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Nepal: Updates from Advocacy Forum

December 16, 2011 Leave a comment

Updates from Advocacy Forum

14 December, 2011

1. Impunity reports released

Expressing their grave concerns over the endemic impunity of Nepal for crimes committed both in the past and the present, AF and two other human rights watchdogs of UK and USA (REDRESS and Human Rights Watch respectively) have jointly released their reports and have reiterated their calls for the government to bring the perpetrators of gross human rights violations to book.

A report on de jure impunity titled “Held to Account: Making the Law Work to Fight Impunity in Nepal” has observed 20 pieces of Nepali legislations currently in force that are not only inconsistent with international standards but also contribute to impunity for serious human rights violations. The report also makes the case for legislative review and reform. It has mainly observed the flaws and lacunae in legislations like the Army Act, the Police Act, the Local Administration Act, the Forest Act, the Armed Police force Act, the State Cases Act any many others under which authorities concerned are given widespread powers to arrest and detain people amounting to serious breach of human rights of individual(s) and also points to areas in which the same law can be used as a positive force in shaping institutions and practices to fight impunity. The report focuses in particular on impunity for arbitrary arrest and detention, enforced disappearances, extrajudicial executions, rape and torture- all of which were widely committed during the conflict and which continue to greater or lesser extent today.

Another report “Adding Insult to Injury: Continued Impunity for Wartime Abuses ” construes impunity in terms of what is seen in practice as denial of justice to victims of violations- a de facto impunity. It expressly sets forth six emblematic cases of killings, disappearances and torture of the conflict and post-conflict Nepal and shows how the investigation authorities have been derelict in their duties and failed to conduct investigations even in the face of Supreme Court orders, fuelling impunity in practical terms. Against such a backdrop, the report calls on the government to abide by its public commitments and international obligations. The successive government’s moves vis-à-vis case withdrawal, amnesties and pardons as well as decisions with regards to laurelling the alleged perpetrators implicated for grave violations to lucrative positions, have also come under a close scrutiny and scathing critique of the report. It has flatly denounced such acts, tagging them as stumbling blocks to those thousands of victims who are ever waiting for justice.

Click the link below to read the full version of the reports:

http://advocacyforum.org/downloads/pdf/publications/impunity/held-to-account-nov-30-2011-english-version.pdf

http://advocacyforum.org/downloads/pdf/publications/impunity/adding-insult-to-injury-nov-30-2011-english-version.pdf

2. Government Says No to OHCHR-N term Extension

December 8, 2011. The government on Wednesday asked the Office of the High Commission for Human Rights (OHCHR-Nepal) in Nepal to end its operations in Nepal, notwithstanding assurances from political parties and mounting pressure at national and international level for the latter’s year-long extension. The Ministry of Foreign Affairs (MoFA) has asked the OHCHR to wind up its activities within six months as agreed during the last term extension in June. OHCHR’s term has expired on Thursday.

The opposition parties have, however, strongly objected to the government’s move and have pronounced it as what they called “a unilateral decision”, citing former consent among the parties to offer a final extension to the UN human rights body. They demanded the government to scrap its decision lest they are compelled to take stern steps. Maoist Chairman Prachand and Premier Baburam Bhattarai had previously agreed on one final extension of the OHCHR. Contrary to this, the MoFA on Wednesday wrote two separate letters to the OHCHR headquarters in Geneva and its country office in Kathmandu stating that the government has not taken any new decision with regards to its term extension and that by default the June 1 decision was in force under which it has to prepare exit strategy and pack up within six months followed by a short “wrap up” time. In response to the UN Secretary General Ban Ki-moon’s plea to extend the term of the OHCHR-N, Prime Minister Bhattarai said that efforts are being carried out towards consolidating and strengthening local institutions including the National Human Rights Commission “(NHRC). Paradoxically, the government has asked the NHRC not to investigate into conflict-related cases.

