Article – Page 12 – Bipin Adhikari

Posted on March 29, 2015March 19, 2018 by rameshwor

Dr Bipin Adhikari

28th to 29th March, 2015
South Asian Human Rights in Colombo
Srilanka

The Regional Consultation on Enforced or Involuntary Disappearance being organized by South Asian Human Rights in Colombo, Sri Lanka on 28th to 29th March, 2015 with the underlying goal of mobilizing the ratification of International Conventions pertaining to Enforced or Involuntary Disappearance in the South Asian region is a very timely move. The consultation seeks to highlight the SAARC context and take stock of the challenges and breakthroughs in the current struggle against violations of human rights in general, identify trends and practices of advocacy and litigation strategies adopted by human rights defenders in the region, responses by States, national human rights institutions and Courts and the amelioration of the situation of the protection of HRDs in the region. The consultation seeks to bring together experts, human rights lawyers and defenders from the South Asian region with an aim to develop a long term agenda for regional action to strengthen civil society capacity regarding the protection of Human Rights in the South Asian Region.

The International Convention for the Protection of All Persons from Enforced Disappearance defines enforced disappearance as –

“ the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”[1]

Enforced disappearance encompasses a wide array of human rights violations including right to security of the person, right to protection under the law, right to not be arbitrarily deprived of one’s liberty, recognition of legal personality of every human being, right to the truth in relation to enforced disappearances and the right to not be subjected to torture or other cruelties.[2] In addition, the violation of the right is not just limited to the victim. Enforced disappearances affect the families of the disappeared, societies and widespread abuses create a state of panic and terror. As per Rome Statute of the International Criminal Court, enforced disappearance is regarded as “crime against humanity.”[3] Similarly, in Case of Goiburú et al. v. Paraguay, the American Court of Human Rights described as jus cogens those matters relating to enforced disappearance and the need for investigation and punishment for the crimes committed. [4]

In light of this, designed to establish a legally binding instrument governing enforced disappearances, the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance on Dec 20, 2006. Subsequently, the convention came into force on Dec 23, 2010. As per Article 1 of the Convention, “no one shall be subjected to enforced disappearance.” Further, the Convention states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”[5]As of 2014, the Convention has so far been signed by 94 states and ratified by 45 countries.[6] Nepal is yet to ratify the Convention as of 24 March, 2015. India became signatory to the Convention in 2007, however, it has yet to ratify it. None of the other South Asian countries have signed or ratified it.

In terms of obligations of the State Parties, the Convention mandates the incorporation of specific laws establishing the crime of enforced disappearance in its respective national laws.[7] The Convention further mandates the investigation of complaints filed and provisions for “consequences” through appropriate penalties taking into account the grievous nature of the crime.[8] Moreover, the Convention mandates other preventive obligations including the provision to detain persons only in officially “recognized and supervised”[9] places, the non-derogable right to Habeas corpus as well as the right to information on the whereabouts of the prisoners. Furthermore, the Convention recognizes the right of victims and their families to know the truth regarding the circumstances and fate of the disappeared person. It also treats the unlawful abduction of children whose parents were victims of enforced disappearance as well as the faking of these children’s identities and their adoption.[10]

In terms of monitoring, the convention mandates the establishment of a monitoring committee to provide inter alia oversight to the implementation of the Convention and reconcile individual and inter-state complaints.[11] Further, the committee is granted powers to undertake field inquiries, initiate emergency actions as per the need and provide annual report containing, among others, widespread and systematic disappearance to the attention of the United Nations General Assembly.[12]

Nepal’s Context

Nepal has had a long history of disappearances carried out by the state stretching back to 1951. The disappearance cases of Ram Prasad Rai, Sukdev Singh[13] were the early known cases of arbitrary detention. The trend carried on, some suggest further increased, in the Panchayat era which lasted from 1961-1989. However, nothing quite captured the imagination of the whole world, in regards to the gross violation of human rights and enforced disappearances, as the decade long Maoist insurgency lasting from 1996 – 2006. During the conflict era, both the state parties and the armed insurgents were responsible for abduction, arbitrary detention and torture of over 3,000 victims.[14] The situation was further aggravated by rampant impunity, both legal and political, granted to the perpetrators. Moreover, as per the report of UN Working Group on Enforced or Involuntary Disappearances (WGEID), some 532 cases of enforced disappearances were transmitted to the Government of Nepal during the insurgency period.[15] Similarly, in that period, The National Human Rights Commission (NHRC) registered about 2800 cases, of which 900 cases remain unresolved including cases pertaining to disappearances and abductions.[16] Further, the report containing the number of missing persons in the conflict period has been highlighted below in Table 1.0.

(This table has been formulated as per the reports of International Committee of the Red Cross (ICRC) contained in their website.)

YEAR	MISSING PERSON
2007	812
2008	1,227
2009	1,348
2010	1,391
2011	1,383
2012	1,401
2013 Table 1.0	1,360

The armed conflict came to an end in 2006 with the signing of the Comprehensive Peace Agreement which laid the foundations for peace, including, albeit not exclusively, provisions for the disclosure of the status of detainees and their subsequent release within 15 days. Also, as per point 5.2.3, the agreement mandated the release, within 60 days, of the details of people subjected to enforced disappearance and killed during the conflict and established the prerogative for the family members to get the information. Furthermore, the agreement sought to highlight the parties’ reaffirmation of their commitment to respect and protect human rights and humanitarian law.

Also, through the agreement, the parties expressed their commitment to justice, initiation of investigation “against any individual involved in violating the rights mentioned in the agreement”[17]and framework for appropriate remedies, including formation of Truth and Reconciliation Commission[18], ensuring the protection of victim’s rights and discouraging impunity.

