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NEPAL: Kavrepalanchowk Police allegedly denied receiving complaint from widow whose husband abducted and killed by Maoists

July 12, 2007

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ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal

13 July 2007
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UA-222-2007: NEPAL: Kavrepalanchowk Police allegedly denied receiving complaint from widow whose husband abducted and killed by Maoists

NEPAL: Refuse to receive complaint; denial of justice; no rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information that one woman was denied to file First Information Report (FIR) the District Police Office and the District Administration Office, Kavrepalanchowk district. The district police authority did not receive the FIR whereas the authority of district administration office tried to take their duty over to the Truth and Reconciliation Commission which has yet not been established.

CASE DETAILS:

Purnamaya Lama is a bereaved widow, whose husband was abducted by Maoists on 29 April 2005 and later killed.

On 28 June 2007, Purnamaya went to the District Police Office (DPO), Kavrepalanchowk district, to register a First Information Report (FIR) on behalf of her deceased husband assisted by lawyers from the Advocacy Forum. However, the Deputy Superintendent of Police (DSP) of the DPO, Mr. Mahendra Pokhrel, neither registered nor endorsed the FIR. On the same day, Purnamaya went to the District Administration Office of the same district, where the deputy Chief District Officer (CDO) also refused to register the FIR, stating that the newly appointed CDO had not arrived at the office.

On 5 July 2007, Purnamaya went to the DPO in the district with lawyers from the Advocacy Forum but the DSP once again denied registering the FIR. Subsequently, Purnamaya visited again the District Administration Office of the district and CDO, Mr. Kabi Raj Khanal, called Purnamaya and assured that he would register the FIR on 8 July 2007.

On 8 July 2007, the CDO endorsed the FIR. However, the letter given by the District Administration Office reads, "..the details of the incident does not have any proof and such cases cab be investigated under the Article 33 (s) of the Interim Constitution of Nepal 2007." Article 33(s) reads, the State shall have the responsibility "to constitute a high-level Truth and Reconciliation Commission to investigate the facts regarding grave violation of human rights and crimes against humanity committed during the course of conflict, and create an atmosphere of reconciliation in the society." However, as yet, no high-level Truth and Reconciliation Commission has been set up to investigate such cases of the past.

This is not the first incident where the Nepalese Police have been reluctant to file an FIR and thereby obstruct proper investigation into a case (For details, please see: UA-145-2007 and UA-070-2007). The relevant police officials have violated their duty to be responsible for cases presented to them and to take immediate, effective and impartial investigations.

The attempt by the CDO, Mr. Kabi Raj Khanal, and the District Administration Office to defer responsibility by referring the case to be dealt with under Article 33 (s) was nothing more than an attempt to deny justice through a loophole. There is nothing in the Interim Constitution of Nepal 2007 to suggest that the right to seek redress from a Truth and Reconciliation Commission negated the right to call on police intervention in a crime. The Commission in question has not yet even been formed. Purnamaya's husband's case concerned abduction and murder, which falls under crime in the general law of Nepal, and hence is under the responsibility of the police. Under no circumstances should the police officials resort to such a loophole to avoid their duties to this case.

BACKGROUND INFORMATION:

Purnamaya Lama's deceased husband, Arjun Bahadur Lama, resident of Chhatrebas VDC-5, Kavre district was abducted by three Maoists on 29 April 2005 while he was attending a meeting at Krishna Secondary School, Kavre, where about 100 people including school teachers and villagers were present. On the day, he was elected as a chairperson of the School Management Committee.

Without warning, three Maoists namely Mr. Yadav Poudel, Bhola Aryal and Karnakhar Gautam arrived at the school. They met Mr. Lama and told him that they had some inquiries with him. Then, the Maoists took Mr. Lama away with them.

Some locals later revealed that Mr. Lama was taken to some places in the Kavre district including Mangaltar, Budhakhani, Ghartichhap, Foxingtar and Gokule. It was also learned that he was recruited into the Maoists' armed militia for armed training at Budhanikhani VDC in the first week of July in 2005. The locals stated that Mr. Lama was finally handed over to the central committee member, Agni Sapkota, for the further investigation, one week after he had been recruited to the armed training.

However, it was learned that Mr. Lama was killed and then his body was found buried at Charkilla of Budhakhani VDC in the Kavre district under the instruction of Agni Sapkota.