The international community has also opposed the government’s decision. The Asian Human Rights Commission (AHRC) has reiterated the necessity of OHCHR’s presence in Nepal from the vantage point of continued challenges still seen in the human rights sector and the rule of law. In its annual report on the state of human rights protection in Nepal, AHCHR emphasizes that Nepal should abide by its commitments made during the Universal Period Review in January in which the government had committed to defending human rights and maintaining zero tolerance against impunity. Nepal’s peace process is still in transition and extreme political polarization and politicization of almost all aspects of social life, political instability, feeble institutions and escalating insecurity are seen as stumbling blocks in guaranteeing human rights and ensuring the rule of law. Still, lots of cases of grave violations are reported, with a few investigated and adjudicated, let alone thousands of cases of grave violations relating to the conflict period. Given such bleak situation, the exit of OHCHR-N would further jeopardize the peace process and the entire issue of accountability and justice.

3. HRO sensed a foul play in TRC and Disappearance Commission Bills

The Government’s initiatives to establish the much-hyped the Truth and Reconciliation (TRC) and the Disappearance Commissions have met with controversies and contentions, for human rights watchdogs and civil society have sensed a foul play the government is intending to act against the conflict victims. Their dream of justice is likely to shatter under the amnesty or similar provisions the government is proposing to incorporate in the bills. The government’s explicit focus on reconciliation and reparations have left many to suspect whether or not the commissions are mandated to hold individual accountable for the crimes committed in the past. A truth commission is valued as an important post-conflict mechanism. So the establishment of such a commission in Nepal sans judicial prosecution or individual accountability could preclude the objective of achieving a meaningful sense of justice by victims and by society. Reconciliation and reparations, as are the battle cry of the government in the bills, have an effect to supersede the part of prosecution.

The government is all set to repeal section 24 of the TRC draft bill under which the commission is mandated to recommend for prosecution and has focused on loose reconciliation and reparations provisions. This provision, if implemented, is sure to make the commission a paper tiger. If the government really wishes justice to happen to victims then the commission should be given wider mandates to recommend for prosecution.

Furthermore, the bills tabled before the legislative parliament have come with major changes in Section 25 which prevents any sort of amnesty and pardon for the crimes listed in the Section. Again, the government is intending to repeal crimes other than rape and disappearance from the list. Averting amnesty and pardon for rape and disappearance and not for other ones like torture, extrajudicial killings, abduction etc. manifests the government’s ploy to grant immunity to Maoists, as the security personnel (army, police and armed police force) are mostly implicated in the crimes of rape and enforced disappearance during the conflict. Amnesty provisions for gross human rights violations and violations of international humanitarian law, including extrajudicial execution and torture are inconsistent with Nepal’s obligation under international law.

The Transitional Justice Advocacy Group has vehemently denounced the government’s proposals for TRC bills and has reiterated that law or mechanism lacking the minimum international human rights standards aimed at establishing truth and delivering justice will not be acceptable. In its press release, the TJ Advocacy Group has set forth minimum standards that should be incorporated in the proposed draft bills.

Please click the link below for the press release:

http://www.advocacyforum.org/downloads/pdf/press-statement/truth-without-justice-will-not-be-acceptable.pdf

4. Interim Order: Not to pardon Balkrishna Dhungel, CA members convicted for murder

An Interim Order from the Supreme Court has stalled the controversial amnesty process for Maoist CA member Bal Krishna Dhungel, convicted by the Supreme Court for the murder of Ujjan Kumar Shrestha.  In what can be analyzed as the Maoists’ attempt to test the waters for the evasion of prosecution for crimes committed during the period of conflict, the Maoist-led government has put its credibility at stake by sheltering a convicted offender, much to the vexation of victims and anyone rooting for the rule of law. The Maoists seem to have feared that this case would precipitate the prosecution of similar other cases implicating their rank and file cadres in serious human rights abuses during the conflict.  Arguing that every case from the conflict period is a political crime, the Maoists remain effortful to let all their cadres accused of rights abuses go scot free.  It appears that the Maoists are testing the strength of the human rights movement in Nepal via this case. Balkrishna Dhungel is the only person convicted of an offense from the conflict period.  He was convicted for homicide and sentenced to life imprisonment and confiscation of property as he was found guilty of murdering Ujjan Kumar Shrestha on 24 June 1998 owing to personal matters. He served time in pretrial detention and also subsequent to the decision by the District Court of Okhaldhunga on 10 May 2004. The Appellate Court, Rajbiraj, later repealed the decision of the District Court Okhaldhunga and acquitted him four months before the Comprehensive Peace Agreement.  The victim’s family moved the Supreme Court against the decision of the Appellate Court. The Supreme Court on 3 January 2010 upheld the decision of the district court.  After the police failed to arrest and incarcerate Dhungel and the government attempted to seek amnesty for Dhungel, the victim’s family filed a writ requesting an interim order for the implementation of the SC verdict. The Court on 21 June 2011 clarified that there was no legal obstacle to incarcerate Dhungel.  

