7 March 2013. In a momentous verdict passed yesterday, the Supreme Court (SC) of Nepal has not only declared the non-applicability of statutory limitations for filing complaints vis-à-vis cases of human rights violations at the National Human Rights Commission (NHRC) but also curtailed the discretionary power enjoyed by the Attorney General (AG) regarding initiating actions over recommendations of prosecution by the commission.
In doing so, the SC declared ultra vires the sections 10 (5) and 17 (10) of the National Human Rights Commission Act -2012. Whilst the 10 [5] of the impugned Act provides for a statutory limitation of six months, section 17 [10] of the same act grants discretionary powers to the AG to decide whether to institute legal actions against the persons involved in human rights violations.
Though it is not clear by now, in absence of the full-text of the verdict, whether the decision will have retrospective implications to cover the crimes dating back to the Nepalese conflict, the NHRC has concluded that this decision might positively mean to encompass all the recommendations it made in the past, leading Nepali broadsheet the Kantipur quoted the NHRC sources as saying.
If the judgment is in line with the NHRC’s interpretation, the judgment will be instrumental in implementing hundreds of recommendations of prosecutions made by the commission with regards to violations committed by the warring parties during the conflict.
Though the SC had previously ruled, in Society for Human Rights, Environment, Law and Good Governance vs. the Government of Nepal, that the government is obliged to comply with the recommendations of the NHRC and it should not justify its non-compliance with any “ifs and buts”, the NHRC has been ruing time and time again for the routine non-implementation of its recommendations.
The special bench comprising of Chief Justice Khil Raj Regmi and Justices Ram Kumar Prasad Shah and Girish Chandra Lal found the provisions in the Act was in clear contravention with Article 132 (2) (c) of the Interim Constitution which requires the NHRC to institute a case against any person involved in human rights violations and make recommendations to file case in the court in accordance with the law.
The decision has also come as a morale booster to the Commission in the context of the special review of the NHRC by International Coordinating Committee for the National Human Rights institutions scheduled to be held from May 13-17, 2013 in Geneva. It is anticipated that the review will possibly relegate the commission’s current “A” status.
Moreover, the existing legislation is fraught with many more problematic provisions not on a par with the Paris Principles (Principles Relating to the Status of National Human Rights Institutions). For details, please see a comprehensive review on the Act: NHRC ACT Review
Claiming that the legislation was not in line with the Paris Principles, advocates Om Prakash Aryal, Yagya Raj Thapa and Pun Devi Maharjan had filed a writ petition to the SC requesting the court to nullify the problematic provisions of the NHRC Act.
Welcoming the court’s decision, AF Chairperson Mandira Sharma expressed optimism that the decision will have retrospective implications and pointed out that the NHRC should play a proactive role in addressing the culture of impunity in Nepal.
“It’s up to the NHRC to use the mandate effectively in addressing entrenched impunity in Nepal,” she said, adding, “We urge the NHRC to be more creative and strategic in using its mandate.”
