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Saturday, October 6, 2018

Law ministry comes up with ‘fresh draft’

 Kathmandu, October 5

A month after Minister of Law, Justice and Parliamentary Affairs Bhanu Bhakta Dhakal publicly disowned the draft amendment to the Transitional Justice Act released by his predecessor Sher Bahadur Tamang, the ministry has come up with a fresh ‘preliminary draft’.

The ministry is now working on an action plan to take the preliminary draft to the provincial level for consultations with stakeholders, including victims. “We will most probably start consultations after Dashain and Tihar festivals,” said Ramesh Dhakal, spokesperson for the ministry.

Dhakal did not divulge how the new preliminary draft was different from the one released by Tamang, but added the ministry would make it public once the final draft was ready after incorporating inputs from the consultations.  The ministry has been saying the amendment would be done on the basis of six factors — the Comprehensive Peace Accord; Nepal’s national and international obligations related to human rights; fundamental principles of the transitional justice; decisions and orders of the Supreme Court; sentiments of conflict victims; and Nepal’s legal and political processes.

“What I can say now is the new draft is based on the older one,” said Dhakal. Conflict victims, however, have rejected the draft amendment to the existing Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act 2014 presented by former minister Tamang.

The draft had proposed perpetrators would not get amnesty in serious human rights violations, but could get waiver in sentences as per the prevailing laws — up to 60 per cent if they did not reveal the truth and did not assist the court, but if they assisted the court, revealed the truth, apologised to the victims and pledged not to commit such crimes again, they could get waiver of punishment up to 75 per cent.

The draft, which proposed to have retroactive effects, also proposed a maximum jail term of three years in other crimes, and provisioned withdrawal of cases lodged by police officials against Maoist cadres. Perpetrators of other crimes could also be sent to open prison if they helped the cause of transitional justice and assisted the investigation. The victims have said the draft addressed none of their four major demands — making public the status of those disappeared, honouring those killed, providing guardianship to victims’ families and bringing the  perpetrators to book.

They have also expressed strong reservations over the provision of punishment waiver and open prison, and have said the symbolic punishment was discriminatory as it seemed to be intended at offering immunity to violators who had reached higher positions and harsher punishment to others. The draft also does not provision this kind of punishment to those issuing orders to commit the crime.

Other ‘flaws’ identified by the victims include no proper definition of torture, no clear provisions on reparation and reparation fund, non-inclusion of memorialisation, no clear national documentation provision, and vague community service and national reconciliation ceremony provisions.

Suman Adhikari, former chairman of Conflict Victims Common Platform, said they were not aware of the new preliminary draft amendment prepared by the ministry.

“We had prepared a report incorporating feedback from victims at the district-level on the draft amendment presented by Tamang, but after the incumbent minister disowned the draft, we are all sitting confused,” he said. “If the ministry is working on a new draft, it has to be finalised with proper consultations with victims and other stakeholders at the distinct level.” The Supreme Court has also ordered the government to amend the act in line with international standards.

The SC has ruled that there should not be amnesty for grave human rights violations such as extra-judicial killing, enforced disappearance, torture, rape and other acts of sexual violence; the statute of limitations for grave offences must be removed; cases recommended by the TRC and the CIEDP must be prosecuted; torture and enforced disappearance must be criminalised through the enactment of laws; cases before court cannot be transferred to the TRC or the CIEDP; dignified and respectable reparation for victims; and reconciliation cannot be made without the consent of victims.

 

The post Law ministry comes up with ‘fresh draft’ appeared first on The Himalayan Times.



from The Himalayan Times https://ift.tt/2zV5JAd

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