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NEPAL: Another two persons were re-arrested despite the Appellate Court's release orders in Banke District

December 1, 2004

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

1 December 2004
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UA-167-2004: NEPAL: Another two persons were re-arrested despite the Appellate Court's release orders in Banke District

NEPAL: Systemic re-arrest in violation of court order
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Dear friends,

The Asian Human Rights Commission (AHRC) has received another two cases of released detainees having been re-arrested in spite of court orders, which took place in Banke District. The whereabouts of both victims remain unknown.

In the first case, the victim is a 16-year-old boy named Jhurri Teli.  The Appellate Court in Nepalgunj issued his release order on 28 November 2004, but the boy was re-arrested by the Banke District Police in the yard of the prison on the following day, in the presence of lawyers and human rights activists.

The second case is even more serious. Chail Bihari Loniya (40) was arrested for public offense on August 1. He was released after paying the bail amount on August 27 but was re-arrested immediately in front of the office of the Chief District Officer (CDO), Banke. The same CDO, who had released him on bail a few minutes previously, gave him three-month preventive detention. Mr. Loniya was then again re-arrested by the Banke District Police in the prison yard on November 24, after the court had issued his release order on November 23.

It is alleged that when a UN consultant team working on an access to justice project inquired about Mr. Loniya's case, the Superintendent of Police (SP) Gyanodraj Baidya of the Banke District Police said, "This man is a bloody criminal (so) I will not let him out even if the court orders it." The SP allegedly added that they did not follow the criminal procedure because it took too long. His comment reflects the level contempt for the judiciary that is prevalent in Nepal and which often leads to lengthy arbitrary and incommunicado detentions.

For the last couple of months, the AHRC has issued several cases of security force's action to undermine court orders by arresting persons immediately following their release. (UA-159-2004, UA-127-2004, UA-95-2004, UA-86-2004, UP-38-2004, UA-74-2004, UA-51-2004) However, the Government of Nepal has failed to take genuine action to stop such abuses.

The AHRC calls for your immediate intervention into this matter. Please send a letter to Major General Sharma Thappa and other governmental authorities urging them to intervene into these two cases in order to have the victims released immediately. Please also demand that the responsible police officers including the CDO of the Banke District Police Office, who abused their power in violation of law, should be prosecuted and punished.  

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

CASE 1:

Name of the victim: Jhurri Teli, 16 years old, resident of Belhiya Village Development Committee (VDC)-7, Banke District, Nepal
Date/place of illegal arrest: 9 September 2004 in Nepagunj Municipality-16
Date/place of re-arrest: 29 November 2004 in the yard of the Banke Prison
Case status: disappeared after being re-arrested

A 16-year-old boy, Jhurri Teli, was arrested by the plain-clothes security forces from Nepagunj Municipality-16 at about 7:00am on 9 September 2004. He was going for a medical check-up and to buy some medicines for his headache at the time of his arrest. One of the security personnel approached Jhurri and asked his name, while another man also approached the boy and tied both his hands behind his back and blindfolded him. They then interrogated him for half an hour about his involvement in Maoist activities. During the interrogation, Jhurri was severely beaten. After that, they put him into an army vehicle and took him to the Westrn Pritana Headquarter [western region army barrack], Imamnagar, Ranjha, Banke, where he was illegally detained for seven days. Jhurri said that he was blindfolded and his hands were tied back most of time that he was detained in the barracks, nobody including his family was allowed to visit him.

After one week (on September 15), the security forces brought Jhurri to the District Police Office, Banke where he was kept for a further night. There, the police officers forced him to sign a statement which he was not allowed to read. On September 16 at 10:00am, Jhurri was taken to the Banke Prison and on the same day, in the prison, he received the detention order signed by the Deputy of the District Administrative Office on behalf of the Chief District Officer (CDO), Banke, who ordered him to be held in preventive detention under the Public Security Act (PSA).   

With the help of a local human rights NGO, Jhurri's family filed a writ of habeas corpus at the Appellate Court, Nepalgunj on September 23. On November 28, the Appellate Court found that Jhurri's detention was illegal and issued a release order. The boy's family went to the Banke Prison along with lawyers and activists from a human rights organization on November 29 but a team of policemen led by police inspector Mr. Rajendra Prasad Bhatta from the District Police Office, Banke came in a van (No. Ma-1, Cha-116) and took Jhurri away. It was 2 o'clock in the afternoon. His whereabouts remain unknown.  

Article 37 (b) of the Convention of the Rights of the Child (CRC), to which Nepal is a state party, firmly states that, "No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time." Article 37(a) further adds that no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

The AHRC calls on the Government of Nepal to locate the whereabouts of Jhurri Teli and release him immediately. Those responsible for this illegal act must be identified and brought to justice promptly.


CASE 2:

Name of the victim: Chail Bihari Loniya, 40 year-old, a farmer, resident of Hirminiya VDC-1, Banke District, Nepal
Date/place of arrest: 1 August 2004 at his residence in Hirminiya VDC-1
Date/place of first re-arrest: 27 August 2004 in front of the CDO's office, Banke
Date/place of second re-arrest: 24 November 2004 in the yard of the Banke Prison
Case status: Disappeared after being re-arrested

Chail Bihari Loniya (40) was arrested by a group of police personnel from Banke District Police Office at his house at about 6:00am on 1 August 2004, reportedly for a public offense. On August 27, the District Administrative Office set bail for his release and Mr. Loniya deposited the bail amount and was released accordingly. However, as soon as he stepped out from the CDO's office where he had paid his bail amount, Mr. Loniya was re-arrested by officers from the same District Police Office and taken to their office. On September 1, the CDO, who had released him on bail, gave him a three-month preventive detention order under the PSA. On the next day (September 2), he was sent to Banke Prison.

