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Nepal: Supreme Court Strikes Down Amnesty Provision in Truth and Reconciliation Law

(Mar. 17, 2015) On February 26, 2015, Nepal’s Supreme Court struck down the amnesty provision in the Truth and Reconciliation Commission (TRC) Act. (Monica Moyo, Nepali Supreme Court Rejects Amnesty for War Crimes, AMERICAN SOCIETY OF INTERNATIONAL LAW (Feb. 26, 2015).)  The amnesty provision grants the Truth and Reconciliation Commission and the Commission on Enforced Disappearances the discretionary power to recommend amnesties for those responsible for grave violations or abuses of human rights. (Investigation of Missing Persons, Truth and Reconciliation Commission Act, 2070 (2014), § 26.)

According to a Supreme Court official, “[t]he court has struck down the amnesty provision from the law and said the consent of the victims is necessary for any reconciliation.” (Ross Adkin, Nepal Supreme Court Rejects Amnesty for War Crimes, REUTERS, (Feb. 27, 2015).) The Court also “made it clear that cases that are sub judice at various courts cannot be transferred to the commissions.” Moreover, the Court “directed that the victim’s consent should be made mandatory for reconciliation.” (Nepal Supreme Court Rejects Amnesty for War Crimes, International Center for Transitional Justice (ICTJ) website (Feb. 26, 2015).)

The Supreme Court had already struck down as unconstitutional a 2013 ordinance that had established a TRC (Commission on Investigation of Disappeared Persons, Truth and Reconciliation Ordinance 2069 (2012), SIMONROBINS.COM), partly on the basis that it provided for amnesties for persons responsible for serious human rights abuses. (Wendy Zeldin, Nepal: Supreme Court Rules Government Ordinance on Truth and Reconciliation Commission to Be Unconstitutional, GLOBAL LEGAL MONITOR (Jan. 8, 2014).)

The current TRC Act was promulgated on May 11, 2014, through a compromise bill that was a revised version of the previous ordinance that the Court had struck down. However the new law retained the amnesty provisions. (ICTJ Program Report: Nepal (Jan. 7, 2014), ICTJ website.)