TRC: Leaps on Completion, Stop on Justice

One line among the victims of the conflict is absolutely welcome. Another major line is positive towards the amendment but is opposed to the amendments made regarding the definition of human rights violations and serious violations and the reduction of punishments. Some stakeholders monitoring the post-conflict justice process have expressed a positive view of the strengthening of reparation, while objecting to serious miscarriages of justice.

Renowned international human rights organizations such as Amnesty International, ICJ and Human Rights Watch have also taken a critical view of the amendment. The Office of the United Nations High Commissioner for Human Rights, which has received the mandate of "human rights monitoring" of the peace process through the detailed peace agreement, has welcomed it with the expectation that legal errors will be corrected through interpretation during implementation. Many people were surprised when the High Commissioner, who always has a critical approach, hesitated to openly point out the weakness of the bill this time.

Meanwhile, another scene also looked strange and unnatural. Before the parliamentary process on the pending bill could be completed, diplomatic missions of some friendly countries rushed to welcome it. Although the House of Representatives passed the bill on July 30, the National Assembly was yet to consider the bill.

There is a constitutional provision that even the President can send back the bill passed by both houses with suggestions and it has been practiced in the past. Knowing about this, they did not show the patience to wait for the opinion of the victim community and the civil society of Nepal about the amendment. In the light of the norms of good diplomacy, that did not seem fair. If they were openly interested in a human rights agenda that the leaders did not relish, perhaps our leaders would not have hesitated to protest that it was interference in internal affairs. But Nepali leaders remained silent on the matter of taste.

Some other strange aspects were also seen. The revision process was mechanized. No discussion was deemed necessary in the House of Representatives after it was indicated that the top leaders agreed. Not even one amendment was registered in the National Assembly. In such an important matter, the role of public representatives became ritualistic. It was also seen how the heirs of the people, who are responsible for making the House 'vibrant' and 'deliberative', behave in a 'robotic' manner after getting a signal from the top.

Bright spot: A leap in improvement

The revision process that started in 2071 has now been completed. Improvements have certainly taken a leap through the amendment. The amended provision expressly declares compensation as a right of the victim. It is ensured that the right to compensation will not be taken away just because the victim is not identified, reconciled or recommended for amnesty. It has been arranged that there will be a separate fund for purposes such as relief and compensation. Not only direct but also indirect victims and affected are included in the scope of compensation.

If deprived of the right to compensation, there is a provision that the victim himself can file a case in a special court. Decommissioned combatants are included in the ambit of compensation. There is a provision to compensate the victims of personal property damaged during the conflict based on the period of time and prevailing market value. There is provision to attract the rights of the Crime Victims Protection Act in the case of conflict victims. So far, the victims of disappearances, who have been deprived of even handing over their property, have opened the way for handing over the rest of the bonds or rights by allocating part of their rights.

There are some other positive aspects of the amended Act. For example, provision has been made that various units can be formed to make the work of the commission effective. There is a provision for the government to ask the commission for the transfer of the staff of the commission. Victims of rape and sexual violence will be given three months to file a complaint with the commission. It is positive that Parliament has acknowledged the fact that they have been deprived of making complaints in the past. However, it is not possible to create a legal barrier for victims of serious human rights violations to complain to the Commission.

Dark Side: Stuck in Justice

Despite some of the positive reforms mentioned, the stumbling block in justice remains. In particular, there are errors such as the vague definition of ganja, the non-judicial reduction of 75 percent of the sentence, the narrow scope, etc. The scope of human rights violations has been narrowed down by the provision that any act contrary to human rights and humanitarian law must be done "targeted or planned against unarmed persons or the public" to be a violation of human rights. Not only that, a condition has also been imposed to consider deliberate and arbitrary killing as a serious violation of human rights. Such killing must be "targeted or planned against unarmed persons or masses".

In order to be a 'disappearance of a person', a condition has been set that the missing person has not been found. It excludes a person who is brought to light after going missing for a certain period of time as a missing person. It is stipulated that torture must be 'inhuman or cruel' to be considered a serious violation of human rights. The fact that torture itself is a violation of inhuman and cruel elements is evident from the name of the Convention against Torture to which Nepal is a party. The amended provision is contrary to the Supreme Court's judicial order to enact laws to make disappearances and torture punishable in accordance with international standards.

