Practice Relating to Rule 133. Property Rights of Displaced Persons
Section C. Return of property or compensation
In 2009, in the Bhandari case, which concerned the property rights of internally displaced persons, Nepal’s Supreme Court described the facts of the case as follows:
The petitioners who were living in their own ancestral place have been wandering as … landless paupers and internal refugees in different parts of the country due to the conflict that started in the year 1996 following which the Maoists seized their land, house, industry, factory including movable and immovable property allegedly for professing political faith opposed by the Maoists. Since the internally displaced families had played [a] very important role during the movement of 2006/2007 they were confident that following the success of the movement, peace and order would be restored in the country resulting in the onset of New Nepal. Then movable and immovable property seized during the conflict would be easily returned and all the families would be allowed to settle in their respective settlements and make their living. As expected, the movement was successful and the Interim Constitution of Nepal, 2007, was promulgated which guaranteed fundamental rights and also inscribed that the property seized during the armed conflict would be returned. But their fate took a further downturn.
The Government of Nepal, the political parties and the respondents who were signatory to Art 5.1.8 of the Comprehensive Peace Agreement annexed to the Constitution pursuant [to] Article 166(3) did not return the seized movable and immovable property of the petitioners. Complaints were filed a number of times for the return of the property before the political party who were supposedly called the vanguards of the New Nepal, before the Human Rights Commission and the Nepal[ese] Government. However, no initiative was taken [by] them.
The Court held:
It is seen that in Article 19 [of] the Interim Constitution of Nepal, 2007, a provision on the Right to Property is inscribed. Clause 1 of the said Article provides that subject to the laws in force, every citizen shall have the right to acquire, own, sell, dispose of, and otherwise deal with property. Clause (2) provides that except in the public interest, the State shall not acquire, requisition or otherwise create any encumbrance on the property of any person. It however provided that the said clause shall not apply any property acquired in an illicit manner. Similarly, Clause (3) the same provides that compensation shall be provided for any property requisitioned, acquired or encumbered by the State in the course of enforcing a scientific land reform program or in the public interest in accordance with [the] law. The amount and basis of compensation and the procedure therefore shall be as determined by law.
The Clause (3) of the Article 166 of the Interim Constitution of Nepal, 2007, provides that the comprehensive peace agreement concluded between the Government of Nepal and [the] CPN [Communist Party of Nepal] (Maoists) on November 21, 2006 and the agreement on Monitoring of the Management of Arms and Armies is annexed in Schedule 4. Clause 5.1.8 of the said Schedule 4 states that both the parties have expressed consen[t] to document and immediately return the seized [or] locked building[s], land and other properties to the respective owners.
In order to secure respect for the right to life of a person, it is important to protect the right to property and the right to profession and avocation which are the basis of livelihood. In the absence of this, neither the right to food is protected, nor can daily necessities for maintaining life … be fulfilled. It is not possible to realize the right to self-determination in the absence of property, [shelter] and profession. Therefore, provisions regarding respect [for] these rights, and the resolve not to seize or capture property, respect [for] … residence and the resolve to return the property can be said to be important commitments of the Comprehensive Peace Agreement.
For the purpose of safeguarding this right, even though the Comprehensive Peace Agreement entrusts the responsibility [to] the Cabinet for the [establishment] of the Peace and Rehabilitation Commission, such a Commission does not seem to have been [established to] … date. …
Though [the] peace agreement was meant to be one guiding document for transforming peace and [is] respected as such, its effective implementation for the protection of the life and livelihood of the people is yet to be witnessed. On the contrary, an undeclared silence, indifference, and fatigue seem prevalent. As a result, beside other things, it has given rise to a feeling that hindrances in the restoration of the rule of law are yet to be removed.
It should be noted that the causes of war rest in [the] human mind rather than in the environment he lives in. Unless the rights are properly protected and restored, the conflict in the human mind does not wither away. So long as the individual is not assured of the protection of the rights, he/she in one way or the other is afflicted by the feeling of fear, revenge, neglect etc. and as a result keeps on supporting and favouring conflict.
During the time of conflict and afterwards, in a situation where the properties have not been restored, habitations/residences not protected, or where the people are not allowed to embrace the profession they wish to, the feeling of insecurity prevails. This in essence indicates the perpetuation of the aftershocks of the conflict. Therefore, it is imperative for all concerned to keep in mind that the lack of honest implementation of the peace agreement [entails] the potential of [the conflict’s] revival.
