ALIN Legislative News
From Kathmandu University School of Law
Legislative
Changes to Conclude the Peace Process and Ensure Transitional Justice in Nepal
After a long overdue and much deliberations, Nepal’s federal parliament
passed a Bill to Amend the Investigation of Enforced Disappeared Persons, Truth
and Reconciliation Commissions Act, 2014 on August 29, 2024. In order to ensure
accountability, truth, and justice for serious human rights violations
committed during Nepal’s internal armed conflict (1996-2006) by both sides of
the conflict (the Government and the Maoist rebels) and to address reparations
and relief for victims, the then Constituent Assembly functioning also as the
legislature-parliament had enacted Investigation of Enforced Disappeared
Persons, Truth and Reconciliation Commissions Act in 2014. Although both the
Commissions had been established under the said Act, they, however, failed to
fulfil their duties and has remained without any office-bearers except the
administrative staff for almost two years. This failure has been attributed
mostly to the defective legal provisions of the 2014 Act and the widespread dissatisfaction
of the conflict victims with these provisions. The current amendments to the
earlier Act appears to be aimed at removing these defects and concluding the
transitional justice and peace process in Nepal. The Supreme Court of Nepal had
also struck down in February 2015 certain provisions of the 2014 Act for
allowing amnesty to the culprits of serious violations of human rights and
directed the Government of Nepal to initiate necessary changes in the Act to
make it compatible with the Constitution and international human rights
obligations of Nepal.
For almost 10 years, the ever changing federal government did not make any
serious efforts to amend the Act and complete the peace process. Many
stakeholders have voiced frustration over the significant delay in amending the
Act. This prolonged process has led to increased anxiety among victims and
families seeking justice. For whatever reasons, the top leaders of the three
main political parties in the parliament met on July 1, 2024 to discuss this issue
and decided to form a three-party mechanism to sort out the differences and a
find a common ground on the contentious provisions of the 2014 Act. An
agreement was reached on August 7, 2024 to make necessary changes in the
amendment Bill which was pending in the lower house of parliament and this
agreement among the political leaders paved the way for passing the amendment
Bill in the parliament.
Major Provisions of the Amended Act (Investigation of Enforced Disappeared Persons, Truth and Reconciliation
Commission (Third Amendment) Act, 2024):
The mandates of the Commission for Investigation of Enforced Disappeared
Persons (CIEDP) and the Truth and Reconciliation Commission (TRC) have been
modified under the amended Act to include the tasks of uncovering the truth,
analyzing root causes of conflict, analyzing the patterns and severity of the
human rights violations committed, making legal, structural and policy
recommendations to the government to prevent future violations, recommending
vetting against those responsible for serious violations of human rights,
conducting reconciliation or mediation between victims and perpetrators,
recommending for interim relief and reparation, investigating and collecting
evidence and recommending for prosecution among other. The Chairperson and
members of these Commissions have been given a 4 years’ time period to conclude
their tasks. If the Commissions complete their tasks before the expiry of this
time period, then they may be dissolved earlier. Similarly, the Government of
Nepal may also extend the term of office of the Chairpersons and members of
these Commissions if they could not complete their tasks on time and such extension
is deemed necessary.
The amended Act has made a clear classification of the violations of human
rights occurred during the armed conflict period into ‘human rights violations’
and ‘serious human rights violations’. It has a provision for the criminal
prosecution of “serious violations of human rights” in a special court. Crimes
such as rape, enforced disappearances, arbitrary killings, and inhuman or cruel
torture have been included in “serious violations of human rights” (Section
2(j1) of the amended Act). Victims are now guaranteed the right to reparation
and such right has also been extended to the family members of the person
directly or indirectly affected from the armed conflict (Section 22 A of the
amended Act). This new provision addresses long-standing grievances of those
excluded from previous relief measures.
