Truth determination and reconciliation bill 2023

Manoj Bhatta

Our Party is in favor of ending the Peace process as soon as possible. But the Government itself wants to delay it and save the criminals who committed serious violation of human rights. According to the provision made in the Truth and Reconciliation Bill presented by the Government, the criminal given immunity. How does the Truth and Reconciliation Act presented by the Government try to protect the serious violators of Human Rights? I have tried to discuss it point to point in this article.

1. Laws related to transitional justice, the discussion on the bill to amend the Act 2015 AD on investigation of disappeared persons, truth-telling and reconciliation commission has started in the parliament. overall study of the bill presented in the parliament, it seems that even now the government is not in the mood to find out the truth about the serious violations of human rights that occurred during the armed conflict, to ensure the rights of the victims, to give justice to the victims of the conflict, and to punish the guilty.
2. In the detailed peace agreement signed between the Maoists and the state party on November 21, 2006, it was agreed that the names and home addresses of those who went missing and those killed during the war would be made public within 60 days from the date of the agreement and also the families would be informed. In addition, it was accepted that there is an agreement to establish a high-level Truth and Reconciliation Commission by mutual consent to investigate the truth about those involved in serious violations of human rights and crimes against humanity during the armed conflict and to create an atmosphere of reconciliation in the society. Even after 18 years of the conclusion of the Comprehensive Peace Agreement, the status of the missing persons has not been made public. Instead of investigating and punishing the serious violators of human rights, both the state and the Maoists are looking for various excuses to escape from it. As a result, although laws and structures related to transitional justice have been created, the main role of those laws and structures seems to be focused on saving the guilty.
3. During the conflict, many people have filed cases in the police administration, courts, and many have filed cases in the United Nations Human Rights Committee against the atrocities committed by the conflicting parties on them. 25 cases were registered in the United Nations Human Rights Committee, including the sexual violence committed by the army by Poornamaya of Dailekh and the disappearance of her husband by the army by Yasoda Sharma of Baglung. In those cases, the United Nations Human Rights Committee found the Maoists and the state guilty and recommended the Nepal government for its implementation. In all the complaints decided, the Human Rights Committee of the United Nations held Nepal responsible for violating its international obligations. Likewise, on January 10, 2019, eight European countries, including the United Nations, also issued a statement protesting that both the state and the Maoists were looking for various excuses to escape the conflict-era issues of Nepal.
4. Incidents of serious violations of human rights during armed conflict assume not only national but also international jurisdiction of law. Therefore, the foreign and international community is also constantly interested and alert in the cases of human rights violations in Nepal during the conflict. During an armed conflict, it is considered natural for two armed parties to kill each other. But during that period, the human rights of the unarmed and common people cannot be violated by both sides using force. There are many examples of the international community not remaining silent when there is no legal action based on transitional justice against states that violate the humanitarian law of civilians or rebel parties during armed conflicts in the world. During the armed conflict in Congo, not only the president but also the rebel leader was not punished by the national law related to the transition period of the country, the international criminal court in The Hague imposed a sentence of 14 years. It is not that the state of Bangladesh has not tried to evade the laws related to transitional justice for almost 41 years. But in the end, it seems that the culprits have to face the death penalty.
5. Both the state and the Maoists are trying to save their people after solving the conflict. But another thing is that Nepal has supported various declarations of the United Nations on human rights on different dates and has been a party to them. If the serious violators of human rights are not punished during the transitional justice period, the message that there is no rule of law and impunity in Nepal will go to the international community and therefore the grants from various countries as well as the investments made in Nepal by various countries will be stopped. On the other hand, they are trying to deceive the transitional justice in order to win the trust of the international community. As a result of which the relevant laws could not be enacted so far.
6. Since the issue related to transitional justice is a matter of international concern, the international community is opposing it, and the Supreme Court of Nepal has also expressed opposition to the truth-telling and reconciliation law issued by the government in 2007. Several of its clauses have been canceled by the Supreme Court. The decision of the Supreme Court, the conflict victims, the human rights community of Nepal and the international community have been taking a stand that four things should be included in the law related to transitional justice. 1. Ensuring no amnesty for serious crimes, 2. The right of the victim to be informed and free consent even in ordinary crimes that can be solved, 3. Currently, cases under consideration in the courts cannot be moved to the judicial commission during the transitional period, 4. The main agenda is to amend the laws to remove the statute of limitations on rape, sexual violence and disappearance of persons.
