appointments have led to questions over the viability of the appointees. Transitional justice expert Tika Dhakal says, “Appointees lack knowledge of transitional justice and were appointed through a flawed procedure. The commissions lack reliability as a result.”
The Office of the UN High Commissioner for Human Rights (OHCHR) noted the ‘alienation of victims and their representatives’ in the commission’s decision-making posts. It welcomed the recent SC ruling and urged the government to win the trust of stakeholders by implementing transparent and impartial selection procedures for commission appointees.
Similarly, attorney Om Aryal calls for a change in the appointment process: “Political interference undermined the transparency of the office bearers. With those accused of war crimes even holding office, it becomes difficult for victims to place faith in these institutions.”
It is therefore in the best interest of all stakeholders involved to initiate an impartial and transparent selection procedure for the most suitable and representative candidates into key decision-making posts.