Practice Relating to Rule 98. Enforced Disappearance
Nepal’s Ordinance on the Disappearance of Persons (2009) states:
Unless the subject or context otherwise requires, in this Ordinance:
(a) “Disappearance of Persons” means the following:
(1) The act of not allowing the person [who has been] arrested, taken into custody or taken control of in whatever way by a person or a security official authorized to arrest, investigate or prosecute in accordance with [the] law or to implement the law to meet the concerned persons even after the expiry of the stipulated time to [bring] the arrested person before the person[s] authorized to look into such cases in accordance with the existing laws or not providing information on the fate or whereabouts [of] such person;
(2) The act of not giving information to the concerned persons on the fate or whereabouts of the [arrested or kidnapped] person …; taking [somebody] … hostage or control[ling an individual] in the name of an organization or an organized or unorganized group; or depriving [someone] of his/her personal liberty in whatever way or not [providing] the reason [for] such deprivation [of liberty] even after the expiry of twenty-four hours of such control or deprivation [of liberty].
3. Not to Carry Out or [Instigate] to Carry Out the Act of Disappearance of a Person:
(1) No one shall commit or [instigate] to commit an act of disappearance.
(2) No one shall be an accomplice in an act of disappearance … or assist in such an act in any manner.
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 Since the ordinance was not subsequently endorsed by Parliament, it is no longer in force.
In its order in the Forced Disappearances case in 2007, the Supreme Court of Nepal stated:
Because international law has only categorized disappearance during a period of armed conflict as a violation of human rights incidents of disappearance were not minimized, and therefore, the United Nations General Assembly deemed acts of disappearance as crimes against humanity and issued a Declaration on 18 December 1992 for the purpose of saving all persons from enforced disappearance. In line with the obligation imposed on the state party by the Declaration, the General Assembly of the United Nations on 20 December 2006 issued the International Convention for the Protection of All Persons From Enforced Disappearances [hereinafter Disappearance Convention]. Although the Disappearance Convention has not yet come into force and Nepal has not yet ratified it, this Convention has developed an important standard concerning the obligations of a state with respect to the security of disappeared persons; in the event that the Disappearance Convention is accepted by international community, it is expedient to accept the standards established in the Convention as the prevailing standard in international law. Therefore, the State ought to comply with these standards, accordingly.
The preamble to the Convention, invoking the principles enumerated in the Charter of the United Nations, particularly the human rights and basic freedoms indicated by Article 55 of the Charter, and the Universal Declaration of Human Rights, states that the Convention is to promote universal respect for, and observance of, human rights and fundamental freedoms. From among the principles stated in the Universal Declaration of Human Rights, the core principles in all conventions, covenants and instruments are influenced by friendship, justice and peace, on the basis of the inherent dignity and respect for the inalienable rights of all members of human society. From among these instruments, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention against Torture, Cruel, Inhumane or Degrading Treatment or Punishment are related to the present matter and hence are particularly relevant.
For the purpose of understanding the spirit and the development of the aforementioned international human rights instruments, one should take into account the Code of Conduct of Law Enforcement Officials and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and the Standard Minimum Rules for the Treatment of Prisoners.
Since the aforementioned instruments are concerned with developing the contours of the human rights conventions ratified by Nepal, the Convention for the Protection of Enforced Disappearance, issued in 2006, should be seen in a similar light. This Convention has not established different values from the prevailing international human rights law; rather it has reinforced the values enshrined in international human rights law. Therefore, non-ratification of the Disappearance Convention offers no support to the contention that State responsibility with respect to disappeared persons established by mainstream human rights instruments is negligible to any extent. Thus, even as the 2006 Convention is yet to be ratified, there should be no barriers to use the provisions of the Convention as guiding principles. Moreover, it should be considered necessary on the basis of the obligations created out of the conventions ratified by Nepal, together with the principles of prevailing international human rights law for the protection of human rights.
There is no problem in implementing the principles laid down in the Disappearance Convention for the sake of respecting and promoting the life, dignity and freedom of Nepal’s citizens. Therefore, our legal system can also include these principles as it is beneficial for us. It is not objectionable in both our law and practice; rather it should be seen as essential. Moreover, it is expected that the State should, within its constitutional framework, proceed further as soon as possible to ratify the Disappearance Convention. This will demonstrate our sensibility towards our citizens and the responsibility of the State towards the international community in protecting human rights. Now, let us consider some of the fundamental provisions of the Disappearance Convention.