The Commissions have also been tasked with making recommendations for
mediation, relief, and support for victims and their families immediately after
the conclusion of preliminary investigations. They are also empowered to
suggest institutional reforms based on their findings. The newly inserted
Section 29A of the amended Act establishes a three- member special court to
hear and settle the criminal cases filed against alleged serious violations of
human rights, ensuring a separate and dedicated legal platform for prosecuting
grave crimes. The Chairperson and Members of the special court will be
appointed from amongst the judges of High Courts on the recommendation of the
Judicial Council which is headed by the Chief Justice of Nepal. There is also a
significant change in the amended Act in regard to the eligibility of the
perpetrators of human rights violations for amnesty. The amended Section 26 of
the Act makes the perpetrators of serious violations of human rights ineligible
for such amnesty. They will be prosecuted under the prevailing laws of Nepal
and the Commissions have a duty to provide information to the Attorney General
of Nepal for initiating further criminal proceedings after the completion of
investigation on such serious violations of human rights, if cases need to be
filed on behalf the Government of Nepal under the prevailing laws. Even where
the perpetrators are eligible for amnesty, some conditions such as the free
consent of the victims have now been added to grant such amnesty.
The amended Act has also created a separate fund for the purpose of the
investigation of the forced disappeared persons and truth and reconciliation
efforts (Section 23A of the amended Act). The fund will have the amounts
received from various sources including the money received from the Government
of Nepal and the provincial and local governments, the money received from any
individual or agencies and organizations from Nepal, the money received from
foreign governments or foreign agencies or international organizations, and the
money received from the parties to the armed conflict. The amended Act requires
a prior approval of the Ministry of Finance of the Government of Nepal for
receiving any amount from foreign governments and international organizations.
The amount received in the fund may only be utilized in carrying out
investigation by the Commissions, making payments for reparation and relief to
the victims and fulfilling the objectives of the Act.
After years of stalled transitional justice efforts, the amended Act
represents an important step toward addressing conflict-era human rights
violations. The guarantee of reparations and reliefs for victims addresses
longstanding injustices and offers a sense of ending of the quest for justice
to families of the disappeared. Establishing a special court to prosecute
serious violations of human rights may expedite the process of imparting
justice and may be considered as a critical mechanism for ensuring
accountability. The amended Act’s provision for studying the causes of the
conflict and recommending institutional reforms is a constructive step toward
preventing future conflicts and violations of human rights. The amended Act
also appears to have drawn support from the international community, including
the EU, Switzerland, and the USA, signaling a global recognition of Nepal’s
efforts to address serious violations of human rights violations during the
armed conflict. By promoting mediation and recommending institutional reforms,
the amended Act seeks to foster reconciliation while addressing the root causes
of the conflict.
However, the amended Act still allows for amnesty in certain cases of
serious crimes under international law, including murder, forced displacement,
and some forms of sexual violence, which could perpetuate impunity. The failure
to adequately consult victims during the legislative drafting process for the
amended Act appears to have undermined the credibility of the new law and alienated
key stakeholders. The amended Act is still not free from criticism as it does
not fully comply with the rulings of the Supreme Court or with international
human rights standards, particularly regarding the prosecution of crimes under
international law. The one-year time limit for the public prosecutors to
complete investigations and decide on whether or not to file a case after the
recommendation from the Commissions raises concerns about the delay in the
justice rendering process (Section 29 (3) of the amended Act).
Numerous victims’ groups have strongly opposed the amended Act,
criticizing it as a betrayal to their rights and a denial of justice,
particularly due to its provisions related to amnesty. Amnesty International,
Human Rights Watch, and the International Commission of Jurists have expressed
their concerns over the fact that the amended Act, in its current form, may
still not provide justice to victims and may even shield perpetrators from
criminal prosecutions. Despite its flaws, international actors such as the USA,
Switzerland, and the EU have expressed cautious optimism. The amended Act
represents a crucial, albeit imperfect, step towards achieving justice for
victims of serious human rights violations in Nepal. While the law brings some
positive changes, its provisions regarding amnesty for serious crimes continue
to evoke concern about accountability and justice. Stakeholders, including the
government, civil society, and international actors, must remain vigilant to
ensure that the amended Act fulfills its intended purpose without allowing
impunity to persist.