Emergency and public safety laws in Nepal
ON 23 November 2001, the insurgent Communist Party of Nepal (Maoist) unilaterally withdrew from peace talks with the Government of Nepal and formed a 37-member ‘People’s Council’ as the transitional underground government of the so-called ‘Peoples Republic of Nepal’. According to Maoist sources, the People’s Liberation Army (PLA) attacked several targets throughout the country. More than 20 district headquarters were targeted within a few hours of the announcement of the People’s Council. Thereafter, the peace talks aimed at ending the CPN (Maoist)’s five-year ‘people’s war’ and an accompanying cease-fire broke down. In response, on 26 November 2001, the King of Nepal, on the recommendation of the Council of Ministers, declared a nationwide emergency and authorized the deployment of the army.
The emergency suspends fundamental rights under the Constitution including the right to freedom of expression and opinion (Article 12.2a), press and publication rights (Article 13), and the right to information (Article 16). The government also promulgated the Terrorist and Disruptive Activities (Control and Punishment) Ordinance which empowers law enforcement personnel to detain suspects without trial for six months, and provides for 20 years’ imprisonment for convicted terrorists. Cases instituted under the ordinance are not subject to any statute of limitations. The Home Ministry of Nepal also declared the Communist Party of Nepal (Maoist) a terrorist organization.
In his address to the nation on 28 November 2001, Prime Minister Sher Bahadur Deuba declared, ‘Encouraging terrorism under any pretext will be considered a serious crime against the country, people and democracy. All persons, groups and institutions within and outside the country aiding and abetting terrorism through a supply of arms, money and information have to be brought under the purview of law and punished accordingly.’ The prime minister exhorted the people to be ready for ‘some discomfort to the people’.
The conflict started in 1996 when the Communist Party of Nepal launched a ‘people’s war’ which, so far has claimed more than 3000 lives. Most of these were civilians, victims of either the Maoists who considered them as ‘enemies of the revolution’ or the army.
Public security legislation in Nepal has a bloody history. During the ‘auto-cratic’ panchayati days, the Public Safety Rules of 1962 were used to control, imprison and prosecute pro-democracy activists. These rules were replaced by the Public Safety Act 1990, amended in 1991. Significantly, under clause 14 of the Act, it was required to draft and enforce regulations that were compatible with the then Constitution. However, on 4 June 2001, just a few days after the massacre at the Royal Palace, the government issued Public Safety Regulations 2001.
These regulations empower the chief district officers or officials on their behalf to order an individual or a group under solitary confinement or limit their movement to certain areas if officials are ‘convinced’ that the suspects are about to harm the country’s sovereignty, integrity or infringe law and order. Opposition parties have opposed this move saying that the government was displaying an ‘anti-people dictatorial streak’ by bringing in these regulations.
The Public Security Act (PSA) allows for people to be held in preventive detention for a period up to 90 days ‘to prevent them from taking any action which could have an adverse effect, among others, on the security or order and tranquility of the country.’ The Home Ministry can extend this period for another 90 days and a further extension up to 12 months from the original date of issue can be obtained, subject to the approval of an advisory board established under the act.
Amnesty International estimated that 1,600 people were serving a prison sentence or awaiting trial in relation to crimes allegedly committed in the context of the ‘people’s war’ at the end of 2000. The abuse of the Public Security Act, under which political activists were repeatedly re-arrested despite court orders for their release, continued. The authorities also increasingly used provisions of the Anti-State Crimes and Penalties Act 1989, which includes crimes such as insurrection and treason carrying punishments of up to life imprisonment. It appeared that the police were using this law to prevent suspects’ release on bail pending trial. Amnesty International also reported that, ‘Scores of political activists suspected of being members or sympathetic to the CPN (Maoist) or its front organizations were repeatedly arrested and detained without charge or trial under the PSA despite court orders for their release.’1
Officially, detainees who claim they have been wrongfully detained under the PSA can, under Section 12A of the Act, file a complaint at the district court requesting compensation while still in detention or within 35 days of their release. However, Amnesty International pointed out that it ‘does not know of any cases in recent years where a complaint has been filed or reached a final conclusion.’
Amnesty International also highlighted that ‘arrest and detention without warrant under the Public Security Act (PSA) of any "suspicious person" could be in violation of Article 9 of the ICCPR to which Nepal is a party. In its General Comment 8 on Article 9, the UN Human Rights Committee stated that "if so-called preventive detention is used, for reasons of public security, it must... not be arbitrary, and must be based on grounds and procedures established by law..., information of the reasons must be given..., and court control of the detention must be available... as well as compensation in the case of a breach." The current provision and its proposed amendment, by failing to clearly define "suspicious persons", open the way for widespread abuses by the police.’