Detailed Peace Agreement (Section 5.2.5), Interim Constitution (Article 33(d)) and Disappeared Persons Investigation, Truth and Reconciliation Commission Act, 2071 in the preamble, Section 2(j) of 'against humanity' Although promises to investigate the truth about 'crimes' have been made in the past, crimes against humanity have been removed from the definition of serious violations. Although the Supreme Court has ordered to make a law to determine the offenses and punishments in accordance with the common Article 3 (applicable in armed conflicts of non-international nature) of the Geneva Convention, to which Nepal is a party, the amendment has failed to include war crimes as a separate crime in the definition of serious violation of human rights.

The system that allows the perpetrators of serious violations to be prosecuted with a reduction of 75 percent of the sentence is also problematic. This is contrary to the paramount principle that punishment should be based on the seriousness of the offence. Also, established precedents that impunity for serious crimes is unacceptable have been broken. Provisions could be made in such a way that the court could reduce the sentence by independently evaluating factors that increase or decrease the seriousness of the crime, including the condition that the perpetrator should fully cooperate to encourage the truth to be revealed.

But the revised arrangement is contrary to the belief of an independent judiciary. It is natural to suspect the abuse of this arrangement even in the context of extreme abuse of provisions such as case withdrawal, amnesty. Apart from that, the provision that the public prosecutor must decide whether or not to prosecute the case within one year from the date of receiving the recommendation from the commission has shortened the time limit.

It can be easily assumed that a year's time is not enough to reliably prosecute by gathering sufficient evidence through autopsy, forensic tests, etc. in the context of many complex cases. There should have been a provision not to hinder the prosecution of the case after one year was found to be insufficient. Provisions have been made to allow him to remain in office even if he is prosecuted for serious violations as long as he is not in prison or judicial custody. It is also unusual for the arrangement made to prevent suspension from public office even if a case can be prosecuted on allegations of serious violations. The

solution way It is not advisable to show the positive aspects of the

Act and ignore the mentioned errors and weaknesses. It is important to develop an objective understanding of how much progress has been made and how much regress has been made in terms of framing transitional justice legislation. It is necessary to have a constructive debate about how to make the practical implementation of the reformed things effective and how to minimize the remaining weaknesses and complications in the law and their side effects.

In this regard, it is important to keep in mind the overall legal and jurisprudential ecosystem when stakeholders are formulating their approach. The revised Act is not everything in terms of guiding the transitional justice process. The amended Act cannot be used, misused, interpreted or misinterpreted to create an exception to the Constitution and international human rights treaties to which Nepal is a party. If this is done, the complex issues of transitional justice will not find a sustainable solution.

The Constitution itself as the original law has guaranteed justice. International human rights and humanitarian laws apply in Nepal. He has made the right of victims of serious human rights violations to an effective legal remedy inalienable. The Nepal Treaty Act, 2047, which has been in force since before the erstwhile Maoist started the armed struggle on 1 March 2052, has given special status in our legal system to international legal norms to which Nepal is a party. At the level of legislation, the provisions of a ratified treaty are one level above the provisions of an Act enacted by Parliament.

because if any provision of the existing law conflicts with any provision of the approved treaty, the provision of the treaty shall be effective. The Constitution itself also stipulates the obligation to implement treaty agreements. Similarly, the constitution provides that the court can adopt not only the constitution and existing laws, but also the valid principles of justice as a basis when rendering justice.

The judicial principles and precedents established by the Supreme Court since the past have been recognized by the Constitution as prevailing laws. The summation of all these points is that transitional justice laws cannot be interpreted and implemented unilaterally. The role of international law and jurisprudence has been important in the judicial interpretations of the past. It is legitimate to expect that future interpretations will also be harmonious. The above-mentioned understanding and interpretation will pave the way for the balance between the three pillars of truth, justice and reparation and lead to a legitimate conclusion of the transitional justice process.

It is natural for the victimized community and civil society to express their disagreement with the wrongness of the amended law in the light of the constitution, established jurisprudence and international legal standards. Their continuous initiative is necessary for their improvement. It is also a matter of civil rights. At the same time, it is necessary to take constructive precautions so that the process of appointing officials in the Commission is not misused as in the past.

The reliability of appointing officials will depend on what kind of people are included in the selection committee and whether the selection committee adopts an open, transparent, consultative method and process. Equally important is whether the officials representing the National Human Rights Commission in the selection committee have a 'fair role of checks and balances'. The past 'track record' is not good. The commission's representative failed to prevent the abuse of the appointment process, and the political faction got help. It is important to be careful in all these aspects.

The legal achievements that have been made so far have not been due to the sincerity, determination and desire of any political party or party leadership. They are the product of the ongoing struggle for justice by the victim community and the human rights community. Therefore, it would be preferable to participate cautiously in the rest of the process, taking ownership of the legally achieved achievements.