Amendment to Limitation

The third amendment to the “Bill relating to providing for disappearances” put forth by the Transitional Justice Advocacy group deals with the section on limitation

Section 26 of the bill reads:

(1) The complaints shall have to be lodged within six months from the date a person is known to have disappeared, or the disappeared person becomes public.

(2) Notwithstanding anything contained in Sub-Clause (1), the complaints shall have to be lodged within six months of promulgation of this Act for those disappeared persons who were made disappeared before the commencement of this Act.

(3) Notwithstanding anything contained in Sub-Clause (2), the statute of limitation for bringing the complaints for the matters relating to the investigation to be carried out by the Commission shall be as prescribed by the Commission.

The proposed amendment states:

“There shall be no limitation for the offence of disappearance. Provided that, regarding the lodging of complaint in the Commission, complaint or information may be submitted to the commission under the procedure prescribed by the commission until the commission functions.”

With the following reasoning:

It is inherent characteristic of the act of enforced disappearance that the violation continues until the fate of the victim or the case of the disappearance is unresolved. Section (8) of the Convention against enforced disappearance clearly stated the continuous nature of the offence of disappearance. In its decision of  1 June 2008 the Supreme Court has stated that ‘provision on continuous search of the disappeared person is necessary until the fate of such person is resolved’. Nonetheless the fate of the disappeared is resolved, Section (8)(1)(a) of the convention states that the limitation is to be of long duration and proportionate to the extreme seriousness of this offence.

Amendment to Punishment

The second amendment to the “Bill relating to providing for disappearances” put forth by the Transitional Justice Advocacy Group is on the portion of the bill dealing with punishment

Section 6(1) of the bill reads:

Punishment: (1) The person, who commits the offence pursuant to this Act, shall be subjected to the following punishment:

(a)      If anyone, by knowing the period and even the condition of the disappearance, disappears a person; the principal offender shall be subjected to an imprisonment of up to seven years  years and a fine of up to Five Lac rupees.

(b)      The person who indulges in an attempt to disappearances, or engages in a conspiracy, or act as an accomplice, or assists in any manner whatsoever, shall be subjected to half of the punishment imposed to the principal offender.

The proposed amendment states:

The person, who commits the offence pursuant to this Act, shall be subjected to the following punishment:

(a) If anyone, disappears a person; the principal offender shall be subjected, taking into consideration the period and condition of disappearance, to an imprisonment of three to fifteen years and a fine of up to a million rupees.  Person committing a crime against humanity shall be liable for life-imprisonment.  

With the following reasoning:

It is an essential element of the justice system based on rule of law that the punishment for the offence should be proportional. When disappearance is carried ouunder systematic policy, it becomes heinous crime. Therefore, Section (7) of the Convention against Enforced Disappearance has provided that the punishment should address the ‘extreme  seriousness of the enforced disappearance’.  

Amendment to Definition

This is the first in a series following the previous post regarding the proposed amendments to the “Bill Relating to Providing for Disappearances” submitted by the Transitional Justice Advocacy Group. We will be listing the proposed amendment, preceded by the original text of the bill.

The first amendment was with regards to section 2(a) of the disappearance bill pertaining to definition

Section 2(a) Reads:

Definition: In this Act, unless the subject or context otherwise requires:
(a)      “Disappearances” shall refer to the following acts:

(1)      If any person arrested, detained, or taken control of by any other means, is not allowed to meet the concerned stakeholders even after the period to present her/him before the authority, which hears the case, has already been elapsed but no information in relation to where, how or in which condition the person has been kept is provided by the person having the legal authority to arrest, investigate or implement the laws, or by the security personnel, or deprived her/him from the protection of law.

(2)      If any person is arrested or abducted, taken control of or deprived of from his/her personal liberty in any other ways by any organization or organized or unorganized group but no information is provided on such control or deprivation after twenty four hours time is elapsed, or no reason of such deprivation is furnished and no information in relation to where, how and in which condition the person has been kept is provided to the stakeholders.

The proposed amendment states:

In the Section 2(b), after 2 (a) of the proposed bill, definition of the ‘enforced disappearance as crime against humanity’ is to be included in the following manner:

In case the acts pursuant to Section 2 (a)(1) and (2) is part of the widespread or systematic attack  targeted against civilian population, it shall denote ‘enforced disappearance crime against humanity’   

With the following reasoning:

Under international law, specific legal condition is necessary for any act to become crime against humanity which equally applies in Nepal also. Therefore it is necessary to define ‘Enforced Disappearance Crime against Humanity’ along with ‘enforced disappearance’