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IV. Arbitrary Arrest and Detention

At least 8,350 arrests of Tibetans were made between March 10 and July 18 (many people were arrested more than once).⁶² Arrests have continued since. While the frequency of protests has diminished since May, protests have continued to take place on an almost weekly basis, with continuing abuses by Nepali authorities in response. Few of those arrested have been provided with a reason for their detention and virtually all have been released without charge.

Typically, those arrested were detained for several hours and then released without charge in the evening between 7 and 10 p.m. On two occasions in April the authorities held large groups of Tibetans overnight: 68 were held at Ghan II Police Barracks on April 2, and 99 people were held in four locations on April 16.

International human rights law prohibits arrests and detentions that are arbitrary. An arrest or detention is arbitrary when not carried out in accordance with the law, or if the law allows for the arrest and detention of people for peacefully exercising their basic rights such as freedom of expression, association, and assembly.⁶³ Nepali police arrests of Tibetan demonstrators have either been without regard to Nepali law or violated fundamental freedoms, or both.

Senior government officials and officials questioned by Human Rights Watch at places of detention and in interviews with the media often cited the relationship between China and Nepal as the reason for the arrest of Tibetan protesters. On March 17, the district superintendent of police (DSP) informed Human Rights Watch that the Tibetans detained at Jawalakel Police Station at the time were detained because of the Nepali government’s policy regarding China. On March 20, the International Herald Tribune quoted Nepal’s Home Ministry spokesperson saying, “We have given the Tibetan refugees status and allow them to carry out culture events. However, they do not have the right for political activities.… We will not allow any anti-China activities in Nepal and we will stop it.”

Lower-level police officers have regularly stated they are “just following orders” or have given other reasons for arrest when questioned by Human Rights Watch. An assistant subinspector (ASI) on duty at Ghan II police barracks told Human Rights Watch that his barracks was being used to detain Tibetan protesters because he had been told that “they are dangerous and trying to create trouble for the UN, and these type of people must be kept here.” Another ASI at Ghan II, on a separate occasion, said that protesters had violated Nepali law by protesting in a restricted area.

Tibetans told Human Rights Watch that when they asked police why they were being arrested, officers frequently said that they were simply following orders or did not know the reason. Sherab Dolma was once told she was being arrested “because she was Tibetan.”⁶⁴

Under Nepali law, persons arrested must be produced before the adjudicating authority (usually the court or the CDO) within 24 hours of the detention. They must either be charged with a crime or released.⁶⁵On only one occasion during the first round of protests between March 10 and April 3 were any detained Tibetan protesters given charge sheets.⁶⁶ The charges were dropped before being brought before a judge. 

During two peaceful protests that took place on the afternoon of April 2 outside the Chinese Embassy Visa Section, the police arrested 56 individuals during the first protest at 1:30 p.m., and then an additional 17 individuals, including four children, during the second protest at around 4:30 p.m. Five of those arrested in the second protest were taken to Kamal Pokhari Police Station, while the other 12 were taken to the Ghan II Police Barracks, where the first group of protesters was being detained. The detainees at Kamal Pokhari Police Station were released around 10:30 the same evening.

The authorities made no real effort to charge any of those arrested with criminal offenses. At 9:30 p.m. they informed the 12 protesters from the second protest detained at Ghan II Police Barracks that they were responsible for breaking a small plastic window in the police van in which they had been transported. They were told that they would be kept overnight for further investigation, but they were not formally charged. The other 56 Tibetan protesters detained at Ghan II Police Barracks refused to leave without them, and as a result, all 68 Tibetans spent the night at Ghan II Police Barracks. The detainees sought legal counsel after being informed they would be held overnight. A lawyer who came to the gate of Ghan II Police Barracks was denied entry.

The following morning, April 3, six of the 12 protesters detained in the second protest were given charge sheets stating they were detained “for investigation,” but not accused of a crime. They were then moved to Kamal Pokhari Police Station. The remaining 62 detainees, including six from the second protest, were given blank arrest warrants and later released. The six given charge sheets were also released that day, but only after negotiations during which Tibetan community leaders agreed to suspend protests until after Nepal’s Constituent Assembly election, scheduled to take place on April 10. In effect, the Tibetans’ release was won by giving up for a time their right to freely assemble.

