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V. Factors contributing to the crisis of “disappearances”

The government’s failure to acknowledge and end “disappearances.”

According to the United Nations, Nepal had the highest number of new “disappearances” in the world in both 2003 and 2004.174 “Disappearances” and extra-judicial killings have become an integral part of Nepal’s counterinsurgency campaign. The security forces commit the “disappearances,” and instead of taking action to prevent such severe abuses, civilian authorities have focused on issuing denials and covering up the abuses. Only one senior officer has been held accountable for “disappearances” in Nepal. Even if the government has not directly asked its security forces to commit disappearances as part of its campaign against the Maoists, its failure to take reasonable steps to end the practice or to hold perpetrators accountable makes civilian authorities deeply complicit in the epidemic of “disappearances” in Nepal. In the face of such government inaction, disappearances can fairly be characterized as government policy.

For a long time, the government of Nepal refused to acknowledge the seriousness of the human rights crisis in the country or to admit that “disappearances”—as well as other human rights violations in the country—could be attributed to government forces. The government’s failure to take sufficient action on abuses by the security forces has been further exacerbated by the impotence of its own bureaucratic institutions and the poor record-keeping of government ministries. Nepal’s institutions are further weakened by the Maoists’ campaign of intimidation and murder against government officials.

High-ranking Nepalese officials go to great lengths to persuade the outside world, which is becoming ever more concerned about Nepal’s deteriorating human rights record, that the government is doing everything necessary to protect people’s rights. Even when the government admits that certain human rights problems exist in Nepal, it blatantly denies the responsibility of its security forces for the abuses, and consistently places all the blame for the existing violations and the failure to stop them on the Maoists.

Thus, defending Nepal’s position at the sixtieth session of the U.N. Human Rights Commission in March 2004, the Minister of Foreign Affairs, Dr. Bhek Bahadur Thapa, asserted that the current situation in Nepal is caused exclusively by “threats and violence created and sustained by the Maoists,” while the government is fully “committed to ensuring with utmost sincerity that even in responding to the threats posed by [the] insurgency,” it keeps “the respect for human values and human rights uppermost in [its] mind.” He emphasized that “the security forces have been cautious and sensitive to protect human rights of people.”175

The refusal by Nepali authorities to acknowledge the problem of “disappearances”—and their failure to take action to stop the abuses—was also evident in a statement made in September 2004 by the Nepali embassy in Washington, D.C., publicly denying the veracity of allegations of human rights violations by the Royal Nepalese Army:

[The army] is a professional force, committed to duty, discipline and caring for the civilian population. Any accusation of military atrocities against the civilian population by the [Royal Nepalese Army] is malicious propaganda.176

Even ardent supporters of the RNA and opponents of the Maoists within the U.S., U.K., and Indian military establishments privately admit that the RNA commits many abuses, blaming these on the poor quality of the country’s officer corps, poor training, and poor equipment.

On the question of “disappearances,” the government has been particularly obstinate. Addressing a meeting organized by the NHRC to mark International Human Rights Day on December 10, 2004, Prime Minister Sher Bahadur Deuba heatedly refuted the allegations of security force responsibility for “disappearances,” saying:

You know, [the Maoists] are not known by their real names... So, a Maoist gets arrested in one name and may be released with a different name. Some may have died during the battle. Some may have even crossed over to India across the open border. Then, how can the government be blamed for this?177

In the absence of a clear government commitment to stop widespread “disappearances,” it is impossible to undertake the steps necessary for eliminating the phenomenon. Such steps would require addressing the factors that make the practice so widespread, including existing legislation, the impunity of security forces, the impotence of the judicial system and CDOs to exercise control over the security forces, and the weakness of human rights monitoring mechanisms.

Inadequate legal framework

Although Nepal’s constitution, in conformance with international law, guarantees fundamental human rights, such as the right to life, the right to liberty and security of person, the right to a fair trial, and prohibitions against torture, a number of existing laws either effectively negate or fail to uphold these constitutional safeguards.

Under the state of emergency declared in November 2001, the constitutional protections against arbitrary detention and the right to judicial remedies (apart from habeas corpus) were suspended altogether, thus rendering people even more vulnerable to arbitrariness and abuse.178 At the same time, security forces were given additional powers to arrest and detain suspects on preventive detention orders under the Terrorist and Disruptive Activities Ordinance (TADO). The ordinance was later replaced by the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA), which was enacted into law for two years in April 2002.

When TADA expired in April 2004, the Nepali authorities were unable to renew it as a parliamentary act, as Parliament and other democratic institutions had been disbanded by King Gyanendra in October 2002, effectively suspending Nepal’s brief experiment with democracy. Instead, King Gyanendra extended the legislation by royal proclamation (reverting to its status as an ordinance).