In terms of reparation and rehabilitation of victims, the Interim Constitution, 2007 established measures to “to provide relief to the families of the victims, on the basis of the report of the investigation commission constituted to investigate the cases of disappearances made during the course of the conflict.”[19] In addition, in the past, the Supreme Court has issued landmark rulings on a number of enforced disappearance cases, including 80 habeas corpus writs.[20] In the case of Rajendra Dhakal and Others v. the Government of Nepal, the court issued directive orders, inter alia, for the Government to enact legislation consistent with international law that would criminalize enforced disappearance, and establish a high level ‘Investigation Commission for Disappeared Persons’ for inquiry into past enforced disappearances. The Court also ordered the provision of interim relief to the families of the victims without prejudice to the final outcome of these cases.[21]

In its verdict the court stated: “it is necessary to urgently enact a law which includes provisions that the act of disappearance is a criminal offence, defining the act of disappearance pursuant to the definition stated in the International Convention for the Protection of All Persons from Enforced Disappearance, 2006.”[22] The Court order also stated that these measures should conform to the international standards as provided in “the Charter of the United Nations, the Universal Declaration of Human Rights, the Declaration on the Protection of All Persons from Enforced Disappearance, 1992, and the International Convention for the Protection of All Persons from Enforced Disappearance, 2006.”[23] Further, the Court stated that the law must incorporate provisions, among others, on the rights of detainees; judicial remedies available to both detainees and family members; the right to compensation; a flexible statute of limitations; an appropriate complaint filing system regarding cases related to arbitrary detention and enforced disappearance; the requirement of formal detention centers with adequate record keeping; the right of families to know all conditions of the detainee and the implementation of a process to ensure that detainees who were said to have been released were, in fact, released.

In light of the court’s verdict and an urgent need to address the issues pertaining to enforced disappearances, the Government brought forward the Bill on Enforced Disappearance (Crime and Punishment) Act, 2008 in the parliament. The bill sought to criminalize the act of enforced disappearance and established a Commission of Inquiry to address past violations. While the Bill was a considerable improvement over the previous version, it did not fully comply with Nepal’s obligations under international law and the Supreme Court guidelines, as per ICJ’s letter to the Chairperson of Constituent Assembly.[24] The bill was passed in an undemocratic matter through an executive ordinance bypassing the parliament in 2009.

The instrument was met with massive disapprovals throughout the state with wide discontent as regards to the provisions and its incompatibility to the international law principles, Supreme Court mandate and the spirit of the Constitution. The International Commission of Jurists (ICJ), in their report to the Chairperson of the CA, provided point wise suggestions for reform of the bill. It included, inter alia, provisions to change the definition of the Ordinance to better reflect international standards, induction of enforced disappearance as crimes against humanity in national legislation, expansion of the limitation period, reformation of criminal responsibility and expansion of remedies to better reflect the seriousness of the crime.[25]

In addition, the recommendations included measures to reform the National Commission on Enforced Disappearance as envisioned in the Ordinance, including expansion of the mandate of the Commission, delineation of the roles of state institutions, the National Human Rights Commission (NHRC) vis a vis the Commission, description of the handling of evidence and witnesses between the Commission, courts and the state prosecutors, independent and transparent nature of Commission recruitment and provide adequate measures for witness protection. [26]

Applicable International Law

The following table, titled Table 2.0, is derived out of the report from the United Nations Office of the High Commissioner of Human Rights (OHCHR) “Nepal Conflict Report”.[27]

Table 2.0

PARTIES TO THE CONFLICT

(FEB1996-NOV 2006)

NEPAL: PARTY TO THE CORE HUMAN RIGHTS PRINCIPLES DURING CONFLICT

APPLICABLE FUNDAMENTAL RIGHTS

i. The Royal Nepalese Army

ii. Nepal Police

iii. Armed Police Force

iv. Communist Party of Nepal

(Maoist)

i. International Covenant on Civil and Political Rights (ICCPR)

ii. Convention on Rights of the Child (CRC)

iii. Convention on Elimination of All Forms of Discrimination Against Women (CEDAW)

iv. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

i. The right to life: Article 6, ICCPR

ii. The right to liberty and security of the person: Article 9, ICCPR

iii. The right to freedom from torture or cruel, inhuman or degrading punishment or treatment: Article 7, ICCPR and articles 2 & 16 CAT

iv. The right to the be free from sexual violence: CAT and CEDAW

v. The right to peaceful assembly: Article 21, ICCPR

vi. The right of children to special protection in armed conflict, including a prohibition on their recruitment into the armed forces: Article 38, CRC

Impunity Culture:

As mentioned above, there have been many incidences of arbitrary arrest, disappearances, unlawful killings and torture in Nepal during the conflict era. However, there have been massive delays in the decision making process granting widespread immunity to war time perpetrators and compromising the overall reconciliation and peace process. The status of monitored and investigated complaints, as per NHRC, yet unresolved are as follows in Table 2.0:

Table 2.0

(This report is based on the press conference conducted by NHRC on “The status of the implementation of the recommendation of the National Human Rights Commission and the Impunity.”)

S.N.	Issues	No. of files at the final stage for decision making
1	Extrajudicial killings by the security forces	28
2	Killings by the Maoist	14
3	Disappearance by the security forces	337
4	Capture/Abduction by the Maoist	279
5	Torture by the Security Forces	11
6	Torture by the Maoist	1
7	Threats by the Security Forces	18
8	Threats by the Maoist	21
9	Threats from other groups	8
10	Displaced Persons	36
11	Economic, social and cultural rights	12
12	Child rights	19
13	Regarding justice	29
14	Illegal detention	19
15	Discrimination	2
16	Others	39
	Total	870

In the case of Govind Prasad Sharma v Attorney General of Nepal,[28] there was a writ petition seeking Supreme Court’s intervention against Prime Minister Baburam Bhattarai and Attorney General Mukti Narayan Pradhan for their ‘unconstitutional intrusion into judicial matters’ in their bid to halt the investigation and interrogation process of Dailekh-based journalist Dekendra Raj Thapa’s murder. The petitioners argued that the orders provided by the Prime Minister and Attorney General to a halt the investigation process on the murder of Dekendra Thapa amounted to misuse of authority, obstruction of justice and action against the Interim Constitution, 2007.

In this case, a Dailekh District Court had remanded, subsequent to their arrest, Lakshiram Gharti, Harilal Pun Magar, Bir Bahadur KC, Nir Bahadur Gharti Magar and Jay Bahadur to judicial custody as Lakshiram Gharti had confessed to being a part of the crime committed on August 11, 2004. However, citing influence from higher-up, the interrogation process was halted. Subsequently, The Office of the Attorney General had sent a directive to the Dailekh Police and District Office of Attorney directing them not to proceed with legal action in Thapa’s murder case.