Article 2 of the Disappearance Convention considers the act of enforced disappearance as an arrest, detention, abduction or any other form of deprivation of liberty by agents of the state or a person or group of person acting with authorization, support or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
The Disappearance Convention has prescribed the following obligations to a State party to guarantee that persons will not be disappeared forcefully by the State party:
Nobody shall be disappeared forcefully or kept in secret detention;
The act of enforced disappearance shall be made a criminal act through the enactment of law. The act of enforced disappearance will not be considered a political offence and in order to ensure the presence of the alleged perpetrator in any judicial proceedings, arrangements for extradition or rendition will be made;
Investigations of enforced disappearances will be carried out and responsible persons will be brought to justice;
The right to an effective remedy shall be guaranteed to the victims of enforced disappearance;
An impartial investigation for alleged incidents of disappearance shall be ensured; and
Arrangements for the protection of complainants, witnesses and relatives of victims shall be made.
In 1994, before the initiation of the Disappearance Convention, some states on the American continent issued the Inter-American Convention on Enforced Disappearance of Persons. Countries such as Colombia, Guatemala, Paraguay, Peru and Venezuela have made separate laws in accordance with the Convention and thereby have defined enforced disappearance as a criminal act.
In the 1966 International Covenant on Economic, Social and Cultural Rights, to which Nepal has ratified and become a party, State Parties to the instrument accepted the obligation of the State to accord to families the widest possible security and assistance to establish a family, particularly to support the care and education of children. Similarly, Article 6 of the International Covenant on Civil and Political Rights (ICCPR) states that every human being has an inherent right to life and that this right shall be protected by law. The expression “right to life” used in this Article has been interpreted by the United Nations Office of the High Commissioner of Human Rights as the highest right of a person which may not be suspended in any kind of emergency. The ICCPR has also provided State parties with the obligation to protect the rights of its citizens.
• Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
• Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
• Anyone who is arrested or detained on criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
• Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
• Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
In interpreting Article 2 of the ICCPR, the Human Right Committee, under the Office of the High Commissioner for Human Rights, has stated that the act of enforced disappearance violates Articles 6, 7 and 9 of the ICCPR and the act may also amount to a crime against humanity.
The State Parties to the ICCPR have accepted the obligation that necessary legislative measures shall be enacted to respect and guarantee these rights if the prevailing legislative measures do not appear to be sufficient. In addition, State Parties are obliged to provide effective remedies if these rights are violated by any persons working in official capacity.
As Section 9 of Treaty Act, 2047 provides that treaties or agreements ratified by Nepal will be applied as Nepali law. Thus, there is absolutely no ground for the State to claim that it is absolved from the obligations granted by these instruments.
Though Nepal has not become party to any separate regional convention, it has remained an active member of the United Nations, has ratified several Conventions relating to human rights, and has repeatedly expressed its commitment towards human rights and the freedoms of Nepali citizens in the Constitution and other legal provisions. In this context, it seems that this Court may use standards and principles established pursuant to the above mentioned foreign and human rights-related decisions by regional courts under recognized principles of justice embodied in our Constitution. There are no reasons to deviate from these decisions.
While considering what the obligations of the State are to its citizens during a time of conflict or a time of peace, the preamble to the Constitution of the Kingdom of Nepal, 1990, has made a commitment to guarantee the basic human rights of the people, thereby transforming the concept of rule of law into living reality. Fundamental rights stated under Part III, Article 12 (1) of the same Constitution provide that no one shall be deprived of personal liberty, unless done so in accordance with the law. Similarly, the right to criminal justice, provided in Article 14, clause (4), states that anyone who is detained during the course of any investigation, trial, or for any other reason, shall not be subjected to any physical or mental torture, nor shall he or she be subjected to any cruel, inhuman or degrading treatment. Clause (5) of the same Article states that no person who is arrested shall be detained without being informed as soon as possible of the reasons for their arrest. Clause (6) of the same Article states that every person who is arrested and detained in custody shall be produced before a judicial authority within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to such authority, and no such person shall be detained in custody beyond the said period except on the order of such authority.