The first TADO granted security forces sweeping powers to arrest persons suspected of involvement in acts of terrorism without a warrant.179 Under the law, detainees can be kept for up to sixty days for investigation and for up to ninety days in preventive detention in “a place suitable for human beings,” without being brought before a court of law.180

On October 13, 2004, King Gyanendra again issued by Royal Proclamation a revised and even more draconian Terrorist and Disruptive Activities Ordinance (TADO 2004), which provides the security forces with even greater powers, allowing them to hold individuals in preventive detention for up to one year without charge or trial and without any recourse to the judiciary.181

In its current incarnation, TADO 2004 also provides Nepali security forces with immunity from prosecution for “any act or work performed or attempted to be performed in good faith while undertaking their duties,” effectively making them unaccountable for possible violations.182 RNA personnel seem to interpret the various versions of TADO as relieving them of accountability for unlawful actions imposed by the Army Act (see below).

The above-cited provisions of TADO 2004 are in clear breach of the Nepali Constitution, as well as of Nepal’s international obligations under the ICCPR and the Convention against Torture. The act’s blatant unconstitutionality and unlimited potential for abuse have prompted sharp criticism by the NHRC, which noted that the law “aids and abets those who, under the guise of maintaining ‘law and order’ or ‘security concerns,’ continue to violate the human rights of the citizens of Nepal.”183

Several other laws adopted during the Panchayat era and still in place today provide a basis for arbitrary arrest and detention.184 For example, the vaguely worded Public Security Act allows the authorities to keep a person who allegedly threatens the “sovereignty, integrity or public tranquility and order of the Kingdom of Nepal” in preventive detention for a period of up to twelve months, without specifying any criminal charge.185

The Public Offense and Punishment Act of 1970 and the Anti-State Crimes and Penalties Act of 1989 have also frequently been used to detain people for prolonged periods of time without proper judicial oversight.186 The broad discretionary powers vested by these laws in local authorities, such as CDOs, create grounds for arbitrariness and abuse.

Nepali law does not provide a proper framework for establishing accountability for human rights violations and redress for victims. The Police Act, which regulates the functioning of Nepali police forces, does not include provisions holding police legally responsible for unlawful detention, mistreatment of detainees, or any other violations of the rights of people in police custody.187 It also introduces immunity for the Chief District Officer or for any police personnel “for action taken by him in good faith while discharging his duties.”188

Moreover, even the 1996 Torture Compensation Act, which obliges the government to pay compensation for torture, fails to recognize torture or custodial death as criminal acts or to subject the responsible officials to criminal liability.189

Nepali law does not contain provisions that would create a legal basis for compensation to be granted by the courts in cases of “disappearance.”190

The Public Security Act contains inconsistent provisions regarding the possibility of challenging a detention order in a court of law.191 Further, the act does not establish adequate criminal liability for abuse of authority under its provisions, stipulating merely that if an order issued by the local authority “is proved to have been issued with mala fide motives, departmental action shall be taken against such authority, and he shall be punished.”192

Although the Army Act of 1959 regulating the functioning and conduct of the Royal Nepalese Army establishes the legal responsibility of personnel for “improper” arrests, these provisions do not apply to arrests carried out under TADO.193 In addition, the Army Act grants immunity from prosecution “in case any person dies or suffers any loss as a result of any action taken” in the course of discharging duties.194

Taken together, the various provisions allowing for long-term detention without charge and without judicial oversight, as well as the near absolute immunity from prosecution granted to the security forces, create an atmosphere in which large numbers of “disappearances” occur under the guise of legality.

Impunity of the security forces

One of the most significant factors contributing to the prevalence of “disappearances” is the systemic impunity enjoyed by Nepali security forces and their blatant disregard for the few existing safeguards whose purpose is to protect individuals from abuses.

Within the security forces, the legal provisions discussed in the previous section create a sense of being shielded from justice, of being above the law. Providing due process to detainees thereby recedes in importance, since there are likely to be no penalties for failure to follow the law. The cases of “disappearances” documented by Human Rights Watch clearly demonstrate that arrests and detentions are routinely carried out in a manner that violates existing Nepali and international laws.

As the examples cited in the previous chapter and in the Appendix to this report show:

    • Security forces arrest and keep individuals in detention for periods of time exceeding prescribed limits and without CDOs having any knowledge of the detentions;
    • The RNA holds people in detention in army barracks, although no law authorizes the military to keep detainees in their custody;
    • The security forces often keep no record of detentions;
    • The security forces keep detainees incommunicado, denying access to relatives, lawyers, and human rights groups
    • In the vast majority of cases the security forces deny ever having arrested a person or having an individual in detention, even when there is clear evidence of the person being in their custody; and
    • The security forces often re-arrest individuals released by court order.

Moreover, the sweeping impunity granted to security forces by TADO and other laws contributes to routine ill-treatment and torture in detention, as well as summary and extrajudicial executions of people in custody.

While the government often tries to shield its security forces from criticism by denying occurrences of violations, the security forces themselves, especially the army, are so confident they will not be prosecuted that they make no effort to disavow their involvement in egregious abuses.

