TRC, disappearances ordinance: Apex court for 2 commissions

KATHMANDU, JAN 03 -
The Supreme Court on Thursday ordered the government to form separate commissions of inquiry on truth and reconciliation and enforced disappearances.

Responding to two petitions gainst the Truth and Reconciliation Commission ( TRC ) ordinance endorsed by the President, the special bench comprising Justices Kalyan Shrestha, Girish Chandra Lal and Sushila Karki said that the apex court’s previous order along with the Interim Constitution envisions that a separate Commission on enforced disappearance (CED) will be formed. The ordinance accented by the head of state had merged the TRC and the CED. Later in April, the court had stayed the implementation of the ordinance.

In 2007, the court had ordered the government to enact legislation to protect persons from enforced disappearance, establish an inquiry commission to investigate into such disappearances during insurgency and initiate legal proceedings against the perpetrators.

The order on Thursday stated that the commissions to be formed should meet the international standards be independent from the rebels and the state during the insurgency. Both national and international rights groups have criticised the ordinance for failing to meet the international standards.

The order also called for provisioning a victim- and witness-protection programme and amending the necessary laws to ensure closed hearing for trials and also making arrangements for video conferences.

The 73-page final court order noted that there can be no general amnesty for serious crimes and even in cases that could receive amnesty, suggesting formulation of fixed criteria by a team comprising conflict victims, conflict experts and human rights lawyers.

The court also ordered for amendment to the provision on amnesty to ensure that victims’ consent is mandatory.

Stating that the ordinance had failed to consider enforced disappearance as criminal act, the court order has envisioned reconciliation in matters where it was not possible. The court has questioned the ordinance’s provision that confers power to the Attorney General to decide whether a case can be filed against those accused of serious crimes. The court has further ordered for amending the provision of statute of limitation which puts a 35-day limitation to file a case.  The court maintains that authorising a person who is under the executive head (the AG) to decide on filing of cases would hamper justice delivery.

Meanwhile, petitioners and human rights lawyers have welcomed the decision.

“This is a historic decision which has vindicated our position that there should be a separate commission for enforced disappearances,” said Ram Bhandari, a petitioner. 

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