Devolving power

  • A separate bill to guide prosecution will allow the TRC to focus on seeking truth

Apr 23, 2014-

The debate over the bill for the establishment of the Truth and Reconciliation Commission (TRC) and Commission of Inquiry on Enforced Disappearances (COID) has unfortunately become bitter and polarised. One of the major problems in the current debate is that the various aspects of transitional justice have all been confused together. In order to bring clarity to this debate, it is necessary to look at them in a concerted manner and understand how each of them can be addressed. In particular, there is a need to consider the two aspects of truth and justice separately.

In most countries, the major function of the TRC has been to reveal the truth about past human rights violations. This includes documenting cases of violations, identifying their patterns, recommending reparations for victims, and recommending measures for institutional reform so that previous patterns of violations will not recur. The second aspect of transitional justice is the prosecution of perpetrators of serious human rights violations.

In many countries, two separate organs have handled these different aspects of transitional justice. Usually, the TRC is meant to handle the truth and reconciliation part, and the legal system or a separately formed special court handles the prosecution part. Of course, there is a link between the two bodies. Often, the TRC recommends the Attorney General or some other prosecutorial mechanism about the types of cases that should be prosecuted. In Nepal, however, the TRC itself has been given the function to identify which specific cases should be prosecuted and which cases could be amnestied. This is at the crux of the problem. Because of this, many have interpreted the TRC’s role primarily as that of prosecution. Many rights organisations have criticised the provision in the bill that allows the TRC to amnesty even serious human rights violations.

The Nepal Bar Association (NBA) is the one organisation that has identified the best possible solution to the problem. It has recommended that the government remove all clauses in the bill that grant the TRC powers to grant amnesties or withhold prosecution. This would entail removing the entirety of Article 25 and 26 from the bill. According to Hari Krishna Karki, the NBA president, “dropping these provisions will limit [the TRC] to a truth finding commission” and that “related rules should be drafted as required later to deal with [prosecution].”

A separate bill or regulation could guide the process of prosecution once the TRC comes up with recommendations on types of cases that should be prosecuted. This approach will fulfil the demand of rights organisations that serious rights violations should not be amnestied. At the same time, it will allow the TRC to focus on its core function of truth seeking while allowing time to formulate regulations for prosecution.

Published: 24-04-2014 08:26

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