For example, the chief spokesman for the Royal Nepal Army Brigade, General Dipak Gurung, once told The Washington Post that the army sometimes held people without disclosing their whereabouts. Moreover, asked about one of the torture methods reportedly used by RNA—dunking a detainee’s head into a water-filled container—Gurung acknowledged the possibility that it had occurred, lamenting that the RNA did not “have truth serum.”195

In another interview Gurung asserted that constant blindfolding is necessary to stop detainees from identifying and targeting interrogators after release, and that the constant use of handcuffs is necessary “because without them they try to run away and then we have to shoot them.” At the same time, he firmly stated: “They are not disappeared. We do not kill people in custody.”196 The above-cited testimony by several security force personnel who admitted that army and police execute detained Maoists in custody clearly refutes this assertion.197

The army’s sense that it will not be punished for even egregious abuses and its unwillingness to distinguish between combatants and ordinary civilians is also demonstrated in its interactions with relatives of the “disappeared,” who often approach army officials in desperate efforts to locate their loved ones. Many witnesses told Human Rights Watch that RNA soldiers and officers treated them in a humiliating and abusive way. They said that when they came to army barracks to inquire about the whereabouts of their “disappeared” relatives, the soldiers and officers, beyond simply refusing to provide them with any information or denying that a person was in their custody, also verbally harassed and threatened them with arrest or physical reprisals. Some witnesses said that they did not dare to inquire at the army barracks, having heard from others that they could end up arrested or killed themselves.

Internal investigations into human rights violations by the security forces are extremely rare and for the most part inadequate. Even in the most highly-publicized cases, such as the summary execution of two civilians and seventeen Maoists in Doramba in August 2003, the army failed to establish proper accountability for the perpetrators.198 Army officials initially denied responsibility and made several sham investigations into the massacre. It was only under intense local and international pressure that the RNA finally brought some of the perpetrators of such killings to justice. However, to date the military has refused to openly name those indicted, and has kept the trials closed to the public. The army has also failed to acknowledge superior responsibility on the part of senior officers for the operation.

Faced with mounting evidence of human rights violations and the pressure to establish accountability for perpetrators, the government established so called Human Rights Cells, first in the civilian police and APF, and then in the RNA. The effectiveness of these bodies, however, has been questioned by human rights groups.199 A number of witnesses also told Human Rights Watch that they had reported the “disappearances” of their relatives to the Human Rights Cells, but that they believed no action had been taken in response to their complaints.200

While in recent years several soldiers were reportedly prosecuted for unlawful killings,201 no security personnel have ever been held accountable for a “disappearance,” arbitrary arrest, or unlawful detention. In December 2004, Brigade General Dipak Gurung told the press that the RNA had detected thirty-nine cases of human rights violations by its personnel, for which forty-three soldiers were given prison terms, thirty dismissed, and eleven demoted.202 Although Gurung promoted the list as indicative of the RNA’s efforts in prosecuting human rights abusers, the list actually shows almost complete inaction by the RNA on major abuses. Close scrutiny of the thirty-nine cases of “human rights violations” shows that most involve petty offenses such as theft and brawling by drunken soldiers. Although the security forces have been implicated in thousands of summary executions and “disappearances,” such cases are almost completely absent from the list released by Gurung.

Moreover, Gurung implicitly denied allegations of unlawful military detention, saying that there were only forty-seven civilians in army detention—all of them under CDOs’ orders—and another sixty-one were detained in the newly formed Sundarijal detention center.203 These figures contrast sharply with the evidence gathered by Human Rights Watch and other groups of illegal detention and subsequent “disappearances” of people taken into custody by the military.

The army has also successfully eluded any control or interference by civilian authorities. A number of relatives of the “disappeared” told Human Rights Watch that after the army detained their family members, they tried to get information from CDOs and to persuade them to act. However, the CDOs refused to help. Two witnesses, in recounting the responses they received from the officers, independently cited identical answers: the witnesses described how the CDOs had told the families that “had it been the police,” they would have been able to do something, but against the army they were powerless.204 In many other cases, the CDOs themselves were directly involved in “disappearances.”

The RNA is also notorious for its utter disdain for civilian courts, including the Supreme Court of Nepal. The army routinely ignores habeas corpus orders issued by the courts, refuses to accept the courts’ notices, and brazenly lies to the courts regarding the detainees’ whereabouts, as has been documented previously by Human Rights Watch and others.205 This clearly violates the Constitution of Nepal, which establishes the duty of the government and all its related agencies to assist the Supreme Court and all other courts in “dispensing justice,” and the requirement to abide by the courts’ decisions and orders.206 The police have demonstrated a similar attitude, routinely defying the courts. For example, in July 2004, policemen directed by the Supreme Court to appear before the court to clarify the circumstances of the arrest of two students who subsequently “disappeared” ignored the order even after police headquarters assured the court they would comply.207

The Defense Ministry has proved unwilling to rein in the forces under its command and ensure their compliance with judicial orders. Indeed, the Defense Ministry itself has often failed to provide the court with truthful information. An illustrative case occurred in late October 2004, when in response to the Supreme Court’s notice, the Defense Ministry denied having detained three individuals who—as their relatives asserted—were arrested by the army on October 16. However, a day after the court received the Ministry’s written explanation, the RNA headquarters confirmed that the three men were indeed arrested and were being kept in detention by the army.208

The RNA also has fiercely opposed the efforts of human rights and humanitarian monitoring bodies to establish the whereabouts of detainees allegedly held in army custody. Army officials have deceived not only the NHRC, but also international organizations. For example, one of the “disappeared” described in a letter to his family how the army was hiding detainees held in barracks during ICRC visits. Twenty-nine-year-old Sugendra Maharjan, arrested by RNA soldiers on November 15, 2003, in Kathmandu, had been missing for almost a year, when his family received a letter in September 2004 smuggled from Jagadal army barracks in Kathmandu and addressed to the head of ICRC.209 In the letter Maharjan wrote:

