The Proposed Transitional Justice Bill 2023: Concerns and Challenges

-Aarashi Ghimire

Ms. Ghimire ​​is a research intern at Samriddhi Foundation, an economic policy think tank based in Kathmandu. The views expressed in this article are the author’s own and do not represent the views of the organization. Author can be reached at Aarashi Ghimire [email protected] 

The signing of the Comprehensive Peace Accord in 2006 was a monumental achievement in Nepal. Not only did it signal the end of the civil war, but it also recognized the need for some form of transitional justice mechanism to be put in place. Fifteen years later progress on the latter point has been slow and the agenda of justice for victims has repeatedly been sidelined.  

The earliest step to recognise and keep the promises made during the CPA was made in 2014, with the enactment of The Investigation of Enforced Disappeared Persons, Truth and Reconciliation Commission Act. The Truth and Reconciliation Commission(TRC) and the Commission of Investigation on Enforced Disappeared Persons (CEIDP) were swiftly formed in 2015. Despite these achievements on paper, the TRC Act and the institutions it established were repeatedly criticized by the stakeholders. Ultimately, the government had to heed the criticism, and on March 9th 2023, an amendment bill (hereafter the bill) was registered in the parliament. But does this bill actually address the issues of victims, is it substantially different from its predecessor, is it a signal for new hope or is it merely a tool to prolong the transitional justice process? 

Firstly, the bill has a provision that limits the victims from re-appealing in the Supreme Court against the decision of the special court. Regardless of the criticism that follows the creation of a special court and the appointment of its members, the non-existence of any mechanism of appeal is in equal parts a blow to the right to justice as it is to the basic idea of checks and balance; something which is a fundamental basis of our constitution. Ideally, no organ of the government, no agency of the government should be free from scrutiny, any provision that limits the right of appeal is merely a way of taking away the power to scrutinize, most importantly it places the onus on the victims to get things right the first time. The power to challenge a decision in higher courts is granted in recognition of the fact that errors may be made, new evidence may be discovered, and the law may be misinterpreted. In its current state, these safeguards have been limited to the extent that it questions the intention of those responsible for making the policy vis–a-vis the amount of importance they place in transitional justice. 

Secondly, The proposed amendment bill also has a provision governing the establishment of a special court for handling transitional justice cases. The government, in consultation with the Judicial Council, will appoint the court judges among the judges of the High Court. Usually, the judicial council nominates the judges and the president appoints them and therefore has limited power in the appointment process. However in this case, the judicial council will only be consulted in this formation. Considering how the present government is in the very center of this matter it raises significant concerns regarding the independence of the special court judges. This also goes against the spirit of the constitution as the independence of  judiciary is a right guaranteed by the constitution. 

Furthermore, The bill distinguishes human rights violations into two groups: “serious violations of human rights” and “other violations of human rights”. The “serious violations of human rights” are exempt from amnesty. The problem arises when the bill allows amnesty recommendation in cases filed as “other violation of human rights”. This includes crimes such as murder, sexual violence, torture, abduction, and more. This raises not just a moral concern but also a legal one too. Some of the crimes included in this category fall under the crimes against humanity as stated by the international law. It is subjected to universal condemnation and prosecution. This sets a precedent that even in such grave violence cases a perpetrator can walk free. It defies accountability and justice, sending a wrong message into society. This also directly undermines the set standard of the international law Nepal pledges to abide by. 

Moreover, The bill also allows the attorney general or any other public attorney to formulate charges against a perpetrator with a punishment lower than what is dictated by the law. The Special Court can consider decreasing the sentence if it is deemed too severe. This reflects a more flexible punishment practice implied by the bill. This carries the chances of unequal or inconsistent practices of law and raises questions on the fairness of the judiciary reducing the trust of the people in the legal practices of the country.  

After about 2 decades from the signing of the Comprehensive Peace accord and after a decade of first forming the first committees to fulfill the promises made by CPA, the transitional justice process still struggles. Even after numerous criticisms, the current bill still stands full of repeated flaws. The path to success in the case of justice seems to be hurdled by the political will of the parties. The bill which came as a glimmer of hope upon close inspections merely seems like a prolonging mechanism. The quest for truth and justice continues to be a long and uncertain journey in its war torn past.