To be complete on matters of public safety legislation mention of the ‘Local Administration Act 2028’ has to be made as it grants special powers to security forces. This Act was recently amended and these modifications have had impact on the risk of arbitrary arrest and detention.2
An emergency was declared on 26 November 2001 according to the Article 115 Clause-1 of the Constitution of the Kingdom of Nepal 1990. This Article states: ‘If a grave emergency arises in regard to the sovereignty or integrity of the Kingdom of Nepal or the security of any part thereof, whether by war, external aggression, armed rebellion or extreme economic disarray, His Majesty may by proclamation, declare or order a state of emergency in respect of the whole of the Kingdom of Nepal or of any specified part thereof.’
Clause 8 of the same Article of the Constitution allows the King to suspend the constitutional protection offered to the citizens in Article 12 (Clause 2) sub clauses (a), (b) and (d) and Article 13 sub clause (1), Articles 15, 16, 17, 22 and 23 (except habeas corpus).
Thus, even though Article 115 (7) of the Nepalese Constitution stipulates that in case of emergency, government should issue specific orders to regulate the suspension of fundamental rights under the state of emergency, so far no such regulation has been undertaken. And Article 23 of the Constitution has been suspended; such suspension denies people access to judicial remedy (apart from habeas corpus).
Therefore, almost all fundamental rights contained in the Constitution remain suspended. Rights like right to freedom of opinion and expression, freedom to assemble peaceably and without arms, freedom to move through the kingdom, press and publications rights, right against preventive detention, right to information, right to property, right to privacy and right to constitutional remedy are all suspended. It has also to be emphasized that under the state of emergency, the army is allowed to detain people for up to 48 hours, possibly at undisclosed locations and without legal safeguards.
Amnesty International has pointed out that, ‘Although the prime minister promised legal provisions to protect human rights at the time the state of emergency was declared, the security forces have been arresting people, holding them incommunicado and often torturing them.’
Although the King’s emergency powers are virtually unlimited at the time of a proclamation of emergency, they are temporary and subject to overrule by elected representatives in the long run. It is interesting to note that in 1991 a scholar wrote, ‘There is no provision for the extension of a state of emergency beyond one year, although here, as in other situations, tampering and abuse could be imagined. As with most such questions, the real significance of the Emergency Power article will only be seen in actual practice; but its potential effects on democracy and rights are crucial, and it deserves careful attention.’3
In February 2002, the King proclaimed the extension of the state of emergency for another three months.
On 26 November 2001, the King promulgated the ‘Terrorist and Disruptive Activities (Prevention and Control) Ordinance 2001’. According to the government press note this was because ‘it had become necessary to make necessary legal provisions to control terrorist and disruptive activities so as to provide security to the general public and ensure peace and order in the Kingdom of Nepal and as Parliament is not in session at present.’4
The ordinance grants wide powers to arrest people involved in ‘terrorist’ activities. The CPN (Maoist) was also declared a ‘terrorist organization’ under the ordinance. On the same day, several persons were arrested on ‘suspicion of terrorism’. Nine editors, journalists and computer operators working for three publications – Janadisha Daily, Janadesh Weekly and Dishabodh Monthly – were arrested on suspicion of being members or sympathizers of the CPN (Maoist).5
The Terrorism and Disruptive Activities (Control and Punishment) Ordinance issued by the King defined terrorism in the context of Nepal. It has described the following acts as terrorism and disruptive activities:
‘1) Any act or plan of using any kinds of arms, grenades, or explosives, or any other equipment or goods with the objective of affecting or hurting sovereignty or the security and law and order of the Kingdom of Nepal or any part thereof or the property of the Nepalese diplomatic missions abroad thereby causing damage to property at any place or any act causing loss of life or dismemberment or injury or setting fire or hurting physically and mentally or any act of poisoning goods of daily consumption causing loss of life or injury, or any other aforesaid acts thereby causing panic among the people in motion or assembled; acts of intimidation or terrorizing individuals at any place or in any vehicle or abducting them or creating terror among them by threatening to abduct them from vehicles and places or abduction of people travelling on such vehicles as well as activities like taking the life of others, causing physical mutilation, injury and harm or causing other types of damage by using substances mentioned in the relevant section in that connection or by threatening to use such substances or any other substances other than those mentioned in that section or threatening to use them, or acts like the production, distribution, accumulation, peddling, import and export, marketing or possession or installation of any kind of arms and ammunition or bombs or explosive substances or poisonous substances or any assistance in this connection, and;
* Acts of gathering people or giving training for this purpose;
* Any other acts aimed at creating and spreading fear and terror in public life;
* Acts such as extortion of cash or kind or looting of property for this purpose, forcibly raising cash or kind or looting property in pursuit of the said purpose.
