The Supreme Court today upheld that the Truth and Reconciliation Commission and Commission of Inquiry on Enforced Disappeared Persons can neither grant amnesty in cases of serious human rights violation nor seek transfer of sub judice cases. A special constitutional bench of Justice Kalyan Shrestha, Baidhya Nath Upadhyay and Cholendra Shumsher JB Rana gave the landmark verdict in response to a writ filed by Suman Adhikari, a conflict victim.
The apex court also observed that the TRC’s authority to determine whether or not a particular case is from the conflict era as mentioned in Section 13 (4) of the TRC Act would solely apply to cases handled only by the commission(s).
“It is absolutely a judicial work to determine whether or not an act is a crime. Such thing cannot be determined by a commission, which is only a quasi-judicial body,” the SC observed.
The SC stated that a court of law could not be compelled to surrender its sub judice conflict-era cases to the commission. The SC observed if the court refused to give permission to the commission regarding any case, the court would have undisputed jurisdiction over such case. “The commission can only use cases sub judice in court as a reference material,” the SC ruled.
On the question of reconciliation, the court stated that victim’s consent should be compulsory. “It should be a free and informed consent,” adds the SC verdict.
The court observed that the phrases used in Section 26 (2) of the TRC Act were objectionable because the those words mean that if the commission wants, it can grant amnesty in cases of serious cases of human rights violations. “It is the commission’s duty to bring culprits of serious human rights violation to book. This is what the constitution and the laws expect. The commission should not seek reasons to grant amnesty,” the SC observed.
The apex court also clarified that crimes, such as murder, kidnapping, enforced disappearance, act of grievously injuring somebody, physical and mental torture, rape and sexual offence, looting and damaging of personal property, forced eviction from one’s house, any act violating international human rights, humanitarian law and crime against humanity as stated in Section 2 (J) of the TRC Act fall under the category of serious crimes.
The Supreme Court cited Universal Declaration of Human Rights, other international treaties and conventions and Inter American court’s verdicts to argue against amnesty in cases of serious human rights violation.
The court quashed a phrase in Section 26 (2) which implies that the commission can grant amnesty in case there is sufficient reason for it. The SC also quashed Peace and Reconstruction Ministry’s jurisdiction to authorise the attorney general to file charge-sheet in conflict-era cases as stated in Section 29 (1) of the TRC Act. The authority of filing charge-sheet in a criminal offence solely lies with the AG as per the Interim Constitution, the SC observed.
The SC stated that the formation of TRC and CIEDP would ultimately help the cause of justice, and therefore, there was no need to nullify their formation. The court directed TRC, CIEDP and the government to abide by its orders, instructions and interpretations given in response to the writ filed by Rajendra Dhakal, Liladhar Bhandari and Madhav Kumar Basnet.