Written By Abisha Gautam
Nepal was faced with a decade-long civil war between the Nepalese Nationalist Party in government and the Maoist Insurgents (CPN-M) starting in 1996 which finally came to an end in 2006 after the signing of the Comprehensive Peace Accords (CPA). The product of which was the massacre and subsequent fall of the Nepalese Royal family and the emergence of a brand-new Nepalese Constitution introducing various mechanisms and legislation intended to achieve transitional justice within the mountain of Nepal. This article aims to uncover the extent to which transitional justice has been achieved and what is yet to be done within a society which has never been colonised and with resulting rigid laws.
What is transitional justice?
In accordance with the International Centre for Transitional Justice, “transitional justice is a response to systematic or widespread violations of human rights.” It is important to recognise that transitional justice is not a special form of justice but rather a form of justice aimed at transforming a society after a period of human rights abuse. A key aspect of transitional justice resides in the need for democracy seen through an increase in governmental accountability and access to justice, something Nepal knew little of prior to and during the civil war, with mass violation of human rights and humanitarian law by both state and non-state actors. Specifically, transitional justice mechanism set out within the Nepalese Constitution and numerous political agreements aim to resolve years of war crimes, reveal truths regarding the civil war hidden by the Nepalese government and for the first time, eliminate discrimination and inequality still prevalent within Nepalese society. Although transitional justice is not something which is achieved overnight, it has been argued that 14 years onwards after the civil war, no tangible result from transitional justice has been observed.
What has been done to achieve transitional justice?
Nonetheless, some transitional justice can be seen. Following the landmark Supreme Court decision of June 2007, Rabindra Prasad Dhakal on behalf of Rajendra Prasad Dhakal v. Nepal Government, Home Ministry and Others, clear directives to the government were made, requiring them to investigate cases of disappearances during the civil war by setting up the Commission of Investigation on Enforced Disappeared Persons (CIEDP). Another landmark decision on 12 May 2008, Birendra Thapaliya v Office of the Prime Minister and Council of Minister, ordered the government to enact legislation to prosecute those who violated human rights and provide reparations to victims. One of many decisions was that made by Judge Anup Raj Sharma and Bal Ram KC to compensate the victims of the infamous Kalikot massacre in which 17 workers were gunned down by the CPN-M in 2001. Other arms of state were also established, including the High-Level Truth and Reconciliation Commission (TRC) for exposing the brutality of the decade-long conflict alongside a mission by the UN Office of the High Commissioner for Human Rights (OHCHR) with a mandate to investigate and monitor cases of human rights violations.  Later, extensive hearings were held throughout Nepal during 2018, with the terms of each commission consequently extended to the following year. As per the Human Rights Watch, the TRC had “registered 58,052 complaints of abuses, including allegations against senior figures, while the CIEDP had registered over 3,200 cases of people who remain disappeared” over the ten years which had passed after the conflict. Thus, it is evident that progress is being made.
The Nepalese Constitution: a bridge or a barrier?
However, this is not enough. Janak Raut, president of the Conflict Victims Society for Justice (CVSF) Nepal, has held that “the work of the commissions has been completely inefficient to date. They don’t have enough power and they are under political pressure to delay the investigations. We are tired of promises, we need justice”. It is clear from over 63,000 unresolved reported war crimes due to the alleged ‘scarcity of funds’ that this statement reflects the reality of the situation in Nepal. The terms of both the TRC and the OHCHR, despite being extended, finally came to an end in early 2019. What is more, is that it was reported by the Human Rights Watch that neither commissions had completed a single investigation before the commissioners’ mandates expired. ‘Registered’ can no longer act as synonymous to ‘resolved’.
It has subsequently been argued by Manoj Kumar Yadav, a fellow of the Chautari Peace Research funded by the UN, that the new Nepalese Constitution itself acts as a barrier against achieving transitional justice. Article 24(4) of the Nepalese Constitution incorporates the principle of non-retrospectivity of the law and states: “no person shall be liable for punishment for an act which was not punishable by the law in force when the act was committed.” This is with the exception of ‘disappearances’ as they are considered under a category of ‘continuous crime’ as specified by Article 20(4) of the Nepalese Constitution. Although non-retrospectivity has found its place as a basic principle of the rule of law, it makes it difficult to prosecute war crimes which were legal at the time at which they were committed.