Visit links below for details:

http://www.advocacyforum.org/fir/2011/10/ujjan-kumar-shrestha.php

http://www.advocacyforum.org/news/2011/11/sc-stays-dhungel-clemency.phphttp://www.advocacyforum.org/news/2011/11/government-pressured-for-refraining-from-amnesty-to-dhungel.php

http://www.advocacyforum.org/news/2011/11/pardon-to-dhungel-contravenes-cpa.php

Purnimaya’s quest for justice

by Kanak Mani Dixit

 

A public interest litigation was filed on 28 May 2011 before the Supreme Court of Nepal against the appointment of Agni Sapkota to the post of Minister of Information and Communication. Mr. Sapkota remains at large despite being charged with homicide in Kavre District. Following the writ petition, a single bench of Chief Justice Khilaraj Regmi issued a show-cause order along with a summons to appear in court to the defendants, including the Government of Nepal and Mr. Sapkota.

While the case is crystal clear on both legal and ethical grounds, it seems that the Unified Communist Part of Nepal (Maoist) is bent on derailing the proceedings by flexing its muscle in the court. The PIL applicants’ demands are not directed at holding Mr. Sapkota responsible for the crime, but rather at pursuing due process of law. In a society afflicted by pervasive impunity, the petition is an attempt to prove to ourselves that values, standards and the judicial process still exist in this society.

Along with six cadres, Mr. Sapkota, a member of the Maoist Politburo, stands accused of direct involvement in the abduction and subsequent murder in Baisakh 2062 (May 2005) of Arjun Bahadur Lama, a resident of Dapchha VDC, Kavre District. Following the refusal of the Kavre District Police Office and the Chief District Officer to register a first information report (FIR), the victim’s wife, Purnimaya Lama, sought recourse in the Supreme Court. In response to her writ petition, the apex court in March 2008 issued an order to the police to register the case and start legal proceedings.

After the court order, the Kavre police did issue an arrest warrant against Mr. Sapkota but then stated lamely that he could not be located. All the while, the Maoist leader was leading a very public life in Kavre and at the national level, going on to contest the Constituent Assembly elections and become a CA member. Over the last couple of years, he has been projected as the right-hand man of UCPN (Maoist) Chairman Pushpa Kamal Dahal, showing up regularly in public meetings and on television by Mr. Dahal’s side.

Human-rights defenders in Nepal and members of the international community in Kathmandu had repeatedly cautioned Prime Minister Jhala Nath Khanal and Chairman Dahal to desist from appointing Agni Sapkota minister. However, Mr. Sapkota was given the influential ministerial berth of Minister of Information and Communication, in a brazen move to promote rather than counter the all-pervasive impunity. Prime Minister Khanal thus inducted a ‘fugitive’ or ‘absconder’ in the eyes of the law. We thus have a situation where, on the one hand, the government’s police force is searching for Mr. Sapkota as part of investigations in a murder case; on the other hand, the head of government proceeds to make him a minister in his cabinet.

The appointment of Mr. Sapkota to the cabinet has challenged the very self-image of Nepali society as one where rule of law means something. If the government and the Maoist party are successful in overcoming the PIL’s legal challenge to the appointment, there is a danger that all the other cases of gross violations during the conflict of 1996-2006 – including murder, abduction, torture and disappearance – will automatically be rendered inactive. This would come at the cost of mortally deflating the morale of the courts, the police, public prosecutors and human-rights defenders. And if Maoist perpetrators are to be pardoned without investigation as seems to be the plan at the Ministry of Home Affairs, led by Maoist minister Krishna Bahadur Mahara, the charges of excess against the military and police personnel will also automatically be allowed to lapse.

