Lost in transition: Why the question of retroactivity has been ignored?

 

There has been much criticism over the political parties’ move to go for a general amnesty for perpetrators of offences committed during the decade-long Maoist conflict. Much of the current discourse seems to be concerned primarily with convincing the parties that the proposed transitional justice mechanism should retain the power of prosecution.

However, very little attention has been paid to the fact that even if the proposed Truth and Reconciliation Commission (TRC) retained the prosecution provision, it would not have the authority to recommend prosecution for “certain” serious crimes like rape, torture and disappearance (especially those whose whereabouts have been traced after some time) unless the new constitution permits it to do so.

What has not been discussed in the debate so far is an important political agreement that was made a few months ago to constitutionally prohibit future regimes from enacting laws to punish past crimes, including war crimes and crimes against humanity. The parties have unanimously endorsed a provision under the “fundamental rights” section of the new constitution that says the state shall not enact “retroactive laws to prosecute any crime committed before the promulgation of the new constitution”.

The parties were very careful and meticulous in inserting this proviso under “rights relating to criminal justice”. The objective was to constitutionally pre-empt any future attempt to dig into and prosecute serious crimes committed during the conflict.

If the constitution is promulgated with this proviso, any criminal law that functions retroactively to deal with the “certain crimes” mentioned above would be “unconstitutional” and automatically declared null and void. And as long as the constitution remains active, no regime will be able to enact retroactive laws to re-examine conflict-era crimes. The agreed provision, however, states that future regimes can enact laws with the power to retroactively prosecute international crimes committed after the new constitution is promulgated. This simply means a constitutional seal to any effort to look into crimes that occurred before the date of the promulgation of the constitution.

It, therefore, does not make sense to urge the parties not to remove the provision of prosecution in the proposed TRC bill when they have pre-empted the same from the constitution itself.

Legal complications

It is a general principle of law that all laws should come into effect from the date they are enacted. However, there is always an exception: A state can formulate laws having retroactive effect anytime to prosecute serious crimes under international humanitarian laws. This exception applies to Nepal as a party to the International Covenant for Civil and Political Rights (ICCPR) signed in 1991. However, by creating a cut-off date — promulgation of the constitution — to deny the effect of retroactive laws, the parties have made it virtually impossible to prosecute “some” of the serious crimes.

Without removing the constitutional limitation, the proposed TRC will have no power to prosecute perpetrators of even the crime of rape. The current laws have imposed a 35-day statute of limitations for victims to file a lawsuit against perpetrators of rape.

To ensure that the offenders are prosecuted for crimes committed over a decade ago, the TRC bill will have to be backed up by a constitutional provision saying that the state can enact laws to investigate and book perpetrators of serious crimes anytime and that there is no statute of limitations.

Question of vicarious liability

The next complication the proviso will create is in identifying what is called “vicarious liability” for the serious human rights abuses. Vicarious liability is a legal doctrine “that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently”.

The current criminal laws in Nepal do not recognise vicarious liability which could hold top political leaders liable for crimes committed in the past. Given this complication, the TRC, if it retains the prosecution provision by pressure, will have the authority to recommend prosecution of only low ranking personnel or cadres.

There are, however, a few arguments that when the parties are after all going for a blanket amnesty, the question of “vicarious liability” or retroactive provision in the constitution is irrelevant. This would then mean that we have already surrendered and commended total impunity. What is, however, also true is if the parties and the proposed transitional mechanism — the TRC — are independent and fair, some crimes, such as disappearance, would not require any retroactive prosecution for the simple reason that the ICCPR has recognised disappearance as a “continuous crime”.

If the crime is still happening, even though it started in the past, victims will not be under any obligation to follow the statute of limitations. But given the trend of unprincipled arguments in the past, there is no guarantee that such an argument will be respected to establish that retroactive power is not required to deal with “continued disappearances”.

Torture, on the other hand, is clearly one of the crimes under international law that has not been criminalised in Nepal. This simply means that in order for transitional justice mechanisms to deal with cases of torture, they will need retroactive power which has to be constitutionally legitimised. Given the constitutional pre-emption, perpetrators of torture, therefore, cannot be prosecuted even by enacting a law as long as the constitution is adopted in its current form.

It’s time that lawmakers, at least those who speak of international standards, stopped double dealing by, one, opposing the parties’ move towards a blanket amnesty and, two, endorsing the same through the constitution. [Article by KamalRaj Sigdel originally published at: http://www.ekantipur.com/2012/05/14/oped/lost-in-transition/353917.html)