NEPAL: Express concern about decaying rule of law framework, prevalent human rights violations, impunity during Nepal visit 

An Open Letter from the Asian Human Rights Commission to the US Under Secretary of State for Civilian Security, Democracy, and Human Rights

Maria Otero
Under Secretary,
Civilian Security, Democracy, and Human Rights
Department of State
2201 C Street NW
Washington, DC 20520
United States of America

Fax: + (202) 647-1579

Dear Ms. Otero,

NEPAL: Express concern about decaying rule of law framework, prevalent human rights violations, impunity during Nepal visit

In light of your upcoming official visit to Nepal, we would like to draw your attention to several developments which have been of serious concern since your previous visit, in particular such are the attempts by the executive to provide amnesty for human rights violations which occurred during the conflict, further damaging the ability of rule of law institutions to provide redress to the victims. Criminal justice institutions have also proven impotent in curbing the trend of persisting human rights violations such as torture, and to protect the defenders fighting for the defence of human rights from threats and attacks.

During its Universal Periodic Review (UPR) session Nepal has accepted the USA’s comprehensive recommendations to take action to combat impunity by establishing accountability for conflict-era human rights abuses, to prosecute army and government officials found guilty for conflict-era crimes and to protect human rights defenders and journalists by promptly investigating complaints of harassment and holding perpetrators accountable. None of those has been implemented so far. By accepting those recommendations the government of Nepal had committed to your government to implement them in good faith and in a timely manner. So, we urge you, as the US Under Secretary of State for human rights, to follow up on the recommendations formulated by your office one year ago by addressing the following issues in your dialogue with the government of Nepal:

Delays in establishing transitional justice institutions:
As you may already know, during the one decade long Maoists insurgency more than 17, 265 were killed, more than 1, 027 were forcefully disappeared. Acknowledging the necessity to address the rights of those victims for the sustainability of the peace process, the Comprehensive Peace Agreement signed between the then-government and Maoists has included commitments not to condone impunity and to protect the rights of victims.  For that purpose, the Interim Constitution of Nepal and the CPA mandated the government to establish a Truth and Reconciliation Commission (TRC) and a Commission of Inquiry into Enforced Disappearances to investigate conflict-era human rights violations and to provide relief to the victims. On 1 June 2007 the Supreme Court ordered the government to criminalize disappearances and establish a commission of inquiry into disappearances. The government has prepared draft bills, one establishing the TRC and the second one criminalizing disappearances but without due consultation with victims groups, National Human Rights Commission (NHRC) and the civil society. As a result both bills contain a number of shortcomings which have raised the concern of the civil society, notably regarding the transparency and independence of the appointment process of the commissioners and the ability of the commissions to bring accountability for the past human rights violations. The bills are under consideration before a parliamentary committee since then but no time limitation is scheduled to promulgate them. In addition, a parliamentary task force comprising members of major political parties have proposed to amend the draft bill on Truth and Reconciliation Commission to insert a provision to give blanket amnesty to all conflict-era crimes and not to establish the Commission on Disappearances.

A justice and policing system failing to uphold the victims’ rights:
Victims have been continuously denied justice because the present criminal justice system has failed to function properly.  A weak justice system and a dysfunctional policing system have been unable to overcome resistance from the formerly-belligerent parties to collaborate with investigations and political unwillingness to see human rights violators be brought to justice. The mere notion of accountability of military and police officers, as well as of Maoist cadres, remain a distant dream in Nepal and will require an overhaul of the criminal justice system to develop its capacity to hold perpetrators of human rights violations to account. An unaccountable police force, under considerable pressure from local party cadres, has routinely refused to register cases involving the army or the Maoists and conducted ineffective investigations in such cases, facing reluctance by the army and the Maoists to collaborate in the process. In the absence of competent laws and institutions the victims are facing problems to file FIRs and cases. The police have routinely refused to register the conflict-era case in the pretext that such cases would be dealt with by the yet-to-be-established TRC. Victims have no place to file their complaints at present. Orders by the judiciary for investigation and prosecution have remained unimplemented while no one was condemned for contempt of court.

