When Can the Retrospective Law Mentioned in the NHRC Report on the Genji Movement Be Enacted?
Image credit, RSS
The National Human Rights Commission (NHRC) in its report on the September Genji Movement confirmed that then Prime Minister KP Sharma Oli and ministers Ramesh Laxman and Prithvi Subba Gurung committed human rights violations. The commission recommended the government enact a new “retrospective” law to prosecute and punish them.
However, legal experts say there is no constitutional provision to create retrospective laws for past events as the commission suggested, and even based on international human rights laws, such a law lacks solid grounds in Nepal.
Since the commission has not established a strong legal basis for such an exceptional law, a senior lawyer called the commission’s recommendation “an incomplete study.”
The NHRC pointed out that former Prime Minister KP Sharma Oli and ministers Ramesh Laxman and Prithvi Subba Gurung committed human rights violations but the existing laws lack clear provisions to punish them, thus recommending the enactment of a “retrospective” law for punishment.
Legal experts have raised concerns that new laws cannot be made retroactively to prosecute past violations and that such cases filing would be unconstitutional.
Although Article 15(2) of the International Covenant on Civil and Political Rights (ICCPR) allows for exceptions under which retrospective laws may be created, the NHRC has not provided sufficient basis for this, says another senior advocate.
What the NHRC Report Says
Image credit, NHRC
The NHRC report, submitted to the government on Wednesday, noted that “existing laws lack clear provisions for punishing human rights violators, thus new legislation is required to end impunity.”
However, a former law secretary disagrees with the idea of enacting retroactive laws as proposed by the NHRC.
“Nepal’s constitution does not permit retrospective legislation under any circumstances. If the commission encourages this, the government might start making laws on other subjects retroactively,” said former law secretary Mohan Banjade.
The commission cites Supreme Court precedents stating that for crimes against humanity and serious human rights violations, retrospective laws can be created to prevent impunity.
According to that precedent, since human rights violations and crimes against humanity are grave offenses, perpetrators must be prosecuted under new laws to end impunity.
The commission has also decided to consult on the provisions to be included in the new legislation.
Proposed penalties include imprisonment of up to six months or a fine of up to three lakh Nepali Rupees, or both; special courts for hearing related cases; a minimum five-year ban on contesting political positions; and at least a three-year suspension from administrative duties.
Additional recommendations include restricting foreign travel for at least three years, permitting public apology and compensation with court approval except for serious violations, and automatic suspension from any public office upon case filing.
Former law secretary Banjade said the NHRC should not propose such provisions.
“The commission has no authority to order the creation of a law like a directive of the Supreme Court,” he added.
“It is the parliament’s sovereign right to decide whether to enact or not enact any law. Even based on Supreme Court decisions, parliament can choose not to enact it.”
Senior advocate Raju Chapagain opines that although international treaties allow exceptions for retrospective laws, a strong basis is necessary and the commission’s report lacks this foundation.
Considering the punishments recommended by the commission, he believes retrospective laws should be introduced only in exceptional cases, which the report does not rationally acknowledge.
“Retrospective laws may only be enacted for extremely serious crimes, such as those attracting universal jurisdiction,” said Raju Chapagain.
“Kidnapping, torture, extrajudicial killings, crimes against humanity, and war crimes cannot afford any immunity due to a lack of national laws.”
Article 15(2) of the ICCPR states that individuals involved in serious crimes should not be exempt from prosecution even if there are no national or international laws.
However, the NHRC report does not discuss such serious crimes and only suggests fines and punishments, raising concerns about potential misuse.
“The report lacks thorough discussion. It is unclear whom it targets. Although there are violations of human rights and humanity, the offenses remain vague,” Chapagain added.
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