Though the petition does not … cover [the entire] implementation of the peace agreement, since the Comprehensive Peace Agreement has expressed commitment to respect the realization of the right to property and other fundamental rights guaranteed by the Interim Constitution, the implementation of the noted agreement seems relevant in the context of the remedy sought by the petitioners.
So far as the execution of [the] peace agreement is concerned, the petitioners have not made [the] implementation of the whole agreement … the subject matter [of] the petition. Yet, as it appears, the house, land and property of the petitioners have been seized during the conflict period. Due to these incidents, people have been victimized and they have been left without property. They have thus been directly hit due to [the aforementioned] acts in terms of losing food and shelter. Indirectly, they have lost self-respect, [the] feeling of security and productive opportunities and competencies. That is why the claims made in the petition should be considered in the broader ambit of the causes of conflict and their management. The resolution of the problem through political, administrative, moral and various other means are there in their own place, but since the matter has already entered the Court, the question before us is how this Court can resolve the problem under the judicial process.
Before this Court, the petitioners have stated that the rights enshrined under Articles, 12(1), and (2), (3) (e) and (f), 13, 19(1) and (2) of the constitution Schedule 4, and Article 5.1.8 of the same have been violated, and … on it [basis], [they] have demanded … the issuance of [an] order pursuant to Article 32 and Article 107. … [T]he undisputed properties of the petitioners are the properties that they can possess, enjoy and alienate. While it is the primary duty of the State to protect such properties, it is also the duty of others not to interfere [with] or create impediments [for] the enjoyment of fundamental rights or legal rights of individuals. Whatever be the reasons of conflict the life and properties of individuals are inviolable. The mere breakout of the conflict cannot justify the violation of individuals’ liberty or property. Even if committed during the conflict, any affront to the rights provided by the law is illegal.
As raised in the petition, in the post-conflict period, or say at a time when the new Interim Constitution is being implemented, the properties illegally seized during the conflict are still allowed to be continuously held back. Due to this, hindrance has been created not only in the enjoyment of properties, but also in their diverse use or [in the] enjoyment of [their] benefits. Since such situation of deprivation gives rise to a state of continuous loss, in order to provide adequate and effective justice, property should be returned by taking into account the recurrent loss, and [a] permanent solution should be found out so that such incidents do not recur.
Now therefore, a fundamental question has in fact arisen as to whose obligation is this? While the petitioners have filed the petition primarily relying on the right to property under Article 19, they have also touched upon the provisions of the peace agreement by way of reference. The Court can look into this, under its extraordinary jurisdiction, only in the course of enforcing [the] fundamental rights of the petitioners. So far as judicial enforcement of the peace agreement is concerned, the provisions of [the] peace agreement are not in themselves the source of rights. Since the agreement cannot impose restriction[s] on fundamental and legal rights of the people, the ordinary and extraordinary jurisdiction of the Court cannot be invoked by taking provisions of the peace agreement as a matter of right. However, in the post-conflict period, the agreement can be viewed as a document of consensus in the context of discharg[ing] [the] State’s obligation [concerning] the resolution of [the] conflict and [the] institutional development of peace. Therefore, given that the peace agreement has also expressed [the] commitment to the enforcement of rights inscribed in the Constitution, there is no reason why in the course of enforcing the rights, the Court cannot draw [the] attention of the State [to] the norms or values stipulated in the peace agreement by way of reference.
Our constitution has accorded due respect and effectual position to property in the form of [a] fundamental right. Except when the property is acquired according to law, any political or other move validating illegal seizure cannot be acceptable. … [N]ot let[ting] the actual owner of the property … enjoy the property … contrary to fundamental norms including the right to property, rule of law and principles of responsible governments which have been accepted as cardinal principle[s] of the constitution [would undermine the basis of the constitutional State]. If such thoughts or behaviour contrary to the constitution are tolerated, then the making of the constitution or having provisions relating to the rule of law, independent judiciary, and fundamental rights and so on will have no meaning.