The arrests appear to have been in part a response to pressure from the Chinese authorities to end the demonstrations outside the Chinese embassy. Human Rights Watch was informed by an ASI at Ghan II Police Barracks that on April 1, the day before the arrests, the police had been called out to investigate alleged damage to the Chinese Embassy gate by the Tibetan protesters. No damage was found. And on April 2, the Chinese ambassador to Nepal convened a press conference in Kathmandu during which he urged the government of Nepal to “take severer measures to prevent these political organizations from organizing and implementing illegal political activities.”⁶⁷ As noted below, there is also evidence that a senior Chinese embassy official was pressuring the government to use the Offences against the State Act to charge some Tibetan protesters.

Preventive arrest and detention

Starting shortly after the initial protests on March 10, Nepali police began arresting Tibetans and Nepalis who appear Tibetan, such as monks, in the streets, in taxis and public buses, and in tea shops, apparently to prevent them from reaching protests and as a means of intimidating and harassing the community. 

On March 20, the Nepal police began to arrest Tibetans as they moved in and around areas in which protests had taken place. Lobsang Jinpa, age 26, told Human Rights Watch that as he was walking towards UN House in Pulchowk, two police vans suddenly appeared, and he saw police arrest two monks who had been walking down the street. He said that when the monks refused to get into the vans, the police officers beat them on the back with lathis. When he asked the police to stop beating the monks, he himself was arrested. He was released without charge that evening.

Following this incident, police searched for Tibetans for about an hour in and around UN House. Human Rights Watch observed two nuns being arrested as they walked away from the area. Human Rights Watch also observed police arrest a Tibetan at a tea shop near UN House and saw around 10 Tibetans surrender themselves for arrest outside the same tea shop. By the end of the day, at least 99 Tibetans were in detention.  They were all released without charge.

On March 24, the Nepal police carried out many preventive arrests. Lobsang Jinpa reported seeing monks and women in Tibetan dress being arrested in Boudha. He also saw taxis and microvans being stopped in front of Boudha Police Station, and saw at least one monk being taken out of a microvan and into the police station.⁶⁸ Throughout the day, 70 Tibetans had been apparently preventively detained at Boudha Police Station. They were all released the same day.

The same day, March 24, arrangements had been made for two buses to transport Tibetans to an Amnesty International-Nepal protest at Maitighar Mandala, in Kathmandu. The buses took different routes to avoid being stopped by the police, but arrived at the Mandala around the same time. The individuals from one bus were able to join the peaceful protest, but only half of the individuals on the second bus were able to get off before four police officers entered the bus and drove it directly to a place of detention. Those detained  were held for the remainder of the day and released without charge.⁶⁹ Dhondup Gyasto said, “They let me down early because I am an old man but all the others on the bus were taken to the Mahendra Police Club.”⁷⁰

On other occasions, the authorities picked up individuals at protest sites even before they began any kind of protest, and seemingly arrested individuals at random from Tibetan areas.⁷¹

Tenzin Jamphel, age 38, a Tibetan monk from Swyambu who has been arrested on 21 occasions for protesting, was active in organizing candle vigils at Swyambu on March 15-17 and the protest at Boudha on March 10. On March 18 at 9:00 a.m., plainclothes police officers from Swyambu Police Ward 15 came to his monastery, handcuffed him, and took him to Ward 15 Police Station. He was kept there for around four hours and asked by the inspector, “Who sent you? Why are you doing that [demonstrating]?” He was also told that the inspector had the power to release or continue to detain him, and that the inspector had been threatened with loss of his job if he didn’t arrest him. The inspector then said that Tenzin Jamphel would be taken to Naxal Police Headquarters to sign a document. The inspector said he would ensure he was not detained.

At Naxal Police Headquarters, Tenzin Jamphel was questioned by a Senior Superintendent of Police (SSP) for around 15 to 20 minutes. The SSP asked him, “Who is telling you to do this? What organization are you affiliated with? Is the Tibetan exile government telling you to do this?” He was then transferred in a police jeep with a gun pointed at him to the Kathmandu chief district officer’s Office. Tenzin Jamphel recalls the chief district officer saying to him:

Do you know why you have been given RC [Refugee Card]? When you are living in Nepal you should follow the laws of Nepal. As a refugee you cannot demonstrate in Nepal. If you want to protest we can send you back to Tibet. This is the last warning we are giving you. You are on the list of the wanted people. If you take part in any demonstrations in the future and you are brought here we will take back your RC and send you back to Tibet. You have a long record of demonstrations in Nepal – your name has been registered at different police stations in the past.

