Statement by Hon. Mr. Pradeep Kumar Gyawali, Minister for Foreign Affairs, at the Workshop on
“Enforced Disappearance in Asia: Prevailing Laws, Challenges and Solutions”
Kathmandu, 27 May 2019
Chair of the Workshop and chairperson of the INSEC Dr Indira Shreshtha,
Vice Chair of the UN committee on Enforced Disappearances Rainer Huhle,
UN Residential Coordinator HE Valerie Julliand,
Pioneers of the Human Right Movement,
Participants and guests from the Asian Region, Ladies and Gentlemen,
I begin by thanking the organizers- Informal Sector Service Centre and Advocacy Forum- for inviting me to be part of this session of the workshop. I would like to welcome all the foreign delegates and wish your please to stay in Kathmandu.
The issue you have chosen to deliberate during these two days is important to all of us, particularly the countries that have emerged from varieties of internal upheavals or conflicts.
I am confident that this exercise would be useful to learn from each other’s experiences and strive for the betterment.
Nepal’s democracy is an outcome of long struggles to secure fundamental freedom, human rights and justice to all of our citizens.
The Government elected by overwhelming popular mandate and led by the leaders who sacrificed everything for the establishment of rights and freedom to the people, remained in prison for many years, or suffered human rights violations, is resolutely committed to the promotion and protection of human rights and fundamental freedom of our people.
For this reason, Nepal has made strong constitutional and legal safeguards against all human rights violations, including the act of enforced disappearances and ensured adequate judicial remedies in case of violations.
The Constitution of Nepal guarantees right to freedom to every citizen and protects people’s personal life and liberty.
The Constitution provides that no person can be taken into custody without informing the ground for such arrest. Arrested person’s right to be produced before the court within 24 hours and the right to consult with a lawyer is protected as the fundamental right.
The Constitution is explicit that unless there exists sufficient ground of imminent threat to the sovereignty, territorial integrity or public peace and order of the country, no person can be held under preventive detention. Existence of such a situation is determined by the court of law not by law enforcement authorities.
Information about the situation of a person who is held under preventive detention is required to be communicated immediately to his or her family members or relatives. Any person subjected to preventive detention in bad faith is entitled to claim compensation from the State.
Right against physical or mental torture or cruel, inhumane or degrading treatment or punishment is guaranteed with adequate judicial remedies in case of infringement of such right. The person or authority involved in such treatment is punishable by law.
To comply with the order of the Supreme Court (2007) and to make necessary legal protection against the act of enforced disappearance, the penal code of Nepal has criminalized such act and provided legal remedies to the victim.
Nepal is a State party to the International Covenant on Civil and Political Rights and the Convention against Torture, Cruel or Inhuman Treatment or Punishment. We have adhered to the provisions of those instruments in good faith. Our commitment to human rights is total.
Ladies and gentlemen,
Nepal transitioned through a stage of internal conflict. As per the spirit of the Comprehensive Peace Accord (CPA) signed between the Government and the then rebel party in November 2006, one of the important task of the peace process was to find the truth, make the perpetrators of serious violations of human rights accountable and provide reparation to the victims.
With the view to implement the CPA and in line with the provision of the Interim Constitution and the order of the Supreme Court, Nepal in 2015 established two separate commissions- the Truth and Reconciliation Commission and the Commission on the Investigation of Enforced Disappeared Persons (CIEDP) to deal with the conflict era human rights violations.
The mandate of the Commissions is based on the principles of truth-seeking, inquiry, accountability, reconciliation, reparations and measures of non-repetition.
The CIEDP has collected over 3 thousand complaints and commenced preliminary investigation of over 2 thousand and 2 hundred cases. The Mandate of the CIDEP has been extended up until February 2020 and the Government is in the process of appointing members of the commission to complete the remaining tasks.
For this purpose, necessary amendment to the Act was done recently to initiate an independent process of selecting the candidates to serve in the Commissions.
As required by the TRC Act, the Government of Nepal has constituted an independent five member recommendation committee headed by former Chief Justice of the Supreme Court.