Mr. Loniya's family filed a writ of habeas corpus on October 5 before the Appellate Court in Nepalgunj, challenging his re-arrest, with the help of lawyers from a human rights organization. On November 23, the court issued Mr. Loniya's release order. Ms. Nirmala Loniya, the victim's wife, rushed to Banke Prison and waited for her husband's release outside of the prison yard. However Mr. Loniya was not released. On the next day (November 24), his wife went to the prison again and waited outside for the whole day. At around 3:30pm, about 10 police personnel in a van (No. Ba 1 Jha 5152) came to the prison. Some of them were in uniform, while others were in plain clothes. They then took Mr. Loniya out of the prison and took him away, in full view of his wife. His whereabouts remain unknown since then. His wife, who witnessed his re-arrest, is worried about disappearance and the possible torture on her husband.  

When a team of consultants from the United Nations Development Programme (UNDP) based in Kathmandu, working on an access to justice project, including Anjana Shakya, Govinda Bandi and Sushma Joshi went to the Banke District Police Office to make an inquiry about the victim's whereabouts, the Superintendent of Police (SP) Gyanodraj Baidya admitted that Mr. Loniya had been re-arrested. However, the SP, who got angry about the team's visit, allegedly said, "This man is a bloody criminal...... I will not let him out even if the court orders it." The SP further accused human rights activists of always defending criminals. Even though a member of the team told the SP that the police must respect due process of the law, and if the victim has committed a crime, the police should charge him with a criminal offence and prosecute him, the SP simply replied, "the process is too long so we do not follow it."

The AHRC urges the Government of Nepal to intervene in this case and to ensure Mr. Loniya is released in accordance with court orders. In particular, the responsible police officers, including the CDO of the Banke District Police Office, who abused their power in violation of law, should be prosecuted and punished.  

ADDITIONAL INFORMATION:

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. The situation of "law and order" and internal security has deteriorated to near unmanageable proportions.  Such a state of affairs reflects the inability of Government of Nepal to ensure the security of its people.

Meanwhile, the recently enforced Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADA) allows for a person to be detained for a maximum period of one year without trial if a security official feels the need to prevent a person from carrying out any terrorist and disruptive activity. Under these circumstances, the security forces abuse their powers, which result in a large number of disappearances, torture, extra-judicial killings, illegal arrest/detention and re-arrest of detainees.   

The immediate re-arrest of detainees is merely serving to weaken, threaten and to humiliate the courts, lawyers, and the victims, so that they refrain from challenging illegal detentions in the future. 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 decisions or to stop the security forces from abusing the legal process by re-arresting individuals that have been freed by the courts.  

The AHRC challenges the idea that brute force and intimidation will bring all parties in the conflict to dialogue. Rather, by introducing strict laws and giving the 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. 

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.

Sample letter:

Major General Sharma Thappa
Attn: Officer of Royal Nepal Army Human Rights Cell
Human Rights Cell
Singha Durbar
Kathmandu
NEPAL
Telefax: + 977 14 245 020/226 292

Dear Major General Sharma Thappa,

Re: NEPAL: Another two persons were re-arrested despite the Appellate Court's release orders in Banke District

I am gravely concerned by another two reported cases of re-arrests of people by the security forces from the Banke District. Both of the victims were re-arrested in the premises of the Banke Prison despite release orders from the Appellate Court Nepalgunj, and their whereabouts are still unknown. The detailed information of the cases is below.

CASE 1:

Name of the victim: Jhurri Teli, 16 years old, resident of Belhiya Village Development Committee (VDC)-7, Banke District, Nepal
Date/place of illegal arrest: arrested by the security forces of the Westrn Pritana Headquarter, Imamnagar, Ranjha, Banke on 9 September 2004 in Nepagunj Municipality-16
Date/place of re-arrest: arrested by the Banke District Police led by a police inspector Mr. Rajendra Prasad Bhatta on 29 November 2004 in a yard of the Banke Prison

CASE 2:

Name of the victim: Chail Bihari Loniya, 40 year-old, a farmer, resident of Hirminiya VDC-1, Banke District, Nepal
Date/place of arrest: arrested by the Banke District Police on 1 August 2004 at his residence in Hirminiya VDC-1
Date/place of first re-arrest: arrested by the Banke District Police on 27 August 2004 in front of the CDO's office, Banke
Date/place of second re-arrest: arrested by the Banke District Police on 24 November 2004 in a yard of the Banke Prison

I strongly urge you to intervene in these two cases and to take immediate action to locate the whereabouts of the victims. Both victims should be released in accordance with court orders. In particular, the responsible police officers, including the CDO of the Banke District Police Office, who abused their power in violation of law, should be prosecuted and punished. Also, I urge you to strictly instruct the security forces to put an end to the illegal practice of re-arresting persons, as this weakens the judiciary and undermines the rule of law, thus perpetrating the cycle of human rights violations and insecurity that is currently crippling Nepal.

Yours sincerely,


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ALSO SEND A COPY OF THE 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. 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

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

5. Mr. Professor Manfred Nowak
Special Rapporteur on the Question of Torture
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9016

6. 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 Program
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Case
Document ID :
UA-167-2004
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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.