• REFUGEE PROTECTION
KATHMANDU, JUNE 21
Supreme Court Justice Sapana Pradhan Malla has said application of judicial mind and justice approach rather than legal approach was crucial to protect the rights of refugees. Launching a book 'Landmark decisions of the Supreme Court of Nepal related to Refugee protection,' with UNHCR Representative to Nepal Carolin Spannuth Verma, Malla said the SC decisions related to refugee protection were very progressive.
Malla said although Nepal had not signed the two conventions related to refugee protection, the Supreme Court had set judicial precedents of nonrefoulment, protection of refugees' identity and vital registration of refugees by applying international laws and that was important. Justice Malla said while the SC maintained judicial restraint in some cases, it also reminded the government of its international liability towards refugees' protection.
Addressing the programme, Justice Hari Prasad Phuyal said: "I assure you that as an independent judicial system, we will persist in fulfilling our responsibilities, adhering to our constitutional values and obligations, and upholding the principles of justice and human dignity in our pursuit of refugee protection." Phuyal said even for a non-signatory state like Nepal, the fundamental tenets of international refugee law remain applicable. Most notably, the principle of nonrefoulment, a cornerstone of the refugee protection regime that has its roots in international human rights treaties, such as Article 7 of the international covenant on Civil and Political Rights and Article 3 of the Convention against torture, he added.
While Article 33 of the Refugee Convention does contain exceptions, the nonrefoulment obligations in Article 3 of the Convention against Torture and Article 7 of the ICCPR are absolute, he said. These stipulations, offering wider protection against refoulment than the Refugee Convention, impose an unequivocal ban on any forcible return to a risk of torture. This prohibition, now widely accepted as part of customary international law, applies to all states regardless of whether they are party to the relevant treaties, he added. So, in a non-signatory state like Nepal, without a domestic legal framework governing the refugee population, courts have drawn upon international human rights law instruments and customary international law principles.
The Supreme Court decisions compiled in this book recognise these international human rights laws for the protection of the refugee population in Nepal.
Attorney General Dinmani Pokharel said the SC decisions on refugee protection were significant as they reflected eastern values such as Atithi Devo Bhaba (the guest is equivalent to God) and sharanko maran garnu hunna (those who seek refuge shall not perish). He said although Nepal had not signed the two major conventions relating to refugees' rights, the Supreme Court had protected refugees' rights invoking other international human rights laws.
UNHCR Representative to Nepal Carolin Spannuth Verma lauded the Supreme Court's dedication to refugee protection and the importance of a legal identity. "We applaud the commitment to upholding the rule of law and to continue work in shaping the future of refugee protection, she said, adding, "we' must advocate for the rights of refugees, both within our borders and across the globe. We must ensure that access to asylum and access to justice is not a luxury but a fundamental right, regardless of one's nationality or immigration status."
She further said that by doing so, 'we reinforce the foundations of a just and inclusive society where the dignity of every human being is respected and protected'.
Verma said the Judiciary's role was paramount in safeguarding refugees' rights as refugees were among the most vulnerable members of our global community who faced unimaginable challenges and uncertainties, often navigating complex legal systems in their quest for refuge.
Verma said the book chronicled the landmark decisions, providing invaluable guidance not only to legal professionals but also to the administration, policymakers, scholars, lawyers, and many others who sought to advance the cause of refugee protection, she added.
A version of this article appears in the print on June 22, 2023, of The Himalayan Times.
