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V. De jure Impunity

De jure impunity exists where laws are inadequate, either because they do not criminalize conduct that should be criminalized or because they shield military personnel and civilian officials from prosecution. Both of these are problems in Nepal.

As a fledgling democracy in 1990, Nepal ratified all major international human rights treaties, including the Covenant on Civil and Political Rights and its first Optional Protocol, the Covenant on Economic, Social and Cultural Rights, the Convention against Torture, the Convention on the Rights of the Child, and the Convention for the Elimination of Discrimination against Women. Nepal’s parliament also passed the 1990 Treaty Act stipulating that international human rights treaties ratified by Nepal are to be applied in Nepal as national law, and supersede national laws if national laws are inconsistent with them. While this sets a framework within which international human rights standards should be upheld, in practice this has not been the case. Despite the seemingly unambiguous language of the Treaty Act, due to the fact that the crimes listed in the treaties have not been clearly included in the constitution or in the criminal law, it has been impossible to enforce the treaty provisions in practice and prosecutors and courts have continued to treat the two bodies of law differently.

Among the major problems are that many of the human rights abuses detailed in the FIRs are not prohibited in the Interim Constitution, and that Nepali criminal law does not specify some of these abuses as distinct crimes. Such lacunae in the law signal that addressing such abuses is not a political priority, and strengthens the general apathy of the authorities when it comes to investigating and prosecuting such crimes.

Law Reform: The Need to Criminalize Enforced Disappearances and Torture

Enforced disappearances are not a crime under Nepali law. The government tabled a bill in May 2007 before the Interim Parliament to create a criminal offence of enforced disappearances and amend the Civil Code. Although a positive initiative, the bill required significant improvement to comply fully with international human rights standards. As it stood, the law would not apply to “disappearances” committed during the conflict, and the maximum penalty for the crime was to be five year’s imprisonment. In November 2007, Nepal's Interim Legislature-Parliament instructed the government to draft a law on enforced disappearances that is in line with the International Convention for the Protection of all Persons from Enforced Disappearances and a June 2007 Supreme Court judgment (see below). This law had not materialized at this writing.

There is no specific prohibition on enforced disappearances under the Interim Constitution. The Interim Constitution recognises that in the past, enforced disappearances have occurred, and makes it a state duty to “provide relief to affected families of victims on the basis of the report of the Investigation Commission constituted to investigate the cases of those who went missing during the course of the conflict.”

While the 1990 Constitution declared torture to be unconstitutional, it failed to specifically criminalize torture. Despite intense lobbying for many years, no law was ever put in place to make torture a crime. Instead, in 1996, a Torture Compensation Act was passed in Parliament giving victims of torture the right to seek compensation. The Act has numerous shortcomings as it provides victims of torture with a limited civil remedy, and includes a very short 35-day statute of limitation. Under the law, district courts can award nominal amounts of compensation and direct the authorities to take departmental action, but they cannot order authorities to initiate criminal investigations against the perpetrators.⁷⁶

The Interim Constitution has provided that torture will be made a crime. Article 26 states: “(1) No person who is detained during investigation or for enquiry or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. (2) Actions in pursuant to clause (1) shall be punishable by the law and any person so treated shall be compensated in accordance to the decision determined by law.”

Throughout 2007, the government maintained that it was drafting a bill to criminalize torture but it did not share the draft with civil society actors. At the time of writing, no bill had been introduced to bring the constitutional provision into law.

Weak Legal Framework for Investigations

State Cases Act

Many lacunae in the State Cases Act of 1992 allow the police, public prosecutors, and other agencies to leave cases involving serious crimes in limbo for months and years, often using spurious justifications. The Act was introduced with the stated aim of setting out procedures for the investigation and prosecution of cases where a state authority is a party to a case filed. The Act fails to set out in detail the necessary steps to be taken by state authorities when security forces are implicated in a case of “suspicious” death. This is a pivotal shortcoming that is in part responsible for Nepal’s continuing failure to live up to its international obligations to ensure independent investigations in such cases.⁷⁷

With no effective inquiry procedure under an independent authority, such as a legal or court officer, the bodies of victims can be disposed of quickly without a post-mortem examination. This combined with the other lacunae highlighted in our analysis in the preceding chapter of the state’s responses to the 49 FIRs have made the security forces feel they can execute people without any fear of punishment or prosecution. This further entrenches impunity.

