Practice Relating to Rule 150. Reparation
In 2009, in the Bhandari case, 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 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:
At a time following the conclusion of the peace agreement, when the parties who were in conflict have tried to re-establish the[ir] relations in a new way, a question may be raised as to whether … scratching the issue of injustice of the past would not jeopardize the already established new relations. In this, there may also be people who would like to see justice and peace as mutually opposing. True, one cannot always say that every past atrocity should be settled through judicial process and [the] payment of reparation. Several disputes that occur in the course of the conflict may be settled by dialogue and amicable settlement forged between the parties. Inconveniences of the people may be removed by infrastructure development as well. But when incidents causing damage to the life, body and property occur or where violations of humanitarian laws also take place, such matters need to be dealt with by providing rehabilitation and reparation where the nature of [the] case so demands, and in others through the judicial process. Where violations of humanitarian laws result in the destruction of life and property, in such cases if due attention is not paid to such incidents, this may give rise to growth or flourishing of impunity. The impunity in reality is a situation opposed to the rule of law. Whether in peace or war, there are fundamental principles of rule of law that unite the society, and if they are disregarded, then justification of living in such society vanishes.
Therefore, there should be no negligence in the enforcement of human rights and humanitarian laws. Rather every situation of violations of human rights laws and humanitarian laws should be brought within the legal process and taken to the right conclusion. The society should be assured of the protection that could be offered by the law. If the State tries to escape from shouldering responsibility that result from the acts causing damage to [a] person’s body and property or gross violations of humanitarian laws, then the impact caused by such incidents to the person, family or society lingers. They may at any time and in any pretext resurface in the society in the form of reaction. Therefore, until the impacts of the conflicts are satisfactorily resolved, sustainable peace seems to be impossible. For that reason also the proper management of transitional justice appears important.