The basic fundamental rights provided by the 1990 Constitution are made more secure by the Interim Constitution of Nepal, 2007. A full commitment is made to civil liberty, fundamental rights, human rights, and the concept of rule of law, all of which have been expressed in the preamble to the Constitution itself.
Clause (1) of Article 12 of the Interim Constitution in clear terms protects the right to life of every person and thereby provides every person the right to live with dignity. Regarding the right to justice, Article 24 (1) provides that no person shall be detained without being notified of his or her arrest and receiving the reasons thereof. Clause (2) of the same Article states that a detained person shall be produced before the judicial authority within 24 hours of the arrest, excluding the time necessary for the journey from the place of arrest to such authority. The provision also guarantees that the arrested person shall not be put in detention except by the order of the judicial authority. Clause (8) states that each person shall have right to be informed of the proceedings against him and Clause (9) states that each person shall have the right to fair trial in a competent court or judicial authority.
Similarly, Article 26 of the Interim Constitution, which provides for the right against torture, provides in Clause (1) that anyone who is detained in the course of an investigation, trial or custody, or for any other reason, shall neither be subjected to any physical or mental torture, nor shall be subjected to any cruel, inhuman or degrading treatment. Clause (2) of the same Article makes the act described in Clause (1) punishable by law and also provides that the person treated in such a manner shall be entitled to compensation as prescribed by law. Further, the proviso of Clause (7) of Article 143 of the Constitution, by providing that such rights cannot be suspended even during a state of emergency in the country, remains constitutionally sensitive to the right to life.
It is beyond dispute that during times of peace the obligation to protect the fundamental rights of persons, including their right to live with dignity, is vested in the state. As civil liberties would be at greater risk during periods of conflict, the obligation of the state must be more rigorous during such circumstances. The protection of human rights and compliance with international humanitarian law has, during the time of conflict, remained a challenge, even at the international level. A report has shown that during 2003 and 2004, incidences of enforced disappearance and illegal detention in Nepal were found to be the highest in the world.
It seems that the above mentioned Declarations, Conventions and Covenants have affirmed that the practice of enforced disappearance would seriously violate the right to live with dignity, the right against torture, the right to personal freedom, the right to a fair trial, the right to easy access to justice, and the rights related to family life.
Even as there has not been a separate legal provision on enforced disappearance in Nepal, some of the provisions of the Interim Constitution, 2007 speak to the issues raised by such incidents during the time of the conflict. The political consensus achieved between the Seven Political Parties and CPN (Maoist) leading to the Comprehensive Peace Agreement (CPA) entered between the Government of Nepal and CPN (Maoist) on 2063/8/5 (Nov. 21, 2006), was the background for the promulgation of the Interim Constitution. The CPA also expressed commitment to international humanitarian law and principles and standards of basic human rights. It seems that the State has accepted its obligation towards disappeared citizens due to its commitment to comply with basic human rights law and international humanitarian law, as expressed in Clause 5.2.3 of the aforementioned peace agreement, which has been included as Annex 4 of the Interim Constitution. The clause states that both parties agree to make public the real names, family names and home addresses of those who were disappeared and killed during the time of war within 60 days of signing of the agreement and thereby apprise this information to their families also. Clause 5.2.5 states that both parties have agreed to establish a high level Truth and Reconciliation Commission to investigate those who violated human rights during the armed conflict. Clause 7 provides that both parties commit to respect human rights and international humanitarian law. Therefore, the State seems to have accepted the fact that it holds legal obligations with respect to disappeared persons.
The Interim Constitution of Nepal, 2007 has also endorsed the commitments expressed in the peace agreement and various other political agreements. Article 33 (L) in Part IV of the Interim Constitution (Directive Principles and Policies), provides that families of disappeared persons will be provided with relief on the basis of the report of the Commission of Inquiry, which shall be constituted to investigate the status of disappeared persons during the conflict. Article 33 (N) establishes a High Level Truth and Reconciliation Commission to explore the truth of those who violated human rights during the armed conflict and those who were involved in crimes against humanity, and to create an environment of reconciliation in society.
