7　移行期における立憲主義と正義　南アフリカとネパールのTRC法に対する立憲的正統性の評価の比較

抄録

This paper discusses how national courts interpret and apply constitutional norms governing policies of transitional justice through a comparative study on the systems of evaluations on the constitutional legitimacy of the TRC (Truth and Reconciliation Commission) Laws provided by the highest courts in South Africa and Nepal. Both countries’ TRC Laws authorized TRCs to grant amnesty. However, although the Constitutional Court of South Africa admitted constitutionality of the TRC Law in 1996, the Supreme Court of Nepal denied it in 2014 and again in 2015.

Through reviewing previous research on “transitional constitutionalism,” this paper argues that the basis of constitutional legitimacy can be found in both national and international norms during the period of transition. Regarding national norms, the Constitutional Court of South Africa legitimized the TRC Law, as it pursued constitutional values rendered by the Interim Constitution because a social context entailed participation of victims for promoting reconciliation. However, the Supreme Court of Nepal denied constitutional legitimacy of the TRC Law, as it “forced reconciliation” due to the exclusion of victims from the reconciliation process.

Because international norms in transitional justice have yet to be explicitly constructed, this paper analyzes how stances or roles of national judicial institutions in societies affect the interpretation of the existing international standards or precedents of other countries as sources of the international norms. The Constitutional Court of South Africa did not emphasize illegitimacy of the TRC Law based on international norms because incumbent judges of the High Court were reviewing amnesty process to avoid granting “blanket amnesties.” However, the Supreme Court of Nepal, which had been actively applying international human rights norms since 1990s, emphasized the illegitimacy of the TRC Law by referring to international standards because it allowed broad amnesty by lacking reviewing process by judiciaries. These different evaluations of constitutional legitimacy directed the judgements in South Africa and Nepal.