In light of this, the petitioners argued that the defendant authorities had misused their powers in halting the interrogation process and releasing the accused from judicial custody. In addition, there was a high possibility for tampering of evidences due to the highly politicized nature of the murder. Thus, the petitioners further sought immediate apex court intervention through stay order. According to the petitioners, the attorney general’s written order indicated a clear misuse of power and also amounted to obstruction of justice. Thus, the petitioners sought a Supreme Court order directing the lower courts to reprimand the defendant authorities. The petitioners alleged that the defendant authorities had misused power even though it was their duty to arrest the accused and protect evidences, to search and arrest perpetrators of crime, detain suspects and file charge sheet as per the Government Cases Act, 2049.

Proximately, the petitioners argued that the AG is the final authority that decides whether or not to prosecute any case in a court of law as per Article 135 of the Constitution. However, the chief legal adviser of the government does extend to the right to intervene in any ongoing investigation. Moreover, Article 13 (2) of the Interim Constitution, which promoted equality before the law, states: “The State shall not discriminate against citizens among citizens on grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these”. In light of this, the petitioners argued that the remanded party cadres should not hold any special privileges to escape the regular criminal justice system.

Further, citing an SC order on Sushil Pyakurel vs Agni Prasad Sapkota case, which states that investigation and prosecution of murder cases cannot be stopped only by citing the yet to be formed transitional justice mechanism, the petitioners sought apex court intervention. In response, the defendants argued that as per the Interim Constitution and the Comprehensive Peace Agreement (CPA), war-era crimes fall under the jurisdiction of the Truth and Reconciliation Commission (TRC) and that they should not be dealt with by the regular criminal justice system.

In its decision, a division bench of Justices Ram Kumar Shah and Gyanendra Karki issued ordered that prosecution against those accused in the Dekendra murder case should go ahead regardless of the TRC’s existence. Furthermore, the bench, in devising a verdict, claimed that investigations into criminal cases must not be halted by citing the impending TRC as envisioned in the Interim Constitution, 2007 and the CPA. The court maintained that since the much anticipated reconciliation mechanisms were yet to materialize, regular criminal procedure could not, in the mean time, remain ineffective in relation to investigation and prosecution of conflict-era cases.

Moreover, the court also ruled that AG cannot interfere in the work carried by his subordinates until they continue to have the power delegated to them by the government’s legal chief. The court order also mentions that prosecuting (district attorney) and investigating (police) authorities are separate and independent entities and there can be no meddling in their job. The Constitution provisions the AG as the last authority to decide whether a case would be filed in the court, the court stated, but such decisions from the government’s chief legal advisor cannot be arbitrary and has to be based on findings of an impartial investigation. Even though the AG is appointed by the President on the recommendation of the prime minister, it is important that any person holding public office remains loyal to the constitution and not to the one who appointed him.

The Current Status

In March 2013 controversial TRC (Truth and Reconciliation Commission) legislation was opaquely pushed through. It merged the TRC and Disappearance commissions and, despite CPA and international legal obligations, gave wide scope for arbitrary decisions on amnesty even for serious crimes. The Supreme Court suspended it two weeks later, responding to wide civil society criticism and petitioners demanding public consultation and restriction of amnesty powers.[29]

The January 2014 Supreme Court ruling then fully overturned this legislation.[30] This limited amnesty provisions, separated the TRC and disappearance commission to ensure their effective implementation, made suspected human rights violators ineligible for commission appointment, and reduced the politically-appointed Attorney General’s discretionary power to decide on prosecution.

These were important decisions for transitional justice and independent investigation, and their passing early in the new Constituent Assembly’s tenure put the long-neglected issue into fresh focus. Civil society, legal professionals, and victims’ groups, have also made repeated public demands for truth and justice, and maintained pressure with protests and efforts to record testimonies of abuses.

Suggestion for Reform

There should be an initiation at a regional level, namely SAARC, for discussion of the serious violations of Human Rights, including enforced disappearances to provide momentum to the regional co-operation in regards to the prevention and protection of human rights standards. Enforced disappearance is but one of many prevalent human rights issues across the South Asian region and a regional level discussion will also provide impetus to international community and national institutions to initiate reformatory works and advocacy on the measures to curb the abuses.

A regional mechanism could be developed to address violations of human rights. Similar to the Asian Intergovernmental Commission on Human Rights (AICHR), SAARC could develop a regional charter to promote and protect human rights and facilitate regional cooperation on human rights in its member states. Such a mechanism would strengthen coordination amongst national human rights institutions and create pressure on member states to implement recommendations and respect peoples’ dignity. This type of mechanism can help local organizations raise their concerns regionally. Around the issue of enforced disappearances, many family associations have no access to justice and national remedies in Sri Lanka, Nepal, India, and elsewhere; a regional mechanism could move to fill this void.

Further, the heads of state and government must commit to ratifying the International Convention for the Protection of All Persons from Enforced Disappearance. As mentioned above, Nepal’s Supreme Court, in two historic rulings (June 1, 2007 and January 2, 2014) directed the Government of Nepal to establish a Commission of Inquiry on Disappearances based on international norms of human rights law and on the UN convention on enforced disappearances. However, the new disappearance legislation fails to define enforced disappearance as a crime against humanity and the UN convention on disappearances remains un-ratified. Ratification of the convention would support the national process to adopt international norms and open a door to international justice.

A regional model of truth and justice to build trust both nationally and regionally could be established. Addressing disappeared families’ demands and dealing with the past can be a common agenda that can connect states and sentiments of peoples. Families of the disappeared in all countries face similar problems and challenges. The desire for truth, justice, and reparations are universal, as is the need for a policy to support victim livelihoods through education, employment, social entrepreneurship, health, psychosocial, and memory initiatives. To end impunity and reduce future violations, the upcoming commissions in member states can be lessons that can build trust and expertise at the national and regional level, and strengthen regional connectivity on human rights.

Similarly, Nepal can seek resource and training support from national as well as non-governmental institutions in countries that have successfully ratified the Convention on enforced disappearances. This will provide Nepal with the necessary know how to establish institutions, monitor and learn from the experiences of states already involved in the reconciliatory transitional justice process.

Conclusion

Nepal is obliged to take adequate measures, whether legislative, executive or judicial to ensure the criminalization and punishment of enforced disappearance under international law. The reluctance of political parties to ratify the international Convention and establish appropriate justice mechanisms stems from their fear of being prosecuted for crimes committed during the insurgency period.

