'TRC ordinance is objectionable'

By Kishor Poudel

A section of the international community has expressed dissatisfaction at the recently issued ordinance on the 'Commission for Investigation of Disappeared Person, Truth and Reconciliation' saying it is a backward step from the draft earlier prepared by the parliament.

It needs improvements to be able to provide justice to the victims and also fails to meet international standards in many respects despite its optimistic preamble and the encouraging Section 2, an official with the Amnesty International said on condition of anonymity. According to him, the ordinance law has serious shortcomings except these two sections.

The preamble of the ordinance says it aims to end impunity; investigate serious human rights violations during the conflict; provide justice to the victims and create an environment of peace and reconciliation in the society, he said. Section 2 provides a list of nine kinds of serious human rights violations.

The Section 2 states that amnesty will not be granted in any case of serious human rights violation but does not define which crime amounts to serious human rights violation. Rape, extra judicial killing, forced disappearance, torture and kidnapping, which were listed as serious rights violation in the previous bill are not listed as serious rights violation.

"The Commission formed to address such a sensitive issue has been asked to work under the Ministry of Peace and Reconstruction, instead of making it directly answerable to the Government of Nepal or the President," an official with a diplomatic mission said.

As per the ordinance, the commission is empowered to facilitate reconciliation in the application of either the 'perpetrator' or the 'victim' and has given political access of the perpetrators, but 'must' seek the consent of the victims prior to making reconciliation, the official said.

He pointed out Section 23 on 'Amnesty Provisions' is the most problematic part of the law. Speaking against the preamble and earlier articles, subsection (1) says 'The commission may, on the basis of sufficient reasons, recommend for the grant of an amnesty'.

"Subsection (2) is more dangerous. It says 'Not withstanding anything contained in sub section (1), on the serious human rights violation cases including rape which lacks sufficient reasons and grounds for granting amnesty following the investigation of the Commission, it shall not recommend for amnesty'."

"Another problematic section is 29 which empower the Attorney General to decide, upon a written request from the Ministry of Peace and Reconstruction, whether to file a case. Thus a three layer barrier- the Commission, the Ministry and the Attorney General- is deliberately created to deny justice to the victims."

UN principles on restorative justice require transitional justice to be a broad-based process ensuring stake of the victims as well. "By making the commission a part of an opaque political deal, the parties, right at the outset, have failed to meet their international obligations. The danger is: they may now turn the Chairman of the Council of Ministers, who is also the right honourable Chief Justice, an accomplice of their deed" the AI official. Nepalnews.com