We [have been] detained at Jagadal barracks without any legal proceedings for several months. We have been tortured and intimidated in custody, and no information of our detention is given to our family members [confirming] that we are taken in custody by the security forces. We are not produced before any judicial authorities….We came to know about [the ICRC] visit in these barracks to meet [several named detainees]. At that time, we were kept in a room which was locked by the soldiers. During [the ICRC’s] second visit, we were kept in a tunnel inside the compound of the barracks.210

The testimony indicates the army’s supreme confidence in avoiding scrutiny and its belief in the monitors’ inability to hold its officials accountable, which fosters an atmosphere of impunity conducive to “disappearances.”

Impotence of the courts

Although the Constitution of Nepal vests in the judiciary an “extraordinary power” to enforce the fundamental rights conferred by the constitution as well as “any other legal right for which no other remedy has been provided,”211 in reality the courts by and large fail to use this power to uphold human rights and deliver justice to victims of governmental abuses.

The courts have been particularly inert and ineffective in the case of “disappearances.” They have inexplicably limited themselves to examining only the legality of detention, and have often failed to take action in cases where the security forces refused to acknowledge the very fact of arrest or detention, thus denying the petitioners assistance in establishing detainees’ whereabouts.

As one of the witnesses described to Human Rights Watch, the Supreme Court’s response to her habeas corpus petition on behalf of a “disappeared” relative was as follows: “They dismissed the petition, saying: ‘Search yourself, we cannot do it.’”212 Thirteen witnesses told Human Rights Watch that they had submitted habeas corpus petitions on behalf of their “disappeared” relatives. In four cases the petitions were dismissed, and in seven cases they remained pending for months or even years after submission.

Moreover, even in cases where the courts delivered verdicts in favor of petitioners or issued orders aimed at establishing the whereabouts of a detainee, these efforts were undermined by the courts’ inability to enforce their decisions. The family of Surjeman Maharjan, who “disappeared” after being arrested on September 29, 2003, by uniformed RNA soldiers at his home in Pulchowk, Lalitpur, obtained an order from the Supreme Court ordering the army to reveal the whereabouts of Maharajan, but the army responded by denying Maharjan was in their custody.213 After the “disappearance” of Ram Milan Balmiki, who was arrested in Kohalpur VDC on April 26, 2002, the courts issued three habeas corpus orders requiring the army to produce Balmiki, but the army has never responded.214

In the face of the routine failure by the army and other security forces to comply with the courts’ habeas corpus notices and to provide the courts with truthful information regarding the detainees’ whereabouts, the judiciary has done little to ensure compliance with its orders.

The situation is aggravated by the absence of provisions criminalizing perjury in Nepali law, which prevents holding army and police officials criminally liable for lying during court hearings.

At the same time, the constitution unequivocally empowers the Supreme Court to “initiate proceedings and impose punishment in accordance with law for contempt of itself and of its subordinate courts or judicial institutions.”215 Using this provision, the court could effectively oppose the security forces’ impudence and promote accountability. Moreover, it could do much more to establish the whereabouts of “disappeared” detainees by issuing search warrants against the security forces in habeas corpus cases as provided by Supreme Court regulations.216  

Instead, the Supreme Court chooses to address relevant ministries sporadically with toothless reprimands, which they do not take seriously.

In this respect, the developments in the case of Krishna Khatri Chhetri (known as Krishna K.C.) are illustrative. Krishna K.C., the former vice-president of the All Nepal Free Student Union (Revolutionary), “disappeared” after being arrested by security forces in Kathmandu on September 13, 2003. The first habeas corpus petition was dismissed in November 2003 after the army denied having arrested him. After credible information appeared suggesting that Krishna K.C. was being held in the Bhairabnath Gulm (Maharajgunj) army barracks, another habeas corpus petition was filed, and in May 2004 the Supreme Court ordered the National Human Rights Commission to prepare a report on the arrest and whereabouts of Krishna K.C.217

The RNA continued to deny having Krishna K.C. in its custody, and when NHRC staff attempted to visit the Bhairabnath Gulm barracks, where the man was allegedly being held, army officials did not let them in. In response, the Supreme Court addressed the Ministry of Defense, requiring compliance with its decision, and the army finally allowed the NHRC to enter, but again refused to produce Krishna K.C., claiming he was not in detention. At an October 2004 meeting with Human Rights Watch, the head of the Army’s Human Rights Cell stated that Krishna K.C. was not in army custody.218 On November 9, 2004, however, the NHRC claimed to have “sufficient proof” that Krishna K.C. was still being kept in the Bhairabnath Gulm barracks.219