In early February 2008, the attorney general called for amendments to the State Cases Act acknowledging there were many shortcomings in the existing criminal justice system.⁷⁸

Local Administration Act

The Local Administration Act of 1971 is amongst a number of laws⁷⁹that permit police to use lethal force against violent demonstrators without sufficient safeguards. Under the Local Administration Act, the CDO can direct the police to prevent any gatherings likely to result in a breach of public order.⁸⁰ If the police are unable to prevent such a gathering, the CDO or a subordinate officer must immediately go to the site and try to persuade the crowd to stop.⁸¹If the crowd does not stop, the police may use force, including batons (lathi), blank shots, teargas, and water canon, as the situation may require.⁸²If peace still cannot be restored, the police may open fire after receiving a written order from the CDO and after warning the crowd that they will be fired upon if they do not disperse.⁸³ 

If time does not permit the issuance of a written order, the CDO may issue an oral order, to be followed by a written order within 24 hours.⁸⁴  While there is a provision that the police may only shoot at persons below the knee when opening fire,⁸⁵ in reality these provisions are seldom observed. In countless cases, police in Nepal have opened fire on crowds without using the approach set out in international standards and without due warning or heeding provisions to shoot below the knee, as required under the Local Administration Act.⁸⁶

During the April 2006 Jana Andolan, OHCHR Nepal documented many incidents where excessive force was used by security forces under the Local Administration Act. In the case of the killing of six demonstrators at Belbari, Morang District (Cases 49-54), the Parliamentary Probe Committee found that, “before opening fire the security forces should make an announcement, first take other measures such as batons, tear gas, and firing into the air but in this case they have not used any of these alternatives and have shot the people.”⁸⁷ However, the Probe Committee did not recommend amendments to the Local Administration Act or to security forces’ practices on dealing with violent demonstrations.

It is to be noted that around the time the NA was deployed, a state of emergency was in force—between November 2001 and August 2002. Furthermore, the Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO) was promulgated. Its provisions were later adopted into law by the Parliament in 2002. After it lapsed and in the absence of Parliament, it was re-promulgated by royal decree in October 2004. TADO’s provisions fell far below international standards. It allowed “necessary force or weapon” to be used in a variety of circumstances, including if “any person or group with or without weapon hinder security force(s) while obeying their duty” (Section 5 (J)).

Neither the Local Administration Act, TADO, nor any other law in Nepal sets out limitations on the use of force in contexts other than demonstrations. There are no legal requirements for any investigation of killings during alleged “encounters”—whether real or fake. At a minimum, the normal process of filing FIRs and the police initiating investigations as set out in the State Cases Act should apply, but this is not happening. While there is no actual evidence, many Nepalis believe that at the time the army was first called out to address the insurgency in 2001, the government and army agreed that incidents involving the use of lethal force by the security forces would not be subject to normal criminal investigations—however flawed they tend to be.⁸⁸

In a significant ruling on May 12, 2008, the Supreme Court ordered the government to enact a comprehensive law to address human rights violations resulting from excessive use of force, including adequate compensation provisions.⁸⁹

Police Act

The Police Act of 1955 provides immunity for CDOs or for any police personnel, “for action taken…in good faith while discharging…duties.”⁹⁰ This undermines meaningful accountability and instead entrenches impunity.

Chapter 6 of the Police Act contains a long list of crimes for which police personnel may be disciplined. There are no provisions which establish individual criminal liability for extrajudicial executions, “disappearances,” arbitrary detention, torture, or ill-treatment. The only provision that could be construed as introducing responsibility for human rights abuses is section 34(n), which makes a police official liable for up to five years of imprisonment and up to one year suspension of salary if, “he unjustly harasses any person through arrogance or intimidation or causes loss or damage to the property of any person.”⁹¹ This provision lacks specificity, and fails to ensure adequate accountability for law enforcement personnel in the discharge of their duties.

The police department has taken disciplinary action against some policemen against whom complaints of human rights abuses were made, but the punishments imposed have been minimal.⁹² The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has indicated that the provisions of the Torture Compensation Act and the Police Act are so grossly inadequate that any preventive or deterrent effect that may have been envisaged is not being realized.⁹³ 

Army Act

Provisions in the Army Act of 1959 (in force at the time of all human rights abuses in the 49 FIRs) and the new Army Act which came into force in September 2006 are also inadequate. A history of royal, rather than civilian, control over the army has meant the absence of judicial scrutiny over the Nepal Army, even now.

The 1959 Army Act had a provision requiring a court of inquiry board and a court martial for any violations of the Act.⁹⁴ In principle, this should have included making soldiers accountable for human rights abuses. While some cases were tried before military tribunals, these tended to be cases where there was widespread public outcry such as the killings at Doramba, Ramechap District (see above), and the torture, disappearance, and death in custody of Maina Sunuwar (Case 32). No such cases were brought before regular civilian courts. During those few cases that proceeded before military courts, trials were conducted without participation of the families of the victims.