Tenzin Jamphel was accompanied by a Nepali monk who was his friend. This Nepali monk was asked: “You are Nepali. Why are you getting involved in a Tibetan political movement? Do you know what problems we are facing in Nepal? We have so many problems. Why are you a monk?” 

Tenzin Jamphel and his Nepali friend were then told they must sign a document. When they refused they were informed, “If you do not sign then you cannot leave here.” They then signed the document, which read, “We willingly agree to sign this paper and agree to abide by following conditions: From this date in the whole of Nepal we will not do anything to disrupt peaceful security, and it is our responsibility to not do any illegal activities.” The chief district officer then told his secretary to add the document to Tenzin Jamphel’s file and to add his name to the “list.” After the Nepali friend left the room, the chief district officer said that there would be four copies of the signed document: one for the Naxal Police Headquarters, one for the Chinese Embassy, one for the District Office, and one for the Home Ministry, and that if Tenzin Jamphel told anyone this he would be arrested.

Over the next two months, Ward 15 police officers continued to visit Tenzin Jamphel and ask about his activities and the activities of the Tibetan community in Swyambu.

The Interim Constitution of Nepal only allows preventive detention if there is evidence of  “an immediate threat to the sovereignty and integrity or law and order situation of Nepal.”⁷² Nepal’s Public Security Act (PSA) allows for the use of preventive detention for 90 days by order of the chief district officer. This can be extended for six months on the approval of the Home Ministry “to maintain sovereignty, integrity or public tranquility and order.” Only on one occasion, when three Tibetans were arrested on June 19, has the government of Nepal invoked the PSA to justify arrests of Tibetans (see below).

International human rights law makes provisions for circumstances in which the right to liberty can be temporarily abrogated. Such derogation, however, must be of exceptional character where the life of a nation is threatened, strictly limited in time, subject to regular review, and consistent with other obligations under international law.⁷³ Nepal has not asserted that the Tibetan protests pose such a threat to Nepal, nor has the Nepali authorities’ response met the standards required for derogation from fundamental rights.

Preventive detention under the Public Security Act

On June 19, 2008, two Nepali citizens of Tibetan origin, Nawang Sangmo and Tashi Dolma, President and Vice President of the Tibet Women’s Association, and one Tibetan refugee, Kelsang Chung, director of the Tibet Reception Centre, were arrested from their homes without an arrest warrant. The detention order accused them of carrying out “acts that affect national security and public order by chanting anti-China slogans in different public places in the capital.”

The three were taken to the Boudha Police Station before being transferred to Hanumandhoka Police Station, where they were given a preventive detention order issued by the Kathmandu CDO. The order stated that the arrests were necessary to bring an end to demonstrations organized by Tibetan refugees in Nepal as continued demonstrations could have an impact on public peace and security, as well as Nepal’s friendly relations and diplomatic ties with China. The order was issued under section  3.1 of the Public Security Act 2046, which states:

The Local Official, if there are reasonable and sufficient grounds to prevent a person immediately from committing specific activities likely to jeopardize the sovereignty, integrity, or public tranquility and order of the Kingdom of Nepal, may issue an order to hold him/her under preventive detention for specified term and at specified place.

This is the first occasion known to Human Rights Watch that the Public Security Act has been invoked to allow preventive detention since the reestablishment of democracy in Nepal in April 2006.

After receiving the written order the three were transferred to Dilli Bazar Jail. Later that day, Nawang Sangmo and Tashi Dolma were transferred to Badrabandi Central Jail. Habeas corpus writs were filed with the Supreme Court for the three detainees on June 22. During the hearing in the Supreme Court on June 23 and 24 the Court ordered the government of Nepal to “show cause” for the arrests. The Supreme Court usually expects the government to “show cause” within three days but in this case the government took advantage of the legal option to request an extension of seven days to “show cause.”

The next hearing took place on July 8, during which the Supreme Court stated that the order issued by the Kathmandu CDO and the written submission of the Home Ministry failed to satisfy the grounds maintained in the PSA and ordered the individuals released. Normal practice is for the jail authority to then release the individuals immediately. But this did not happen, as the lawyer representing the three was told by the authorities that that the jail authorities were waiting for an order from the Home Ministry. The three were released later that day, July 8, 2008.⁷⁴

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