By appointing a fugitive to the responsible public position of minister, the government has also rudely challenged the Supreme Court’s directive that due process be followed on the killing of Arjun Bahadur Lama. We can assume that some in the state security forces are silently applauding the initiative of the Maoist party and Prime Minister Khanal to defy due process and humanitarian values. The army would hope to avoid accountability, among others, on the murder of Maina Sunar and the killings of Doramba, Bhairabnath Battalliion and Bardiya — if due process is not followed in a host of other cases where Maoists are implicated, including the killing of Kajol Khatun, Muktinath Adhikari and Guru Prasad Luitel, and the mayhem of the Maadi bus blast.

Killing motivation
In a bid to protect themselves from the legal process, Maoist leaders claim that no action can be taken against abuses committed during the conflict, which they claim was waged as a ‘just war’. However, international humanitarian law provides for investigation and prosecution for crimes such as murder, rape, disappearance and torture committed by both state and non-state actors during a conflict.

Minister Sapkota has claimed he was not involved in the disappearance and murder of Arjun Bahadur Lama, and alternatively that whatever was done was carried out as part of party policy. The petitioners have demanded only that Mr. Sapkota produce himself before the Kavre DPO and give a statement to help the investigation process as per the Supreme Court’s directives. If he does not voluntarily present himself, respecting the dignity of the court of law, it would be the duty of the police to take Mr. Sapkota to court. The police and public prosecutor will then decide whether to submit a charge-sheet, and would absolve him of all allegations if they are found to lack substance. There is no reason why Agni Sapkota should be exempted from investigations that are mandatory for each and every citizen.

At this stage, all that is required of the UCPN (Maoist) and the incumbent government is to produce the accused in the murder of Arjun Bahadur Lama before the police in Kavre District; instead, they seem to be bent on deliberately lowering the morale of the police, the court system and human-rights defenders by defying due process. Recently, on 7 Jestha (21 May 2011), Home Minister Mahara revealed a plan to withdraw cases related to abuses committed during the conflict. Such withdrawal would let loose on society those very individuals who have committed excess during the conflict years; their free movement would instil fear in communities across the land.

If the plan being hatched by Home Minister Mahara is to be implemented, as seems likely, the perpetrators would go scott free – including the military men who killed 21 unarmed Maoists cadre in Doramba (Ramechhap District), the local Maoist leaders who killed 38 commoners in the Maadi bus blast (Chitwan District), the soldiers who killed Maina Sunar, the Maoist cadre who killed Muktinath Adhikary and Guru Prasad Luitel. Under the structure of impunity currently being engineered, the guilty soldiers would be able to lead comfortable lives in retirement, while the political careers of Maoist perpetrators would proceed unimpeded.

If we are to believe that the UCPN (Maoist) is transitioning into a democratic civilian party, it is doing itself harm by this blatant campaign to protect a few accused cadres at the cost of the party’s overall transformation and reputation. Contravening the international humanitarian law would inevitably leave the party’s image tarnished in the eyes of both Nepal’s citizenry and the international community. The image and reality of a party which promotes rampant impunity would affect negatively the political future of the principled cadre within the organisation.

Allegations of prejudice
In relation to Agni Sapkota’s appointment as Minister of Information and Communication, the allegation has been made that the international community and Nepal’s rights activists are prejudiced against the UCPN (Maoist). Nothing could be further from the truth. The case against Mr. Sapkota is in keeping with universal norms of human rights, which is why the United States and Australian governments have imposed travel restrictions on Mr. Sapkota. Meanwhile, the UN Office of the Human Rights High Commissioner office has internationalised the matter by being quick to challenge his appointment as minister. The world’s attention is now fixed on the forthcoming decision of the apex court on the PIL.

(On the same day the original Nepali version of this article was published in the Nagarik daily, on 7 June 2011, members of the UN Human Rights Council in Geneva at their Universal Periodic Review (UPR) expressed concern over the Nepal Government’s rejection of the recommendations related to sensitive human rights issues. Questions were also raised about the appointment of Agni Sapkota, with the British delegation stating, “We are alarmed by recent reports that Nepal is seeking the withdrawal of conflict-era criminal cases currently before the courts. This contradicts the government’s acceptance of several UPR recommendations to tackle impunity, and is against the spirit of the peace agreements. Such a move would constitute an effective amnesty for alleged perpetrators of grave human rights violations and abuses, putting Nepal in potential breach of its international legal obligations. We urge the government to ensure that police investigations and criminal cases are allowed to proceed.”)
There is enough evidence to refute the allegation that the rights-related challenges are prejudiced against the Maoist party. After all, those who filed the present PIL are the same activists who have fought over the years to bring army men to justice for abuse against Maoist cadre and lay civilians – including the torture and killing of Maina Sunar in Kavre District. This writer (one of the petitioners in the PIL petition on Agni Sapkota) was one of the four-member independent investigative team sent by the National Human Rights Commission to probe the Doramba massacre of August 2003. That team collected irrefutable evidence of army atrocity by exhuming 19 bodies of local Maoist cadre and set a high standard in holding state security forces accountable for excess against Maoists. While they have been accused of bias by the Maoist leaders and army officers at different times, the rights defenders of Nepal have been making demands for action against perpetrators without fear or favour. The petition filed against Agni Sapkota is based on the principle of humanity and justice, and in support of the Purnimaya Lama.

