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Anil Giri

The Kathmandu Post

Publication Date : 20-03-2013

The Kathmandu-based international community, particularly the western and European blocs, have expressed serious reservation over the country's long-awaited and recently-endorsed Truth and Reconciliation Ordinance. 

The ordinance, which was endorsed by President Ram Baran Yadav last Thursday with an amendment after suggestions from the four major political parties, has removed the provision of blanket amnesty on serious human rights abuses committed during Nepal's decade-long Maoist insurgency.

Though the new ordinance now has the provision for prosecutions on serious cases of human rights violations, it also gives the TRC Commission and government agencies discretionary power to drop prosecution as well, including in cases of rape. A problematic section within it is one that empowers the Attorney General to decide, upon a written request from the Ministry of Peace and Reconstruction, whether to file a case against a human rights violator, said a source.  “A three-layer barrier - the Commission, the Ministry and the Attorney General - has been deliberately created to deny justice to the victims.”

“The commission is empowered to recommend an amnesty even in cases of rape, if sufficient reasons are given. How is that helpful when 99 per cent of rape victims haven’t survived?" askd the source.

A meeting of the Human Rights Working Group led by the British Embassy in Kathmandu will be conducted soon where it will put in paper its reservation and opposition to the new law, according to diplomatic sources.

The countries represented at the working group are the European Union delegation and other European countries. “The EU (Denmark, Finland, France, Germany, UK and EU delegation in Nepal plus Switzerland and Norway) and other countries will soon meet with top leaders of major political parties as well as government officials to amend the law according to international standards,” said sources.

The new ordinance on the ‘Commission on Investigation of Disappeared Person, Truth and Reconciliation’ in its current form is a step backward from what was earlier drafted by the parliament, said a diplomatic source. The source added that it needs improvements to be able to provide justice to the victims, saying that the section on ‘Amnesty Provisions’ is probably the most problematic part of the law.

Speaking against the preamble and earlier articles, the section reads: ‘The commission may, on the basis of sufficient reasons, recommend for the grant of an amnesty’. The law also fails to meet international standards in many respects despite its optimistic preamble, contravened by many of its following sections.

Except for a few items, the whole law therefore has serious shortcomings, the informed sources said, adding that there is no section that makes the perpetrators of the violations of crimes listed stand before justice. “The Commission formed to address so sensitive an 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.”

Furthermore, the failings of the law is severely exposed in other sections that say the commission is empowered to facilitate reconciliation in the application of either the ‘perpetrator’ or the ‘victim’.  “Given the high political access of the perpetrators, it’s thus ascertained that many of the perpetrators will apply for such facility which in all likelihood may turn into a forceful reconciliation simply on the basis of a superficial apology or compensation,” said the sources. 

While focusing on the symbolic acts of reconciliation,  a necessary component of justice is also missing in the new ordinance. For instance, it specifies that the commission ‘may’, instead of ‘must’, seek the consent of the victims prior to making reconciliation.

“A UN principle on restorative justice requires transitional justice to be a broad-based process ensuring stake of the victims as well,” said the diplomatic source, adding that by making the commission a part of an opaque political deal, the parties, right at the outset, have failed to meet their international obligations.