7. The bill has now been introduced to show that the demands of the conflict victims, the Supreme Court and the international community have been addressed. But this bill also has four concerns 1. Ensuring no amnesty for serious crimes, 2. The right of the victim to be informed and free consent even in ordinary crimes that can be solved, 3. Currently, cases under consideration in the courts cannot be moved to the judicial commission during the transitional period, 4. The issue of removing the statute of limitations for the crimes of rape, sexual violence and disappearance of persons has not been addressed. The purpose of this bill is not to punish the guilty and give justice to the victims in cases of serious violations of human rights by misleading the international community, the Supreme Court and the conflict victims. It is clear that the government is trying to enact laws related to transitional justice in order to give immunity to criminals in the presented bill.
8. The definition section of the presented Bill does not include Woman who have been Subjected to Sexual Violence by the State and Maoist during the conflict as victims. Thousands of woman have been forced to suffer more because of this. This is most serious and major blunders of the presented bill.
9. The main weakness of the proposed bill is that it has amended the definition of the act of missing a person in the definition section of the original act, granting amnesty to criminals even in serious crimes. In the bill, crimes of the same nature are included in the act of violation of human rights and serious violation of human rights. For example, in section 2 sub-section (4) of the bill, murder, sexual violence, physical and mental torture, kidnapping and body hostage, illegal detention, beating, mutilation or maiming, evicting or seizing someone from private property are general violations of human rights. If it is included in the work, the same work is included in the serious violation of human rights. Such as brutally tortured or brutally killed. Killing is a serious violation of human rights by adding the adjective “brutal” to “murder”. It is clear from the study of other clauses of the Bill that the government is playing with words like this. For example, section 9 of the bill stipulates that reconciliation cannot be done between perpetrators and victims of serious violations of human rights, and section 15 provides that amnesty cannot be given to them. But the same section provides that reconciliation can be done in cases of violation of human rights and those who commit such acts can also be recommended for pardon. According to the provisions of the bill, those who kill, rape, disappear, inflict physical and mental torture, mutilate, maim and take away private property and those who violate international human rights and humanitarian laws are tried to be saved through reconciliation or recommendation of amnesty.
10. Various legal avenues have been opened to protect or exonerate human rights violators in various sections of the Bill. In section 18 of the bill, the special court has been given the privilege to reduce the sentence by taking into account the principles of transitional justice due to urgent circumstances. Similarly, in sub-section (3) of section 18 of the bill, even if the commission has completed the entire investigation related to the case, the attorney general has been given the right to decide whether or not to prosecute the case. so Similarly, in sub-section (5) of section 18, a legal provision has been made that the attorney general can take a claim against the victim so that the punishment is reduced to the punishment according to the prevailing law. Section 19 of the Bill amended and added to Section 29 (c) of the original Act provides that if the defendant accepts the charges against him without a decision by a special court, if he repents, if he promises not to act like that in the future, if he apologizes to the victim, then he will be given a chance to be forgiven. Similarly, in 29 (d), special court has been proposed to be able to reduce the punishment according to the prevailing law, taking into account the circumstances, reasons and principles of transitional justice.
11. Sections 9, 13, 15, 18 of the Bill and Section 29 of the original Act have been amended by adding (c) and (d) to the Bill, which has opened the way for the immunity of criminals involved in serious violations of human rights. In other words, the presented bill ensures that there is no amnesty for serious crimes, extrajudicial killings, rape, disappearance of persons, physical and mental torture, and violations of international human rights and humanitarian laws are not covered by the law.
12. This bill has not been able to address the demands of the Supreme Court, the conflict victims and the international community that the cases under consideration in the courts should not be transferred to the Transitional Judicial Commission or the Special Court.

Section 19 of the proposed bill has provided for the transfer of cases in Section 29 (b) of the original Act and has violated the jurisdiction of the regular court by providing that the cases pending in different courts should be sent to the special court within 21 days as per the instructions of the Attorney General.

13. The Maoists, UML, Congress like other ruling parties have been hijacking the transitional justice since the beginning. It is not showing good results nationally and internationally. If the justice of the transitional period is to be hijacked in this way, the international power center will be directed towards interfering in the domestic affairs of Nepal, willingly or not. Such action cannot be beneficial for anyone Even if the Maoists and the Congress want to protect the serious violators of human rights from punishment, it is not possible. The example of Bangladesh is before us. For 41 consecutive years, there was no attempt to save their own people who were involved in crimes by defrauding the transitional justice, and finally those criminals had to suffer the death penalty. It has been 16 years since the Maoists and the state also started to cheat the transitional justice. But the more they are trying to cheat, the more they are getting trapped. Therefore, it will be beneficial for the Maoist Congress to emphasize in this bill not to give immunity to criminals but to bring them under the scope of punishment.