Amending the TRC Act
An edited version of the oral submission given by Prof Bipin Adhikari to the Sub-Committee on TRC (Third Amendment) Bill at the Parliamentary Committee on Law, Justice and Human Rights on July 24, 2023.
The Government of Nepal has tabled the Act on Commission on Investigation of Disappeared Persons, Truth and Reconciliation, 2071 [TRC] (Third Amendment) Bill in Parliament. While there are no universally binding international standards specifically governing the establishment and operation of commissions like TRC, various international bodies and organisations have provided guidelines and principles.
The United Nations, for instance, has recommended a transitional justice process that covers truth-seeking processes, reparations and prosecutions for serious crimes. The International Centre for Transitional Justice (ICTJ) and other organisations have published valuable resources and principles that can serve as references for countries considering or implementing TRCs. Nepal is committed to adhering to these guidelines and learning from other TRCs worldwide to ensure fairness, accountability and respect for human rights during reconciliation.
Some core concerns
Before delving into the specific details of the Amendment Bill, it is necessary to emphasise that granting a general amnesty in all cases of human rights violations during the conflict is not a credible process. Universally, providing legal pardon or immunity to individuals involved in such violations is deemed unacceptable. In no circumstances should amnesty be granted to those accused of committing serious human rights violations during the conflict. It is essential to prioritise accountability and ensure that perpetrators are held responsible for their actions to uphold the integrity of the transitional justice process. Granting amnesty, particularly in cases of grave violations, could undermine the principles of justice and accountability.
Ensuring the safety and protection of witnesses and victims who come forward to testify has also been a critical issue in Nepal. Witness protection mechanisms are essential to encourage individuals to share their testimonies without fear of retaliation. Unfortunately, public awareness about the TRC processes is lacking, resulting in limited participation and engagement from the wider public and victims. Furthermore, the TRC has faced challenges related to its leadership, institutional capacity, resources and expertise, affecting their ability to conduct comprehensive investigations and deliver justice effectively.
The Supreme Court of Nepal has taken various stands on issues related to the TRC process, including actively addressing legal challenges and controversies. Notably, the top court has forcefully stated that amnesties for serious human rights violations committed during the conflict are not permissible. It is evident in its opinion that the Act must be in line with international standards. The apex court's concerns about accountability and ensuring justice for victims should not be overlooked.
The Amendment Bill
Compared with many other jurisdictions, the original Act and the Amendment Bill are in good shape. However, considering the concerns of the victims and the general public, some reforms are still necessary in the given context.
The effort to classify human rights violations between "violations of human rights" and "serious violations of human rights" seems acceptable. However, the principle of classification in the context of the right to equality refers to the idea that if a law treats different groups of people unequally, there must be a reasonable and rational basis for such differentiation. The classification should have an objective and intelligible differentia that distinguishes the groups and a rational nexus with the purpose of the law. In other words, the classification should not be arbitrary or discriminatory and should be based on relevant and reasonable considerations to ensure equality before the law.
The legislators must revise the inadequate classification proposed in Sections 2(j) and 2(j1). For example, it is necessary to explain in what sense "gender-related violence" is different from "rape", as the existing criminal law deals with the latter offence in specific ways. There is a possibility of misinterpretation here.
There is no problem with the special court as proposed by the Amendment Bill to hear the transitional justice cases. In fact, it is necessary on several grounds. However, it is objectionable that the Government of Nepal will appoint the court judges in consultation with the Judicial Council. Even if these judges are to be appointed by the government from among the judges of the High Courts, there is no reason why the Judicial Council cannot be trusted to recommend judges for this appointment based on their qualifications and experience in transitional justice. No matter how important the client is, they should not be allowed to select judges. At least in this case, the Government of Nepal cannot be trusted for this job.
Another problematic provision of the Bill is the power to drop a charge given to the Attorney General. The Attorney General of Nepal is a political appointee accountable to the prime minister. All major parties that served in the government during the conflict had explicit biases and prejudices. The Attorney General may be unable to resist pressure in exercising this power. As such, the Attorney General should pursue whatever the commission recommends for prosecution and be able to investigate further if needed, but they should not have the power to stop the case at the threshold in the exercise of their discretion.
Additionally, Section 29(5) of the proposed amendment is problematic. It allows the Attorney General or any public attorney to frame a charge against a perpetrator claiming a punishment less than what is prescribed by the law of the land. The Special Court can consider all aggravating situations or mitigating circumstances if the punishment, as prescribed by the law, becomes harsh on the perpetrator. The existing criminal laws and procedures empower the courts to exercise this power. The office of the public attorneys cannot be trusted to exercise this discretion judicially.
Moreover, Nepal already has enough criminal laws and procedures that provide rules and guidelines on the issue of sentencing. There is no reason why Section 29(d) of the Bill should state that the Special Court "shall" impose the sentence prescribed under the existing laws only after reducing it (given the context of transitional justice). This provision contributes to impunity, and it's a poorly drafted clause. A court of law is presumed to have all powers to decide a case according to judicial standards. A provision that affects this power in such a blunt way is undoubtedly unconstitutional.
There is no need for an appellate provision in this ongoing process focused on transitional justice. Granting the Supreme Court appellate jurisdiction to hear appeals concerning the Special Court would unnecessarily prolong the process. The Supreme Court already possesses extraordinary writ jurisdiction to address cases involving genuine grievances of violation of human rights from any quarter. In general, appeals could be detrimental to the effectiveness of the transitional justice process, so it is not recommended to implement them. We should trust the Supreme Court as the guardian of the Constitution.
There are other minor comments to consider. The issue of providing compensation is an essential function of the commission. Protecting the victims is a pressing concern, and creating a victim-friendly environment is equally necessary. These issues could be better addressed if credible and competent individuals are selected to run the commission. Unfortunately, the current situation is unsatisfactory, and disputes over leadership appointments are evident. As the Bill is still at the committee level in Parliament, the legislators have the opportunity to address these issues and concerns.