Court postpones hearing on petition against 2015 ruling on transitional justice for 22nd time
Kathmandu , June 7th 2019
A hearing on a review petition filed by the government against the 2015 Supreme Court ruling on transitional justice was postponed on Thursday, again, making it the 22nd postponement since it was registered the same year. It was the sixth postponement this year alone.
Thursday’s hearing was deferred after one of the judges included in the bench couldn’t look into the case because he had, as an advocate, argued on behalf of the victims.
A full bench comprising five judges led by Ananda Mohan Bhattarai was to decide whether to proceed with the hearing.
It was the first case to be dealt with by a five-member bench on Thursday. However, it decided not to proceed with the case after Judge Hari Prasad Phuyal, who had defended the case on behalf of the victims as an advocate four years ago, couldn’t hear it.
“Justice Phuyal couldn’t hear the case as he had defended the case as a lawyer,” Kishor Poudel, a communication expert at the court, told the Post.
In February 2015, the apex court had issued a landmark ruling ordering the government to revise the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act-2014. The court ruled that the law failed to adhere to the principles of transitional justice and international practices.
The ruling, which came in response to a writ filed by a group of 234 conflict victims, struck down almost a dozen provisions in the Act and directed the government to ensure that no amnesty is awarded in cases of serious human rights violations committed during the decade-long insurgency.
But in April that year, then government led by Sushil Koirala filed a review petition, challenging the ruling that was issued by a special bench led by then chief justice Kalyan Shrestha.
Then chief secretary Leela Mani Paudyal had filed the petition through the Office of the Attorney General.
The continuous deferral, victims say, could delay the entire transitional justice process
Conflict victims, who have been awaiting justice for more than a decade, have been demanding that the government withdraw the petition and amend the Act as per the top court’s ruling and Nepal’s international obligations.
In their meeting with Minister for Law and Justice Bhanu Bhakta Dhakal on Sunday, representatives of Conflict Victims Common Platform had urged him to take initiatives for withdrawing the petition, saying that it had created confusion among victims over the future of the entire transitional justice process.
The government has made repeated commitments to amending the Act but it has not done so.
Foreign Minister Pradeep Gyawali, while addressing the 40th session of the United Nations Human Rights Council in Geneva earlier this year, had told the international community that the Nepal government was preparing to amend the laws in consultation with, and participation of, the victims and that there would be no blanket amnesty for serious human rights violations.
His remarks in Geneva had come on the heels of the international community’s reminder to Nepal government to amend the Act.
In January, nine foreign missions based in Kathmandu, at the initiative of the United Nations, had asked the government to clarify its plans to take the transitional justice process forward in 2019 and ensure broader consultation with the stakeholders.
They had also called on the government to amend the Act as per the 2015 Supreme Court ruling.
In April, five special rapporteurs under the United Nations High Commissioner for Human Rights sought transparency and proper consultation before selecting the members and chairpersons in the Truth and Reconciliation Commission and Commission on the Investigation of Enforced Disappearance.
The two commissions have been without officials since mid-April after the government decided not to extend their terms.
But a committee formed to recommend officials for the two commissions has not been able to complete its task, just as political parties are holding negotiations to appoint “their” people, which conflict victims have objected to.
Alarmed by the delay in the transitional justice process, conflict victims over the past week have started reaching out to political leaders to build pressure on them to amend the Act.
Conflict victims say the government’s non-committal attitude towards amending the Act and postponement of the hearing on the review petition had left them worried.
But officials at the court said the review petition is a priority case and that there was no intention to delay. They also attributed the hearing postponement to some “technical reasons”.
“I think the court will decide whether to start hearing on the review petition or to quash it next time [when it is scheduled for next hearing],” an officer at the court told the Post on condition of anonymity as the matter was sub judice. The next hearing date, however, is yet to be fixed.
A hearing on a review petition filed by the government against the 2015 Supreme Court ruling on transitional justice was postponed on Thursday, again, making it the 22nd postponement since it was registered the same year. It was the sixth postponement this year alone.
Thursday’s hearing was deferred after one of the judges included in the bench couldn’t look into the case because he had, as an advocate, argued on behalf of the victims.
A full bench comprising five judges led by Ananda Mohan Bhattarai was to decide whether to proceed with the hearing.
It was the first case to be dealt with by a five-member bench on Thursday. However, it decided not to proceed with the case after Judge Hari Prasad Phuyal, who had defended the case on behalf of the victims as an advocate four years ago, couldn’t hear it.
“Justice Phuyal couldn’t hear the case as he had defended the case as a lawyer,” Kishor Poudel, a communication expert at the court, told the Post.
In February 2015, the apex court had issued a landmark ruling ordering the government to revise the Enforced Disappearances Enquiry, Truth and Reconciliation Commission Act-2014. The court ruled that the law failed to adhere to the principles of transitional justice and international practices.
The ruling, which came in response to a writ filed by a group of 234 conflict victims, struck down almost a dozen provisions in the Act and directed the government to ensure that no amnesty is awarded in cases of serious human rights violations committed during the decade-long insurgency.
But in April that year, then government led by Sushil Koirala filed a review petition, challenging the ruling that was issued by a special bench led by then chief justice Kalyan Shrestha.
Then chief secretary Leela Mani Paudyal had filed the petition through the Office of the Attorney General.
The continuous deferral, victims say, could delay the entire transitional justice process
Conflict victims, who have been awaiting justice for more than a decade, have been demanding that the government withdraw the petition and amend the Act as per the top court’s ruling and Nepal’s international obligations.
In their meeting with Minister for Law and Justice Bhanu Bhakta Dhakal on Sunday, representatives of Conflict Victims Common Platform had urged him to take initiatives for withdrawing the petition, saying that it had created confusion among victims over the future of the entire transitional justice process.
The government has made repeated commitments to amending the Act but it has not done so.
Foreign Minister Pradeep Gyawali, while addressing the 40th session of the United Nations Human Rights Council in Geneva earlier this year, had told the international community that the Nepal government was preparing to amend the laws in consultation with, and participation of, the victims and that there would be no blanket amnesty for serious human rights violations.
His remarks in Geneva had come on the heels of the international community’s reminder to Nepal government to amend the Act.
In January, nine foreign missions based in Kathmandu, at the initiative of the United Nations, had asked the government to clarify its plans to take the transitional justice process forward in 2019 and ensure broader consultation with the stakeholders.
They had also called on the government to amend the Act as per the 2015 Supreme Court ruling.
In April, five special rapporteurs under the United Nations High Commissioner for Human Rights sought transparency and proper consultation before selecting the members and chairpersons in the Truth and Reconciliation Commission and Commission on the Investigation of Enforced Disappearance.
The two commissions have been without officials since mid-April after the government decided not to extend their terms.
But a committee formed to recommend officials for the two commissions has not been able to complete its task, just as political parties are holding negotiations to appoint “their” people, which conflict victims have objected to.
Alarmed by the delay in the transitional justice process, conflict victims over the past week have started reaching out to political leaders to build pressure on them to amend the Act.
Conflict victims say the government’s non-committal attitude towards amending the Act and postponement of the hearing on the review petition had left them worried.
But officials at the court said the review petition is a priority case and that there was no intention to delay. They also attributed the hearing postponement to some “technical reasons”.
“I think the court will decide whether to start hearing on the review petition or to quash it next time [when it is scheduled for next hearing],” an officer at the court told the Post on condition of anonymity as the matter was sub judice. The next hearing date, however, is yet to be fixed.
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