Nepal: Mandira Sharman analizes the issues of a Commission through ordenance

Mandira Sharman (Advocacy Forum) analyzes in this article the problems that could appear if the Commission on disappearances gets approved through ordenance. Advocacy Forum suggests that government and political parties invoke provision 3 of Article 51 of the interim constitution to call a special session of the house where the law on disappearances can be tabled and passed.

4th February 2009, Nepal

 

Today also political parties took their stand against ordinance! this is good sign but what we expect from them to invoke the constitutional provision to call the session of parliament and pass these laws. We do not want government or any political parties taking excuse for delaying in bringing the bill stating that we stood against the ordinances…. as we suspect this might be something they want. So, let's urge government or the political parties to take the opportunity to call the session of the parliament and pass these bills and show the courage that they all believe in democracy and human rights.


Problems that the commission on disappearance face if it comes through ordinance

1. If the commission on disappearances is formed through an ordinance, the legitimacy of the commission will be at risk which would be further counter productive, especially given that the process has already become controversial and has been criticized not only by national actors but also international organizations such as Amnesty International, Human Rights Watch, ICJ and others

2. Even if the commission is formed though an ordinance, it would still have to be tabled at the next session of by the Legislative Parliament and passed by it. If not passed, it would ipso facto cease to be effective [Section 88 of the Interim-Constitution]. This would pose serious risks if the house fails to pass this law when it is tabled. Under such circumstances, the work of the commission during its functioning with all the efforts would be jeopardized.

What we demand?

We are also aware there is an urgency to bring this legislation as the families of disappeared have been denied justice for so long and they are dying in anguish for not having the fate of their loved on known for so many years. So, we suggest all party agree to call a special session of parliament to table this bill pass it thorugh the parliament.

of the Interim Constitution has a provision of calling a session of the parliament in this kind of situation. Article 51 (3) of the Interim Constitution reads: If, when the Legislature-Parliament is not in session or has been adjourned, at least one-fourth of all its members submit a request stating that it is desirable that a session or meeting of the Legislature-Parliament be called, the Prime Minister shall call the session or meeting of the Parliament by setting the date and time for this within a fortnight, and the Legislature Parliament shall convene or commence its session on the specified date and at the time thus fixed.

When this option exists, there is no reason for the government and the political parties not to invoke this provision. The government and the political parties should come to a consensus to invoke this provision and call a special session of the house where the law on disappearances along with other laws can be tabled and passed after scrutinizing these bills in a democratic manner.

The cabinet approved bill on the formation of a commission on disappearances has some flaws which if not discussed in the house stand to be at risk of being passed as it is via ordinance. The special session will give chance to rectify these flaws and form a commission on disappearances via a law which is powerful and is in the spirit of giving justice to the victims and their families.

Disappearance Ordinance Brief

The current effort of the government to form a Commission on Disappearances through an ordinance would serve a major blow towards efforts by all parties concerned in investigating and making public the whereabouts of thousands of Nepali citizens who have disappeared over the decade long armed conflict. Although, the argument is that this ordinance would actually expedite the process of establishment of the Disappearance Commission and help bring the peace process to a ‘meaningful conclusion’, there are issues of greater importance which must be paid attention to before taking this road. This brief attempts to succinctly analyze and argue why the commission on disappearances should not be formed through an ordinance.

First, in the context where Nepal has a democratically elected Constituent Assembly, principally passing any law or forming a commission through an ordinance would not only undermine the Constituent Assembly but also go against the democratic principles and processes which needs to be institutionalized in ‘New Nepal’. This would not only undermine democracy but also dangerously give continuity to ill practice and wrong precedents of the past governments.

Second, the draft bill still contains serious flaws that would undermine the credibility and effectiveness of the commissions once they are established. Passing the bills through an ordinance means they will lack public scrutiny and discussions and thus, we will miss the major opportunity to make positive amendments to the bills to establish effective commissions.

Third, it has been more than ten years of struggle to make public the whereabouts of the disappeared people public and bring the persons responsible to justice in Nepal. Victims and families of victims along with concerned stakeholders have continuously reminded the government the importance of passing a law that would criminalize disappearances and also form a commission which would investigate the status of the disappeared persons and hold the perpetrators accountable for committing this crime.

On 3 March.2007, when the government tried to form the commission on Disappearances through an ordinance, victims and families of victims along with national and international human rights organizations submitted more than thousand signatures of victims, collected from all over Nepal along with a memorandum to the Home minister, Peace minister opposing the latter’s intention of forming the commission via ordinance without conducting consultations with the relevant stakeholders and for trying to use a back door approach of forming the commission while the legislative parliament was effectively in place. In response to this, the government committed to bring a law that would criminalize disappearance and form a separate commission to investigate cases of disappearances during the ten year long armed conflict enacting the legislation by the parliament.

Consequently, a draft bill to form a commission on disappearances was made public and one-off consultation was held on November 15th 2008. The cabinet then passed this bill the following week with only minor changes, and preparations to table the bill in the CA was under way. However, despite eight-month session of the Constituent Assembly, the government failed to table any new laws and the house was adjourned subsequently until the next session saying there was no enough business to continue.

Fourth, the government’s attempt to pass laws and form commissions via ordinances only a few days after the legislative parliament had adjourned begets serious questions on the intentions of the government. This move cannot be justified under any circumstances let alone in the name of the peace process, especially given that the commissions formed in the past without any public consultations have failed to deliver on their objectives and have only led to further institutionalize impunity in Nepal. Hence, it is of utmost importance that we rectify the mistakes of the past which have to some extent contributed to the problems faced by the country, and set a positive precedent whereby, we follow proper process, which is democratic and leads to sustainable and meaningful peace in Nepal.

 

Mandira Sharman

Advocacy Forum