NEPAL : Threat to re-arrest a man for the second time following his release on Supreme Court orders 

Dear friends,

The Asian Human Rights Commission (AHRC) is gravely concerned by new information received by Asia Forum, a local human rights organisation, of the attempted second re-arrest of a person by Nepalese security forces following his release from detention on Supreme Court orders.

According to Asia Forum, Mofiuiddin Khan was first arrested on 28 November 2001, following which he was illegally detained for a period of 17 months. He was was finally released by Supreme Court orders on 11 May 2003, when a writ of habeas corpus was filed challenging his detention. However, he was re-arrested again on 11 September 2003 and was detained in various detention centres. Following another challenge to his detention, the Supreme Court issued his release on 14 January 2005. On the following day, however, when Mr Khan was to be released before the District Court of Banke, security forces surrounded the court with the intention to re-arrest him. While they did not do so, Mr Khan and his family now fear that they will in the future.

The case of Mr Khan’s is yet a further example of security force’s action to undermine court orders and intimidate and harass persons by arbitrarily arresting and detaining them immediately following their release. To view similar cases, to which AHRC has reported on, please click on the following: UA-127-2004, UA-95-2004, UA-86-2004, UP-38-2004, UA-74-2004, UA-51-2004.

Please send a letter to the Major General Sharma Thappa asking him to intervene into this case and to ensure Mr Khan is not re-arrested. Please also ask the Government of Nepal to investigate the case, together with those that have occurred in the past and take disciplinary/legal action against those security forces that have violated the rights of these victims. Finally, please request the Government of Nepal to instruct the army and the police to refrain from harassing persons who have been granted release, to strictly abide by court orders, and to stop all attempts to weaken the judiciary and rule of law.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

Name of victim: Mofiuiddin Khan, 46 year-old man, resident of Raniyapur-3 Banke
Date of first arrest: 28 November 2001
Date of re-arrest: 11 September 2003
Date of attempted second re-arrest: 16 January 2005

On 28 November 2001, Mr Mofiuiddin Khan was arrested by security personnel from Dhanauli Area Police Office Banke under the pretext of preventive detention in accordance with the Public Security Act. He was arrested at his office, where he was a government appointed secretary of Raniyapur VDC of Banke Distrcit. At the time of the arrest, Mr Khan was conducting a meeting.

After his arrest, Mr Khan was illegally detained for a period of approximately 17 months. For much of this time he was put in incommunicado detention. He was finally released by a Supreme Court order on 11 May 2003, when a writ of habeas corpus was filed in the Appellate Court Nepalgunh, challenging his detention.

However, Mr Kha was re-arrested on 11 September 2003, on the same charge of preventive detention. In response, another petition was filed in the Supreme Court of Nepal challenging his detention. On 14 January 2005, the Supreme Court issued Mr Khan’s release orders. On 16 January, when Mr Khan was presented before the district court of Banke for his release, security forces waited outside of the court with the intention of re-arresting him. Mr Khan’s family members pleaded with human rights groups within the area to provide Mr Khan protection and help ensure that he was not re-arrested again.

Despite the fact that Mr Khan is no longer in police custody, he fears that security personnel may re-arrest him at any time.

ADDITIONAL INFORMATION:

Current events in Nepal have exposed the chaotic state of affairs in the country. Since 1996 Nepal has been gripped by a brutal civil war between the state’s poorly trained military and police and a retrograde Maoist movement. More than 10,000 Nepalis have died and many more have disappeared, been tortured and/or intimidated. The situation of “law and order” and internal security has deteriorated to near unmanageable proportions. Such a state of affairs reflects the government’s inability to ensure the safety and security of its people. The current wave of events is not intended to do any good to the dilemma faced by the people and the government of Nepal. It is very clear that government has a limited capacity to deal with the situation and to protect its citizen.

In an effort to combat Nepal’s internal unrest, the government of Nepal abolished the previous Terrorist and Disruptive Activities (Punishment and Control) Act on 12 October 2004, and replaced it with a more severe and draconian version of the same law: the Terrorist and Disruptive Activities (Control and Punishment) Ordinance. Clause 9 of the latest TADA states:

“If a security official feels the need to prevent a person from carrying out any terrorist and disruptive activity, such a person can be kept under house arrest for a maximum period of one year, six months at his [Security Official’s] discretion and another six months after obtaining permission from the home ministry, in any place after fulfilling common humanitarian conditions”.

It is due to such changes, and the power the new TADA provides to security officials, that security forces have been able to re-arrest detainees immediately upon their release by court orders. The immediate re-arrest of detainees is merely serving to weaken, threaten and to humiliate the courts, lawyers, and the victims so that they might refrain from challenging illegal detentions again. The systematic re-arrest of individuals indicates the failure of the judicial system in Nepal as the judiciary is unable to safeguard the authority of its decision or stop the security forces from abusing the legal process by re-arresting individuals freed by the courts.

Significantly, the current practice of re-arrest by Nepal’s forces, and certain elements of the revised TADA, are a breach of international humanitarian law (in accordance with Nepal’s current state of civil war) and other international laws such as the International Covenant on Civil and Political Rights (particularly in regards to ‘right to liberty) to which Nepal is a signatory.

The AHRC calls upon His Majesty’s Government of Nepal and Major General Sharma Thappa to make genuine efforts to put an end to the practice of re-arresting persons immediately upon their release. This practice is a breach of international law and is a blatant tool of intimidation by the ruling military of Nepal. The AHRC denounces the delusion that brute force and intimidation will bring all parties in the conflict to dialogue. Rather, by introducing strict laws and giving security forces unlimited powers, the government is stimulating the ongoing systematic and widespread human rights violations and crimes against humanity being committed by the security forces with absolute impunity. The government must instead adopt a realistic and sincere approach towards a solution; otherwise, the blind, unnecessary and blatant use of force coupled with the impunity of state security officials will continue to result in further violations of human rights.

SUGGESTED ACTION:

Please send a letter, fax or an email to Major General Sharma Thappa and ask him to take immediate action into this case.

To support this case, please click here: SEND APPEAL LETTER