(Hong Kong, February 17, 2011)
Today, February 17, 2011, marks the seventh anniversary of Maina Sunuwar’s illegal arrest and subsequent death due to torture by Royal Nepalese Army soldiers during the conflict. Maina was arrested to force her mother to present herself at the army barracks, after she had been a witness to the killing of her niece by security personnel earlier the same month. After Maina’s arrest, she was beaten, held face down in water and subjected to repeated electric shocks to force her to confess that she was a Maoist. Before the clandestine burial of Maina’s body, she was shot to make it appear that she had been killed while trying to escape and the police was summoned to create a cover-up story. Seven years have passed, the perpetrators have been named and the district court of Kavre has issued arrest warrants against them but army continue to defy court order by not handing over the soldiers to the court.
A September 2007 decision of the Supreme Court ordered the civilian authorities to carry out investigations into this case and to prosecute the perpetrators, thereby ruling that the case was to be tried in a civilian jurisdiction. The District Court of Kavre subsequently issued an arrest warrant against four military officers, Major Niranjan Basnet, Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun on January 31, 2008 under the charges of illegal detention, torture, and murder. To date, these warrants have yet to be executed.
Colonel Bobby Khatri, Captain Sunil Prasad Adhikari and Captain Amit Pun have not presented themselves before the court and have been declared absconding, but no action has been taken to locate and arrest them.
One of the accused, Major Niranjan Basnet, was found to be serving in a United Nations Peace-Keeping Mission in Chad, a deployment coveted as a lucrative reward by the soldiers, from which he was repatriated on December 2009 in light of the serious nature of the allegations pending against him. After his repatriation, the Nepal Army took the alleged murderer into custody and refused to transfer him to police custody, challenging the court orders and calls from the Prime Minister, the NHRC, the OHCHR and the UN Secretary General to abide. On the contrary, the Army announced on July 14, 2010 that an internal investigation had found him innocent of the charges against him. On that occasion, the Army Court of Inquiry declared that the army had been acting against a common enemy and functioning under a section of the Terrorism and Disruptive Activities Act, which stated that the Army has a right to take a civilian into custody for interrogation and referred to a section of the 1959 Army Act. According to this particular act, offences involving army personnel functioning under the TADA cannot be treated in a civilian court. Therefore the chief of the Nepal Army legal department stated that “There is no case against Basnet”. It is a well-known fact that all internationally-accepted norms and standards mandate that cases of gross human rights violations against civilians (a fortiori of minors) by army personnel fall under the jurisdiction of civilian courts.
In 2009, in an open letter to the Prime Minister, Devi Sunuwar, Maina’s mother, expressed her hopes to see the assassins of her daughters brought to court. “I wonder why none of the perpetrators are brought to book. I wonder when your commitments and pledges to end impunity will materialize. Just promising accountability won’t demolish the edifice of impunity that is deeply-entrenched in Nepal. A genuine first step in this direction is the prosecution of even a single perpetrator“.
Maina Sunuwar’s mother has an inalienable right to justice and to see the murderers of her daughter face trial. But seven years on, justice continues to be denied and the perpetrators continue to enjoy freedom. Undue delays in giving her justice constitute in itself a further violation of her rights and only results in additional sufferings. In the same pattern, not a single perpetrator of the tens of thousands of human rights violations which took place during the conflict has so far been prosecuted.
Nepal has an international obligation to protect the right to life of its citizens. The International Covenant on Civil and Political Rights clearly mandates that exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any derogation from the right to life and the right to be free from torture. Indeed, the right not to be arbitrarily deprived of one’s life forms the cradle without which the realization of all the other human rights cannot be attained. If no legal remedy exists in cases of the deprivation of one’s right to life, this right cannot be effectively protected and this constitutes the state’s failure to abide by its international obligations. Nepal therefore has the obligation to ensure the prompt and impartial prosecution of the perpetrators of torture and murder.
Repeated denial of justice impairs the proper development of the rule of law and democracy in the country and undermines the trust of the citizens. The Interim Constitution of Nepal states that court orders have to be binding upon all, but the army’s refusal to abide by them shows that it considers itself above the law. When the principle of equality of all the citizens before the law is blatantly trampled on, the notion of democracy becomes meaningless.
During the Universal Periodic Review of Nepal, the Nepal official delegation claimed that there was a “zero tolerance to impunity” policy toward “isolated” human rights violations committed by the security agencies and supported recommendations made by France and the United Kingdom to ensure that all decisions from the judiciary are fully respected by all concerned institutional actors, particularly by the army.
The Asian Human Rights Commission calls upon the new Prime Minister of Nepal to uphold his commitment to the rule of law, justice and democracy, by ensuring that the court orders will be implemented, that Major Niranjan Basnet will be transferred into police custody and prosecuted by civilian courts and that prompt investigations will be undertaken to determine the whereabouts of his three co-accused and bring them to justice as well.
The AHRC also turns to the Nepal Army and urges its full cooperation with civilian justice by handing over Major Niranjan Basnet to police custody in line with the principles of democracy, human rights and civilian supremacy. Complying with court orders and accepting to have the alleged criminals within its ranks properly prosecuted by an impartial jurisdiction for human rights abuses is a requirement if the Nepal Army wants to call itself a true and stable source of Nepali democracy as was claimed by the Nepal official delegation to the UPR process.
For the seventh anniversary of Maina’s death, we urge you to join our campaign to secure justice for the victim: here.