On June 28, 2004, after the Supreme Court had yet again reprimanded the army, reminding the RNA that it is obliged to follow the court’s orders and respond to inquiries in a timely manner,220 Chief of Army Staff General Thapa announced at a press-conference that he had issued an order requiring that the court’s show cause notices should be responded to promptly. He went on to state that should an army barracks fail to answer, the headquarters would be responsible for responding to the court.221 Little, however, has changed, and apparently neither the courts’ reprimands nor orders from the Chief of Staff were taken seriously. Just days after Thapa issued his statement, an official assigned to serve the Supreme Courts’ notices to the Bhairabnath barrack in another habeas corpus case informed the court that “the army claims that neither [of] these people [is] in detention nor [is] the army ready to accept the court’s orders.”222

The courts’ evident inability to adequately sanction the security forces or to assist people in establishing the whereabouts of their “disappeared” relatives has led to disappointment and disillusionment about the effectiveness of judicial remedies. According to INSEC, in 2003, despite the significant increase in “disappearances,” the number of habeas corpus petitions filed at the courts declined.223 This is an unfortunate trend, because habeas corpus proceedings that challenge the legality of arrest and detention are one of the most important instruments for the prevention of “disappearances.”

Obstruction of the work of the National Human Rights Commission

Nepal’s National Human Rights Commission was established by the government in 2000 in response to pressure by local and international human rights groups for creation of an “independent and autonomous” body to protect and promote human rights in Nepal.224 Under the law, the NHRC has powers to conduct investigations and inquiries into human rights violations, as well as into incidents of “negligence in the prevention” of such violations by any person, organization, or authority.

In order to perform this function, the commission is authorized, among other things, to “visit, inspect and observe any authority, jail or any organization under His Majesty's Government,” and to search and seize any “thing or document” if it has reasonable grounds to believe that such material is related to the subject matter of the inquiry.225 In addition, while conducting its inquiries, the NHRC may require “any person to appear before the Commission for recording his/her statement and information within his knowledge,” and summon and examine witnesses.226

The NHRC has tried to use its powers to address the problem of “disappearances.” In 2002, it formed a five-member committee to investigate “disappearances,” which started actively documenting the cases that had occurred since the beginning of the “people’s war,” and taking action on complaints submitted by relatives.

The commission proved effective in monitoring and reporting on the human rights situation in the country, as well as in raising human rights awareness and developing policy recommendations for the government. However, it soon became obvious that despite the provisions of the law, in practice the NHRC did not have the power or capacity to conduct adequate investigations into violations, compel testimonies, or make relevant authorities enforce its decisions.

As the NHRC has tried to implement its mandate, the government and security forces have increasingly tried to obstruct its work. In March 2004 the Home Ministry accused the NHRC of preparing biased reports that tarnished the image of the security forces. The ministry also stated that, “while deploying the teams for investigation of complaints against the security forces, the Commission and other organizations [must] inform local security forces and include a representative from security forces in the investigation team.”227 The NHRC voiced serious concern about this effort to undermine its “impartiality and independence,” and requested “measures to be taken in the future for the prevention of such interventions on the Commission’s activities.”228

In June 2004, after it was denied entry to the Bhairabnath Gulm army barracks, the commission again protested the obstruction of its work. Following a Supreme Court order (see above), the NHRC team went to the barracks to inquire about the whereabouts of Krishna K.C. However, the RNA informed the prime minister, chief justice, and chairman of the NHRC that it would not permit anybody to enter any of its units without permission from “above,” and that it was also “impractical to correspond to its units for the purpose [of entering barracks].”229 The letter did not specify what was meant by “above,” but it clearly demonstrated the unwillingness of security forces to cooperate with the NHRC, and the commission’s weakness in the face of what seemed to be a coordinated effort to prevent it from effectively fulfilling its functions.

In September 2004, the commission reiterated that the army had regularly denied its representatives access to barracks and other places of detention and expressed bitter resentment about the government’s evident “indifference over the fate of hundreds of people who have disappeared.” 230

Because of the systematic obstruction of its work, the NHRC has been largely ineffective in cases of “disappearances.” The majority of witnesses told Human Rights Watch that they have reported—either directly or through local NGOs—the “disappearances” of their relatives to the commission, but the NHRC was unable to help them.

While obstruction by the security forces is the main problem the NHRC faces in its work on “disappearances,” the Commission’s own institutional weaknesses also contribute to its relative lack of efficacy. The NHRC presently lacks the capacity to investigate many of the “disappearances” reported to the body, and often fails to remain in regular contact with the relatives of the “disappeared” to ensure that its information is up to date. In addition, the NHRC has made public only a small fraction of its investigations, which limits its advocacy capacity. In order to fully carry out its mandate, the NHRC needs to become a more proactive institution with the capacity to investigate and publicize abuses in a timely manner, and to ensure accountability for the perpetrators. The NHRC would also require additional resources in order to fully carry out its mandate.

Reportedly, some progress “on an agreement for cooperation between the NHRC and the RNA” was achieved during the December 2004 visit by the U.N. Working Group on Enforced or Involuntary Disappearances (WGEID) to Nepal.231 On December 9, 2004, on the eve of International Human Rights Day, the RNA held an event at its headquarters at which NHRC representatives were invited to speak. The army chief of staff reassured the NHRC that “the security forces are very alert and sensitive [to] protection and promotion of human rights,” and the NHRC chairperson expressed his hope for continuing cooperation between the RNA and the Commission.232

With the expiry of the tenure of the first group of NHRC commissioners in March 2005, the future of the commission itself is uncertain. New commissioners cannot be lawfully appointed in the present political vacuum, since it requires a three-member recommendation committee comprised of the prime minister, chief justice, and the leader of the opposition party in parliament.233 As there is no functioning parliament, unless a new parliament is elected, or the Human Rights Commission Act is amended to extend the tenure of the present commissioners until the parliament is in place, the future of the commission may be in danger.