Even though Article 36 states that issues relating to the implementation or non-implementation of provisions stated under Part IV of the Constitution cannot be raised in any court of law, there is no dispute that that the provisions in these Articles are commitments of the State. The principle enunciated in the case of Yogi Narahari Nath v Cabinet Secretariat and Others held that the directive principles and policies of the State are not mere showpieces; they cannot be overlooked even though they cannot be implemented through a court of law. Therefore, the state may not overlook the obligations stipulated in the Directive Principles.
As the act of disappearance is taken as a violation of the fundamental rights of a person, including the right to life and freedom and justice, the legal investigation and proceedings on incidents of disappearance are objectively considered as remedies against the breach of fundamental rights. Thus, the process of truth finding can be considered as part of the implementation of this remedy. The State may want to take a stand that the formation of a Commission with respect to matters pertaining to directive principles and policies can be completed at its own convenience. The State may also contend that the implementation of its directive principles is solely a matter of its own discretion. But the legal investigation, prosecution and remedies to be implemented with respect to a remedial mechanism involving fundamental rights cannot be a matter of secondary priority and in addition, are not outside the jurisdiction of this Court.
Our judicial system has adopted the approach that the Court can give necessary directives if the State does not demonstrate sensibility and responsibility with regard to violations of human rights committed during the time of the conflict. In the case of petitioner Bhim Prakash Oli v Prime Minister and Cabinet Secretariat, writ No. 3394 of the year 2004, this Court ordered that it is the responsibility of the State to determine a clear policy concerning the relief to be given to people who have been victims of disappearance during the conflict, and thereafter distribute relief on the basis of equality without any discrimination.
In the present context, as the condition of most of the persons considered in question No.1 seems to be unknown, the State cannot, in light of the international legal instruments mentioned above, the foreign and human rights-related decisions made by regional courts, and our constitutional provisions, escape from its obligation to identify and make public the status of disappeared persons, to initiate legal action against those persons who appear to be the perpetrators, and to provide appropriate remedies to the victims.
Now, considering the issue as to whether the State has taken steps to fulfill its obligation, the written submissions, received from the respondent and the Joint Government Attorney who appeared on behalf of the Office of the Attorney General, provide no indications with concrete support that the Attorney General has attempted to fulfill these obligations. Even though the State has accepted such obligations in the peace agreement signed on 2063/8/5 (Nov 21, 2006) between the Government and the CPN (Maoist) and the Interim Constitution, 2007, no concrete steps have been taken to fulfill these obligations. Life is significant precondition for enjoying all freedoms. Other preconditions, such as the capacity for autonomy, and social and economic stability which allow people to choose between meaningful options, are valuable only when we can enjoy life. As enforced disappearance makes the very existence of a person unknown, there is no opportunity for such a person to have any enjoyment of the basic and fundamental human rights guaranteed by national and international law. In countries with written constitutions, there would be no division of opinion that the primary obligation rests with the State to guarantee the civic rights expressed by the international instruments to which the State or Constitution has guaranteed its commitment. The Interim Constitution has provided an obligation to this Court to serve as the guardian of the Constitution and a watchdog of civil rights when other organs of the State fail to fulfill their obligations. Therefore, this court is competent to issue appropriate orders to make the state fulfill its responsibilities.
The submission made to this Court by the National Human Rights Commission reveal that the Commission discovered serious violations of human rights with respect to the persons stated in the petitions, in addition to other similar incidences of disappearance, and thereby recommended that the Government take necessary action against the responsible officials and also make public the status of the detainees. The Commission also requested that the Government implements the recommendations of the Commission. However, the Government has not initiated any additional investigation or taken any further action to determine the status of allegedly disappeared persons.
In the course of determining the status of detainees, this Court, through the formation of the DIT [Detainees Investigation Team], ordered the investigation of the true facts with respect to Writs No. 3575, 100, 104 and 632, specifically as to whether the persons stated in the petitions were arrested. This Court also requested the submission of an opinion as to what is the proper course of action with respect to other similar cases. The DIT submitted its report after conducting its inquiry.
