Nepal: Addressing Impunity

-Raj Kumar Siwakoti

Senior Advocate, Nepal

There is alarming situation of impunity in Nepal due to lack of fair investigation and prosecution against those involved in the crimes under international law. Impunity has hindered access of the general public to justice. Justice has been influenced by access, money and power. The perpetrators involved in the serious human rights violations are out of the reach of justice system. This has made the victims hopeless rather than hopeful for justice. Those involved in the serious crimes of murder, enforced disappearance and torture are not brought to justice system due to lack of effective law or will power of the State. Moreover, backed by the political access or misusing position in the public authority, responsibility in such incidents is rejected. Unfortunately, only the poor and helpless are the subject of prosecution and punishment according to law. The serious crimes of past are required to be brought into the justice system; at the same time, we have the responsibility to regularize serious crimes that might be committed in the future. Only solution for both of these situations is to bring the perpetrators to the justice system making them accountable for their deeds by formulating retroactive laws.

We can address impunity from two ways. Firstly, by initiating prosecution process in the incidents of serious violations of the past. But this may be difficult when the existing laws have not criminalized the past incidents. For example, Nepal law has not declared enforced disappearance as a crime. Such a lapse can create legal hurdles. According to the constitutional practice so far and the provision in the existing Interim Constitution, no one can be punished for an act which was not punishable by law when the act was committed, and no person can be subjected to a punishment greater than that prescribed by the law in force at the time of the offence. If we continue such provision in the future also, we cannot prosecute against those involved in the crimes defined by international law but not criminalized by domestic law. We cannot bring them into justice system.

The exceptional principle to use the retroactive provisions in the already defined crimes has been developed. If an act is a crime according to international law, but such an act is not criminalized by domestic law, we can bring such crimes to the grip of justice. Secondly, the principle of prohibition of retroactive law is not applicable in the context of continuous crime. Continuous crime was defined and the non applicability of the prohibition of retroactive law was established in the bombing incident of BS 2043. In this way, the principle of non retroactivity of criminal law cannot obstruct bringing the incidents which are defined at one or the other place to the justice system. Right to remedy must be established against certain crimes and impunity.

Especially, the post conflict countries have adopted such constitutional provisions. Such crimes have been criminalized and they have established that the already defined crimes can be brought to justice even if they were not criminalized by national law when they were committed. We can’t bring the perpetrators of the past to justice system if we follow the traditional criminal law. Achievements of the democratic movement cannot be institutionalized if we do not end impunity. We cannot apply a law that defines a new crime in a retroactive manner but we can take action by formulating retroactive law in the acts that have been defined as crime by world community or international law.

The political parties in Nepal fear that they themselves may be trapped if the crimes of the past are addressed. Additional opinion had been presented by two major political parties in the CA. CA Committee for Fundamental rights and Directive principles of the State could not reach consensus on the proviso that proposed “punishment by formulating retroactive law in the crimes such as crime against humanity, war crimes and genocide”. However; two additional opinions with similar theoretical grounds were proposed on behalf of Nepali Congress and CPN-UML that have majority in the Committee. UCPN-Maoist remained in the opposition during the discussion, but this provision has been proposed by majority.

Incorporating this provision in the new constitution will open way to struggle against impunity. Those accused of involvement in the serious crimes can be banned or declared ineligible for certain duration. We can formulate a law in the future if we have constitutional provision in place. Bringing the perpetrators involved in serious crimes into justice system by formulating retroactive law should be the first step. Remedy and justice can be sought in the continuous crimes such as enforced disappearance only when such a constitutional provision is in place. Victims are still expecting justice. The issue of enforced disappearance cannot be addressed if the constitution does not address impunity. In such a situation, victims cannot get justice and the perpetrators remain out of the grip of justice system. Therefore, impunity must be addressed.

It is necessary to incorporate retroactive provision in the future constitution to end the trend of impunity and to take action against those involved in the past crimes. The recommendations of the Mallik Commission have not been implemented. Rayamajhi Commission was formed to investigate the human rights violations during Jana Andolan II of 2006, but its recommendations were also not implemented. It is important to investigate and take action on such incidents. Impunity can be eradicated if it is mentioned in the fundamental laws of the land but we have to be careful towards its implementation. To minimize the bad trend of impunity, we must make clear provision to punish the serious crimes under international law by formulating retroactive law.

(The author is secretary general of FOHRID, Human Rights and Democratic Forum).

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I agree

Comments

  • Posted on - 2012-11-22    by     Ram datha joshi
  • Mr siwakoti is not Senior Advocate, he is only Advocate, so please delete " Senior "