KATHMANDU, MAR 19 - The Kathmandu-based international community, particularly the western and European blocks, have expressed serious reservation over the recently endorsed Truth and Reconciliation Ordinance.
The ordinance, which was endorsed by President Ram Baran Yadav last Thursday with an amendment after suggestion from the four major political parties, has removed the provision of blanket amnesty on serious human rights abuses committed during the insurgency.
Though the new ordinance now has the provision for prosecutions on serious cases of human rights violations, it gives the TRC Commission and government agencies discretionary power to drop prosecution, including in cases of rape. A problematic section is Article 29 in the law which empowers the Attorney General to decide, upon a written request from the Ministry of Peace and Reconstruction, whether to file a case against a human rights violator, said a source. “Thus there a three-layer barrier — the Commission, the Ministry and the Attorney General — is deliberately created to deny justice to the victims.”
“The commission is empowered to recommend an amnesty even in the cases of rapes, if sufficient reasons are given. And most importantly, 99 percent of the rape victims haven’t survived,” said the source.
A meeting of Human Rights Working Group led by British Embassy in Kathmandu will be meeting soon where it will put in paper its reservation and opposition to the new law, according to diplomatic sources.
The countries represented at the working group are the European Union delegation and other European countries. “The EU (Denmark, Finland, France, Germany, UK and EU delegation in Nepal plus Switzerland and Norway) and other countries will soon meet with top leaders of major political parties as well as government officials to amend the law according to the international standards,” said sources.
The new ordinance on the ‘Commission on Investigation of Disappeared Person, Truth and Reconciliation’ in its current form is a step backward from what was earlier drafted by the parliament, said a diplomatic source. The source added, it needs improvements to be able to provide justice to the victims, saying Section 23, ‘Amnesty Provisions’ is probably the most problematic part of the law.
Speaking against the preamble and earlier articles, subsection (1) says ‘The commission may, on the basis of sufficient reasons, recommend for the grant of an amnesty’, which the international community has expressed serious reservation. The law also fails to meet international standards in many respects despite its optimistic preamble and good article-2 which is contravened by many of its following sections, said the sources which was explicitly opposed by a section of the diplomatic community.
Except for these two items, the whole law has serious shortcomings, the informed sources said, there is no section that makes the perpetrators of the violations of crimes listed under Section 2 stand before justice. “The Commission formed to address so sensitive issue has been asked to work under the Ministry of Peace and Reconstruction, instead of making it directly answerable to the Government of Nepal or the President.”
Furthermore, the ill-intention of the law is severely exposed in its sections 22-29; the commission is empowered to facilitate reconciliation in the application of either the ‘perpetrator’ or the ‘victim’. “Given the high political access of the perpetrators, it’s thus ascertained that many of the perpetrators will apply for such facility which in all likelihood may turn into a forceful reconciliation simply on the basis of a superficial apology or compensation,” said the sources.
While focusing on the symbolic acts of reconciliation, component of justice is missing. The commission ‘may’, instead ‘must’ seek the consent of the victims prior to making reconciliation.
Section 23, ‘Amnesty Provisions’ is probably the most problematic part of the law. Speaking against the preamble and earlier articles, subsection (1) says ‘The commission may, on the basis of sufficient reasons, recommend for the grant of an amnesty’.
The demand of ‘sufficient ground’ therefore has left room for similar manipulations, said the sources, subsection (2) is more dangerous. It says ‘Not withstanding anything contained in subsection (1), on the serious human rights violation cases including rape which lacks sufficient reasons and grounds for granting amnesty following the investigation of the Commission, it shall not recommend for amnesty’.
“A UN principle on restorative justice requires transitional justice to be a broad-based process ensuring stake of the victims as well,” said the diplomatic source, adding, by making the commission a part of an opaque political deal, the parties, right at the outset, have failed to meet their international obligations.
Posted on: 2013-03-20 08:28
http://www.ekantipur.com/the-kathmandu-post/2013/03/19/top-story/trc-provision--international-community-cries-foul/246581.html
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