Regarding the question that the State or the government has not seized the petitioners’ house, land or property in an unauthorized manner or that it has been seized by other parties of the conflict, it seems to us that it is the fundamental duty of the State or the government to protect people’s lives and property and safeguard the border of the country. Besides, it is its duty … to maintain law and order in the society, to develop infrastructure and create [the] necessary environment so that people can enjoy the right to development. It is also the duty of the State to guarantee the social peace and social justice. When viewed from this perspective, to say that the State or the government itself has not interfered with any specific property of any particular person cannot be considered as an excuse to discharge [the] responsibility [of] the State. True, … the State itself might not have violated people’s right[s]. However, in circumstances like the one stated in the petition, responsibility is not determined based on whose and what kind of right has been illegally violated. Rather the assessment of fulfillment of State responsibility is to be made based on whether or not the State has become convincingly successful in protecting … people’s rights.
If the State in general has failed to remove the obstruction that has appeared in the enjoyment or enforcement of the rights conferred by the law, then it is to be principally believed that the State has been unable to discharge its obligation. Generally, the right to property is a matter of personal right but where the repetition of the incident … [violating the] right affect the rights of many individuals or communities … and the State remains an indifferent spectator [and] does not take any substantive and effective measures for resolving them, then such a State is said to be fundamentally unconcerned about its obligation. Therefore, it is a mandatory duty of the State to take [an] interventionist role for bringing the law enforcement situation to normalcy where colossal violation of the right to property or individual freedom continues to take place. If [the State] fails to discharge such duty and the right holders enter the Court seeking constitutional recourse to remedy, it becomes incumbent upon the Court to issue obligatory orders under all available constitutional means for the protection of people’s rights. The human rights jurisprudence developed under international human rights law includes not only matters relating to violations of human rights committed by public entities or officials but also matters relating to violation of rights of individuals or communities by non-State actors. In such cases, if the State fails to guarantee the prevention of the violation, and as a result the rights of the people are not protected, such matters are also considered as violations of human rights, and the State is held accountable in the eyes of international human rights law.
In the present situation, the erstwhile non-State actor of the peace agreement itself is involved in the government and now it is also heading the State. Since it is heading [the] Council of Ministers and as stated above, it is its duty to respect all rights, and guarantee their enforcement. Having such a dual role, the present government should be even more sensitive and responsible. And since it is one of the actors of the conflict and now a part of the government, it seems to us that it is its duty to return and cause the return of seized property as mentioned by the petitioners.
In conclusion, it is deemed that the demand of the petitioners [is] based on the constitution and law, that it is the duty of all organs of the State to respect their right to property and that the State does have a key role in their enforcement. In the present situation when the peace agreement has been concluded, and following it, the New Interim Constitution has been promulgated and even the government is being headed by the then party to [the] conflict, [the] CPN (Maoist) party, not returning the property which was seized in [an] unauthorized manner to its legitimate owners, and depriving and restricting the actual owners or not causing its return, or being unable to do so, is deemed objectionable in the eye of [the] constitution and [the] law. Due to [the] unauthorized seizure of homes, land and property for years, quality of life of the owner has been affected and as the loss incurred or to be incurred is of continuous nature, it is imperative that such a situation should come to an end [as soon as possible]. It seems to us that problems of transitional justice including the seizure of property during the conflict and [the] violation of fundamental and human rights should be addressed through a particular institutional mechanism and program, and the attention of the government should be drawn towards this.
Since the petitioners have prayed for the return of property held in an unauthorized manner along with payment of compensation for the loss incurred [to] date, … [the court] deems that the matter should be resolved by making an assessment of the loss incurred by them [including by] … looking into the record of [a] particular property, their use and [the] earning[s] that would [have been] made from such property.
For that purpose, an order of mandamus is hereby issued in the name of [the] respondent Prime Minister and Office of Council of Ministers pursuant to Article 107(2) of the Interim Constitution of Nepal, 2007, to the effect that a five-member Commission for the return of property with the representation of the victim community, law enforcement agencies including political persons at district level where the petitioners reside and in … similar districts where there is [a] problem of seizure of property, be constituted, and through the committee, the property be returned to the actual owners, that within three months of the receipt of this order, the loss, depreciation and loss of income from the property thus seized be assessed, and as prayed by the petitioners compensation be paid to them after fulfilling the procedure as stated herein above, and also that a fund for providing compensation and relief
to those who have become victims due to the damage caused by the seizure of the property be set up.