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.
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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’  

Disappearance Bill Amendments

In May of 2010, the advocacy group on Transitional Justice – supported by human rights organizations in Nepal including Advocacy Forum, International Centre for Transitional Justice, International Commission of Jurists, Amnesty International and INSEC – drafted a series of proposed amendments to the Disappearance Commission Bill.
NEFAD Chairman Ram Kumar Bhandari drafted these amendments on behalf of the Transitional Justice advocacy group. They were submitted to the chief whip of each of the major political parties – Nepali Congress, Communist Party of Nepal – United Marxist-Leninist, Communist Party of Nepal – Maoist, and the Madhesi Front – as well as members of the committees on the DC and TRC and more than 30 members of the Constituent Assembly.
Unfortunately at this point in time there is significantly less discussion regarding the Disappearance Commission Bill than the Truth and Reconciliation Commission. The DC bill is often overlooked in political deals including recent and previous extensions of the Constituent Assembly.
We will be posting the proposed amendments to the constitution over the next days, be sure to check back for detailed updates.

Advocacy Meeting on TJ in Fall of 2009

 Photo by Erik B. Wilson

Truth without justice will not be acceptable

NEFAD has been a prime mover in a recent press conference and press release, in the light of the renewed promises from the authorities concerning the Truth and Reconciliation Commission and the Commission on Disappearances.
Press Release
Truth without justice will not be acceptable
28 November 2011, Kathmandu
1. The families of conflict victims have been struggling for justice and truth for incidents of human rights violations committed during the armed conflict. Their organisations and the human rights community has constantly been advocating for these problems to be addressed. They have further demanded that the bills regarding the Truth and Reconciliation Commission and Commission on the Disappeared – which are now being considered at the Constituent Assembly – should be passed in a manner that will bring to light the truth and will ensure justice to victims. They have expressed deep concerns that all parties, the political parties in particular, were not serious about this process. Any law or mechanism lacking the minimum international human rights standards aimed at establishing truth and delivering justice will not be acceptable to us. We warn in advance that if our demands are not addressed, or if the bills are passed by removing the victims’ right to justice, we will be compelled to reject them.
2. We strongly demand that the following demands be fulfilled to ensure rights to truth and justice:
(a) Regarding Pardons: Any kind of provisions such as pardon, amnesty, case withdrawal, etc. for any incidents constituting serious violations of international human rights and humanitarian law will not be acceptable to us. Furthermore, incidents of sexual violence should be added to the list of incidents for which pardon cannot be granted. No attempts should be made to remove any such incidents from the list. In this regard, the Government of Nepal should respect its commitments made to the victims’ families, civil society and the human rights community during its discussions, consultations, etc. on the granting of pardons or amnesties.
(b) Regarding Independence of the Commission: A public process should be determined for selecting Commissioners in an independent, impartial, transparent and competitive manner, bearing in mind the best international practices in order to guarantee the independence of the Commissions and to maintain their propriety.
(c) The role of the Attorney General: A provision should be made to review the right of Attorney General to decide whether or not to prosecute serious crimes. This should be made in view of the need to investigate incidents of serious crimes in an independent and impartial manner, and to prosecute the perpetrators involved.
(d) Regarding the protection of victims and witnesses:  A special provision should be made in both bills to ensure the protection of victims and witnesses in order to secure their cooperation. Any victim or witness who wishes to name any perpetrator in course of giving his or her statement should be informed of the provisions in place regarding their protection. Similarly, regarding other crimes, arrangement should be made to ensure the security of victims in relation to the pressures that may be exerted on them by perpetrators. Special arrangements should be made for the custody of evidence obtained during the investigations, and a public record office should be established to ensure access to this information in the future.
(e) Provision of information to family members: Arrangements should be made to inform the members of conflict-affected families of the venue, date and time of public hearings and of the establishment of the Commission and its procedures. They should also be informed of any report to be prepared by the Commissions following the expiry of their terms of office.
(f) Regarding exhumations: As the bill contains a provision on exhumations to be carried out by the Commission in order to establish facts regarding incidents, a law should be formulated on this process, consistent with international standards and best practices. The Commission should proceed with exhumations-related work, provide information on every development and in so doing ensure participation in the process.
(g) Regarding the statute of limitations: There should be a provision that clearly states that there will be no statute of limitations for prosecutions in relation to recommendations made by the Commissions. Arrangements should be made in the Constitution that retrospective legal principles will not apply to incidents of human rights violations committed during the armed conflict.
(h) Release of reports: Arrangements should be made to immediately release the reports of the Commissions to the families of the victims and to the general public. The names of perpetrators should be mentioned in the reports with the agreement of the victims.
(i)  Coordination between the Commissions: Once established, the two Commissions should act in an integrated manner. Since there maybe confusion, duplication and different approaches undertaken by the Commissions, clarity regarding their work is essential. Arrangements should be made from the beginning to run these Commissions simultaneously by minimizing duplication in their work.
If the above demands are not addressed in a just manner, and if attempts are made to deprive us of justice under the pretext of seeking truth and reconciliation, such truth without justice will not only be called into question, but this will not be acceptable to us. The community of victims will be compelled to reject such meaningless transitional justice laws and mechanisms.
With solidarity
The Transitional Justice Advocacy Group

