International legal experts: TJ bill represents a transformational opportunity for Nepali justice - if details are strengthened and wider rule of law obstacles are overcome

The delegation travelled to Kathmandu, Janakpur, Nepalgunj and Bardiya where they heard about the strong potential of existing legal frameworks in Nepal, but also noted concerns that were raised regarding access to justice. They will publish a full report in July, but in their initial observations the lawyers highlighted:

• Nepal has a golden opportunity to be a global example in transitional justice.

• Wider rule of law issues have the potential to jeopardise the transitional justice process; these must be overcome to ensure its effectiveness.

• Nepal’s human rights gains, while emphasising that dedicated technical and financial resources are required to ensure the  efficacy of the justice system.

• Transitional justice holds the key to peace and stability for future generations only if its details tackle root causes, safeguard marginalised groups, and meet international human rights standards.

• Civil society is a crucial partner in strengthening the rule of law and ensuring access to justice.

The delegates travelled to Janakpur, Nepalgunj and Bardiya to meet with human rights defenders and survivors of violations in Nepal’s armed conflict

This week an expert group of international lawyers travelled to Nepal after becoming concerned at reports by civil society organisations and multilateral institutions regarding access to justice and accountability for current and past human rights violations.

The delegation observed first-hand how these issues manifest, affecting already marginalised groups in particular. As well as meeting with State officials, the delegation visited victims of Nepal’s armed conflict, and the women human rights defenders, NGOs and human rights lawyers that Peace Brigades International (PBI) is supporting in the country.

The delegation was made up of experts from Africa, Asia, Europe & the Americas

In Nepal, civil society space is shrinking, with restrictions on how NGOs can operate. The delegation noted how civil society should actually be regarded a crucial partner in ensuring that the rule of law is upheld and victim have access to justice at a time where Nepal has an opportunity to become a global leader in transitional justice. The mission coincided with Parliament’s consideration of a crucial Transitional Justice Bill. The lawyers noted that, if its details are strengthened and wider rule of law obstacles are overcome, then the Bill could be transformational.

“Despite Nepal’s tremendous efforts to uphold international human rights standards, the delegation is of the view that there are wider rule of law issues in the country which present live obstacles to the effectiveness of a transitional justice process”, stated Kishali Pinto-Jayawardena.

The delegation was made up of delegates from institutions such as Doughty Street Chambers, 33 Bedford Row and Forest Peoples Programme, and from countries including Colombia, Côte d'Ivoire, the Netherlands, Sri Lanka, the UK and the USA. They travelled to Kathmandu, Janakpur, Nepalgunj and Bardiya to listen, observe and gather the testimonies of victims of human rights violations, local lawyers, government institutions, the judiciary and diplomats.

The lawyers met with parliamentarians from across a range of political parties

The independent delegation of international lawyers were made aware of general concerns including:

• Widespread implementation challenges, undermining the benefits which legislation and policies could bring.

• A perception of bias and politicisation of the judiciary.

• A lack of safeguards for victims of sexual and gender-based violence and torture, and a general reluctance to discuss these issues.

• The need to search for those forcibly disappeared and ensure access to justice, truth and legal recognition for their families.

• The question of equal and meaningful access of all Nepali victims to justice mechanisms, including members of minority, ethnic and indigenous groups.

• Shrinking civil society space, together with threats to human rights defenders and restrictions on NGOs, including through the provisions and application of the NGO Law.

• The importance of recognising and providing truth-seeking measures as a form of justice and reparations for victims; framed within, and inclusive of, local culture and tradition.

• Obstacles to justice and effective representation for marginalised groups including Dalit peoples, women, and Indigenous communities.

Camila Zapata Besso said “The Nepali government has the chance to grasp this transformational and unique opportunity to address the root causes of the armed conflict, including the marginalisation of Dalit peoples and other minorities”.

As well as civil society, government and the legal community, the delegation also met with representatives of the United Nations in Nepal

Regarding the transitional justice process in particular, concerns raised to the delegation included:

• Definitional issues in the TJ Bill in regard to human rights violations and gross violations of human rights seems inconsistent with international standards and may exclude actions amounting to international crimes.

• Whether or not the appointment process and security of tenure for judges and commissioners (including TRC and CIEDP commissioners) can ensure independence and impartiality. 

• A need for consistency and reliability in the consultation process for victims of human rights violations, to ensure justice mechanisms are meaningful and inclusive of marginalised groups and indigenous peoples. 

• The process of collecting and preserving data and evidence collected from victims and other stakeholders.

• The equal and fair distribution of reparations and interim relief to victims of violations.

Aswini Weereratne KC said, “The transitional justice process, and its goals of truth-seeking, criminal justice, comprehensive reparation for victims, memorialisation and non-repetition are essential to enduring peace and stability in Nepal for generations to come.” Bruno Menzan, an expert in African human rights, added: “It is critical for the Government of Nepal, the judiciary and national stakeholders to meticulously identify the technical expertise and financial resources that would enable the country to further enhance its human rights gains.”

The information gathered first-hand will be drawn into a report and used to put forward constructive proposals, from the perspective of legal expertise, for how Nepal can grab the golden opportunity to improve access to justice for all, including through an effective law on transitional justice. The delegation expects to publish their report in September. Sign up to PBI UK’s newsletter for updates!

PBI UK Director Ben Leather accompanied the delegation in parts of their visit