Nepal: The current amendment bill to the Transitional Justice Act needs to be revised to ensure respect for the right of victims to truth, justice and reparation
29 July 2022
On 15 July 2022, a “Bill for the Amendment of the Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act, 2071 (2014)” (hereinafter the Transitional Justice Act Amendment Bill) was presented to the parliament by the Ministry of Law, Justice and Parliamentary Affairs.
On 21 July 2022, the International Commission of Jurists (ICJ) — in collaboration with Conflict Victim Women’s National Network (CVWN), Advocacy Forum and the Women and Social Committee of Nepal’s House of Representatives organized a dialogue with Nepali parliamentarians focusing on gender dimension of transitional justice. To a large extent, the dialogue ended up mainly focusing on the key human rights concerns to which the recently put forward Transitional Justice Act Amendment Bill gives rise, including with respect to gender.
Around 60 participants, including parliamentarians from the House of Representatives and the National Assembly, victims of the armed conflict and human rights defenders were present at the event. The Hon. Niru Devi Pal, Chairperson of the Women and Social Committee of the House of Representatives, chaired the dialogue, which Ms. Karuna Parajuli, ICJ Legal Adviser, moderated. During the dialogue, victims of armed conflict shared their concern about certain aspects of the Bill, including, in particular, the fact that, in their view, as presently formulated the Bill promotes impunity for the perpetrators of serious human rights violations; they recommended, in turn, that parliamentarians voice concern about the Bill.
Dr. Mandira Sharma, ICJ’s Senior International Legal Adviser, highlighted several Nepali Supreme Court judgments on transitional justice issues, as well as Nepal’s international human rights law obligations, and outlined some of the problematic provisions of the Bill from the standpoint of Nepal’s obligations under domestic and international law. She also highlighted some of the positive aspects in the Bill, such as the expansion of the truth-seeking mandates of the Truth and Reconciliation Commission and its recognition of the right of victims to reparations.
Certain sections of the Bill, however, if adopted as currently formulated, would be contrary to decisions of the Supreme Court and violate Nepal’s international law obligations. With respect to this, Dr. Sharma stated, “The Bill classifies human rights violations but excludes gross violations of human rights, war crimes and crimes against humanity. The Bill prevents an appeal against the decision of the Special Court; it envisions the TRC being the sole investigatory arm of prosecution without sufficiently empowering the Commission to investigate serious violations”. In light of this, Dr. Sharma urged members of parliament to address the above-mentioned concerns. She added that the “Bill in its current form fails to comply with international human rights standards and must not be passed without further amendment.”
Hon. Niru Devi Pal said, “More than 16 years have passed, and we have still not succeeded in creating accountability on conflict era cases. The TJ process needs to be victim centric”. She further expressed her commitment to study the current Bill based on the issues raised at the dialogue to see if there could be avenues for registering the amendment proposal on the current bill”.
The participating parliamentarians also raised concerns on the draft Bill and expressed their commitment to raise those issues in the parliament during the discussion. Further, they requested technical assistance from the ICJ to assist them to identify major problematic provisions in the Bill, as well as advice on potential amendments they could propose with a view to ensuring that the Bill complies with international human rights standards.
During the event, Ms. Laxmi Pokharel, ICJ’s National Legal Adviser, presented key recommendations from the ICJ’s briefing paper entitled “Nepal: Transitional Justice Mechanism with Gender Perspective”, and stressed the need to make the transitional justice process more gender sensitive and gender inclusive.
Ms. Srijana Shrestha, the Chair of Conflict Victim Women’s National Network shared her experience of being part of drafting of the National Action Plan (NAP) for the implementation of UN Security Council Resolution 1325 and 1820. She highlighted the need to adopt the second phase of NAP II as soon as possible to ensure a better integration of the gender dimensions into the ongoing transitional justice process.
Similarly, representative of the Secretariat of Women and Social Committee shared the role played by the committee in implementing the NAP I and urged the Home Ministry for early adoption of the NAP II.
The event was organized under the ‘Enhancing Access to Justice for Women in Asia and the Pacific’ project funded by the Swedish International Development Cooperation Agency (SIDA). ICJ has partnered with UN Women and the Office of the High Commission for Human Rights in this project.
Mandira Sharma, ICJ Senior International Legal Adviser, e:firstname.lastname@example.org
Laxmi Pokharel, ICJ National Legal Adviser, e: email@example.com
Karuna Parajuli, ICJ National Legal Adviser, e: firstname.lastname@example.org
In early April this year, Minister of Law, Justice and Parliamentary Affairs Govinda Prasad Sharma Koirala (Bandi), with a background in law and human rights, had new hopes that the stalled TJ process would mark progress. Moreover, since his appointment as Minister, he had been promising to amend TJ laws in line with Supreme Court decisions and international law. In light of the Minister’s stated commitment, civil society organizations and conflict victims participated in the consultation that preceded the presentation of the Bill to parliament. Such consultation aimed to gather victims’ concerns about the Transitional Justice Act with a view to addressing such concerns through new legislation that would amendment the Act. Seven consultations (one in each province), one with the conflict-related sexual violence victims and one national-level consultation were organized to discuss the issues to be incorporated into the amendment Bill. However, the amendment Bill was hastily drafted and presented to parliament without letting stakeholders, including armed conflict victims, discuss the draft.
When the draft bill was made public, it was criticized by the victims as being contrary to SC decisions on TJ cases and because it would “grant impunity to the perpetrators”. Additionally, more than 30 human rights civil society organizations issued a press statement calling on the government to “rectify the flaws in the amendment bill”. Legal experts have also raised concerns that the current amendment bill has narrowed the prospects of accountability for grave human rights violations.
Briefing paper on “Nepal: Transitional Justice Mechanisms with Gender Perspective” (full report in PDF English version)
https://www.icj.org/wp-content/uploads/2021/06/Nepal-Gender-TJ-Briefing-Paper-2021NEP.pdf (full report in PDF Nepali version)
News from the ICJ SectionsWeb storiesWorkshop reports