After the abduction of Mr. Lama, his family members visited the Maoist members time and again to ask his whereabouts, but each time the Maoists escaped without giving a response. However, on 17 December 2005, one of the perpetrators named Suryaman Dong held a press conference with journalists and human rights defenders at Pinthali of Mangaltar VDC, Kavre district. In the conference, he said that Mr. Lama was killed in the aerial bombing of Nepal army at Ghartichhap while he was under the control of the central committee member of Maoists affiliated with Tamang Mukti Morcha, Mr. Norbu Moktan, and a platoon commander of Bashu Smriti Brigade, Mr. Bashu. However, the locals' statement contradicts with this statement given at the press conference.

On 3 May 2005, the family members of Mr. Lama registered a complaint (regd. No. 2907) at the National Human Rights Commission in fear for Mr. Lama's life. Similarly, on 17 January 2007, the family members also registered an application to the NHRC for the medical examination of Mr. Lama's dead body. NHRC has documented the case however it has not published its final decision yet.

The Maoists who are allegedly involved in the killing are identified as follows:
1. Yadav Poudel alias Rakki, 27, resident of Puranagaun VDC-8, Kavre district
2. Bhola Aryal, 26, resident of Mutharapati VDC-3,  Kavre district
3. Karnakhar Gautam alias Shyam, 38, resident of Pokharichauri VDC-8, Kavre district
4. Agni Sapkota, 38, Maoist's central committee member, resident of Sindhupalchowk district
5. Suryaman Dong alias Laldhowj, the then District Secretary of Maoists, Kavre district
6. Norbu Moktan, resident of Machhe VDC- 9, Kavre district

ADDITIONAL COMMENTS:

The Communist Party of Nepal (Maoists) has formally ended the armed conflict in the country on 21 November 2006 and entered into the 'Interim Legislature-Parliament' on 15 January 2007. Further on 1 April 2007, five ministers of CPN (M) were involved in oath taking ceremony before the interim legislature parliament. The arrival of Maoists in interim government since April 1 marked the beginning of new era in Nepalese history.

Despite the taking place of this peace agreement, actions must be put in place for wrongs of the past, such as, at least 13,000 people were killed in the conflict between 1996 and 2006. As the Maoists have officially become the party of the interim government, the interim government has primary obligation to investigate those cases and bring the alleged perpetrators to justice.

According to the Article 33(s) of the Interim Constitution of Nepal 2007 stipulated for a Truth and Reconciliation Commission to be constituted to deal with such crimes. Although this is a step in the right direction, the Commission has still yet to be formed and no cases have been investigated to date. Even worse is that the Commission in Article 33(s) is being used as a loophole and an excuse for unresponsive police officials who refuse to investigate certain cases.

SUGGESTED ACTION:
Please write to the below authorities and urge them to allow Purnamaya to register a FIR on her husband's case and also to discipline the police officials concerned if the allegations against them are proven to be true. Please also demand them to establish the Truth and Reconciliation Commission without delay to investigate the past human rights violation during the conflict.

To support this appeal, please click here:

Suggested letter:

Dear __________,

NEPAL: Kavrepalanchowk Police allegedly denied receiving complaint from widow whose husband abducted and killed by Maoists

Name of the victims:
1. Purnamaya Lama, widow, resident of Chhatrebas VDC-5, Kavre district
Alleged perpetrators:
1. Deputy Superintendent of Police (DSP) Mr. Mahendra Pokhrel of District Police Office (DPO), Kavrepalanchowk district
2. Chief District Officer (CDO) Mr. Kabi Raj Khanal of District Administration Office, Kavrepalanchowk districe
3. Deputy Chief District Officer (CDO) on 28 June 2007 of District Administration Office, Kavrepalanchowk district
Place of Incident:
1. District Police Office, Kavrepalanchowk district
2. District Administration Office, Kavrepalanchowk district

I am writing to voice my deep concern that on 28 June 2007, Purnamaya Lama, whose husband was abducted and killed by members of the Communist Party of Nepal (Maoists), was denied her access to justice by the District Police Office and the District Administration Office, Kavrepalanchowk district. The relevant police officials repeatedly refused to file a First Information Report (FIR) regarding her husband's case and also cited a loophole in Article 33(s) of the Interim Constitution of Nepal 2007 in doing so, referring the case to the still unformed Truth and Reconciliation Commission.

According to the information I have received, on 28 June 2007, Purnamaya went to the District Police Office (DPO), Kavrepalanchowk district, to register a First Information Report (FIR) on behalf of her deceased husband, in hopes of receiving justice and a proper investigation. The Deputy Superintendent of Police (DSP) of the DPO, Mr. Mahendra Pokhrel, would not file the FIR.