Eight years after the Maoists and the government signed the Comprehensive Peace Agreement (CPA), a Truth and Reconciliation Commission (TRC) and a Commission to Investigate Enforced Disappearances have finally been formed in Nepal. Several issues have been raised about the quality of some of the people appointed in these Commissions as commissioners. Besides, the SC has emphatically rejected any provision in the enabling Act that would allow conflict-era perpetrators to get away with their crimes. However, there has been little effort towards the revision of the provisions which have been declared ultra vires to the Constitution, and against the norms of transitional justice.

It must be noted here that many cases have been filed with the Supreme Court of Nepal by now, but no trials have been held and no one has been punished for their crimes. By and large, families have received no news or information concerning the whereabouts or fate of their loved ones. Some have received minimal monetary relief, but livelihood difficulties persist.

In light of this, it is imperative that Nepal revises justice mechanisms for the reconciliation of victims based on principles enshrined in international Conventions. At this critical juncture, we can ill afford to overlook just a serious crime and provide blanket amnesty to perpetrators.

+ Adhikari is associated with Kathmandu University School of Law. The author thanks Namit Wagley of Nepal Constitution Foundation for his research assistance to prepare this paper.

[1] Article 2. International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[2] Scovazzi, Tullio, and Gabriella Citroni. The struggle against enforced disappearance and the 2007 United Nations Convention. Martinus Nijhoff Publishers, 2007.

[3] Article 7. Rome Statute of the International Criminal Court. 2002.

[4] Case of Goiburú et al. v. Paraguay, Judgment of September 22, 2006 (Merits, Reparations and Costs), Series C No. 153, para. 84.

[5] Article 1. International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[6] United Nations Treaty Collection, International Convention for the Protection of All Persons from Enforced Disappearance, 2010. Available from <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-16&chapter=4&lang=en> accessed 24th March, 2015.

[7] Article 4. International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[8] Article 5 and Article 6. International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[9] Article 17 (c). International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[10] Article 25. International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[11] Part II. Article 26-36. International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[12] Article 36. International Convention for the Protection of All Persons from Enforced Disappearance, 2006

[13] Ram Prasad Rai was a protestor of Delhi Agreement signed in 1951. See. Enforced Disappearances in Nepal. Insec, Nepal available from < http://www.inseconline.org/pics/1292493203.pdf> accessed 23rd March, 2015.

[14] See. “DISAPPEARANCES IN NEPAL: ADDRESSING THE PAST, SECURING THE FUTURE.” International Commission of Jurists. (2009) available from < http://nepalconflictreport.ohchr.org/files/docs/2009-03-00_report_icj_eng.pdf> accessed on 24th March, 2015.

[15] Report of the Working Group on Enforced or Involuntary Disappearances, Human Rights Council, A/HRC/7/2, 10 January 2008, para 251, p. 59

[16] . “DISAPPEARANCES IN NEPAL: ADDRESSING THE PAST, SECURING THE FUTURE.” International Commission of Jurists. (2009). Ibid. pg 2.

[17] Point 7.1.3. Comprehensive Peace Accord, 2006.

[18] Point 8.4. Comprehensive Peace Accord, 2006.

[19] Article 33(q). Interim Constitution of Nepal, 2007.

[20] ”DISAPPEARANCES IN NEPAL: ADDRESSING THE PAST, SECURING THE FUTURE.” International Commission of Jurists. (2009). Ibid. pg 3.

[21] Rajendra Dhakal and Others v. The Government of Nepal, writ no.3575, registration date Jan 21, 1999, decision June 1, 2007, known as “Disappearance case.”

[22] Ibid. Rajendra Dhakal and Others v. The Government of Nepal

[23] Ibid. Rajendra Dhakal and Others v. The Government of Nepal

[24] ICJ letter to the Speaker of the Interim Legislature-Parliament, 30 May 2007, available at: http://www.icj.org/news.php3?id_article=4164&lang=en. Also see, OHCHR Comments and Recommendations on Disappearance and Abduction Bill, May 2007.

[25] Ibid.

[26] Ibid.

[27] OHCHR, (2012). Nepal Conflict Report: Executive Summary, United Nations Office of the High Commissioner for Human Rights, Geneva. Available from < http://www.ohchr.org/Documents/Countries/NP/OHCHR_ExecSumm_Nepal_Conflict_report2012.pdf> accessed on 23rd March, 2015.

[28] Govind Prasad Sharma v Attorney General of Nepal, Supreme Court of Nepal, 2013.

[29] Advocate Madhav Kumar Basnet v Honorable Chairperson, Government of Nepal, Interim Council of Ministers, Office of Prime Minister and Council of Ministers, Kathmandu (2014)

[30] Ibid. (2014)

Posted on March 6, 2015December 6, 2017 by sanjay

Human Rights Commission Act 1997 was replaced by National Human Rights Act 2012 from 20th January 2012 onwards. It was expected that the new Act would have provided competence, autonomy and independence to the Commission for fulfilling the duties of ensuring respect, protection, promotion and effective implementation of human rights as enshrined by the Interim Constitution. However, the new Act has been deemed restrictive in contrast to Section 132 (1) of the Constitution and the Paris Principles, 1991 (recognized and adopted by by UN General Assembly). In light of this, Om Prakash Aryal, along with other advocates, sought the Supreme Court’s verdict to announce ultra vires and non-applicable those provisions that went against the dominant aforementioned principles.
The Supreme Court, in response, ordered the government to scrap some sections in the National Human Rights Commission Act, 2012. The first of such provision dealt with Section 10(5) of the impugned Act which dealt with the statutory limitation of six months on reporting of conflict era cases. Om Prakash Aryal, along with fellow advocates, argued that the time limit set in the Act discouraged victims from fighting for justice. The verdict will now allow the NHRC to investigate into and file cases against human rights violators on its own, regardless of the time limit.

The second provision, contained in Section 17 (10) of the Act, dealt with authority given to the Attorney General to decide on initiating cases. The Supreme Court also scrapped a provision of discretionary powers vested in the Attorney General to initiate rights violation cases. Further, the special bench comprising of Chief Justice Khil Raj Regmi and Justices Ram Kumar Prasad Shah and Girish Chandra Lal found the provisions in the Act was in clear contravention with Article 132 (2) (c) of the Interim Constitution which requires the NHRC to institute a case against any person involved in human rights violations and make recommendations to file case in the court in accordance with the law.

If the judgment is in line with the NHRC’s interpretation, the judgment will be instrumental in implementing hundreds of recommendations of prosecutions made by the Commission with regards to violations committed by the warring parties during the conflict.

