Regional Consultation on Enforced or Involuntary Disappearances:The Situation of Nepal

Dr Bipin Adhikari 

28th to 29th March, 2015
South Asian Human Rights in Colombo
Srilanka 

 The Regional Consultation on Enforced or Involuntary Disappearance being organized by South Asian Human Rights in Colombo, Sri Lanka on 28th to 29th March, 2015 with the underlying goal of mobilizing the ratification of International Conventions pertaining to Enforced or Involuntary Disappearance in the South Asian region is a very timely move. The consultation seeks to highlight the SAARC context and take stock of the challenges and breakthroughs in the current struggle against violations of human rights in general, identify trends and practices of advocacy and litigation strategies adopted by human rights defenders in the region, responses by States, national human rights institutions and Courts and the amelioration of the situation of the protection of HRDs in the region. The consultation seeks to bring together experts, human rights lawyers and defenders from the South Asian region with an aim to develop a long term agenda for regional action to strengthen civil society capacity regarding the protection of Human Rights in the South Asian Region. 

The International Convention for the Protection of All Persons from Enforced Disappearance defines enforced disappearance as – 

“ the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”[1] 

Enforced disappearance encompasses a wide array of human rights violations including right to security of the person, right to protection under the law, right to not be arbitrarily deprived of one’s liberty, recognition of legal personality of every human being, right to the truth in relation to enforced disappearances and the right to not be subjected to torture or other cruelties.[2] In addition, the violation of the right is not just limited to the victim. Enforced disappearances affect the families of the disappeared, societies and widespread abuses create a state of panic and terror. As per Rome Statute of the International Criminal Court, enforced disappearance is regarded as “crime against humanity.”[3] Similarly, in Case of Goiburú et al. v. Paraguay, the American Court of Human Rights described as jus cogens those matters relating to enforced disappearance and the need for investigation and punishment for the crimes committed. [4] 

In light of this, designed to establish a legally binding instrument governing enforced disappearances, the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance on Dec 20, 2006. Subsequently, the convention came into force on Dec 23, 2010. As per Article 1 of the Convention, “no one shall be subjected to enforced disappearance.” Further, the Convention states, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”[5]As of 2014, the Convention has so far been signed by 94 states and ratified by 45 countries.[6] Nepal is yet to ratify the Convention as of 24 March, 2015. India became signatory to the Convention in 2007, however, it has yet to ratify it. None of the other South Asian countries have signed or ratified it. 

In terms of obligations of the State Parties, the Convention mandates the incorporation of specific laws establishing the crime of enforced disappearance in its respective national laws.[7] The Convention further mandates the investigation of complaints filed and provisions for “consequences” through appropriate penalties taking into account the grievous nature of the crime.[8] Moreover, the Convention mandates other preventive obligations including the provision to detain persons only in officially “recognized and supervised”[9] places, the non-derogable right to Habeas corpus as well as the right to information on the whereabouts of the prisoners. Furthermore, the Convention recognizes the right of victims and their families to know the truth regarding the circumstances and fate of the disappeared person.  It also treats the unlawful abduction of children whose parents were victims of enforced disappearance as well as the faking of these children’s identities and their adoption.[10] 

In terms of monitoring, the convention mandates the establishment of a monitoring committee to provide inter alia oversight to the implementation of the Convention and reconcile individual and inter-state complaints.[11] Further, the committee is granted powers to undertake field inquiries, initiate emergency actions as per the need and provide annual report containing, among others, widespread and systematic disappearance to the attention of the United Nations General Assembly.[12] 

Nepal’s Context

Nepal has had a long history of disappearances carried out by the state stretching back to 1951. The disappearance cases of Ram Prasad Rai, Sukdev Singh[13] were the early known cases of arbitrary detention. The trend carried on, some suggest further increased, in the Panchayat era which lasted from 1961-1989. However, nothing quite captured the imagination of the whole world, in regards to the gross violation of human rights and enforced disappearances, as the decade long Maoist insurgency lasting from 1996 – 2006. During the conflict era, both the state parties and the armed insurgents were responsible for abduction, arbitrary detention and torture of over 3,000 victims.[14] The situation was further aggravated by rampant impunity, both legal and political, granted to the perpetrators. Moreover, as per the report of UN Working Group on Enforced or Involuntary Disappearances (WGEID), some 532 cases of enforced disappearances were transmitted to the Government of Nepal during the insurgency period.[15] Similarly, in that period, The National Human Rights Commission (NHRC) registered about 2800 cases, of which 900 cases remain unresolved including cases pertaining to disappearances and abductions.[16] Further, the report containing the number of missing persons in the conflict period has been highlighted below in Table 1.0.

