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NEPAL: Two cases of immediate re-arrest of detainees after the court ordered their release

September 28, 2004

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

28 September 2004
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UA-127-2004: NEPAL: Two cases of immediate re-arrest of detainees after the court ordered their release

NEPAL:  Illegal detention in violation of court orders; Disappearance; Danger of torture
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Dear friends,

The Asian Human Rights Commission (AHRC) is gravely concerned by the continuous attempt by the security forces to weaken the judiciary by ignoring court orders. Advocacy Forum, a local human rights NGO in Nepal, reported to the AHRC about two cases of re-arrest of individuals immediately after they were released by the security forces in spite of court orders.

According to the information received, a 18-year-old boy named Govinda Damai was re-arrested by the security forces from Rajhena, Banke district just after the Nepalgunj Appellate Court order released him from illegal detention on 26 September 2004. Separately, a 16-year-old Jimdar Kewat and 50-year-old his father Keshu Ram Kewat were also re-arrested by the Banke District Police on 19 September 2004 in violation of the court release order on the same day. In particular, the whereabouts of Govinda Damai was unknown after his re-arrest and his family desperately seeks the urgent intervention to save his life.

Please send a letter to the government of Nepal and urge them to intervene into these two cases and release the victims according to court orders immediately.

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

[CASE 1]

Name of the victim: Govinda Damai, 18 years old, belonging to Dalit community, residing in Kohalpur-5, Banke District
Date of illegal arrest: On 19 July 2004 arrested by armed security forces from Rajhena, Banke
Date of re-arrest and disappearance: At about 8:00 p.m. of 26 September 2004 from Nepalgunj Prison after the court order of his release

On 19 July 2004, an 18-year-old Govinda Damai was arrested by armed security forces
from Rajhena, Banke from Kohalpur and was illegally detained in the same barrack. The arrest has been made without a warrant or relevant documents for his arrest which is a mandatory requirement. On 23 July 2004, the Chief District Officer (CDO) of Banke District, Mr. Dilli Raj Joshi, signed detention order, which gave Govinda Damai three-month preventive detention under the Public Security Act (PSA).  

On the request of the boy's family, Advocacy Forum challenged his illegal detention by filling the writ of habeas corpus in the Nepalgunj Appellate Court on 12 August 2004. Govinda Damai was found in Nepalgunj Prison while being illegally detained.

On 26 September 2004, the Nepalgunj Appellate Court ordered the release of Govinda Damai from his illegal detention. After learning the court order, human rights lawyers immediately went to the Nepalgunj Prison to take him but he was not released during the office hours. When they went back to the prison on the next day, they heard from a jail officer Bharat Bahadur Malla that a group of security forces took away Govinda Damai at about 8:00 p.m. of previous day to an unknown place. The boy went missing and since then his whereabouts are unknown.  Now, the boy's family desperately seeks urgent intervention to save his life.

The AHRC requests you to intervene into this matter urgently to find out the whereabouts of the victim and release him according to the court order.

[CASE 2]

Name of the victims: 1) Jimdar Kewat, 16 years old, 2) Keshu Ram Kewat, 50 years old, Jimdar's father
Address of the victims: Betahani VDC-5, Banke District, Nepal
Date of illegal arrest: On 15 April 2004 arrested by the army personnel from Kali Dal Gana (Kalidal Batallion), No-2 field, Gulm Fultekra, Nepalgunj, Banke District
Date of re-arrest: On 19 September 2004 arrested by the Banke District Police in violation of the court release order

Jimdar Kewat (16) and his father Keshu Ram Kewat (50) were arrested by the army personnel from Kali Dal Gana (Kalidal Batallion), no-2 field, Gulm Fultekra, Nepalgunj, Banke District on 15 April 2004. A group of army came to the house of the victims at midnight and blindfolded the father and the son and put the both into an army vehicle and took them to the Fultekra Barrack.

In the Fultekra Barrack, the victims allegedly have been kept blind-folded for four days and were beaten by the army personnel with wooden sticks and electric wires on their back and soles about 10 minutes each day during this period. It is alleged that the army personnel also tortured the father and the boy by pouring water on their noses while forcing them to provide the information related to the Maoists which they did not know. During the one and a half month of illegal detention at the army barrack, the victims were not allowed to access their family, lawyers and even to obtain medical attention.

On 31 May 2004, the army handed over the victims to the Banke District Police Office and they were ordered three month preventive detention under the PSAct after the CDO signed the detention order on the same day. The father and the boy were then to taken to the Banke Central Prison where they have been detained since then.

On 1 July 2004, a writ of habeas corpus for these victims was filed in the Nepalgunj Appellate Court and on September 19, the court issued an order to release them from the illegal detention.

When the lawyers from Advocacy Forum and the victims' family went to the prison, the jail authority refused to release them saying that they did not receive the court order yet. The lawyers and the family members then waited in front of the jail until office hours were over, but the jail officials maintained that they did not receive the court release order. So, the lawyers and the victims' family had to come back to the jail next day. But when they arrived in the jail, they learned that the boy and his father have been taken out of the prison and immediately re-arrested by a team of the security forces. One of jail officials told them that the victims were taken by the Banke District Police so they went to the Banke District Police Office but the police denied re-arrest and detention of the victims.