However, under the pressure of international obligations, the Supreme Court has been forced to take an interpretation which allows the permissibility of retroactive law under the Nepalese Constitution. This international obligation stems from Article 15(2) of the Nepalese Constitution: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” In theory, it is clear that the Supreme Court is able to execute transitional justice of war crimes and humanitarian offences as depicted within the Nepalese Constitution. The question which follows is whether, in practice, they do. The termination of the mandates of the TRC and OHCHR attest to the reality that the Supreme Court, as watchdogs of the Constitution and enforcers of transitional justice, are as powerless as Yadav painted them out to be. Transitional justice evidently lays in the hands of the government and is arguably being disregarded in the light of the several amendments recently made to the Constitution; the most prominent being the erosion of laws protecting freedom of expression and continued unethical treatment of minorities. These will be further expanded upon below.
Freedom of Expression
Since Prime Minister K.P. Oli took office in government in February 2018, there have been ongoing attacks on the right to freedom of expression. Most importantly, three pieces of new legislation have been passed which have significantly aided attacks on Nepalese citizens freedom of expression: the Media Council Bill which establishes a government-controlled media council with the power to penalise journalists/editors/publishers for media they do not approve, the Information Technology Bill which creates new offences so broadly defined they could cover much online expression and the Mass Communications Bill with similar penalties, for ‘loosely defined’ acts of expression. Since the Oli government was established, the Nepali rights group, Freedom Forum, reports that there have been 98 violations of freedom of expression in 2018, compared with 66 in 2017. This is largely the result of the expansion of internet usage and consequential increased censorship of media critical of the government. Given Nepal’s proud history of public activism, the effect of such laws is detrimental to the execution of transitional justice.
Treatment of Minorites
Conversely, under the new Constitution, there is in-fact a beacon of hope for the LGBT community and those with disabilities. Although such topics such as ‘homosexuality’ or ‘depression’ remain taboo, the Nepalese people now enjoy a concrete legal basis to enforce their rights in such areas, including Nepal’s legal recognition of a third gender and same-sex relationships in the Supreme Court milestone case of Sunil Babu Pant v Nepal Government, which places the country ahead most of the rest of the world. As a result, over 100 laws were changed in order to eliminate discrimination against the LGBT community and passports were changed to include a third gender. Although still a work in progress, with Nepalese society still unaccepting of the LGBT community, the new Constitution brings forth hope for change.
The government have also outlawed a number of outrageous practices against minorities, the most important including criminalising chhaupadi (a tradition in which menstruating girls are forced into dark sheds and isolated for days, due to the belief that they are an offence to the Hindu gods) in 2017 and child marriages in 2016 (after Nepal was found to have the third highest rate of child arrange marriage in Asia). However, enforcement on the criminalization of tradition remain weak. It further appears that the new Nepalese Constitution has adversely affected women, with Article 11 effectively enforcing an inferior legal status on women by “preventing them from passing citizenship to their children according to the same terms as Nepali men”. In 2013, a study by the Forum for Women, Law and Development, reveals that due to such discrimination, more than four million Nepalis who are eligible for citizenship do not have citizenship certificates. What is more, is that the government has failed to put a lid on rape and sexual assault cases, which reached all new peaked during the Civil War, especially those cases which come from lower-caste individuals. In short, there exists 36 castes in Nepal, which can be grouped into 4 main ‘varnas’: Brahmin, Chhetri, Vaishya and Sudra. At the bottom of the Sudra varnas are the Dalit caste who are so low down that they are “untouchable” and are “like what the black man was to the white man”. It is a complex system from which you cannot escape due to endogamy being the norm and by which personal identity is predetermined by society. In 2018 a girl was raped and then murdered, but due to her being of the Dalit caste, police officers refused to register the attack. This is only one of the many examples of how justice cannot be served when our police officers are blinded and corrupted by inequality and discrimination.
