Rabindra Prasad Dhakal on behalf of Rajendra Prasad Dhakal (Advocate) v. Nepal Government, Home Ministry and Others, Supreme Court, 1 June 2007
||The Supreme Court
This case concerns several petitions for a writ of habeas corpus filed with the Nepalese Supreme Court on behalf of persons allegedly arrested between 1999 and 2004 by Nepalese security forces and unaccounted for since their arrest. The questions drawn to the court's attention concerned the health and safety of the persons referred to in the petitions and to the nature of the obligations of the State in matters relating to persons who have disappeared or are unaccounted for, in particular during an armed conflict.
In its decision, after recognizing that the status and whereabouts of the missing persons remained unknown, the Court analysed the international obligations binding upon the State with regard to clarifying what has happened to missing persons and concerning the right of the missing and of their relatives to appropriate remedy and relief. In its determination, the Court made reference to the International Convention for the Protection of All Persons from Enforced Disappearance which, although not ratified by Nepal, sets a "fundamental standard" no different from those laid down in international human rights instruments to which Nepal is party, such as the U.N Covenant on Civil and Political Rights. It also concluded that civil liberties protected under the Constitution are at greater risk during an armed conflict and that the liability and responsibility of the State to address violations of human rights and international humanitarian law should therefore be greater in such unusual circumstances. This should entail in particular a greater commitment on the part of the State to identifying the fate of missing persons, to initiating legal action against those responsible and to providing the victims with a remedy.
In the case at hand, the court found that no serious efforts had been made by the government either to investigate the alleged disappearances or to improve or strengthen the domestic legal framework or to provide relief and remedy to the victims' families. As a result, the court issued several orders to the government of Nepal to adopt new legislation in order to both define enforced disappearance as a criminal offence and to provide for the right of detained persons to humane treatment and fundamental guarantees, as well as to establish a commission of inquiry into the disappearance of the victims on whose behalf the petitions had been brought.