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(Jan 08, 2014) On January 2, 2014, Nepal's Supreme Court ruled unconstitutional an ordinance adopted by the Maoist-led government that provides for amnesties of persons deemed responsible for serious human rights abuses during the country's civil war of 1996-2006. (Amy Mathieu, Nepal Top Court Rejects Amnesty Legislation, PAPER CHASE NEWSBURST (Jan. 4, 2014); Nepal: Pillay Welcomes Supreme Court's Decision Against Amnesties for Serious Crimes, Office of the High Commissioner for Human Rights website (Jan. 4, 2014).)

The government adopted the Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission in March 2013, to establish a Truth and Reconciliation Commission for the investigation of the human rights violations committed during the conflict. (Nepal: Pillay Welcomes Supreme Court's Decision Against Amnesties for Serious Crimes, supra; Ordinance on Investigation of Disappeared Persons, Truth and Reconciliation Commission, THE MISSING BLOG (last visited Jan. 6, 2013).) Maoists and the former Government of Nepal had agreed to the establishment of a Truth and Reconciliation Commission as part of the peace agreement they signed in 2007. (Nepal's Court Rules Out Amnesty for Serious War Crimes, THE SUN DAILY (Jan. 4, 2014).) In April 2013, Justice Sushila Karki had stayed the Ordinance's implementation, on grounds that it contradicted the Interim Constitution of Nepal, 2063(2007). ([in Nepali and English, with amendments 1-8], Nepal Constitution Foundation website (July 2010).)

In its recent ruling, the Supreme Court held that the Ordinance's provisions on amnesties, restrictions on criminal prosecutions (under sections 25 and 29), and a 35-day limit for filing cases (under section 29) "contravene fundamental rights guaranteed by the Constitution of Nepal, its justice system and international law." (Nepal: Pillay Welcomes Supreme Court's Decision Against Amnesties for Serious Crimes, supra; Kosh Raj Koirala, SC Rejects TRC Ordinance over Blanket Amnesty, REPÚBLICA (Jan. 2, 2014).) According to a Court spokesperson, in the Court's view, cases of forced disappearances fall under the rubric of criminal acts and perpetrators should not be given amnesty. (Nepal's Court Rules Out Amnesty for Serious War Crimes, supra.)

The Court also stated that "the Truth and Reconciliation Commission should meet international standards, including with regard to guarantees of autonomy and impartiality, and ensure the involvement and protection of victims and witnesses." (Nepal: Pillay Welcomes Supreme Court's Decision Against Amnesties for Serious Crimes, supra.) In addition, the Court mandated that the government establish two separate commissions for the investigation of war crimes and human rights abuses as well as a commission is to examine the cases of disappeared persons. (Id.; Nepal's Court Rules Out Amnesty for Serious War Crimes, supra.)

The petition on which the ruling is based was filed in 2013 by victims groups and human rights activists, including the National Network of Families of Disappeared & Missing Nepal (NEFAD), an organization of the families of the victims of the alleged war-time abuses. (Nepal: Pillay Welcomes Supreme Court's Decision Against Amnesties for Serious Crimes, supra; Nepal Court Rules Out Amnesty for Serious War Crimes, GLOBAL POST (Jan. 1, 2014).) NEFAD has proposed its own legislation on the disappeared, under which causing people to disappear would be a punishable offense. (A Bill Relating to Providing for the Disappearances, NEFAD website (last visited Jan. 6, 2014).)

United Nations High Commissioner for Human Rights Navi Pillay commended the Court's decision. She stated, "[t]his is a significant development for the thousands of victims of the conflict. The Supreme Court's decision to block amnesties is the first step towards ensuring that the Truth and Reconciliation Commission will not be used to avoid or delay criminal investigations and prosecutions of conflict-related cases." (Nepal: Pillay Welcomes Supreme Court's Decision Against Amnesties for Serious Crimes, supra.)

Author: Wendy Zeldin More by this author
Topic: Constitution More on this topic
 Human rights More on this topic
 War crimes More on this topic
Jurisdiction: Nepal More about this jurisdiction

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Last updated: 01/08/2014