[174] This figure is based on the number of cases the Working Group receives information about, and is not based on statistically valid surveying methods.

[175] See “Dr. Thapa Defends Nepal’s Human Rights Record,” The Kathmandu Post, March 19, 2004.

[176] “The Record on Nepal,” The Washington Times, September 17, 2004. The statement, signed by Nepali Embassy Deputy Chief of Mission Rudra K. Nepal, was published in The Washington Times in response to a September 11, 2004 article by Chitra Tiwari entitled “Nepal's Poor Suffer Most in Civil War.”

[177] See “Pressurize Rebels, Not the Government: PM Deuba,” [online], December 10, 2004 (retrieved December 18, 2004).

[178] Article 115 (8) of the Nepali Constitution allows the government to suspend certain rights, such as the rights to freedom of thought, expression, assembly, and movement, the right not to be held in preventive detention without sufficient ground and the right to judicial remedies (apart from habeas corpus) during a state of emergency. International law permits the suspension of certain rights during a state of emergency, but only to the extent strictly required by the exigencies of the situation.

[179] TADO, Section 5(a). Under TADA (Section 3(2)) Terrorist or disruptive activities include damage, destruction, injury, death, kidnapping and threats, and the production, distribution, storage, transport, export, import, sale, possession or installation of explosive or poisonous substances, or the assembly and training of persons for these purposes, as well as conspiring, causing, compelling, instigating, remunerating, or publicizing acts of terrorism, or harboring persons involved with terrorist and disruptive activities.

[180] TADO, Sections 9, 17(5). Under the sections, a person can be put in preventive detention on the basis of “a reasonable ground for believing” that the person “has to be prevented from committing acts that could result in a terrorist or disruptive act.” The wording of the sections thus creates an insufficient threshold for derogating from the constitutional protection guaranteed by Article 15(1) of Nepal’s Constitution, which states that nobody should be subjected to preventive detention “unless there is a sufficient ground of existence of an immediate threat to the sovereignty, integrity or law and order situation” in the country.

[181] Terrorist and Disruptive Activities Ordinance, Ordinance no 61, 2061, Nepal Rajpatra (Nepal Gazette), Part 54, Annex 33, Ashoj 27, 2061. The revised Section 9 of the Ordinance states:

In case there exist appropriate grounds to believe that a person has to be stopped from doing anything that may cause a terrorist and disruptive act, the Security officer may issue an order to keep such person in preventive detention at a place, which is suitable for human being for six months. In case there exist appropriate grounds for believing that the person in the prevention detention has to be stopped for additional period from doing anything that may cause a terrorist and disruptive act, the security officer with permission from Home Ministry of His Majesty Government may issue an order to keep in preventive detention mentioned in this clause for another six months.

[182] TADO, Section 20.

[183] The National Human Rights Commission, Human Rights in Nepal: A Status Report 2003, 16.

[184] From 1962 to 1990, Nepal was under the system of governance known as Panchayat, under which all political parties except the Royalist Rastriya Panchayat Partywere banned, and the country was run by the King.

[185] The Public Security Act 1989, Nepal Ain Sangraha (Collection of Nepalese Laws), Vol.3 (ka), 2055, Section 5. The Public Security Act was adopted initially allowed preventive detention for up to ninety days on the orders of a local authority, which could be extended to six months with the endorsement of the Home Ministry. In 1991, the law was amended to allow an additional six-month extension of the detention period with the approval of an advisory board established under the act (Section 7).

[186]The Public Offense and Punishment Act covers such crimes as disturbing the peace, vandalism, rioting and fighting. According to NHRC, in the past the law was often used by CDOs to suppress political activists and leaders, and after 1990, the ruling party has used it against its own political opponents (See The National Human Rights Commission, “Human Rights in Nepal: A Status Report 2003,” 45). The Anti-State Crimes and Penalties Act includes crimes such as insurrection and treason and carries punishments of up to life imprisonment.

[187] The Police Act was adopted in 1955, and amended several times. Chapter 6 of the Police Act contains a long list of crimes for which police personnel may be responsible, ranging from to participation in an armed rebellion to feigning “sickness or physical weakness.” The only provision that could be construed as introducing responsibility for human rights violations is Section 34(n), which makes a police official liable if “he unjustly harasses any person through arrogance or intimidation or causes loss or damage to the property of any person.” This provision, however, significantly lacks specificity, and fails to ensure adequate accountability for law enforcement personnel in the discharge of their duties, as required by international law. The Police Act 1955, Nepal Ain Sangraha (Collection of Nepalese Laws) Vol. 3 (Kha) 2060.

[188] The Police Act, Section 37.

