Judicial Activism and the Use of International Law as Gap-Filler in Domestic Law: The Case of Forced Disappearances Committed During the Armed Conflict in Nepal

Abstract

At the time of writing, Nepal faces many complex challenges for the consolidation of the rule of law that was brought to its lowest ebb during the conflict, and for the establishment of a stable democratic regime. For this purpose, among other things, it is necessary to deal with the human rights violations committed during the armed conflict. Even after the end of the conflict, the failure of the Nepalese State system to prevent or end the culture of impunity perpetuated during the armed conflict has not been ameliorated, nor have the provisions of the CPA relating to the post-conflict justice measures aimed at remedying past abuses been implemented. Among the reasons for the difficulty facing the domestic legal system in dealing with past human rights abuses may be the absence of a strong legal framework and the role for the principle of legality in dealing with past cases (prohibition of retroactive application of the law). International experience shows that international law may in such a situation provide a workable foundation for bridging a gap in the law. Nepalese practice also follows this line. To fill a clear gap in the domestic law’s ability to deal with past cases of forced disappearance, the Supreme Court of Nepal in June 2007 handed down a ground-breaking judgment in which it invoked the Disappearance Convention to deal with past cases of forced disappearances. This judicial activism paved the way for the transmission of international law to the domestic sphere as a means for dealing with past abuses of human rights. This chapter examines the role of the Supreme Court of Nepal in adopting the international rule of law value in post conflict situations by breaking with its previous cautious approach toward the internalization of international law.The Dhakal Case decided by the Supreme Court of Nepal against this backdrop introduced various international justice norms into the Nepalese legal system. Its main contributions are: recognition of the right to know the whereabouts of a disappeared person as an integral part of the right to a judicial remedy; recognition of the right to compensation to the family of the disappeared person; and ordering the government to initiate legal action against the perpetrators of past human rights violations and providing an adequate legal framework for addressing the issue of enforced disappearances of persons on the basis of the Disappearance Convention. The Dhakal judgment has contributed to the internalization of international law norms in dealing with past human rights violations by interpreting domestic constitutional provisions and drawing on the persuasive force of the principles laid down in the judgments of the regional human rights courts and the Indian Supreme Court. However, the case did not settle the deficiencies prevailing in current judicial practice in respect of the status of international treaty norms in the Nepalese legal system. Moreover, to some extent, the case created a further problem in respect of determining an obligation of the State arising under a treaty. The court’s emphasis on internalizing the provisions of the Disappearance Convention blurred the distinction between obligations arising out of a treaty to which the State is a party and to which it is not. Despite those problems, however, the general acceptance of this judgment by different stakeholders has paved the way for internalization of international norms in dealing with past human rights violations, despite the lack of a principled and coherent judicial practice to internalize international legal norms in the Nepalese legal system. Section 2 of this chapter offers a brief explanation of the place of international law in the Nepalese legal system to provide context for Nepalese practice in this area. Section 3 sets out the background of the Dhakal case, followed by a critical analysis of the judgment and an evaluation of the role played by the several actors in the lead-up to the judgment. It also examines the way the judiciary asserted judicial power pursuant to the Constitution to fulfill obligations under international human rights law in case of failure of the Executive, and provided remedies to the victims of forced disappearance by invoking innovative investigative mechanisms. The chapter concludes with an evaluation of the judgment’s contributions to domesticating the international rule of law and dealing with past human rights abuses in Nepal.