On the same day, Purnamaya went to the District Administration Office, Kavrepalanchowk district, where the deputy Chief District Officer (CDO) also refused to register the FIR, stating that the newly appointed CDO had not arrived at the office.

Similarly, on 5 July 2007, Purnamaya returned to the DPO, Kavrepalanchowk district. However, the DSP once again denied registering the FIR.

Subsequently, Purnamaya visited again the District Administration Office, Kavrepalanchowk. The CDO there, Mr. Kabi Raj Khanal, issued a letter to Purnamaya assuring that he would register the FIR on 8 July 2007.

On 8 July 2007, the CDO rejected registering the FIR. The reason, given in a letter from the District Administration Office, reads, "… the details of the incident does not have any proof and such cases are investigated under the Article 33(s) of the Interim Constitution of Nepal 2007."

Article 33(s) reads, the State shall have the responsibility "to constitute a high-level Truth and Reconciliation Commission to investigate the facts regarding grave violation of human rights and crimes against humanity committed during the course of conflict, and create an atmosphere of reconciliation in the society." However, as yet, no high-level Truth and Reconciliation Commission has been set up to investigate such cases of the past.

This is not the first incident where the Nepalese Police have been reluctant to file a FIR and thereby obstruct proper investigation into a case. The police are the only investigating authority in Nepal. The relevant police officials have an occupational duty to be responsible for cases presented to them and to take immediate and impartial investigations, however they have violated this duty.

The attempt by the CDO, Mr. Kabi Raj Khanal, and the District Administration Office to defer responsibility by referring the case to be dealt with under Article 33(s) was nothing more than an attempt to deny justice through a loophole. There is nothing in the Interim Constitution of Nepal 2007 to suggest that the right to seek redress from a Truth and Reconciliation Commission negated the right to call on police intervention in a crime. The Commission in question has not yet even been formed. Purnamaya's husband's case concerned abduction and murder, which falls under crime in the general law of Nepal, and hence is under the responsibility of the police. Under no circumstances should the police officials resort to such a loophole to avoid their duties to this case.

Although it is commendable that Article 33(s) provides a way to redress past wrongs which have occurred in the period of turbulence in Nepal, it is merely a step in the right direction because the Commission has still yet to be formed and no cases have been investigated to date. Even worse is that the Commission in Article 33(s) is being used as a loophole and an excuse for unresponsive police officials who refuse to investigate certain cases.

In light of the above, I urge the relevant authorities to ensure that the FIR concerning Purnamaya's husband's case be registered without further delay and that the case be effectively and impartially investigated. An immediate and independent investigation into the role of the alleged perpetrators (Mr. Mahendra Pokhrel; Mr. Kabi Raj; and Deputy Chief District Officer (CDO) on 28 June 2007 of District Administration Office, Kavrepalanchowk district) in the denial of justice by refusing to file the FIR should also be conducted. Lastly, I urge the Government of Nepal to promptly constitute the Truth and Reconciliation Commission without further delay, as stipulated in Article 33(s) on the Interim Constitution, and also to prevent the Article from being applied as a loophole by irresponsible police officials in any way and to bring justice to the victims during the conflicts period.

I look forward to your prompt intervention in this matter.

Yours sincerely,


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PLEASE SEND YOUR LETTERS TO:

1. Mr. Krishna Sitaula
Home Minister
Singha Darbar
Kathmandu
NEPAL
Fax: +977 1 4211286
Email: moha@wlink.com.np 

2. Mr. Yagya Murti Banjade
Attorney General
Office of Attorney General
Ramshahpath, Kathmandu
NEPAL
Fax: +977 1 4262582
Email: rewtrp@hotmail.com 

3. Chairperson
National Human Rights Commission
Pulchowck, Lalitpur
NEPAL
Fax: +977 1 55 47973
Email: complaints@nhrcnepal.org or nhrc@nhrcnepal.org 

4. Mr. Om Bikram Rana
Inspector General of Police
Police Head Quarters, Naxal
Kathmandu
NEPAL
Fax: +977 1 4415593
Email: info@nepalpolice.gov.np 

5. SP Mr. Navaraj Silwal
Police HR Cell
Human Rights Cell
Nepal Police
Kathmandu
NEPAL
Fax: +977 1 4415593
Email: hrcell@nepalpolice.gov.np 

6. Mr. Philip Alston
Special Rapporteur on Extra-judicial, Summary, or Arbitrary Executions
Attn: Lydie Ventre
Room 3-016
c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9155
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR EXECUTIONS)

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
UA-222-2007
Countries :
Issues :
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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.