The UN Office of the High Commissioner for Human Rights (OHCHR) has hinted that it would not recognise Nepal’s transitional justice process under the existing legal and procedural framework.
In a position paper on Nepal’s transitional justice process, the UN rights body has urged Nepal government once again to formulate the Transitional Justice Act and Procedures for the transitional justice bodies in line with international standards and principles. It has also reminded the government of the Supreme Court verdict, which has struck down a dozen provisions as well as suggested amendments to the Act.
The government formed the Truth and Reconciliation Commission and the Commission of Investigation on Enforced Disappeared Persons one year ago without amendment to the Act.
The commissions themselves have forwarded amendment proposals to the Act three months ago. The government has not only responded to the proposal but also delayed publishing the commissions’ regulations on Nepal Gazette, putting on hold the tasks of transitional bodies.
Insisting on amendment to the Act in consistent with Nepal’s obligations under international law, the UN body said that it could reconsider its support to Nepal. “This step is essential for the United Nations to consider supporting the work of the two Commissions,” states the paper.
Both commissions, formed a year ago to investigate into conflict era cases, have not been able to start their tasks in absence of legal framework as well as physical infrastructure. The commissions are understaffed and reeling under budget scarcity to set up offices at districts to collect complaints from victims. They do not have regulations to hire staff on contracts. As per the Act, the government must provide the employees necessary for the commissions.
Besides, there is no law to criminalise act of disappearances and torture. After the government showed no sign of drafting it, the CIEDP itself drafted the bill to criminalise the act of disappearance with retrospective applications aiming at conflict-era cases.
In December last year, the TRC had forwarded the amendments to the Act in line with the court verdict. Aside from clarity in provisions related to ‘serious crime’, ‘serious human rights violation’ and ‘other crimes of serious nature’, the commission has sought removal of statute limitation in registering rape cases and clarity on provision of Special Court to prosecute the perpetrators.
In February last year, the SC had ruled that any provisions of the Act that serve to compromise this judicial role are invalid, including
the power to grant amnesties, powers to divert such cases from the courts or to otherwise interfere in such cases.
“However, the OHCHR notes that no legislative or administrative action has been taken to reflect the decision of the Supreme Court in the enabling law or procedures of the Commissions,” the paper said.