The Committee is mandated by law to recommend most qualified persons to serve in the two transitional justice commissions. The Committee has begun its work and is expected to complete it in due course of time. Upon appointment of the members of the Commissions,
At the same time, to address the concerns raised on the TRC Act, the Government is preparing to submit amendment to the Act in the current session of the Federal Parliament. A broad based consultation was conducted in an open, inclusive and transparent manner. The comments, feedbacks and suggestions received are being examined to further enrich the content of the amendment Bill.
The Government of Nepal reiterates that the perpetrators of serious violations of human rights will not go unpunished.
We have reaffirmed in every appropriate occasion that transitional justice process will be guided by the Comprehensive Peace Accord, directive of the Supreme Court, relevant international commitments, concerns of the victims and the ground realities. Independence of the Commissions will be guaranteed and adequate resources including budgetary, human and technical will be ensured by the Government of Nepal.
Nepal successfully traversed through an arduous journey of peace process with strong resolve and commitment of Nepali political leadership, unwavering support of Nepali people, and the continuous good will and understanding of the international community, including the United Nations.
Despite the pains and losses of the past internal conflict, the nationally led peace process that followed was able to bring fundamental democratic transformation in political, social and human rights realm of the country.
Those achievements have now been firmly institutionalized in the Constitution of Nepal. Sustaining peace has been the earnest desire of Nepali people and this becomes critically important for the consolidation of hard earned political achievements.
As a country that steered through the uniquely successful peace process, Nepal is confident that we have the capacity and necessary political will to conclude the transitional justice process in equally unique and satisfactory way.
Often times, the legacy of a conflict is very complex and generate contradictory perspectives because of the intrinsic plurality of social memories. The subtlety and criticality of the issue demands us to avoid generalization and consider all nuances into account. We must find a way to address the grievances of the victims, and accommodate the long term need of the society and the nation to build sustainable peace.
Building peace in post conflict situation is a complex process that requires restoring political machinery and civil service, holding free elections, drafting a new constitution, guaranteeing a minimum physical security, stabilizing the economy, rebuilding the economic infrastructure, reintegrating the former armed group, helping the victim, keeping the confidence of international community and finally tackling the transitional justice.
On top of that, ensuring ownership of all political forces in the process remains critical element to the success of a peace process.
In Nepal we broadly achieved all these elements through a long but inclusive process of dialogue and accommodation, mutual respect and negotiation taking the supreme interest of the country at the centre by all stakeholders. They were the key elements for the success of Nepali peace process.
As we consolidate peace for achieving far reaching political, social, and economic reforms, we consider that development, democracy and respect for human rights are interdependent and mutually reinforcing.
Our peace process had an organic evolution that addressed root causes of the conflict through a democratic restructuring of the State in an inclusive, transparent and participatory manner taking into account the great diversity of Nepal. This process was enriched by the contributions from the civil society, media, and scholars alike.
Since the Government has expressed willingness to plug the perceived shortcomings in the TRC Act by way of amendment, we need to allow the institutions to function and look for the outcome. We cannot be misled by conjecture. The CIDEP is tasked with the publication of its report based on the evidence and appreciation of the facts. The final result of the two commissions will certainly demonstrate the aspects of truth and justice that we want the two commissions to deliver on.
Government of Nepal has reiterated that the perpetrators of the serious violations of human rights will not go unpunished. Similarly, the independence and impartiality of the Commission will be guaranteed and adequate resources including budgetary, technical, and human will be provided by the Government of Nepal.
To conclude, let me stress that human life is highly regarded in our culture. The idea of justice has had a deep reverence for compassion, repentance, and forgiveness. These values along with the principles of rehabilitation, reformation, reconciliation, and transformation have always been showing us the path towards full respect for dignity of human life.
We need to reflect on our past, contemplate the future, and carry forward the present to bring a closure to our painful memories.
In the capacity of the active participant of Nepali Peace Process, I have interacted with the family members of the victims. I can feel the sufferings of them. To wait the beloved one every day and night without any rays of hope is one of the most painful situation of human life. I express my personal commitment as well to conclude this process at earliest.
So far the Convention on Enforced Disappearances is concerned, Nepal is closely studying this, and will take due consideration in the right course of time. I would like to update you that Nepal is the country which is the party of almost all major treaties and conventions related to Human Rights.
I wish you all to have a fruitful and engaging sessions ahead. I hope that the deliberations that you will have here today will be valuable to those that need it the most.
I thank you all.