* Any attempt or conspiracy to engage in terrorist or disruptive activity, or to encourage of force anyone to take up such activity, gathering more than one individual for such purpose, constituting any group to the same end, or assigning anyone to such activity or participating in such activity with or without pay or engaging in publicity for such activity, causing obstruction to government communications systems, or giving refuge to any individual engaged in terrorist or disruptive activity, or hiding any person doing any of this things.’
These acts are so broadly defined that any individual can be arrested as a terrorist even for committing ordinary crimes.
This security legislation, TADO, is also of concern as the vague definition of a ‘terrorist’ could lead to people being detained simply for expressing their peaceful political ideas. TADO allows for detention for up to 90 days, with possible extension to 180 days. In this regard Amnesty International pointed out that, ‘Detention without charge or trial for 90 days is a serious human rights violation. It is unclear which procedural safeguards, if any, apply to this process.’6
In March 2002, Amnesty International denounced the arrest of dozens of civilians on the only charge that they might ‘support’ the Nepalese Maoist movement. ‘Journalists, academics, lawyers and human rights defenders have been arrested and detained for long periods of time simply because they are believed to be sympathetic to the Communist Party of Nepal-Maoist. They have not committed any criminal acts,’ Amnesty International stressed.7 Acknowledging the difficulty of the political situation in the country, Amnesty International pointed out: ‘It is clear that there is a grave law and order threat to the country. However, in such a climate human rights must be protected with extra vigilance and army and police action must keep to international human rights standards.’
Even since a state of emergency was declared, freedom of expression, association and movement has been suspended and more than 70 journalists and several lawyers arrested. Most of those arrested are held under TADO and have not been produced before a court of law. On 28 November 2001, the Minister for Information and Communications issued directives to the media not to publish news, articles, interviews, audio-visual or reading materials ‘that are likely to promote and instigate violent and terrorist activities.’
Overall, TADO seems in breach of major fundamental human rights treaties. The vague and ambiguous definition of what constitutes a ‘subversive act’ in both the Local Administration Act and the Bill is contrary to the principle of security of the person as defined in international human rights law.8 The United Nations Special Rapporteur on the Independence of the Judiciary has stated ‘that vague and imprecise definitions are contrary to general conditions established by international law.’9
Amnesty International has also highlighted that even when a state of emergency is imposed, Article 4(1) of the ICCPR would allow for derogation of the right to freedom of expression, assembly and association. Restrictions would only be allowed ‘to the extent strictly required by the exigencies of the situation.’ Thus for AI, ‘Nepal has not declared a state of emergency consistent with the requirements of Article 4 of the ICCPR or the requirements of Article 115(2) of its own Constitution, and therefore cannot avail itself of these state of emergency exceptions.’
The conflict has already claimed more than 2,000 lives and displaced nearly 60,000 persons. And none of the parties – the Nepal police, the army, or the self-proclaimed revolutionaries – have shown any regard for human rights and humanitarian laws. Both the insurgents and Nepalese law enforcement officials have used incommunicado detention, rape, torture, inhuman and degrading treatment as well as extrajudicial executions. At least 150 people have disappeared from police custody and many more have been held in unacknowledged detention since the start of the ‘people’s war’. Although several habeas corpus petitions were filed in the courts for their release, the police denied making the arrests. All the petitions were dismissed.
The Government of Nepal has consistently claimed that all the people killed by the police as part of the people’s war have been Maoist guerrillas killed in police-insurgent encounters. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, after a nine-day tour of Nepal however, concluded that ‘extrajudicial killings have taken place’ and that ‘the police have not been made accountable’ for these crimes.
Even though the government cannot be blamed as the only party responsible for the terrible situation in Nepal, specific legislation that allows for the non-respect of fundamental human rights can only exacerbate the situation.
1. Amnesty International, Nepal: Human rights and security, AI-index: ASA 31/001/2000 , 14/02/2000.
2. See, Amnesty International, Country Report 2001, Nepal.
3. Ter Ellingson, ‘The Nepal Constitution of 1990: Preliminary Considerations’, Himalayan Research Bulletin,.Vol. XI, Nos. 1-3, 1991.
4. ‘HM declares state of emergency, promulgates ordinance’, The Rising Nepal, 27 November 2001.
5. See: Amnesty International, Nepal: Lack of rule of law only adds to instability, AI Index: ASA 31/023/2002, 19/03/2002.
6. Amnesty International, Nepal: State of emergency may go too far, AI-index: ASA 31/014/2001 30/11/2001.
7. Amnesty International, Nepal: Lack of rule of law only adds to instability, AI Index: ASA 31/023/2002 19/03/2002.
8. For an illustration see, Human Rights Committee, Communication No. 195/95.
9. UN Doc. E/CN.4/1998/39/Add.1, para 129.