(This table has been formulated as per the reports of International Committee of the Red Cross (ICRC) contained in their website.)

The armed conflict came to an end in 2006 with the signing of the Comprehensive Peace Agreement which laid the foundations for peace, including, albeit not exclusively, provisions for the disclosure of the status of detainees and their subsequent release within 15 days. Also, as per point 5.2.3, the agreement mandated the release, within 60 days, of the details of people subjected to enforced disappearance and killed during the conflict and established the prerogative for the family members to get the information. Furthermore, the agreement sought to highlight the parties’ reaffirmation of their commitment to respect and protect human rights and humanitarian law. 

Also, through the agreement, the parties expressed their commitment to justice, initiation of investigation “against any individual involved in violating the rights mentioned in the agreement”[17]and framework for appropriate remedies, including formation of Truth and Reconciliation Commission[18], ensuring the protection of victim’s rights and discouraging impunity. 

In terms of reparation and rehabilitation of victims, the Interim Constitution, 2007 established measures to “to provide relief to the families of the victims, on the basis of the report of the investigation commission constituted to investigate the cases of disappearances made during the course of the conflict.”[19] In addition, in the past, the Supreme Court has issued landmark rulings on a number of enforced disappearance cases, including 80 habeas corpus writs.[20] In the case of Rajendra Dhakal and Others v. the Government of Nepal, the court issued directive orders, inter alia, for the Government to enact legislation consistent with international law that would criminalize enforced disappearance, and establish a high level ‘Investigation Commission for Disappeared Persons’ for inquiry into past enforced disappearances. The Court also ordered the provision of interim relief to the families of the victims without prejudice to the final outcome of these cases.[21] 

In its verdict the court stated: “it is necessary to urgently enact a law which includes provisions that the act of disappearance is a criminal offence, defining the act of disappearance pursuant to the definition stated in the International Convention for the Protection of All Persons from Enforced Disappearance, 2006.”[22] The Court order also stated that these measures should conform to the international standards as provided in “the Charter of the United Nations, the Universal Declaration of Human Rights, the Declaration on the Protection of All Persons from Enforced Disappearance, 1992, and the International Convention for the Protection of All Persons from Enforced Disappearance, 2006.”[23] Further, the Court stated that the law must incorporate provisions, among others, on the rights of detainees; judicial remedies available to both detainees and family members; the right to compensation; a flexible statute of limitations; an appropriate complaint filing system regarding cases related to arbitrary detention and enforced disappearance; the requirement of formal detention centers with adequate record keeping; the right of families to know all conditions of the detainee and the implementation of a process to ensure that detainees who were said to have been released were, in fact, released. 

In light of the court’s verdict and an urgent need to address the issues pertaining to enforced disappearances, the Government brought forward the Bill on Enforced Disappearance (Crime and Punishment) Act, 2008 in the parliament. The bill sought to criminalize the act of enforced disappearance and established a Commission of Inquiry to address past violations. While the Bill was a considerable improvement over the previous version, it did not fully comply with Nepal’s obligations under international law and the Supreme Court guidelines, as per ICJ’s letter to the Chairperson of Constituent Assembly.[24] The bill was passed in an undemocratic matter through an executive ordinance bypassing the parliament in 2009. 

The instrument was met with massive disapprovals throughout the state with wide discontent as regards to the provisions and its incompatibility to the international law principles, Supreme Court mandate and the spirit of the Constitution. The International Commission of Jurists (ICJ), in their report to the Chairperson of the CA, provided point wise suggestions for reform of the bill. It included, inter alia, provisions to change the definition of the Ordinance to better reflect international standards, induction of enforced disappearance as crimes against humanity in national legislation, expansion of the limitation period, reformation of criminal responsibility and expansion of remedies to better reflect the seriousness of the crime.[25] 

In addition, the recommendations included measures to reform the National Commission on Enforced Disappearance as envisioned in the Ordinance, including expansion of the mandate of the Commission, delineation of the roles of state institutions, the National Human Rights Commission (NHRC) vis a vis the Commission, description of the handling of evidence and witnesses between the Commission, courts and the state prosecutors,  independent and transparent nature of Commission recruitment and provide adequate measures for witness protection. [26] 

Applicable International Law

The following table, titled Table 2.0, is derived out of the report from the United Nations Office of the High Commissioner of Human Rights (OHCHR) “Nepal Conflict Report”.[27]

Table 2.0 

 Impunity Culture:

As mentioned above, there have been many incidences of arbitrary arrest, disappearances, unlawful killings and torture in Nepal during the conflict era. However, there have been massive delays in the decision making process granting widespread immunity to war time perpetrators and compromising the overall reconciliation and peace process. The status of monitored and investigated complaints, as per NHRC, yet unresolved are as follows in Table 2.0:

Table 2.0

(This report is based on the press conference conducted by NHRC on “The status of the implementation of the recommendation of the National Human Rights Commission and the Impunity.”)

