On the proposed bill of Truth and Reconciliation Commission Act, 2066

(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the bill review programme on the Bill of Truth and Reconciliation Commission Act 2066/2009 organised on April 04, 2011)

The Bill of Truth and Reconciliation Act 2066/2009 is a significant legislative measure being considered by the Legislative Committee at Parliament. It intends to establish a Truth and Reconciliation Commission in Nepal to find out the truth and keep the record of human rights violations and serious crimes against humanity committed during the period of insurgency in Nepal.

The objective of establishing the Commission is to recommend cases to authorized bodies and the government against the accused for fair trial, to ensure the victims justice and adequate reparation and to prevent repetition of such events in the future. It is also expected to create an environment for reconciliation and promote peace. The main provisions of the Bill deal with the tenure, constitution and procedure of the Commission, its jurisdiction and authority and implementation and monitoring of the recommendation.

Section 2(j) of the Bill, as it stands now, defines "serious human rights violation" as targeted against unarmed people in a planned manner including - murder, abduction, causing disappearance, causing serious injury/loss of organs, physical and mental torture, rape, sexual harassment, robbery, capture or destruction of property, displacement from property and any other act contrary to International Human Right norms. The legislation is focused upon the incidents during the armed conflict between the State of Nepal and the Nepal Communist Party (Maoist). Section 3 establishes the Truth and Reconciliation Commission which is to include seven members as appointed by the government on the recommendation of a committee headed by the Speaker of the Parliament. The qualifications and disqualifications for the members are prescribed in Sections 5 and 6. The staffs for the Commission are provided by the government after consultation with the Commission.

Section 14 provides the Commission with the power to investigate on cases of serious human rights violations based on complaints or information. The Commission can carry out its investigation with the same powers as that of a judicial institution regarding summoning, evidence, testimony, inspection etc. The Commission can recommend the suspension of a public officer if it feels that the person is likely to use the position to destroy evidence. Section 16 mandates any person, institution or agency called upon by the Commission to provide requisite help towards the investigation. The Commission can conduct contempt proceedings and sentence the guilty up to 3 months imprisonment and Rs 15,000 fine. Section 18 provides for the protection of witnesses by the Commission when necessary. According to Section 19 the Commission can conduct open hearings and Section 20 requires the functioning of the Commission to be transparent. Section 23 empowers the Commission to conduct reconciliation between the parties in accordance with the conditions it places. The Commission can recommend amnesty for the accused and reparations for the victims to the government. Section 24 requires the Commission to recommend proceedings for the serious human rights violations to the office of the Attorney General.

The Commission is required to present a report to the government disclosing the investigations, the findings and the details of the proceedings conducted thereafter (Section 27). The Ministry for Truth and Reconciliation is responsible for the implementation of the recommendations of the Commission. Section 29 gives the discretion to the Attorney General whether to start legal proceedings against the accused as per the recommendation. The National Human Rights Commission (NHRC) shall monitor the implementation of the recommendations. The Commission is empowered to make teams to complete specific tasks and can take the help of specialists. The Commission's term will be two years but it can be extended if necessary by the government. The government has the power remove any difficulties in the implementation of this Act.

There are concerns with respect to the impartiality in the nomination of the members of the Commission due to political intervention in the name of inclusiveness and specialists. The provision regarding the power to conduct reconciliation is likely to be misused as victims can be coerced into accepting reconciliation. Similarly the amnesty provision can be misused under political pressure looking at the level of impunity in this transitional phase. There have been many cases where such tasks have not been able to be completed in due time and have required additional time. Therefore, the Commission may need help from the political parties. The task of witness protection also appears as a challenging one looking at the law and order situation of the country. Another important factor here is the existence of the several other commissions like the Commission to find the disappeared citizens and the NHRC. Adequate cooperation mechanism needs to be developed so that these entities do not hinder each other's functions.

Lack of human and financial resources for the Commission has already been anticipated. In case recruitment of staffs is time consuming then the Commission will be delayed in commencing its work. To add to that the Commission needs to formulate its own working procedure and convince its donors as well. Due to the political clout of the people involved in human rights violations, the hearing process is in the risk of being hindered. It is possible that many of the possible accused are not in the country or are living as respected people. There is a big possibility that the political parties will not be helpful to the Commission to protect their members. It has been a tradition in Nepal not to make the reports of the various Commissions available to the public. Therefore legal provision to ensure such publication is necessary. The implementation of the recommendation depends upon the independence and resources of the Office of the Attorney General. In the current situation, political influence on this Constitutional entity endangers the implementation of the Commission's recommendations. Legal provisions to compel the government into implementation are necessary.

It has been felt that the appointment of members should be made more inclusive in terms of geography, gender and ethnicity and their number also might have to be increased. Proponents of gender equality have questioned the number of places reserved for women which is only two. Also, it is doubtful that the NHRC in its current condition can effectively monitor whether the Commission's recommendation are implemented.
Even though the Bill has been drafted after colossal consultation with people it is doubtful whether the Act will be able to address the victims' issues effectively. There is possibility that the culprits will get relief due to foul play in the administration and politics. The victims are demoralized as there is delay to pass this act by the legislative parliament. These issues must be taken into consideration before the Legislative Committee finalizes the Bill, and sends it back to the full house of the parliament.

Bipin Adhikari
Nepal Constitution Foundation

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