Nepal: National Judicial Dialogue on Justice Sector Actors, Criminal Code Provisions and Supreme Court Jurisprudence on Serious Crimes

On 16 April 2022, the ICJ, together with Advocacy Forum-Nepal and the Judges Society-Nepal, organized the National Judicial Dialogue on the Role of Justice Sector Actors in Effective Implementation of Criminal Code Provisions and Supreme Court Jurisprudence on Serious Crimes.

More than 50 judicial officials, including judges from the Supreme Court, High Court and District Court, and Government attorneys from different provinces of Nepal participated in this judicial dialogue.

The dialogue focused on measures necessary to implement the Criminal Code provisions concerning human rights violations constituting serious crimes, and the implementation of the Supreme Court’s decisions on these issues. Nepal’s Criminal Code came into force in August 2018; for the first time, it criminalizes torture and enforced disappearances. Despite these new criminal provisions, very few cases of torture and enforced disappearances have been investigated and prosecuted so far.

The day-long dialogue was divided into different thematic sessions. The first session assessed the current status of human rights in the country, the rule of law and victims’ right to effective remedies, as well as the challenges in guaranteeing such a right in practice. The session also included a discussion on the ordinary courts’ jurisdiction in the context of transitional justice. It highlighted experiences of different countries undergoing transition and the recent jurisprudence from global and regional human rights mechanisms in ensuring victims’ rights to effective remedies. Dr. Mandira Sharma, the ICJ Senior International Legal Advisor, facilitated this session.

The second session included discussions on the role of the judiciary and other justice sector actors in the effective implementation of the Criminal Code provisions. Supreme Court Justice Dr. Ananda Mohan Bhattrai facilitated this session. He highlighted the provisions in Criminal Code and the Criminal Procedural Code requiring investigation and prosecution of egregious human rights violations, including torture and enforced disappearances. Discussions also focused on the continuous nature of enforced disappearances as crimes, and on the applicability of the Criminal Code in armed conflict-related cases.

The third session focused on: “the fundamental rights” guaranteed in the Nepal’s Constitution and other laws; on the Supreme Court’s jurisprudence; and on the role of the courts in ensuring the effective implementation of these rights. Justice of the Supreme Court, Hon. Sapana Malla Pradhan led this session.

All sessions unpacked the challenges faced by justice sector actors in guaranteeing “fundamental rights”, and in ensuring the effective implementation of the newly adopted Criminal Code and Criminal Procedural Code, and explored possible ways of mitigating those challenges.

The ICJ Commissioner and former Chief Justice of the Supreme Court of Nepal, Kalyan Shrestha, delivered his observations on the role and responsibility of judges and prosecutors in the effective implementation of the Criminal Code provisions, on the jurisprudence developed by the Supreme Court, and on relevant international law and standards in dealing with serious crimes, with a focus on enforced disappearances and torture. Justice Kalyan also highlighted the victims’ right to access to justice and reparation protected under the country’s criminal justice and TJ legal frameworks, and the importance of expanding the knowledge and competence of judges, prosecutors and lawyers in order to guarantee the victims’ right to access to justice and reparation in practice. He highlighted the jurisprudence developed by the Supreme Court, explaining how the TJ system and the ordinary justice system are mutually inclusive, complementing one another rather than excluding each other.

Nepal’s investigating authorities are not investigating allegations of grave human rights violations that took place during the armed conflict, on the basis that they will be investigated by the transitional justice mechanisms, namely, the Truth and Reconciliation Commission (TRC) and the Commission of Inquiry on Enforced Disappearances (CIEDP), established in 2015. However, victims, civil society organizations and the international community, including the UN, have thus far refused to collaborate with these institutions because at present their mandates empower them to recommend amnesties even for those involved in gross violations of human rights, such as torture and enforced disappearances. In 2015, the Supreme Court of Nepal found certain legal provisions, including those endowing the Commissions with the power to grant such amnesties, in violation of the Constitution and Nepal’s international obligations, and directed their amendment. However, to date, these provisions have not been amended.

Concluding the discussions, Justice of the Supreme Court and chair of the event, Hon. Ishwar Khatiwada, highlighted how critical it is for justice sector actors to update and enhance their knowledge about evolving jurisprudence and standards on TJ issues, and underscored the need to have an ongoing and sustained collaboration with an organization like the ICJ in this context.

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