[189] Torture Compensation Act, 1996, Nepal Ain Sangraha (Collection of Nepalese Laws), Supplementary Part, 2053. (Supplementary Part 2053) The Act’s failure to recognize torture as a criminal act contradicts Nepal’s obligations under the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[190] In the past, international human rights organizations, such as Amnesty International, have repeatedly called upon the Supreme Court of Nepal “to follow the practice elsewhere in South Asia where the courts have ordered damages to be paid to the family” of a "disappeared" person, as a form of redress by a specified date, in cases where it has been proven that someone who has "disappeared" was last seen in the custody of the state. However, the court authorities have not acted on these recommendations. See Amnesty International, “Nepal: Widespread ’Disappearances’ in the Context of Armed Conflict,” October 16, 2003, ASA 31/045/2003.

[191] Section 11 of the Act stipulates that “no order issued under this act may be questioned in the court of law.” At the same time, Section 12.A (1) allows a person who “feels that he has been detained in contravention of this law or in a mala fide manner” to file a complaint at the District Court “while still in detention or within 35 days after his release.” In 1996-2000, several Maoist sympathizers detained under the Public Security Act were released after the Supreme Court found their detention illegal. However, to the best of our knowledge, the procedure has not been used since 2000.

[192] The Public Security Act, Section 13.

[193] The Army Act 1959, Nepal Ain Sangraha (Collection of Nepali Laws), Vol. 3 (B), 2056 (1999). Article 42 establishes that a member of the armed forces “will be liable to be punished with imprisonment for a term not exceeding two years, or with punishment of a lesser degree” mentioned in the Act:

  • In case he arrests any person or places him in detention and does not present his case for a hearing without any reasons or does not present his case before the appropriate authority for investigations: or

  • In case any person who has ordered that any person be kept in military custody fails without proper reasons to submit… a statement signed by him against the person to be kept in custody immediately or as early as possible or within 48 hours in any circumstances.

    [194] The Army Act, Section 24.A. The explanation to the section stipulates that for the purposes of this Section, the term ''any action taken while discharging duties'' means any action “to be taken for internal security or self-defense, including flag march, patrolling and guard duty.”

    [195] John Lancaster, “Rights Groups Cite Pattern of Abuse by Nepal's Army,” The Washington Post, November 21, 2004.

    [196] Catherine Philp, “Torture in Kathmandu: Hundreds Just Disappear in War on Maoism,” The Times, December 18, 2004.

    [197] Human Rights Watch interviews, Bardia, September 29, 2004,

    [198] For a detailed description of the Doramba massacre and the botched investigation, see Human Rights Watch, Between a Rock and a Hard Place, 28-32, as well as NHRC’s report: “On the Spot Inspection and Report of the Investigation Committee: Doramba, Ramechhap Incident,” National Human Rights Commission, 2060 BS (2003).

    [199] For example, Amnesty International claimed that it had raised numerous cases of reported human rights violations with the APF, police and RNA Human Rights Cells, but the number of cases investigated by the bodies remained insignificant. See, Amnesty International, “Nepal: Escalating Disappearances Amid a Culture of Impunity.”

    [200] See, for example, Appendix, “disappearance” of Surjeman Maharjan; “disappearance” of Ram Prasad Acharya.

    [201] See e.g., “Military Court Sentences Soldier for Killing Father, Son,” The Kathmandu Post, July 15, 2003, for a report on an RNA soldier convicted of murdering two people in Bardia in January 2003;, “RNA Initiates Actions Against Rights Abusers,” March 18, 2004 [online], (retrieved November 29, 2004), referring to the killing of three persons by RNA in December 2003, for which two soldiers were sentenced to two years of imprisonment.

    [202] “RNA Brings Guilty Soldiers to Book,” The Kathmandu Post, December 8, 2004. Notably, the figures were released at the time when the U.N. Working Group on Disappearances was visiting Nepal, and the government was under pressure to demonstrate its commitment to accountability for human rights violations. To the best of Human Rights Watch’s knowledge, the only other incident when the army took public action against its personnel was in February 2004, shortly after E.U. ambassadors to Nepal expressed serious concerns about the deteriorating human right situation in Nepal, and the U.N. Human Rights Commission was soon to debate a resolution on the human rights situation in Nepal during its March session. At that time, the report of the RNA human rights cell said that “the Army Court has penalized at least 22 army men for various crimes, ranging from murder and extortion to rights abuses, committed after the army was mobilized following the breakdown of ceasefire.” See, RNA Punishes Culprits of Rights Abuses,” February 6-12, 2004 [online], (retrieved December 6, 2004).

    [203] “RNA Brings Guilty Soldiers to Book,” The Kathmandu Post, December 8, 2004.

    [204] Human Rights Watch interview with a relative of Kodu Lal Chowdhury, Dang, September 24, 2004. For case details, see Appendix, the “disappearance” of Kodu Lal Chowdhury; Human Rights Watch interview with a relative of Chaman Lal Baral, Kaski, September 22, 2004. For case details, see Appendix, the “disappearance” of Chaman Lal Baral.