Comments

National Human Rights Commission (NHRC) is different from any other constitutional or governmental bodies in that it thrives on special competence, independence and functional autonomy. It is imperative that the legal provisions that go contrary to the Commission’s competence, autonomy and independence should be amended to maintain its status as a national institution that monitors accountability of the state and even the non-state actors during internal conflict.

The decision to overturn the discretionary powers vested on the Attorney General to instigate a case is a welcome move. Due to the partisan nature of Nepali institutions, the power vested on Attorney General was a detrimental force preventing victims of Human Rights abuse seeking justice. It has been a prevalent practice in Nepal that a lot of the cases never reach the courts due to the vested powers of Attorney General to have the final say. However, through this decision, the influence of the government via Attorney General has been drastically curbed. As a result, the decision is set to address the culture of impunity in Nepal. In light of this, NHRC should take a proactive step towards ameliorating such ills in our society.

In Society for Human Rights, Environment, Law and Good Governance vs. the Government of Nepal, the Supreme Court ruled that the government is obliged to comply with the recommendations of the NHRC at the exclusion of any justification. However, NHRC has attributed perennial non-compliance of its recommendations towards the government. This decision is set to provide a boost to NHRC to uphold its mandate.

In addition, the 2012 Act is fraught with problematic provisions in contrast with the Paris Principles. In light of this, there are many other aspects that need to be amended such as: the Commission’s institutional autonomy, competence, and independence should be guaranteed in the preamble itself as norms and values mentioned in the preamble are construed to be the backbone of the Act. The 1997 Act contained such provisions and it should be reinstalled. Further, Section 4 (2) of the Act has only provided for the functional independence of the Commission. It is contrary to the Constitution and should be amended to reinstall the overall autonomy, competence and independence aspect inherent in the 1997 Act. Proximately, there should be guarantees of not forcing the Commission to decide about giving compensation in a case just because the case had been taken forward elsewhere.

Posted on March 1, 2015January 11, 2019 by Bipin Adhikari

The Supreme Court, in response, ordered the government to scrap some sections in the National Human Rights Commission Act, 2012. The first of such provision dealt with Section 10(5) of the impugned Act which dealt with the statutory limitation of six months on reporting of conflict era cases. Om Prakash Aryal, along with fellow advocates, argued that the time limit set in the Act discouraged victims from fighting for justice. The verdict will now allow the NHRC to investigate into and file cases against human rights violators on its own, regardless of the time limit.

Comments

Posted on February 27, 2015December 6, 2017 by sanjay

Every living being strive for personal well being. People try their very best to be safe and protect themselves. Self preservation is one of the basic human instincts and due to which many laws regarding personal safety have been codified by way of various laws.

Security organizations ease pressure off from the government as they are, in a way, performing state function. These organizations also provide security at banks, malls and offices. Security organizations help mobilize human resource in a constructive way. The demand for private security is increasing rapidly with sprawling businesses. The organization providing private security is also increasing and must be regulated by law to make it organized and accountable.

If we read the Bill, we find that its provisions do not stipulate any qualification for establishment of the security services. Further, the Bills states that a person retired from Nepal Army or Nepal Police or Armed Police Force or defense personnel in other country can be employed by the security service agencies. This criterion is not clear whether non defense personnel can or cannot be employed by the security agencies. If non defense personnel can be employed then the type of training required before they are sent for duty for providing security.

The guidelines for the security agencies are also missing from the Bill. These guidelines while recruiting personnel and the mode of discharging their duty is also one of the important aspects that the Bill should regulate. The use of arms for protection must also be carefully checked by the State. The security personnel agencies must keep track of the weapons that they arm their personnel with and how they use them.

Again, disciplinary committee must be established to look into any misbehaviour or any wrongdoing of the employees of the security agencies. Further, the uniform of the employees of the security personnel must be distinct from that of army, police and armed police to avoid confusion.

The employees of security agencies must acquire training before being sent to provide protection. Further, the training must be provided on a regular basis to check their physical and mental capabilities. Periodic training will be a good check to employ only those persons who can actually protect people.

There should be a code of conduct for the agencies providing security. For instance, only female security personnel can check a female when doing a security check. Further, the way these security personnel must conduct their duty must be clearly stated in the code of conduct. The instance when physical force is to be used and instance where weapons can be used must be clearly stated in the code of conduct.

The government must maintain a detailed record of the arms and ammunitions being held by the security agencies, the number of employees and the places they are providing security.

Posted on February 22, 2015December 6, 2017 by sanjay

An Academic Course provided by the Election Commission Nepal, the Kathmandu University School of Law and the Norwegian Centre for Human Rights at the University of Oslo in collaboration

Teaching staff: Bishal Khanal, Ila Sharma, Nils A Butenschøn and Kåre Vollan Discipline: democracy Electoral Systems and Electoral Rights Year of study: 2015 Kathmandu University Credits: 3 credits

GENERAL DESCRIPTION AND THE AIMS OF THE COURSE

Course Objective

The objective of the course is to convey the concept of elections and election law, and an understanding on how to convert basic electoral rights into electoral systems, including the system of representation and all the operational issues which form elements of the electoral system. In particular the understanding of the role of on one side international standards and on the other side the special needs of a country is important.

General Description of the Course:

The Course in Electoral Rights covers a broad spectrum of issues related to representative democracies. It will start by the fundamentals of transferring the ‘will of the people’ to decisions in representatives bodies and then cover systems of representation, electoral standards, minority and group representation, post conflict issues, the independence of the election management bodies, operational issues and election observation.

Learning outcomes

Upon successful completion of the course, the following learning outcomes will be received:
The students should know the international obligations to multi-party elections and be able to interpret the general requirements and their ramification for national legislation. They should be able to analyse the qualities of systems of representation, the needs for special representation and the link to decision-making systems. In particular they should get a good understanding of the complexity and diversity of systems of representation and the importance of independent electoral management bodies and adherence to accepted standards to secure the integrity of an election.

Teaching Methodology

Teaching will be held through a combination of lecturing and seminars in the class, where the students are expected to show up in class with advance preparation based on set reading. Reading sources for each seminar will be provided to the students a week prior to the seminar, or will be included in the course reader. The seminar will stimulate group discussions on the topics covered in the course and individual presentations by the students.

Resource Materials

A list of bibliography is attached to the Syllabus, which will include optional reading as well as some of the pieces from the bibliography will be copied and provided to the students through the teaching process. All the materials in the bibliography are available either as PDF files, online or as material given to them. In additions hand-outs will be provided for most of the lectures.

