The Supreme Court has annulled two controversial provisions of the Truth and Reconciliation Commission (TRC) and Commission on Inquiry into Enforced Disappearances (CIED) Act that give discretionary powers to the transitional justice mechanisms for amnesty and to the Ministry of Peace and Reconstruction to prosecute human rights violators. A special bench of Justices Kalyan Shrestha, Baidyanath Upadhyaya and Cholendra SJB Rana has also directed that the victim’s consent should be made mandatory for reconciliation. Likewise, the court has made it clear that cases that are sub judice at various courts cannot be transferred to the commissions. [ break] The apex court has annulled some wording in Clause 26 (2) and Clause 29 (1). Clause 26 (2) has a provision that ‘the commission(s) shall not recommend amnesty for perpetrators involved in cases of serious human rights violation that are found to lack sufficient reasons and grounds for amnesty following investigation by the commission, and in cases of rape’. Supreme Court of Nepal The bench has scrapped the wording ‘that are found to lack sufficient reasons and grounds for amnesty following investigation by the commission’ from the provision, stating this gives discretionary powers to the commission. “The straightforward meaning of the sentence is that if the commission wants it can recommend amnesty even for the perpetrators of serious human rights violation,” the verdict has stated. “It is the duty of the commission to look for reasons and grounds to bring such perpetrators under legal purview. It is not necessary and it does not suit the commission to search for reasons and grounds for amnesty as though the intention is to grant blanket amnesty instead of prosecuting the perpetrators,” the verdict furthered states. Likewise, Clause 29 (1) of the act has a provision that ‘the Attorney General, after necessary investigations, can decide whether or not a case can be brought against a person, if the Ministry writes to him on the basis of the recommendation of the commission to prosecute the person found guilty of serious human rights violations’. Conflict victims had been raising serious questions over the wording ‘if the ministry writes on the basis of the recommendation’, stating that this gives discretionary powers to the ministry and is unconstitutional. The bench has also scrapped the wording ‘if the ministry writes on the basis of the recommendation’ from the clause, stating that Article 135 of the Interim Constitution has provided special powers to the Attorney General to prosecute. “There is no wise ground why the commission should not directly recommend to the Attorney General, who has the constitutional duty to prosecute government cases,” the apex court stated. Altogether 234 victims of the decade-long armed conflict, including Suman Adhikari, Manjima Dhakal, Sabitri Shrestha and Shrijana Shrestha, had filed writ petitions on June 3 challenging the discretionary powers given to the TRC and the ministry. Likewise, the apex court has clearly mentioned that cases that are sub judice in various courts could not be transferred to the transitional justice mechanisms. Clause 13 (2) of the Act states, ‘whatever is contained in the prevailing laws, the commission shall investigate into cases relating to incidents that occurred during the armed conflict which are sub judice at various courts and agencies, in consultation with courts and agencies concerned’. However, the apex court has said that whatever is mentioned in the Act, the commission formed under it could not displace, replace or be an alternative to the judicial institution and judicial system. “The commission itself is only a supportive and assistance-providing institution for the judicial system,” the court has stated. Interpreting the provisions of Clauses 22 (1) and 26 (5) of the Act, the apex court has said that victims’ consent should be mandatory for reconciliation and for providing amnesty. Clause 22 (1) states, ‘ if a perpetrator or a victim files an application at the Commission for reconciliation, the Commission may reconcile mutually between them’ while Clause 26 (5) states, ‘ if an application is submitted for amnesty pursuant to Sub-section (3), the Commission shall have to make a decision on recommendation for amnesty considering the consent or dissent of the victim as well as the gravity of the incident’. Meanwhile, the apex court has annulled a writ petition filed by another conflict victim, Gyanendra Raj Aran, challenging the legitimacy of the recommendation committee headed of a former chief justice. The SC has directed the transitional justice mechanisms and the government not to act against the previous verdicts of the apex court in related cases. सर्वोच्च अदालतले सत्यनिरुपण तथा मेलमिलाप आयोग र बे