Don’t ask, don’t tell

An article from the Nepali Times:
Don’t Ask, Don’t Tell

By ANURAG ACHARYA

A victim of Doramba massacre who
was handcuffed and shot
A few months back when Nepali media and politics was rife with Maoist politburo member Agni Sapkota, then minister of information, we said a media trial into such cases could delay the peace process and impede efforts to find a national consensus on statute drafting. Moreover, individual approaches in such high profile cases may even eclipse larger wrongdoings. Hence, there is an urgent need for an empowered commission which can impartially look into the cases making a clear distinction between political killings during the conflict and individual war crimes.
The resignation of Prabhu Sah for an alleged involvement in the killing of a Hindu Yuva Sangh activist Kashi Tiwari in Birganj last year has once again stirred that debate. But the wishy-washy attitude of the political parties on the issue leaves enough room for us to suspect that none of the parties across the political spectrum want to see such a commission take shape, much less investigate cases. When everyone has skeletons in their closets, no one wants to open any of them for fear of being exposed.
In a decade of conflict and in the following years of the Madhes and other ethnic movements, everybody got their hands tainted: Maoists, the Army, the King and parties that came to assume power and keep musclemen in their payrolls.
It is not so much about whether Agni Sapkota had instructed the killing of Arjun Lama of Kavre out of personal vendetta or if it was a “party decision”. Does a political motive justify cold blooded murder of unarmed civilians? But we are not talking about one case here, neither are we talking about one party.
Politicians realise that a Truth and Reconciliation Commission is mutually assured destruction. No matter how much they hate each other, they won’t risk being dragged down together. At a time when the country’s politics is delicately balanced, none of the parties want to risk losing the support of the army which itself has been internationally censured for unpunished massacres and rapes.
The biggest paradox in Nepali politics today is, despite having gone through a revolution that took us from a monarchy to republic there are still only two real protagonists: the powerful and the powerless. During the Jhalanath Khanal government, the home ministry had forwarded 35 cases to the Law Ministry requesting that the cases be dismissed citing their “political” nature. But the ministry sent back 12 cases saying the cases in question did not fulfill the legal parameters to qualify as “politically-motivated” cases.
When we requested the Law Ministry this week to provide us a copy of its decision regarding the cases under Freedom of Information provisions, officials refused. The secretary at the ministry claimed that the cases were still “under consideration” and hence could not be made available to the public. But an insider told us that the cases have been sent back because they were mostly of non-political nature involving personal crimes committed during and after the war and the Madhes movement.
Soon it will be five years since the Comprehensive Peace Agreement was signed in November 2006 providing for a Truth and Reconciliation Commission and a Commission on Disappearances within six months. We have had five governments since then, but the bill remains in limbo. Chances are the commissions will never be formed and even if they are formed, its jurisdiction may be limited to submitting reports which will never be made public. It is even less likely that a future government will act on them. We all know the fate of the Rayamajhi Commission report.