Practice Relating to Rule 98. Enforced Disappearance
Section C. Investigation of enforced disappearance
Nepal’s Ordinance on the Disappearance of Persons (2009) states:
10. Commission May Be [Established]:
(1) Notwithstanding anything contained elsewhere in this ordinance, the Government of Nepal may, by publishing a notice in the Nepal Gazette, [establish] a high level independent commission in order to carry out investigations [into] the disappeared persons and persons involved in such acts of disappearance of persons in [the] course of the armed conflict during the period from the 1st day of the month of Falgun, 2052 V. S. to the 5th day of the month of Mangsir, 2063 (13 February 1996 to 22 November 2006).
15. Functions, Duties and Powers of the Commission:
In addition to the functions, duties and powers mentioned elsewhere in this ordinance, the functions, duties and powers of the Commission shall be as follows:
(a) To conduct investigations [into] the persons subjected to disappearance and find out the truth and facts;
(b) To determine the persons … guilty of involvement in [the] disappearance of persons;
(c) To make recommendations as to the reparations to be made available to the disappeared person and/or his/her family.
16. Power to Investigate Complaints:
(1) The Commission may, on the following bases, investigate the cases of forced disappearance of persons:
(a) If a complaint is lodged to the Commission by or on behalf of the victim;
(b) If the Commission receives any information on such matter through any source;
(c) If the Commission deems appropriate to inquire and investigate … a matter.
(2) Notwithstanding anything contained in Sub-section (1), the Commission shall investigate as directed by the court … the cases of disappearances at the time of the enactment of this Ordinance.
17. Powers of the Commission Relating to Examination:
(1) The Commission may, in relation to carrying out [the] following acts in [the] course of investigations pursuant to Section 16, exercise the same powers as conferred to courts in accordance with existing laws:
(a) To acquire information or record testimonies by making someone [testify] before the Commission;
(b) To examine witnesses and record their statements;
(c) To [issue] orders for the submission of any document or paper;
(d) To [obtain] any document or a copy thereof from any government or public office or court;
(e) To examine the evidence;
(f) To carry out or [instigate] to be carried out on-the-spot inspections or to [issue] orders for the submission of evidence.
(2) The Commission may, if it deems appropriate, prescribe a reasonable time period … to make anyone [testify] or [submit] … a document, paper or evidence pursuant to Sub-section (1).
(3) The Commission may, while carrying out [the] investigations in accordance with this Ordinance, if it deems that any [item] or document is in possession of anyone or is in a specific location, … [search or instigate a search for] such person or location … and take into possession or [instigate] to be taken into possession … such [item] or document or [make a full or partial] duplicate or copy of such document.
(4) In case there is a need to conduct [an] investigation …[of] a person holding [a] public position and, if there is a possibility of evidence being destroyed [by] him/her if he/she is allowed to [remain] in the same position, the Commission may write to the body concerned to suspend him/her; and in case such a written request is received, the concerned body shall suspend him/her as per the provisions of the law applicable [to the] terms and conditions of his/her services or if there are no clear provisions made in this regard, for a period not exceeding three months.
(5) If the Commission is convinced that a disappeared person has been killed and buried in a particular place, the Commission may exhume the body …
(6) Other matters relating to [the] investigation of complaints and information received by the Commission may be … determined by the Commission itself.
18. To Render Support [for the] Functioning of the Commission:
(1) It shall be the duty of the concerned person, institution or agency to submit the documents, papers or evidence as demanded by the Commission and/or to submit information or statements by being present at the [meetings of the] Commission pursuant to Section 17.
(2) It shall be the duty of the local administration to cooperate with the Commission if the Commission, in the course of carrying out [an] examination in accordance with this Ordinance, asks for cooperation of the local administration to search a place or secure the [appearance] of a person before the Commission.
(3) If the person, institution or agency having [the] [obligations] pursuant to Subsection (1) or (2) fails to render support in the functioning of the Commission, the Commission may impose a fine of up to fifteen thousand rupees in each instance to such a person, institution or the chief of such institution or agency.
(4) In case [the] person [who] has [obligations] pursuant to Sub-section (1) or (2) [is] an office-bearer or an employee of any government agency or public corporation, the Commission may … [write] to the concerned agency to take departmental action or to take other necessary actions in accordance with [the] existing laws against [the] office-bearer or employee …
(5) If anyone … [hinders] the functioning of the Commission, the Commission may impose a fine of up to fifteen thousand rupees in each instance to such person.
40. Information of Death:
In case … the Commission finds out while carrying out its investigation that the disappeared person has already died, the Commission will inform the nearest member of the family of the deceased accordingly.
This ordinance was adopted by the president while Parliament was in recess pursuant to Article 88 of Nepal’s Interim Constitution (2007). Since the ordinance was not subsequently endorsed by Parliament, it is no longer in force.