Further, although the usage of the traditional caste-system in the treatment of individuals is criminalised, as has been demonstrated above those from lower castes are much more vulnerable to abuse from the police force. As bought forward by Amnesty International, in May 2020, another 12-year-old Dalit girl was found hanging from a tree after being forcibly married to her rapist, a man from a dominant caste, the day before. On the same day, 18 young men, mostly Dalits, were attacked – some killed – by a violent mob of more than 50 people belonging to a dominant caste. Had it not been for public pressure of the incidents, such cases would have remained un-investigated by the police. With hinges in freedom of expression, it is difficult to spread awareness throughout the mountains of Nepal. One of the many examples is when the government failed to publish the report of the significant Lal Commission, which investigated “deadly violence between members of minority communities and the police” in 2015. It is patent that the Oli government has neglected the enforcement of transitional justice and the Supreme Court has become more of a political entity than one which is independent from government control. Transitional justice must be restored in the hands an institutionally separate Supreme Court.
What is yet to be done to achieve transitional justice?
The bottom line is that there is no use in a declaration of transitional justice within the Nepalese Constitution, if there are no means of enforcing them. Until the Supreme Court can be distinguished as a body independent of governmental control, progress in enforcing transitional justice cannot be made. The first step must be securing governmental accountability before transitional justice can once again be bought to the forefront of discussions. Only then will the Constitution be a bridge for transitional justice rather than a barrier slowing down its progress or even disregarding transitional justice to the side of the streets.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
 ‘Timeline of Nepal’s civil war’ (Aljazeera, 2020) <https://www.aljazeera.com/news/asia/2008/04/2008615165932572216.html> accessed 19 June 2020  ‘What is Transitional Justice?’ (International Centre for Transitional Justice, 2009) < https://www.ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf> accessed 21 June 2020  Order Re: Habeas Corpus, Writ no. 3775 registration date 2055 B.S. (1999 A.D.)  Order Re: Habeas Corpus, Write no.0328 (unpublished)  Ibid  ‘Nepal events of 2020 (Nepal | Human Rights Watch, 2020) <https://www.hrw.org/world-report/2020/country-chapters/nepal> accessed 21 June 2020
 Ibid  ‘Nepal’s Civil War’ (Lacuna Magazine, 2020) <https://lacuna.org.uk/war-and-peace/nepals-civil-war-we-are-tired-of-promises-we-need-justice/> accessed 29 June 2020  Ibid  Ibid  ‘The Constitution of Nepal: A barrier for transitional justice’ (UNDP Nepal, 2018) < https://www.np.undp.org/content/nepal/en/home/blog/2018/the-constitution-of-nepal-a-for-the-transitional-justice.html> accessed 22 June 2020  Ibid  ‘Nepal: Amend Laws undermining Free Expression’ (Nepal |Human Rights Watch, 2020) <https://www.hrw.org/news/2019/09/03/nepal-amend-laws-undermining-free-expression> accessed 25 June 2020  ‘Nepal: End Attacks on Free Expression’ (Nepal |Human Rights Watch, 2020) <https://www.hrw.org/news/2019/04/18/nepal-end-attacks-free-expression> accessed 25 June 2020  Order Re: Habeas Corpus, Writ no. 3775 registration date 2064 B.S. (2007 A.D.)  ‘How Did Nepal Become a Global LGBT Rights Beacon?’ (Nepal |Human Rights Watch, 2020) < https://www.hrw.org/news/2017/08/11/how-did-nepal-become-global-lgbt-rights-beacon> accessed 27 June 2020  ‘Nepal events of 2019’ (Nepal | Human Rights Watch, 2020) <https://www.hrw.org/world-report/2019/country-chapters/nepal> accessed 21 June 2020  Ibid  ‘Debate over Nepali women’s right to pass on citizenship to children’ (The Kathmandu Post, 2019) < https://kathmandupost.com/national/2019/03/07/debate-over-nepali-womens-right-to-pass-on-citizenship-to-children-reignites-as-house-committee-holds-discussions-on-controversial-provisions> accessed 25 June 2020  ‘As long as Nepal is crippled by caste, it shall remain an economic untouchable’ (The Telegraph, 2020) < https://www.telegraph.co.uk/news/worldnews/asia/nepal/10248100/As-long-as-Nepal-is-crippled-by-caste-it-shall-remain-an-economic-untouchable.html> accessed 3 June 2020  ‘Nepal | Deliver Justice for Dalit Killings’ (Amnesty International, 2020) < https://www.amnesty.org/en/get-involved/take-action/demand-justice-for-dalit-killings-in-nepal/> 27 June 2020  Ibid  (n 15)