(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 Disappearance (Offences and Punishment) Bill 2066/2009 organised onApril 13, 2011)
The objective of the Bill is to penalize the act of causing disappearance of persons, to compensate the affected persons and to investigate and find out the truth about the victims and those involved in the act of causing such disappearance.
The bill in Section 2(a) defines what constitutes the act of causing disappearance of a person. Section 3 prohibits the act of causing, abetting, or conspiring for, the disappearance of any person. Section 4 states that when a group of people cause such disappearance then all of them are considered the main accused. In case the act is done under the command or direction of another person then the latter will be considered the main accused. Section 5(2) provides that whoever with knowledge of such conduct from the concerning officer, agency or group takes no action to sop it is also considered guilty of such offence. Section 7 prescribes the maximum punishment of 7 years and Rs 5 lakh fine.
The disappeared person who resurfaces, or in the case of death, the family of that person can demand compensation from the perpetrator, according to Section 8. A Commission of five members is envisaged under Section10 to investigate the cases of disappearance and report to the Government. Section 15 highlights the duties, functions and powers of the Commission. The Commission has quasi-judicial powers of investigation and inquiry etc and requires cooperation from whichever person or institution it approaches.
Section 19 provides for the protection of witnesses and Section 20 empowers the Commission to maintain secrecy regarding its functions. The Commission can recommend the government to return possession of the victim’s property to the rightful owner. Section 23 empowers the Commission to recommend legal proceeding against the perpetrators to the appropriate authority along with the evidence. Section 24 requires the Commission to present a report to the government detailing the investigations and the actions taken.
Section 26 prescribes a limitation period of 6 months from the date of the disappearance or the date when such disappearance was known within which the petition must be made. False complaints can be penalized and the term of the Commission is to be two years. The Commission is mandated to contact the government through the Ministry of Peace and Reconciliation.
Many improvements can be made in the Bill to make it more effective. It is seen that perhaps “enforced disappearance” would be a better term to use than just disappearance in Section 1. The definition in Section 2 should be expanded to include- the act of denying the fact that a captive is being held or arresting and placing the captive outside of state supervision, causing disappearance of persons working under State’s authority and direction etc. The maximum punishment seems a little less with regard to the varying kinds of offences. Therefore the Courts should be given the authority to set the punishment and a minimum punishment should be prescribed in the Act. To ensure the independence, autonomy and inclusiveness of the Commission, it must include representatives of the victims and civil society. Additionally, many critics have suggested, the Commission needs to be allowed to appoint its own staff. If it is not acceptable, it is possible to provide for an independent recruitment system, which may ensure the level of impartiality that the bureaucracy under this Act may need.
If disappearance is accompanied by torture then punishment has to be given with regard to both the offences. In case of a government official involved in such an offence, the punishment must be accompanied by dismissal from the position. Provisions need to be made for the compensation being given by the state in case the culprit is unable to be identified.
The state should also make necessary provisions to give legal aid to the victims. Minimum qualifications have to be prescribed for a member of the Commission. The Commission has to be empowered to make necessary appointments of experts necessary to carry out its functions.
The National Human Rights Commission should be called in to monitor the implementation of the recommendation made by the commission and follow up whether the compensation promised to the victims has been provided.
Bipin Adhikari
Chairperson
