This is a petition to declare unconstitutional certain provisions of Investigation of Disappeared Persons, Truth and Reconciliation Commission Act, in 2071 (2014) in Nepal.
The Petitioners challenged Sections 22 (1), 24, 25 (3) (4), 26 (5) and 29 (1) of the disputed Act, to ensure the legal guarantee that no process of reconciliation can take place without the informed consent of the victim, and to establish that the consent of the victim as a mandatory legal requirement for amnesty measures, to make provisions for the Commission to be able to directly recommend for prosecution to the Attorney General and to make certain that the accused does not get immunity from criminal responsibility on the basis of any departmental action and to make organizations accountable as well to ensure the return of captured property.
The Supreme Court of Nepal ruled in favor of the Petitioners and declared the questioned provisions of the law unconstitutional.
Excerpts of the ruling:
The jurisdiction provided to the Commission to provide for amnesty in crimes of a serious nature is contrary to the principles of international law. Nepal is a State party to the International Covenant on Civil and Political Rights, Convention Against Torture as well as all the important human rights Conventions. In addition, in international humanitarian law, it is also a State party to the Geneva Conventions. Any individual who is a victim of violations of rights or freedoms has the guarantee of effective legal remedies under international human rights law. This right has been protected in the provisions contained in Article 8 of Universal Declaration of Human Rights, Article 2 of International Covenant on Civil and Political Rights, Article 14 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 39 of Convention on the Rights of the Child, Article 91 of the Optional Protocol of the Geneva Convention, 1949 and Articles 68 and 75 of the Rome Statute of the International Criminal Court. Article 2(3)(a) of the International Covenant on Civil and Political Rights, 1966 provides for the existence of the right to effective remedy. As Section 26 of the Act provides that the Commission may grant amnesty even in crimes of a serious nature, it is more than certain that a situation may arise resulting in the failure of the victims to get effective remedy. Further interpreting this right, the Human Rights Committee in its General Comment No. 29 regarding the Derogations During States of Emergency, states that the right to remedy is a treaty obligation inherent in the Covenant as a whole and Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide effective remedies for any violation of the provisions of the Covenant even for violations during the period of emergency. - (Paragraph 14, Human Rights Committee, General Comment 29, States of Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (31 August, 2001)]. Similarly, the United Nations Human Rights Commission on 25 April 2002, 25 April 2003, 21 April 2004 and 21 April, 2007 unanimously passed Special Resolutions against providing amnesty in cases of serious violations of international human rights and humanitarian law.
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Any individual guilty of serious violation of human rights cannot escape the responsibility of his actions; what this means is that on one pretext or the other, no one else should also attempt to help such individuals escape. Anyone making any attempt to help the guilty elude such responsibility or becoming an accessory to such an attempt should be ready to face the consequences created by such actions. This Bench believes that the Commissions established by law will not commit such actions.
Note: This is an unofficial translation of the decision, a joint work of the UN and ICJ
