Truth and reconciliation commission

 Truth and reconciliation commission

 Truth and reconciliation commission is a commission tasked with discovering and revealing past wrongdoing by a government, in the hope of resolving conflict left over from the past. They are, under various names, occasionally set up by states emerging from periods of internal unrest, civil war, or dictatorship. South Africa's Truth and Reconciliation Commission, established by President Nelson Mandela after apartheid, is generally considered a model of Truth Commissions. (The Truth and Reconciliation Commission (TRC) was a court-like body assembled in South Africa after the abolishment of apartheid. Anyone who felt that he or she was a victim of its violence was invited to come forward and be heard. Perpetrators of violence could also give testimony and request amnesty from prosecution.)

NEPALESE CONTEXT

The government has, under the initiation of Ministry of Peace and Reconstruction, drafted the Bill to set up the Truth and Reconciliation Commission (TRC). The draft Bill is said, inter alia to have expedient to constitute an independent and impartial commission to bring the actual facts to the public by investigating the truth on persons involved in gross violation of human rights end crimes against humanity committed by both the government and Maoists during the course of armed conflict between 13 February 1996 to 21 November 2007.

Concept

The TRC is not a new concept in human rights law. A number of countries in the world have experiences of TRC. For example, Bolivia (1982), Argentina (1983), Zimbabwe (1885), Philippines (1986), Chad (1990), Chile (1990), El Salvador (1992), Guatemala (1994), Haiti (1994), Sri Lanka (1994), Uganda (1ë94), South Africa (1995), Ecuador (1996), Nigeria (1999), Sierra Leone (1999), Peru (2000), Uruguay (2000); South Korea (2000), Panama (2001), East Timor (2001), Ghana (2001), Serbia and Montenegro (2002) etc. are few names which have experiences of TRC.The concept of Truth and Reconciliation Commission is a crucial provision of the Bill. It is composed of not more than seven members appointed on the recommendation of committee constituted with consensus of the political parties having representation in the parliament,

The Commission is empowered to make reconciliation between the victim and the perpetrator mutually if any individual is found guilty while carrying out inquiry and investigation under the Act. The Commission may, in relation to making reconciliation, ask the perpetrator to make an apology with the victim by regretting his/her past misdeeds . In other cases, the Commission can recommend to government for necessary action against such person found guilty.

In a major provision of the Bill, the Commission is, notwithstanding anything contained in other Sections, empowered to make recommendation for amnesty even to such person who is found to have committed “gross violation of human rights” or “crime against humanity” in course of abiding by his/her duties or with the objective of fulfilling political motives. In the meantime, the Bill denies for amnesty to a person invo1ved in acts: any kind of murder committed after taking under control or carried out in an inhumane manner; inhumane and cruel torture; and rape.

Major shortcomings

The Bill has come up with the compliance of broad mandate of the Interim Constitution, the Comprehensive Peace Accord, Common Minimum’ Program of the Interim Government and Government of Nepal (Allocation of Business) Rules to hold a culture of accountability by ending the culture of impunity. However, the draft Bill Seriously suffers from number of flaws, including the conceptual ones. Some major shortcomings include as follows:

First, the Bill mandates the Commission to carry out the investigation of crimes committed by both the government and Maoists during the armed conflict. This is good news. But in the meantime, it limits the crimes to as “gross violation of human rights” and “crimes against humanity”. The basic purview of TRC does not limit within “Crimes against humanity”. It should have a broad mandate in making of crimes against “human rights” and “humanitarian laws”. The “crime against humanity” of the Bill is just a set of crime under humanitarian laws. It does not include the whole crimes of humanitarian laws. The crimes against humanitarian laws at east include- “genocide”, “war crimes” and “crimes against humanity”. The Bill also does not define what “gross” violations of human rights are and what none are.

Secondly, the provision of the Bill to appoint Commissioners on the recommendation of committee constituted “with consensus of the political parties” having representation in the parliament is not fair and principled. The terms “consensus of political parties” do not comply with the concept of rule of law, which always demands legal certainty (clear written provision) and procedural fairness. The appointment process is also linked with the structural and functional independence of the Commission. The Truth Commission is essentially a court-like body. Its aim is to expose what really happened in the armed conflict and grant relief to the victim by bringing the perpetrator into the justice. That is way the foremost condition of Commission is to be competent, independent and impartial. Constitute the Commission or appoint commissioners from those who are within the jurisdiction of Commission is to loss every effort to maintain the transitional justice. If the Commission is for to carry out investigation of crimes committed by both the government and Maoists during the course of armed conflict between 13 February 1996 to 21 November 2007, how can the Commission be constituted with consensus of the political parties having representation in the parliament. This is a serious question confronted with the appointment process of TRC.

Third and the most serious flaws of the Bill include the provision of amnesty even to such person who is found to have committed gross violation of human rights or crime against humanity. The Bill has made any culprit eligible for amnesty to “gross violation of human rights” or to “crime against humanity” if the Commission finds that he/she has committed such crime in course of abiding by his/her duties or fulfilling political objectives. This provision is blunder in the Bill. Its consequence in the first place is that, it has made politics and crimes complementarysynonymous to each other. Secondly, it has given license of committing any kind of gross violation of human rights including killings, murders, rape etc. and crimes against humanity to any person who performs public duties or involves with politics. By virtue of this provision, this is natural that all the Maoists and government authorities who are to be trailed under the Act, be given full amnesty on the grounds that both the parties were involved by abiding public duties and fulfilling political objectives respectively during the armed conflict. Not only is this but the Bill also designed to give amnesty to all the suspects of Rayamajhi Commission’ as the effect of Bill covers period from 13 February 196 to 21 November 2007.

In the meantime, the Bill denies for amnesty to a person involved in acts like: any kind of murder committed after taking under control or carried out in an ‘inhumane manner”; “inhumane” and “cruel” torture; and rape. This is another serious joke by the implication of which, the Commission while making investigation has to classify murder into two types, i.e. the murder committed in a “human manner” and committed in an “inhuman manner”. And, it will give amnesty to a person whose commission of murder is found as “human”. The same rule applies in the case of torture too.

The observation of very concept of TRC and experiences of other countries suggest that the “amnesty” is not a “rule” but just a “rare and exception” in TRC system. And, amnesty is strictly exempted in case of the serious human rights and humanitarian crimes, namely, war crimes, crimes against humanity and genocide.. Truth commissions are sometimes criticised for allowing crimes to go unpunished, and creating impunity for serious human rights abusers. The practice of South Africa is one model of TRC which granted amnesty to the suspect. The TRC set up in terms of the Promotion of National Unity and Reconciliation Act after the end of Apartheid was mandated with bearing witness, recording and in “some cases” granting amnesty to the perpetrators. But, the amnesty was not a rule for Commission. This is a proof that out of 7112 petitioners only 849 were granted amnesty and 5392 were refused amnesty on ground of serious human rights violators.