On September 20, the lawyers from Advocacy Forum found that the victims were detained in Wada Police Office in Nepalgunj. When the Advocacy Forum tried to intervene into this case, the victims were given another preventive detention order under the PSA on the same day. Advocacy Forum is preparing a writ of habeas corpus for the victims again but they are worried that their effort will be in vain again if the security forces re-arrest the victims in violation of the court orders.

Security force have been re-arresting detainees released from court orders to weaken, threaten and to humiliate the courts, lawyers and the victims so they could not challenge the illegal detention again. The systematic re-arrest of individuals indicates the failure of the judicial system in Nepal as the judiciary cannot safeguard the authority of its decision or stop the security forces from abusing the legal process by re-arresting individuals freed by the courts. The AHRC urges the government of Nepal to intervene into these two cases and release the victims immediately. The government of Nepal should stop all interference by armed forcers or the police weakening the courts and abusing the process of law by re-arresting people released by court.
 
SUGGESTED ACTION:
Please send a letter, fax or an email to the addresses below and ask them to take immediate action into these cases.

Sample letter:

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Dear Sir,

Re: NEPAL:  Two cases of immediate re-arrest of detainees after the court ordered their release

I am writing to you bring to your concern the two cases of immediate re-arrest of the individuals by the security personnel in the Banke District, after the court ordered their release. The detailed information of the two cases is mentioned below.

CASE 1: 18-year-old boy Govinda Damai remains missing after being re-arrested

- Name of the victim: Govinda Damai, 18 years old, belonging to Dalit community, residing in Kohalpur-5, Banke District

On 19 July 2004, an 18-year-old Govinda Damai was arrested by armed police force from Rajhena, Banke from Kohalpur and was illegally detained in the same barrack. The arrest has been made without any arrest warrant which is a mandatory requirement. On 23 July 2004, the boy was given the three-month preventive detention under the Public Security Act (PSA) by the Chief District Officer (CDO) of Banke District, Mr. Dilli Raj Joshi and detained in Nepalgunj Prison.   

Even though, the Nepalgunj Appellate Court ordered to release Govinda Damai from his illegal detention on September 26, a group of security forces has re-arrested him and the victim went missing since then.   
 
CASE 2: Re-arrest of a 16-year-old boy and his father in violation of court order

- Name of the victims: 1) Jimdar Kewat, 16 years old, 2) Keshu Ram Kewat, 50 years old, Jimdar's father, residing Betahani VDC-5, Banke District, Nepal

Jimdar Kewat and his father Keshu Ram Kewat were arrested by the army personnel from Kali Dal Gana (Kalidal Batallion), no-2 field, Gulm Fultekra, Nepalgunj, Banke District, and taken to the Fultekra Barrack on 15 April 2004.

It is alleged that in the Fultekra Barrack, the victims were assaulted by the army personnel with wooden sticks and electric wires on their back and soles. During the one and a half month of illegal detention at army barrack, the victims had not been allowed to access their family, lawyers and even to obtain medical attention.

On 31 May 2004, the army handed over the victims to the Banke District Police Office and they were ordered three month preventive detention under the PSA and sent to the Banke Central Prison. On September 19, the Nepalgunj Appellate Court has issued an order of their release from the illegal detention, but the victims have been re-arrested by a team of the Banke District Police on the very day. It was reported that the victims have been given another preventive detention order under the PSA.

In light of above, I strongly urge you to immediately intervene into these two cases to seek release of the victims immediately. I particularly urge you to take immediate action to find out the whereabouts of Govinda Damai. I also urge the government of Nepal to stop armed security forces or the police interference weakening the courts and abusing the process of law by re-arresting people released by court.

I look for your urgent intervention in this matter.


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Send a letter to:

1. His Majesty King Gyanendra
Narayanhity Royal Palace
Durbar Marg
Kathmandu,
Nepal
Tel: 977 14 413577/227577
Fax: 977 14 227395/ 411955

2. Mahadeo Prasad Yadav
Attorney General
Office of the Attorney General
Ramshahpath, Kathmandu
Nepal
Tel: +977 14 262548 (direct line)/262394 (through Personal Assistant)
Fax: +977 14 262582
Email: fpattorney@most.gov.np

3. Mr. Raju Nepali
Head, Royal Nepal Army Human Rights Cell
Human Rights Cell
Singha Durbar
Kathmandu
Nepal
Telefax: + 977 14 245 020/226 292

4. Mr. Nain Bahadur Khatri
Chairman of the National Human Rights Commission
Pulchowck, Lalitpur
Nepal
Tel: +977 1 5 547 974 or 525 659 or 547 975
Fax: +9771 5 547 973
Email: nhrc@ntc.net.np

5. Ms Manuela Carmema Castrillo
Working group on arbitrary detention
C/o OHCHR-UNOG,
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006

6. Mr. Theo C. van Boven
Special Rapporteur on the Question of Torture
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9016

7. Mr. Diego Garcia-Sayan
Chairperson
Working Group on Enforced or Involuntary Disappearances
Att: Ms. Soussan Raadi-Azarakhchi
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Case
Document ID :
UA-127-2004
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.