 In the case of Govind Prasad Sharma v Attorney General of Nepal,[28] there was a writ petition seeking Supreme Court’s intervention against Prime Minister Baburam Bhattarai and Attorney General Mukti Narayan Pradhan for their ‘unconstitutional intrusion into judicial matters’ in their bid to halt the investigation and interrogation process of Dailekh-based journalist Dekendra Raj Thapa’s murder. The petitioners argued that the orders provided by the Prime Minister and Attorney General to a halt the investigation process on the murder of Dekendra Thapa amounted to misuse of authority, obstruction of justice and action against the Interim Constitution, 2007. 

In this case, a Dailekh District Court had remanded, subsequent to their arrest, Lakshiram Gharti, Harilal Pun Magar, Bir Bahadur KC, Nir Bahadur Gharti Magar and Jay Bahadur to judicial custody as Lakshiram Gharti had confessed to being a part of the crime committed on August 11, 2004. However, citing influence from higher-up, the interrogation process was halted. Subsequently, The Office of the Attorney General had sent a directive to the Dailekh Police and District Office of Attorney directing them not to proceed with legal action in Thapa’s murder case. 

In light of this, the petitioners argued that the defendant authorities had misused their powers in halting the interrogation process and releasing the accused from judicial custody. In addition, there was a high possibility for tampering of evidences due to the highly politicized nature of the murder. Thus, the petitioners further sought immediate apex court intervention through stay order. According to the petitioners, the attorney general’s written order indicated a clear misuse of power and also amounted to obstruction of justice. Thus, the petitioners sought a Supreme Court order directing the lower courts to reprimand the defendant authorities. The petitioners alleged that the defendant authorities had misused power even though it was their duty to arrest the accused and protect evidences, to search and arrest perpetrators of crime, detain suspects and file charge sheet as per the Government Cases Act, 2049.

 Proximately, the petitioners argued that the AG is the final authority that decides whether or not to prosecute any case in a court of law as per Article 135 of the Constitution. However, the chief legal adviser of the government does extend to the right to intervene in any ongoing investigation. Moreover, Article 13 (2) of the Interim Constitution, which promoted equality before the law, states: “The State shall not discriminate against citizens among citizens on grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these”. In light of this, the petitioners argued that the remanded party cadres should not hold any special privileges to escape the regular criminal justice system.

 Further, citing an SC order on Sushil Pyakurel vs Agni Prasad Sapkota case, which states that investigation and prosecution of murder cases cannot be stopped only by citing the yet to be formed transitional justice mechanism, the petitioners sought apex court intervention. In response, the defendants argued that as per the Interim Constitution and the Comprehensive Peace Agreement (CPA), war-era crimes fall under the jurisdiction of the Truth and Reconciliation Commission (TRC) and that they should not be dealt with by the regular criminal justice system.

 In its decision, a division bench of Justices Ram Kumar Shah and Gyanendra Karki issued ordered that prosecution against those accused in the Dekendra murder case should go ahead regardless of the TRC’s existence. Furthermore, the bench, in devising a verdict, claimed that investigations into criminal cases must not be halted by citing the impending TRC as envisioned in the Interim Constitution, 2007 and the CPA. The court maintained that since the much anticipated reconciliation mechanisms were yet to materialize, regular criminal procedure could not, in the mean time, remain ineffective in relation to investigation and prosecution of conflict-era cases.

 Moreover, the court also ruled that AG cannot interfere in the work carried by his subordinates until they continue to have the power delegated to them by the government’s legal chief. The court order also mentions that prosecuting (district attorney) and investigating (police) authorities are separate and independent entities and there can be no meddling in their job. The Constitution provisions the AG as the last authority to decide whether a case would be filed in the court, the court stated, but such decisions from the government’s chief legal advisor cannot be arbitrary and has to be based on findings of an impartial investigation. Even though the AG is appointed by the President on the recommendation of the prime minister, it is important that any person holding public office remains loyal to the constitution and not to the one who appointed him.