You may be aware of the example of Maina Sunuwar, a fifteen year old school girl disappeared and tortured to death by the army eight years ago. In 2007, the Supreme Court ordered the civilian authorities to carry out investigations and prosecute the army officers involved in her torture to death, following which arrest warrants were issued against four army personnel. None of them has been brought before the court, as the Army refused to cooperate with the civilian authorities, arguing that the case was handled by a military court. Her family continues to wait for justice.

The incapacity of the justice system to hold perpetrators to account also applies to Maoist cadres as illustrated in the case of the disappearance and murder of a school teacher, Arjun Bahadur Lama by Maoist cadres in 2005. The police first refused to register the case for fear of reprisals and the case was filed only after a Supreme Court’s order was made on 10 March 2008. Its investigation has been slow and ineffective. Agni Sapkota, the main accused, who is a Constitutional Assembly member and was appointed to full minister in May 2011, remains fugitive.

Mass case withdrawal and amnesty:
Interventions of the executive into the judicial process has damaged the authority of rule of law institutions in Nepal and posed further challenges to the rights of the victims. Succeeding governments have arbitrarily withdrawn more than 600 conflict period criminal cases that were pending before the court since the signing of the peace agreement. It is therefore of serious concern that the current government had announced that it was doing the needful to withdraw cases pending before the courts dating from the conflict, in the wake of an electoral 4-point deal with another political party for mass withdrawal of cases against Maoists leaders and Madhesi leaders. Due to sustained pressures from victims groups and civil society, the government has withheld the decision for the time being but reports that the transitional justice bills could grant amnesty for past human rights violations have shown that providing immunity for violations committed during the conflict remains on the government’s agenda.

Persisting torture and ill-treatment: 
Prevailing impunity and a weak justice system have left the door open for further abuses. Since your last visit to Nepal, the increase in rates of torture in police detention centres has been an issue of serious concern. Advocacy Forum, a national NGO reports in its recent “Torture Briefing Report” that 24.2% of the 1919 detainees visited in 57 police detention centers between July and December 2011, claimed that they had been tortured. The State has proven unable to curb the trend of torture, as torture is still not criminalized in the national law.

Human rights defenders at risk:
The Human rights defenders and journalists who are at the forefront of defending and promoting human rights have become the target of attacks by security forces, political parties and their sister organizations and underground armed groups. The women HRDs and the HRDs working in the Terai district and some hilly regions are often at risk. During its UPR session Nepal has accepted the USA’s recommendation to “protect human rights defenders and journalists by promptly investigating complaints of harassment and holding perpetrators accountable” but no substantial progress is seen in this issue. Till the date of writing no formal discussions have been initiated to develop a law establishing a special mechanism for the protection of human rights defenders and journalists.

Your visit provides an opportunity to address those concerns and express the US commitments to see the development of a strong rule of law framework supported by an independent and solid justice system in Nepal.

We welcome the June 2010 decision of Visa Section, US Embassy in Kathmandu to deny a visa to ex-minister Agni Sapkota on the ground of his alleged involvement in the killing of Arjun Lama. We respectfully urge the Under Secretary to take lead in calling for strict vetting and screening process against human rights violators including parliamentarians, military and police officers and government officials before providing any kind of visa to the USA.

During your dialogue with the government of Nepal, we urge you to strongly condemn attempts to provide blanket amnesty for human rights violations. Please urge the government of Nepal to ensure the adoption of the bills establishing transitional justice institutions in line with international standards by following due consultation with victims’ groups and civil society. Please further urge the Prime Minister to publicly express commitment to accountability, prosecution of human rights violations and institutional development of the criminal justice system.

Yours sincerely,

Wong Kai Shing
Executive Director
Asian Human Rights Commission, Hong Kong

Document Type : Open Letter
Document ID : AHRC-OLT-003-2012
Countries : Nepal,
Campaigns : Maina Sunuwar
Issues : Administration of justice, Impunity, Rule of law,