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Legal hurdle delays probe into conflict-era cases

The transitional justice process has suffered a major setback with lack of law to proceed with the investigation into complaints received in the past months.

The Commission of Investigation on Enforced Disappeared Commission (CIEDP) has been waiting for legal clarity before collecting anti-mortem details of the disappeared persons.

The Truth and Reconciliation Commission had sought clarity on provisions related to ‘serious crime’, ‘serious human rights violation’ and ‘other crimes of serious nature from the government in December last year.

The definition of disappeared persons has not been clearly defined by law. The commission has received the complaints from the kin of those who went missing for reasons unrelated to the conflict. Conflict victims who were detained incommunicado have also registered their complaints with the commission.

The commission has suggested one month detention incommunicado be taken as disappeared, while the government has neither defined disappeared nor criminalised the act of disappearance.

“We cannot proceed with the anti-mortem without clear definition of the disappeared,” said commission’s Chair Lokendra Mallick. “We have been waiting for the amendment to the act and enactment of a bill to criminalise disappearance to move forward with our task.”

The commission has started corroborating prima facie evidences of the complaints. It has been tallying the claims of the complaints with details documented by the National Human Rights Commissions, district administration offices, security agencies and rights organisations to substantiate them.

The commission was supposed to begin collecting anti-mortem details of the disappeared immediately after the Tihar festival.

Mallick said that the commission would begin the task only after the act of disappearance is defined and jurisdiction set. “We do not want to take up random cases and drop investigation in the middle,” he said.

As per the existing law, amnesty in serious crimes is not permissible. However, the nature of looting, seizure, breaking or arson of private and public property and forceful eviction from house and land are pardonable.

The TRC had earlier sought clarity in serious crime and crime of serious nature to deal with the incidents according to their nature and mandate.

It had also asked the government to remove the statute of limitation to register case against the perpetrators found guilty by the commission. The government has not acted on recommendations of both the commissions.

Despite making a commitment to expedite the transitional justice process, the new government has not been able to streamline the laws required to initiate the investigation into the received complaints.

The CIEDP has received around 2,900 complaints from conflict victims, while the Truth and Reconciliation Commission has received around 54,000 complaints. Both the commissions have only five months to complete investigation, recommend action against perpetrator, suggest institutional reforms and outline the possible measures for avoiding conflict in the days to come.

“It seems they are taking us for a ride,” said Ram Kumar Bhandari, general secretary of the Conflict Victims Common Platform. “The commissions have done nothing in three months since conflict victims filed their complaints. The government also does not seem to have issues for forwarding the process.”

Both the commission had forwarded the amendment proposal to the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act as well as separate bills to criminalise disappearance and torture a year ago.

Attorney General Raman Kumar Shrestha said that the amendment draft and laws related to transitional justice will be endorsed after discussing it among coalition partners and stakeholders.


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