Even as the status of most of the persons stated in the petitions has remained unknown and the aforementioned Committee, in addition to human rights institutions and organizations, has recommended additional investigations on these matters, the responsibility to carry out investigations is fundamentally vested in the Executive. Because the Executive has not taken any initiative to carry out such investigations up until this date, this Court carried out investigations of some the representative cases on its own initiative. Due to the jurisdiction of the Court and the Court’s limited resources, it was not possible for this Court to carry out separate investigations with respect to all of the persons stated in the petitions. It is found, however, on the basis of the conclusions of the Court’s report of the investigations of those limited number of cases, that it is necessary that an additional, complete investigation is carried out by establishing a mechanism on matters relating to persons who were allegedly disappeared.
Even the Government of Nepal’s limited initiative with respect to disappeared persons, the Baman Prashan Neupane Committee, has concluded that there is a need for additional investigations on disappeared persons. In addition, the National Human Rights Commission and the Office of the High Commissioner for Human Rights have both urged for additional investigations concerning this matter, which have not been implemented to date. It is also not possible for this Court to carry out investigations with respect to all cases of disappearance. Therefore, the efforts made by the Government to this date have not been sufficient or effective. It is imperative that the Government carry out effective investigations to determine the status of the persons stated in the petitions, as well as other citizens who were disappeared in the similar manner during the conflict.
From the deliberations made in the aforementioned questions, we have concluded that the State has not made sufficient or effective efforts to determine and make public the status of enforced disappeared persons. Political will power is clearly necessary for the purpose of determining and making public the status of enforced disappeared persons, taking action against the perpetrators, and providing relief to victims; it is equally necessary to have a legal mechanism in place. The Interim Constitution of Nepal 2007, a product of political consensus achieved in the course of structuring a peaceful settlement to the past conflict, has accepted the obligation of the State to establish a Commission of Inquiry with respect to persons disappeared in the past and to provide relief to the families of victims.
In order for the State to put into action the commitments established through political consensus and the Constitution, effective legal and institutional mechanisms are necessary. Concerning the status of the disappeared citizens, the Government of Nepal has, through its Executive order, constituted a one-man Committee of Baman Prashad Neupane and this Court constituted the DIT; however, a Commission of Inquiry to investigate this matter of public importance could only be constituted in accordance with the Commission of Inquiry Act, 1969. In accordance with the Act, the formation, functions, power and duties of a commission of inquiry will be prescribed by the Government of Nepal through a notification in the Nepal Gazette. Even though the Act has established the grounds for the formation of a commission of inquiry, it has not expressly mentioned the procedure for the formation of the commission, and the standard for competence and neutrality of the commission. It has neither provided for sufficiently robust jurisdiction, nor has guaranteed the representation of concerned parties in the formation of the commission. It has also not guaranteed the security of victims, witnesses, plaintiffs, legal practitioners and investigators.
Given that international norms require that the investigation of a disappeared person’s status be pursued until such status is established, a commission of inquiry, as constituted under the Commission of Inquiry Act, cannot meet this standard. By the very nature of the act of disappearance, it is necessary that the families and relatives of disappeared persons are provided with the findings of the investigations and that the report is made public. The Commission of Inquiry Act does not ensure this.
The task of finding out the truth concerning disappeared persons during the conflict is certainly a complex and challenging task. There is hardly a potential for success unless there are clear and effective legal provisions. The Commission of Inquiry Act that we currently have was contemplated only to establish commissions of inquiry on matters of public importance during times of peace. The Act was not specifically intended to have competence over the types of incidents that arise during times of conflict. Therefore, after studying the Act in total, there are no reliable grounds to believe that a commission of inquiry constituted in accordance with this Act to probe the status of disappeared citizens would be sufficiently capable to undertake an effective investigation.
Even though there are some limited provisions found in the Civil Liberties Act, 1955 and the Torture Compensation Act, 1996, with respect to obtaining remedies by a person who has become a victim of a state crime, unless the status of the disappeared person is determined, the victim cannot receive effective remedies pursuant to the aforementioned Acts; moreover, no separate legal mechanism is available to address matters relating to disappearance.
The enforced disappearance of any person deprives the person of his right to equal protection of the laws. His personal liberties are taken away and even minimum values of humanity are violated. Such acts instantly end all of his personal liberties. Therefore, any state which has accepted obligations to universally respect, comply, and promote human rights and fundamental freedoms needs to be serious and sensitive to such incidents of human rights violations. It is urgent for the State to become particularly vigilant as impunity may flourish during the time of conflict.