Assessment of the learning outcomes

Students will be assessed based on the system established at Kathmandu University School of Law.

Teaching Staff: The course will be conveyed by Bishal Khanal (BK), Nils A. Butenschøn (NAB), Neel Uprety, (NU), Ila Sharma (IS) and Kåre Vollan (KV.

COURSE CONTENTS

Part I Concepts, International Commitments and Elections Role in Representative Democracies

Lecture 1. Conceptualization

Key concepts and terms: Decision-making in representative democracies, majority rule and consociational democracies, systems of representation, group representation and minorities, electoral standards, operational issues and observation will be explained.

Lecture 2. International Conventions and Obligations

The international binding obligations on elections, representation of genders, minorities etc. Lecture 3. International Standards and Best Practices

The international and regional standards and standards developed by INGOs are presented. In addition, best practices are presented. Lecture 4. Representative Democracies and Decision-making

What is elections’ role in transferring the ‘will of the people’ into collective decisions? State Structures, Forms of Government, Periodic Elections, and the role of political parties Part II Power-sharing Post Conflict, Minority and Group Rights

Lecture 5. Group Rights and Individual Rights; Identity, group rights and individual rights.

Lecture 6. Protection of minorities, balancing groups after conflict and affirmative action The different motivations for group representation. Sunset clauses.

Lecture 7. Institutional Design Levels of governments, councils representing minorities, minorities within minorities

Lecture 8. Power-Sharing Agreements – The Four Elements

What are the differences between majority rule and consociational democracies? The Four elements: Delegation of powers, representation, grand coalitions and veto powers. Part II Electoral Operational System, the Roles of Election Management Bodies, Civil Societies and Voters during the Course of the Electoral Cycle

Lecture 9. The Electoral Cycle An overview of pre-election, elections, and post-election activities. Electoral Disputes.

Lecture 10. The Role of the Election Management Body (EMB) The EMB administers the rules of the game and a credible election is dependent on the credibility of the EMB. Different models and traditions are explained.

Lecture 11. Legal and Operational Challenges The legal provisions are very important for any election and the laws are scrutinised in detail by domestic experts, parties and international organisations to assess if they meet international standards. But good elections may be conducted under very sketchy laws and bad elections are held with very good laws. What does it take to make an election credible?

Lecture 12. Elections in Nepal A historic overview and elements of the current legal framework.

Lecture 13. Election Observation Election observation became a very important tool for the transfer to democracy in the 1990s. The methodologies and the challenges will be discussed.

Lecture 14. Electronic Voting The use of IT in elections has become widespread. To support the actual voting, machines in the polling station is the most common but Internet voting is also used in some countries. The challenges are in particular related to secrecy and transparency and the various aspects will be discussed in this lecture.

Part III System of Representation, Electoral Quotas

Lecture 15. Electing Head of State Presidential elections depend to a large extent of the role of the president and the form of government. Electoral systems will be discussed for parliamentary systems, presidential systems and hybrid systems.

Posted on February 9, 2015December 6, 2017 by sanjay

Lets start with the definition of the term ‘discrimination.’ Equality is the condition of possessing substantially the same rights, privileges and immunities and being liable to substantially the same duties. A.V. Dicey “equality before law” as one of the important components of the rule of law.

We can recall the provisions of the Muluki Ain, 1910, Constitutional Act of 2004, Interim Government Act, 2007, Constitution of Kingdom of Nepal, 2015, Constitution of Nepal, 2019, Muluki Ain, 2020, Constitution of Kingdom of Nepal, 2047, Interim Constitution of Nepal, 2063 and Caste Based Discrimination and Untouchability (Offence and Punishment) Act, 2068 and the relevant provisions therein.

There is also a report of the Law Commission and the landmark judgments delivered by the Supreme Court of Nepal. The Supreme Court judgment on the rights of LGBTI is already famous. There are some international conventions and treaties such as Universal Declaration of Human Rights, 1948, Convention on the Prevention and Punishment of the Crime of Genocide, 1948, International Covenant on Civil and Political Rights, 1966, International Covenant on Economic, Social and Cultural Rights, 1965 and Convention on the Elimination of All Forms of Racial Discrimination, 1965. They have their impact in our society and local laws.

In the context of the offenses regarding discrimination, Section 37 should also include acid attacks as in recent history we have witnessed many racial and gender attacks by use of acid. Further, the existing laws regarding acid attack on a person especially on women is not clear. The law is silent about the course of action regarding acid attack and many culprits walk free due to leaky provisions in the existing laws. Further, the term used in Section 117 should be avoided as it is degrading.

Section 155 sanctions discrimination if such practices have been carried out as part of one’s culture or rituals. A new provision should be added wherein it must stipulate that any person in propagation of culture or ritual who promotes gender, caste or social discrimination shall be punishable under the law. Further, the expression ‘caste Discrimination’ should be replaced by “gender, caste, cultural and class discrimination” in the explanation of Section 163.

Any sexual intercourse with a minor or without the consent of the partner should be punished for rape. The wording here implies that only females can be raped and excludes third gender or males. The wordings of the provisions must be refined to include third gender and males too.

The present Bill is silent on whether the discriminatory act in public place is punishable or any discriminatory act either in public or private place is punishable.

One can argue that the Bill punishes only discriminatory acts in public places. This means that discrimination in our society may never end. It is clear that LGBTI are neglected in the Bill. This oversight is against the judgment of Supreme Court of Nepal which has given all LGBTI equal protection and status in our society.

Racial and gender discrimination are embedded in subconscious mind. It will require additional support from social and educational sector. Educating children and mass about all forms of discrimination and sensitizing society needs to be done with top priority. Law alone cannot eliminate all forms of discrimination.

The present Bill is a good start to eliminate discrimination. However, the Bill needs serious revision to include various forms of discrimination. The victim of discrimination must not be narrowly construed as people from all walks of life may fall victim of discrimination. The courts should be empowered to grant interim relief in the form of monetary relief as the cases in Nepal can prolong for years.

Perhaps one should make a point here that dalits, especial dalit women, have to undergo wide range of discrimination. Many discriminatory actions have been suppressed or discouraged by the people in affluent class of people. Dalit people do not have the resources to come up front and report discriminatory acts. If some stray discriminatory acts are reported the victims are further harassed by the concerned people for reporting the act. The present law must provide relief and protection to victims. Until and unless the law succeeds to protect and deliver speedy justice elimination of all forms of discrimination is not possible.