 The Current Status 

In March 2013 controversial TRC (Truth and Reconciliation Commission) legislation was opaquely pushed through. It merged the TRC and Disappearance commissions and, despite CPA and international legal obligations, gave wide scope for arbitrary decisions on amnesty even for serious crimes. The Supreme Court suspended it two weeks later, responding to wide civil society criticism and petitioners demanding public consultation and restriction of amnesty powers.[29]

 The January 2014 Supreme Court ruling then fully overturned this legislation.[30] This limited amnesty provisions, separated the TRC and disappearance commission to ensure their effective implementation, made suspected human rights violators ineligible for commission appointment, and reduced the politically-appointed Attorney General’s discretionary power to decide on prosecution.

 These were important decisions for transitional justice and independent investigation, and their passing early in the new Constituent Assembly’s tenure put the long-neglected issue into fresh focus. Civil society, legal professionals, and victims’ groups, have also made repeated public demands for truth and justice, and maintained pressure with protests and efforts to record testimonies of abuses.

 Suggestion for Reform

 There should be an initiation at a regional level, namely SAARC, for discussion of the serious violations of Human Rights, including enforced disappearances to provide momentum to the regional co-operation in regards to the prevention and protection of human rights standards. Enforced disappearance is but one of many prevalent human rights issues across the South Asian region and a regional level discussion will also provide impetus to international community and national institutions to initiate reformatory works and advocacy on the measures to curb the abuses.

 A regional mechanism could be developed to address violations of human rights. Similar to the Asian Intergovernmental Commission on Human Rights (AICHR), SAARC could develop a regional charter to promote and protect human rights and facilitate regional cooperation on human rights in its member states. Such a mechanism would strengthen coordination amongst national human rights institutions and create pressure on member states to implement recommendations and respect peoples’ dignity. This type of mechanism can help local organizations raise their concerns regionally. Around the issue of enforced disappearances, many family associations have no access to justice and national remedies in Sri Lanka, Nepal, India, and elsewhere; a regional mechanism could move to fill this void.

 Further, the heads of state and government must commit to ratifying the International Convention for the Protection of All Persons from Enforced Disappearance. As mentioned above, Nepal’s Supreme Court, in two historic rulings (June 1, 2007 and January 2, 2014) directed the Government of Nepal to establish a Commission of Inquiry on Disappearances based on international norms of human rights law and on the UN convention on enforced disappearances. However, the new disappearance legislation fails to define enforced disappearance as a crime against humanity and the UN convention on disappearances remains un-ratified. Ratification of the convention would support the national process to adopt international norms and open a door to international justice.

 A regional model of truth and justice to build trust both nationally and regionally could be established. Addressing disappeared families’ demands and dealing with the past can be a common agenda that can connect states and sentiments of peoples. Families of the disappeared in all countries face similar problems and challenges. The desire for truth, justice, and reparations are universal, as is the need for a policy to support victim livelihoods through education, employment, social entrepreneurship, health, psychosocial, and memory initiatives. To end impunity and reduce future violations, the upcoming commissions in member states can be lessons that can build trust and expertise at the national and regional level, and strengthen regional connectivity on human rights. 

 Similarly, Nepal can seek resource and training support from national as well as non-governmental institutions in countries that have successfully ratified the Convention on enforced disappearances. This will provide Nepal with the necessary know how to establish institutions, monitor and learn from the experiences of states already involved in the reconciliatory transitional justice process.

  Conclusion

Nepal is obliged to take adequate measures, whether legislative, executive or judicial to ensure the criminalization and punishment of enforced disappearance under international law. The reluctance of political parties to ratify the international Convention and establish appropriate justice mechanisms stems from their fear of being prosecuted for crimes committed during the insurgency period.

 Eight years after the Maoists and the government signed the Comprehensive Peace Agreement (CPA), a Truth and Reconciliation Commission (TRC) and a Commission to Investigate Enforced Disappearances have finally been formed in Nepal. Several issues have been raised about the quality of some of the people appointed in these Commissions as commissioners. Besides, the SC has emphatically rejected any provision in the enabling Act that would allow conflict-era perpetrators to get away with their crimes.  However, there has been little effort towards the revision of the provisions which have been declared ultra vires to the Constitution, and against the norms of transitional justice.

 It must be noted here that many cases have been filed with the Supreme Court of Nepal by now, but no trials have been held and no one has been punished for their crimes. By and large, families have received no news or information concerning the whereabouts or fate of their loved ones. Some have received minimal monetary relief, but livelihood difficulties persist.

 In light of this, it is imperative that Nepal revises justice mechanisms for the reconciliation of victims based on principles enshrined in international Conventions. At this critical juncture, we can ill afford to overlook just a serious crime and provide blanket amnesty to perpetrators.

[30] Ibid. (2014)