In such a situation, as deliberated hereinabove, in which there is no separate law in Nepal to address especially enforced disappearance, it seems to us that a special law stipulating all major aspects of disappearance, including inquiry into the incidents of enforced disappearance, the determination of the status of disappeared persons, the guarantee that their status is made public and that action is taken against those who are responsible, and the provision of relief to the victims, is necessary. It is also the responsibility of the State to create an environment such that victims trust and respect the State’s justice system and that the State officials who are guilty do not enjoy any immunity from any criminal liability resulting from their actions. This obligation is neither a separate or special obligation of the State; rather it is an obligation borne out of the State’s commitments to respect basic fundamental rights and human rights. Therefore, this Bench has reached the conclusion that in order to fulfill this obligation, the State needs to enact such a law.
The Interim Constitution of Nepal, 2007 has provided the exclusive right to the Legislature- Parliament to decide whether a particular law ought to be made. The Legislature-Parliament is competent enough to make a law in this manner and it is expected that the highest level of prudence will be taken for the purpose of fulfilling the obligations imposed by the Constitution. This Bench’s view that such a law on this subject is needed is not intended to interfere with or encroach upon the jurisdiction of the Legislature-Parliament; rather it should be understood as a legitimate expression of judicial concern that an effective law should be to enacted in light of internationally established standards for the protection of civil liberties to which the State has expressed its commitment.
Thus, it seems to us that while enacting the law as described above, the State should take note of its commitments concerning disappeared persons expressed in the Constitution, the fundamental rights and freedoms of its citizens, international instruments ratified by the State concerning human rights, and international humanitarian law. The State should also take note of the standards established in the international instruments accepted by the international community, such as the Charter of the United Nations, the Universal Declaration of Human Rights, the Declaration Concerning the Protection of Persons Against Forceful Disappearance, 1992, and the International Convention for the Protection of All Persons from Enforced Disappearance, 2006, when designing the law.
It has been established from the questions deliberated above that the act of disappearance violates the civil liberties of a person, including the right to life, as well as several other fundamental rights provided by the Constitution. Article 88 (2), pursuant to Article 23 of the Constitution of the Kingdom of Nepal, 1990, and Article 107 (2), pursuant to Article 32 of the Interim Constitution of Nepal, 2007, guarantee remedies against violations of fundamental rights provided by the Constitution. Article 88 (2) of the previous Constitution and Article 107 (2) of the present Constitution states, “The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution, for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute. For these purposes, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.” Thus, it seems from the aforementioned provisions of the Constitution that an inherent right is vested with this Court to issue, for the purpose of protecting the basic fundamental rights of the people, necessary orders to enforce the prevailing rights of the people. It is also a constitutional obligation of this Court to issue such an order.
(C) A directive order is hereby issued to respondents, the Government of Nepal, the Ministry of Home Affairs, and the Office of the Attorney General, to undertake the necessary measures to enact an act for the protection of disappeared person that includes provisions for a commission of inquiry to investigate the causes of their disappearance and the status of disappeared persons. The commission should be sufficiently powerful to carry out in-depth and comprehensive inquiries of said persons, and thereafter submit a report on their findings. Then, said respondents should initiate criminal investigations on the basis of the report and initiate prosecutions, based on propriety and necessity.
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “Measures will be undertaken to prevent … forced disappearances.”
In the Great Lakes region … we unfortunately still have armed conflicts and roaming predators against the civilian population. The negative forces and other military groups, such as the Rwanda Defence Force, a genocidal force that consists of perpetrators of the 1994 genocide of Tutsi in Rwanda, continues to spread its genocidal ideological poison, not just in our neighbourhood but also through a worldwide network. Other groups, such as the Lord’s Resistance Army and uncontrolled Séléka Coalition elements, continue to traumatize the population in the Democratic Republic of the Congo and the Central African Republic.
Those forces use civilians as human shields, abduct and maim, forcefully recruit children and continue to carry out sexual and gender-based violence against women and girls. Such genocidal ideologies and inhuman acts should not be accommodated anywhere in the world.
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.