Posted on January 18, 2015December 25, 2017 by

The existing laws relating to offences against the religion are in the Muluki Ain, 2020. Prior to promulgation of the Interim Constitution, Nepal was identified as a Hindu Kingdom. There are certainly important biases in favour of the Hindus. Hinduism dominated all aspects of life including legal sphere.

The expression ‘religious places’ is a very wide term. It does not mean the religious places of the Hindu people only. Affording protection to all the religious places is not possible for the State in its present capacity. However, protection could be afforded to important religious places and respect should be given to all cultural heritage sites. Any act or omission which prevents a person from performing his/her religious practices should also be criminalized.

The provisions of the present draft needs some improvement as usage of language should be as such which can be easily understandable by the general people. Further, the provisions of some chapters of the Penal Code contradict with each other and in some cases there are unnecessary repetitions of provisions.

The cases of offences against religion are hard to prove due to various complications especially forceful conversion of religion. The term ‘forceful conversion’ is hard to prove. There are various methods of coercing a person to convert into another religion without physical force. The punishment stipulated in the draft Bill bears no correlation with the offence. The Bill aims at punishing the forceful converter of religion and not the ones who have been victimized by them.

The provision of strict punishment for those who take advantage of the helpless women and children is important. They require great care and protection. The responsibility is on the State to protect them from being tools in the war of religious propaganda.

Posted on January 16, 2015December 6, 2017 by sanjay

The present Bill is a big step towards preventing any form torture and punishes any act of torture. However, it fails to address acts such as cruel or degrading treatment.

Section 20 of the Bill needs reconsideration. A minimum and maximum punishment and fine should be stipulated so as to narrow down the discretionary power in the judicial authorities.

Section 22 of the Bill must be amended to give the courts the authority to pass an interim relief. According to Section 23 the government is supposed to give compensation within a year. The period of one year for execution for the final order is too long and will not meet ends of justice. To deter frivolous torture claims, Section 31, is irrelevant as it is claims for torture are far and few. This provision might instead deter people from making real claims.

The current Bill still suffers from procedural flaws. The redressal mechanism must be streamlined. The legal procedures deter the victims from making any complaints. Further, the definition of torture is narrow and exhaustive. The methods of torture are ever evolving and hard to define all forms of torture. It should be indicative of what all might be a form of torture.

The main difficulty in justice administration is the implementation of the existing laws. As of now very few cases have been registered in the courts and very few cases have had the final order. In light of these circumstances, a special bench must be set up for hearing complaints regarding torture and deliver its judgment within a stipulated time frame.

The victims are left in dark. The victim or victim’s family members have no involvement in the proceedings and dependent on the State to prosecute. The Bill must give some kind of control to them over the course of the prosecution. This will eliminate or reduce errors in government attorneys who are already over burdened with prosecution cases. again special care must be taken while dealing cases of torture to females and children. Such proceedings must be in camera proceeding to protect female and child victims

Posted on January 1, 2015December 25, 2017 by

Madhav Kumar Basnet v Chairperson, Government of Nepal, Interim Council of Ministers, Office of Prime Minister and Council of Ministers, Kathmandu (NKP 1101 (2070))

In this case, Advocate Rajib Bastola filed a writ petition seeking the Supreme Court’s decision to deem Section 8, 11 and 17 (2) of the National Broadcasting Act, 2049 BS unconstitutional as they were in contrast with Section 12(3), 15(1) and 27 of the Interim Constitution of Nepal, 2063. Legal provision on the broadcasting of the flow of information through the National Broadcasting Act 1993 targeted for the general public to get informed about impartial as well as authentic news and information taking place at the national and international level. This Act also aimed at making of the broadcasting media reliable, effective and strong with the use of modern technology in the field of information and communications.

Relevant Legislations

Interim Constitution, 2007:

Section 12 (3): Right to freedom: a) Freedom of opinion and expression b) Freedom to practice any profession, carry on any occupation, industry and trade.
Section 15 (1): Right relating to publication, broadcasting and press: (1) No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.
Section 27: Right to information: Every citizen shall have the right to demand or receive information on any matter of his or her interest or of public interest.

National Broadcasting Act, 1993:

Section 8: Power to cancel license of broadcasting institution: (1) if, any broadcasting institution broadcasts any program in contravention of this Act or the Rules framed hereunder, Government of Nepal may cancel the license obtained by such broadcasting institution. (2) Prior to cancellation of the license under Sub-section (1), Government of Nepal shall give a reasonable opportunity to such broadcasting institution to defend itself.
Section 11: Production and Broadcasting of Programs.
Section 17 (2): Penalties: (2) If any person broadcasts, or causes to broadcast, any program in contravention of this Act or the Rules framed hereunder or commits, or causes to be committed, any act in contravention of this Act or the Rules framed hereunder, the prescribed authority may punish such broadcasting institution, broadcaster or other related person with fine of up to Ten Thousand Rupees or with imprisonment up to One year or with both punishments.

International Convention on Civil and Political Rights (ICCPR), 1976

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order, or of public health or morals

In response, the court did not find unconstitutionality with Section 11 and Section 17 (2) respectively. However, in terms of Section 8 regarding the power to cancel the license of broadcasting institutions, the Supreme Court found that this provision was in contrast to the constitutional principle enshrined in Section 15 of the Interim Constitution of Nepal. According to Section 15, ” No publication, broadcasting or printing of any news item, editorial, feature, article or other reading and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing shall be censored.” However, Section 8 of the National Broadcasting Act gives power to the Nepali government to cancel the license obtained by such broadcasting. The court opined that cancelling the license of a broadcasting network would garner the same result as providing censorship to the publication as licenses are an essential pre-requisite for the broadcasting agency to legally function in the country. In this regards, citing unconstitutionality between the parliamentary act and the constitution, the court nullified the provision stated in Section 8 of the National Broadcasting Act.

Comments

In this case, the judiciary has once again exercised its power of judicial review to declare Section 8 of the National Broadcasting Act, 1993 unconstitutional. In doing so, the Supreme Court has re-iterated its preeminence in the judgment as to invalid restrictions. From a governance perspective, arguments can be made that a judicial institution, which is essentially appointed and not elected, should not be allowed to discard rules made by an elected body, i.e. parliament. The lack of accountability for judiciary towards the voting demographic has been argued as a major reason for the possible pitfall for this system. In the United Kingdom, for example, in most cases, the parliamentary Act is seen as a supreme law and the power is vested within the judiciary to interpret the law and not amend it.

