KATHMANDU, Jan 2: In a blow to the agreement reached earlier among major political parties to form a Truth and Reconciliation Commission (TRC) with a provision of blanket amnesty, the Supreme Court on Thursday said blanket amnesty in serious cases of human rights violations is unacceptable.
Acting on a writ petition, a joint bench of justices Kalyan Shrestha, Girish Chandra Lal and Sushila Karki ordered the government to amend some of the controversial provisions in the TRC ordinance to make it compatible with international standards.
The verdict has categorically said the ordinance not only fails to guarantee that there will not be blanket amnesty for the perpetrators of serious cases human rights violation but also fails to make participation and consent of victim parties mandatory in the process of granting amnesty.
The apex court also ordered the government to review and make necessary amendments to those questionable provisions while concluding that such provisions in the TRC ordinance contravene with the victim"s fundamental rights to life and freedom, rights to information, rights against torture and acceptable norms of justice.
The apex court"s ruling comes in the wake of the major political parties in the High Level Political Committee (HLPC) agreeing last month to expedite the process of forming the TRC and Disappearance Commission as per the ordinance introduced in March 2013. The then caretaker government led by Baburam Bhattarai had introduced the Commission on Investigation of Disappeared Person, Truth and Reconciliation Ordinance 2013 with controversial provisions in the absence of a functioning parliament. Arguing that disapperance is a serious violation of human rights and should not come under the purview of the TRC, the court has ordered formation of a separate disappearance commission.
Shortly after the ordinance became public, both human rights organizations at home and the international community had raised serious concerns saying it failed to meet international standards despite its optimistic preamble and good section 2 which is contravened by many of its following sections.
The court has said that the provision in Clause 25 and 29 of the ordinance to keep persecution of those involved in serious cases of human rights violations of the conflict era under the discretionary jurisdiction of the executive could deny dispensation of justice, and has ordered the government to amend the provisions in line with the constitution and other laws.
Likewise, the court has also questioned the provision in section 29 of the ordinance that empowers the Attorney General to decide, upon a written request by the Ministry of Peace and Reconstruction, whether to file a case against perpetrators of serious cases of human rights violations. While arguing that the 35-day statute of limitation set in such cases would create impunity in the cases of human rights laws violations, the court asked the government to make necessary amendments as per the constitutional provisions relating to fundamental rights and judicial system and acceptable norms of justice in line with the principle adopted by the constitution.
The apex court has asked the government to make necessary legal arrangements to criminalize the serious cases of human rights violations for broader management of truth and reconciliation process, launch a massive campaign to promote feeling of reconciliation, make a provision of adequate financial, legal and institutional arrangement for reparation to the victims. It has also ordered formation of an international standard TRC that does not include parties to the conflict so as to ensure its autonomy and impartiality. This provision makes even the army, police, bureaucrats and top political leaders in power during the conflict era liable to criminal charges.
Also, the verdict has asked the government to make necessary arrangements to keep confidential the personal details of victims and eyewitnesses and make an arrangement where victims and eyewitnesses can share their piece of information through audio-visual and tele-hearing methods to enable victims and eyewitnesses to speak up truth without any fear.
Among other thing, the verdict also specifically asks the government to amend the ordinance that includes both TRC and Disappearance Commission with the assistance of an Expert Team comprising conflict experts, representatives of the organizations of conflict victims, human rights organizations, legal experts and others concerned.
On April 1 last year, a single bench of Justice Sushila Karki had stayed the implementation of the TRC ordinance arguing that some of its provisions contradicted the Interim Constitution. Advocates Madhav Basnet and Bishnu Pokharel took issue with Section 23 (2) of the proposed ordinance, which read, ´Notwithstanding anything contained in Sub Section (1), on serious human rights violation cases, including rape, which lack sufficient reasons and grounds for granting amnesty following the investigation of the Commission, it shall not recommend amnesty.´ The petitioners have sought court orders to defendants to formulate laws as per the previous order of the court on transitional justice until war crimes and crimes against humanity are not declared criminal offences and provision for punishment are not put in place.