There are no provisions in the 1959 Act or any other law that stipulate the situations in which the army is obliged to release full and complete details of court-martial proceedings and any judgments, including if a FIR was filed and if police commenced criminal investigations. The army has manipulated provisions calling for army inquiries and courts martial in order to avoid accountability before civilian courts. It has obstructed police investigations into alleged extrajudicial executions and other abuses. In Maina Sunuwar’s case, the army’s refusal to share results of the court martial with the police and her family, despite a court directive, only strengthened the impression that the NA is above the law. 

The December 2004 Working Group on Enforced or Involuntary Disappearances (WGEID) report on its visit to Nepal called for amendments to the Army Act to provide that security forces personnel accused of the “disappearance,” murder, or rape of civilians be tried only in civilian courts.⁹⁵ Rather than implementing this recommendation, the new Army Act of 2006 has put many perpetrators of torture and enforced disappearances outside the ambit of any punishment. While section 62 of the 2006 Army Act provides that a special committee will be formed to investigate cases of corruption, theft, torture, and “disappearances” and that any prosecution will take place before a Special Court Martial (consisting of a Court of Appeal judge, the Secretary of the Ministry of Defence and the Judge Advocate-General of the NA), section 22 provides that such actions shall not be considered an offence when committed “in good faith in the course of discharging duties.” The punishment for committing these offences is not specified in the 2006 Army Act.

Public Security Act

The Public Security Act of 1989 used to hold thousands of suspected members and sympathizers of the CPN-M and members of mainstream political parties in preventive detention in the lead-up to the Jana Andolan of April 2006. Section 22 of the Act (like the same section in the Army Act) provides immunity for any acts committed by state officials in good faith during the course of duty. 

The Act does have a provision which allows people who were detained illegally to claim compensation through the courts. However, this provision has rarely been used.

Commission of Inquiry Act

The November 2006 Comprehensive Peace Agreement (CPA) made a commitment to prepare and publicize, within 60 days, details of the cases of “disappeared” persons or those killed in the conflict and inform the family members concerned. Though it was not specified clearly, it seemed likely that this investigation of past abuses such as “disappearances” would be done through the establishment of a high-level commission of inquiry under the Commission of Inquiry Act of 1969.

While this Act provides the most appropriate framework for such investigations, it nevertheless has many shortcomings and in several important respects fails to meet internationally established criteria for such commissions of inquiry.⁹⁶ For example, the Act does not set out any requirements for the competence (in terms of human rights expertise), independence, or impartiality of the members of the commissions of inquiry, and it does not make special provision for the protection of victims and witnesses.

In its landmark judgement of June 2007 (see above), the Supreme Court ordered that a commission of inquiry to investigate all disappearances should be established and that its terms of reference must comply with international human rights standards. The court also ordered the government to provide interim relief to the families of the victims of the “disappeared,” and enact legislation that would criminalise enforced disappearances and take into account the new International Convention for the Protection of all Persons from Enforced Disappearance.⁹⁷ The decision was a significant step forward in recognizing the rights of victims of “disappearances” and their families to truth, justice, and reparations but has not been implemented by the government so far except for the disbursement of interim relief to the relatives. 

The Supreme Court order of June 1, 2007 states that the existing legal framework related to commissions of inquiry is inadequate to address the cases of “disappearances” that have been systematically practiced during the armed conflict in Nepal. The order instructs the government to introduce new legislation to ensure the establishment of a, “credible, competent, impartial and fully independent commission.”⁹⁸ However, rather than amend the Commission of Inquiry Act, the government proceeded swiftly and appointed the members of the Disappearances Commission under the existing deficient Act. Amid widespread protest from civil society, the commissioners did not start their work. Later in the year, the government abandoned the commission and initiated another process to redraft the Commission of Inquiry Act.

As of mid-January 2008, when the Interim Legislature-Parliament was disbanded, no new law had materialized. This was despite a further commitment in the 23-point agreement of December 23, 2007, to set up a commission within one month—without specifying again whether this would be under the old Commission of Inquiry Act or after the Act was amended.

Muluki Ain (National Code)

An additional deficiency in existing law is that judges lack sufficient power to ensure that security forces and other state organs cooperate fully with the courts. A central difficulty that repeatedly has manifested itself during habeas corpus cases is that the Nepalese law on perjury and contempt of court is defective. Although “witnesses” can be liable for perjury under Section 169 of the Muluki Ain, government officials when giving evidence are not obliged to provide the information obtained in their official capacity as per Section 44 of Evidence Act, 1974. Courts have long interpreted these provisions to exclude government officials from provisions applicable to witnesses.

The lack of access to courts for people in remote areas is another factor which has contributed to the climate of impunity. In particular, the requirement that habeas corpus petitions can only be filed at Appellate Court or Supreme Court level has meant that relatives have to often travel for days before they can lodge a petition. This is particularly relevant in cases of “disappearances” and a change in these provisions to allow district courts to hear habeas corpus writs would increase levels of accountability of the security forces.