However, there is a second school of thought which sees great benefit in the judiciary’s power to exercise its rights to interpret the constitution at the exclusion of any parliamentary acts. The appointed nature of judiciary, according to them, is a huge benefit as it keeps the judiciary independent and unaffected by partisan interests. This, according to many, is the hallmark of a democratic society where checks and balances are provided to keep all the institutions in line with democratic norms. This school of thought has prevailed in Nepal.

In terms of the case at hand, the Constitution recognizes the following grounds for restricting freedom of expression: sovereignty and integrity of Nepal; harmonious relations subsisting among the peoples of various castes, tribes, religion or communities; defamation; contempt of court; incitement to an offence; and acts contrary to public decency or morality. However, the restriction based on protecting “harmonious relations subsisting among the peoples of various castes, tribes, religions or communities” (Article 12 para 3 (1) of the Constitution, as well as in Article 15 of the National Broadcasting Act 1993), is problematic from the perspective of freedom of expression. While it is important to promote harmonious relations, this restriction is too broad and can undermine legitimate expression such as a frank discussion about the caste or ethnic discrimination which is a prevalent issue in Nepal.

In addition, there should be appropriate provisions that impose obligation to establish close and causal links between banned statements and risk to national security. This is a norm in international law. This lack of clarity has been abused in Nepal during the Maoist conflict and was one element in the justification for the widespread clampdown on journalists, media workers and human rights defenders. In essence, regulation of broadcasting should be controlled by a transparent body rather than a ministry to avoid future abuses.

The verdict to amend the National Broadcasting Act to adequately protect the right to freedom of expression in line with international requirements and the protection of media guaranteed in the Constitution is a welcome move. In light of this, the government must create regulatory laws according to international standards and establish regulatory bodies that are independent from government and that operate transparently.

Posted on January 1, 2015December 25, 2017 by

In this case, Advocate Govind Prasad Sharma filed a writ petition seeking Supreme Court’s intervention against Prime Minister Baburam Bhattarai and Attorney General Mukti Narayan Pradhan for their ‘unconstitutional intrusion into judicial matters’ in their bid to halt the investigation and interrogation process of Dailekh-based journalist Dekendra Raj Thapa’s murder.

The petitioners argued that the orders provided by the Prime Minister and Attorney General to halt the investigation process on the murder of Dailekh based journalist Dekendra Thapa amounted to misuse of authority, obstruction of justice and action against the Interim Constitution, 2007.

In this case, a Dailekh District Court had remanded, subsequent to their arrest, Lakshiram Gharti, Harilal Pun Magar, Bir Bahadur KC, Nir Bahadur Gharti Magar and Jay Bahadur to judicial custody as Lakshiram Gharti had confessed to being a part of the crime committed on August 11, 2004. However, citing influence from higher-up, the interrogation process was halted. Subsequently, the Office of the Attorney General had sent a directive to the Dailkeh Police and District Office of Attorney directing them not to proceed with legal action in Thapa’s murder case.

In light of this, the petitioners argued that the defendant authorities had misused their powers in halting the interrogation process and releasing the accused from judicial custody. In addition, there was a high possibility for tampering of evidences due to the highly politicized nature of the murder. Thus, the petitioners further sought immediate apex court intervention through stay order. According to the petitioners, the Attorney General’s written order indicated a clear misuse of power and also amounted to obstruction of justice. Thus, the petitioners sought a Supreme Court order directing the lower courts to reprimand the defendant authorities. The petitioners alleged that the defendant authorities had misused power even though it was their duty to arrest the accused and protect evidences, to search and arrest perpetrators of crime, detain suspects and file charge sheet as per the Government Cases Act, 2049 BS.

In response, the defendants argued that as per the Interim Constitution and the Comprehensive Peace Agreement (CPA), conflict-era crimes fall under the jurisdiction of the Truth and Reconciliation Commission (TRC) and that they should not be dealt with by the regular criminal justice system.

Moreover, the court also ruled that AG cannot interfere in the work carried by his subordinates until they continue to have the power delegated to them by the government’s legal chief. The court order also mentions that prosecuting (district attorney) and investigating (police) authorities are separate and independent entities and there can be no meddling in their job. The constitution provisions the AG as the last authority to decide whether a case would be filed in the court, the court stated, but such decisions from the government’s chief legal advisor cannot be arbitrary and has to be based on findings of an impartial investigation. Even though the AG is appointed by the President on the recommendation of the prime minister, it is important that any person holding public office remains loyal to the Constitution and not to the one who appointed him.

Comments
One school of thought suggest that due to the possibilities of a large number of casualties during a conflict, a separate procedure is required for dealing with such cases. Regular criminal procedures are inadequate to deal with such cases and victims may also not get justice. In addition, invoking regular criminal procedures in dealing with war-era crimes would mean going against the constitutional provision of having a transitional justice mechanism in place, which would in effect raise questions on the use of such a mechanism. Thus, in light of the impending legalization of transitional justice mechanism, it can be argued that the cases which fall under war era should be prosecuted according to the provision envisioned by the TRC.

On the other hand, the move from the PM and AG to halt the investigation procedure is seen as a huge political move. First of all, the illegality of the move is unquestionable. As per the Supreme Court, both the Prime Minister and Attorney General acted ultra vires in demanding a halt in investigation proceedings. Secondly, in a post-conflict society, where consolidation of democratic norms goes hand in hand with building trust, the political move comes as a huge step back in institutionalizing good governance practices and upholding the rule of law. As it stands, the act by AG and PM highlights the growing culture of impunity among political cadres at the expense of justice. This is not conducive for the long term peace and reconciliation process.

In essence, the Supreme Court held that war-era crimes can be prosecuted under regular criminal procedure in the absence of transitional justice mechanism. In doing so, it has once again re-established its position as the bastion of protection of rights of Nepali. This decision has come at a time when both the UCPN (Maoist) and the CPN-Maoists have been advocating for such cases to be governed under the transitional justice mechanism and stood against piecemeal approach in dealing with such cases. But the Supreme Court, once again holding its non-partisan characteristics, devised a judgment based on the prevalent laws of Nepal rather than party whims.