    [205] See Human Rights Watch, “Between a Rock and a Hard Place”; Amnesty International, “Nepal: Escalating Disappearances Amid a Culture of Impunity” and “Nepal: Widespread ’disappearances’ in the context of armed conflict.” INSEC, in its report on the 2003 human rights situation in Nepal, named four army establishments that denied accepting court orders seeking explanation of detainees’ whereabouts: Bhairabnath Gan, Chhauni Barrack, Bhadrakali Gan, and Jagadal Gan; see Informal Sector Service Center (INSEC), Human Rights Yearbook 2004, (Kathmandu: INSEC, 2004), 48.

    [206] Constitution of the Kingdom of Nepal (1990), Articles 95 and 96.

    [207] See “Cops Defy Supreme Court Order,” The Himalayan Times, July 10, 2004.

    [208] “Defense Ministry Denies Hand in Detention,” The Himalayan Times, October 27, 2004; “RNA Contradicts Defense Ministry’s Denial,” The Kathmandu Post, October 28, 2004.

    [209] Human Rights Watch interview with a relative of Sugendra Maharjan, Kathmandu, September 18, 2004. Maharjan’s name appeared on a list of seventy-five previously “disappeared” persons that the Nepalese authorities acknowledged were in detention on October 11, 2004. Apparently, shortly after he wrote the letter to the ICRC he was transferred to the Sundarijal investigation centre in Kathmandu. His family now regularly visits him in the center.

    [210] Letter dated September 16, 2004 given to Human Rights Watch by family members (copy on file at Human Rights Watch).

    [211] Constitution of the Kingdom of Nepal (1990), Article 88 (2).

    [212] Human Rights Watch interview with a relative of Shree Ram Ghimire, Kaski, September 21, 2004. For case details, see Appendix, the “disappearance” of Shree Ram Ghimire.

    [213] Human Rights Watch interview with a relative of Surjeman Maharjan, Kathmandu, September 17, 2004. For case details, see Appendix, the “disappearance” of Surjeman Maharjan.

    [214] Human Rights Watch interview with S.L. Balmiki and Maili Balmiki, Banke, March 17, 2004. For case details, see Appendix, the “disappearance” of Ram Milan Balmiki.

    [215] Constitution of the Kingdom of Nepal (1990), Article 86 (2).

    [216] Supreme Court Regulation 2049, Nepal Niyam Sangrha , Vol. 1, 2055, Section 34. The Nepal Bar Association has repeatedly called on the Supreme Court to use its right to issue search warrants in habeas corpus cases, but the Supreme Court, admitting the availability of this legal action, was non-committal regarding the prospects of using it against the RNA. See Kiran Chapagain, “RNA Cocks a Snook at Supreme Court Order,” The Kathmandu Post, March 12, 2004.

    [217] A detailed description of the case can be found in Human Rights Watch, “Between a Rock and a Hard Place,” and Amnesty International, “Nepal: Escalating Disappearances Amid a Culture of Impunity.”

    [218] Human Rights Watch meeting with RNA human rights cell, October 6, 2004.

    [219] “Krishna K.C. in RNA Detention: NHRC,” The Kathmandu Post, November 9, 2004.

    [220] “Top Nepal Court Raps Army Over Rights,” The Hindustan Times, June 23, 2004. 

    [221] Human Rights Watch interview with a Supreme Court official, January 21, 2005. The name of the witness if on file with Human Rights Watch.  

    [222] “City Barrack Defied Supreme Court Order,” The Himalayan Times, July 2, 2004.

    [223] Informal Sector Service Center (INSEC), Human Rights Yearbook 2004, 41. INSEC insists that the decrease in the number of petitions cannot be attributed to the actual decrease in human rights violations. Its data shows that while in January-February 2003, there were only nine writ petitions related to habeas corpus filed at the Supreme Court, while “in the same duration of one month the NHRC received some 60 applications seeking protection of life.” Ibid., 48.

    [224] Human Rights Commission Act of 1997 (B.S. 2053), Preamble. The full text of the Act can be found at: (retrieved December 4, 2004).

    [225] Human Rights Commission Act of 1997 (B.S. 2053), Sections 9 (2e); 11(3).

    [226] Ibid., Section 11(1) a, b.

    [227] Letter of Home Minister Thapa to the National Human Rights Commission, March 29, 2004, cited in the National Human Rights Commission’s press-release, April 1, 2004 [online], (retrieved December 4, 2004).

    [228] “Commission Voices Serious Concerns Over Home Ministry Letter Hitting on the Independence of NHRC,” Press-release of the National Human Rights Commission, April 1, 2004 [online], (retrieved December 4, 2004).

    [229] “No Entry in Units: RNA,” The Kathmandu Post, June 23, 2004.

    [230] “Nepal Rights Panel Says Government Indifferent over Disappearances,” Agence France Press, September 25, 2004.

    [231] “Working Group on Enforced or Involuntary Disappearances of United Nations Commission on Human Rights Concludes Visits to Nepal,” statement by Professor Stephen J. Toope, Chairperson-Rapporteur of the Working Group on Enforced or Involuntary Disappearances of the United Nations Commission on Human Rights, December 14, 2004 [online], (retrieved December 16, 2004).

    [232] “Security Forces Sensitive to Rights, Says RNA Chief,” The Rising Nepal, December 10, 2004.

    [233] Human Rights Commission Act of 1997 (B.S. 2053), Section 4(2).

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