The Maoists seem to be on the correct path of converting into a civilian political party, which requires the relinquishing of arms and militarist mindset. But then, it is becoming increasingly clear that a handful of accused perpetrators are trying to scupper the future of the many dedicated leaders and cadres within the party. There can be differing views on the morality and necessity of the Maoist ‘people’s war’, but there is no doubt that many Maoist activists believed genuinely in the fight for social justice through this path. The future of such dedicated cadre, one would hope, will not be compromised by appeasing those who to took recourse to brutality during the conflict.

International humanitarian law does not deal with battlefield deaths during an internal conflict, but it certainly is meant to be applied against those perpetrators on both sides who have abducted, disappeared, tortured and otherwise committed excess. On the one hand, we will have army and police personnel allowed to evade prosecution and retire in peace; then there will be the Maoist perpetrators who proceeds into active politics, as political leaders who will stand as a constant reminder of the impunity that victimises the people.

In the case relating to Mr. Sapkota, the applicants’ demand is that he present himself before the Kavre District police office to provide his statement regarding the case filed by Purnimaya Lama, that due process of law be followed, and that Mr. Sapkota be suspended from his ministerial position until he is cleared of the charges. Similarly, Home Minister Mahara’s plan to withdraw criminal cases dating back to conflict must be abandoned.

Victim Purnimaya
The personal experience of those victimised by the state and rebels during the conflict are appalling. Their houses were demolished, their economic condition devastated, and they were forced to live under constant threat and intimidation. Their pain has been deepened for being forced to bear silent witness to the perpetrators leading free lives – being lauded with promotions and wielding clout in society.

When the Maoists abducted Arjun Bahadur Lama, the lives of Purnimaya lama and their four daughters and two sons was overtaken by frustration and deprivation. According to locals, after he was killed, Mr. Lama’s body was buried and some his bones remained visible above ground for a long time thereafter. Purnimaya Lama personally witnessed her husband’s watch being worn by a Maoist cadre. She was forced to knock on the door of the Supreme Court when the police was unwilling to file a case, and more than half a decade after the abduction and murder of her husband Purnimaya Lama still seeks justice.

On the one hand, Purnimaya Lama’s quest symbolises a courageous personal journey for justice. At the same time, her actions represent the search of the entire country for peace, rule of law and an end to impunity. By appointing a absconder to the post of minister, Prime Minister Khanal has challenged all notions of rule of law, constitutionalism, compassion and humanity. A transparent legal process is necessary even for the sake of the political career of Agni Sapkota. To protect his name and political career, in case he is innocent, it would be better for him to resign from his current position and produce himself before the Kavre District police. Once he is given a clean chit, he can always go back to being minister.

This translated article, published on 7 June 2011 in the Nagarik daily of Kathmandu, was the basis for a contempt of court case filed by the Minister of Information and Communication Agni Sapkota in the Supreme Court against writer Kanak Mani Dixit. The claim is that the article seeks to influence the court and public opinion on a public interest litigation against Mr. Sapkota’s appointment as minister presently pending before the Supreme Court. The PIL has been filed by the following: Sushil Pyakurel, Prof. Kapil Shrestha, Charan Prasai, Subodh Pyakurel, Mandira Sharma, Dr. Gopal Krishna Siwakoti, Sunil Ranjan Singh and Kanak Mani Dixit. The link for the original article in Nepali is:

http://www.nagariknews.com/opinions/98-opinion/27392-2011-06-07-07-01-11.html

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