Centre for the Independence of Judges and Lawyers

HUMAN RIGHTS AND ADMINISTRATION OF JUSTICE: OBLIGATIONS UNFULFILLED

June 2003

Table of Contents

Executive Summary

Introduction
§ 1 to 4

Chapter One: Conduct of the Mission
§ 5 to 32

Chapter Two: Historical and Political Background
§ 33 to 58

Chapter Three: The Constitution and Legal System
A. The Constitution
§ 59 to 86
B. The Legal System
§ 87 to 97

Chapter Four: Human Rights Concerns
A. Arbitrary Arrest and Detention
§ 98 to 104
Lack or Effective Remedy
§ 105 and 106
Lack of Access to Counsel
§ 107
B. Torture
§ 108 to 111
C. Disappearances
§ 112 to 116
D. Extra-judicial Executions
§ 117 to 119
E. Women and Children
§ 120 to 125
F. Freedom of Expression and Freedom of the Press
§ 126 to 130
G. Lawyers
§ 131 to 133
H. Government Institutions
§ 134
CIAA
§ 135 and 136
National Human Rights Commission
§ 137 to 140

Chapter Five: Nepal's Police and Army
A. Police and Armed Forces Police
§ 141 to 148
B. The Royal Nepalese Army
§ 149 to 158

Chapter Six: The Judiciary and the Administration of Justice
A. Institutional framework and impediments to the administration of justice
§ 159 to 170
B. Criminal Proceedings
§ 171 and 172
Investigation Stage
§ 173 to 187
Prosecution Stage
§188
Adjudication Stage
§ 189 to 199

Chapter Seven: Conclusions and Recommendations
§ 200 and 201

I. The Rule of Law and General Constitutional Questions
II. International Monitoring, Assistance and Cooperation
III. The Judiciary
IV. Human Rights and the Administration of Justice
V. National Human Rights Institutions
VI. General Recommendations to Enhance the Administration of Justice

Annexes
Annex 1 - Constitution of the Kingdom of Nepal
Annex II - Public Security Act
Annex III - Judicial Administration Act
Annex IV - Torture Compensation Act
Annex V - Terrorist and Destructive Acts (Control and Punishment) Act, 2002
Annex VI - The Prevention of Corruption Act
Websites

EXECUTIVE SUMMARY

The International Commission of Jurists (ICJ) and its Centre for the Independence of Judges and Lawyers (CIJL) conducted a fact-finding mission in Nepal from 26 January to 3 February 2003. The purpose of the mission was to examine human rights and the functioning of the administration of justice in the country in the context of a prevailing Constitutional crisis and armed conflict between the Government and the Maoist insurgency.

During the visit, the mission team met with senior political leaders, including the Prime Minister; the Home Minister, also serving as Minister of Justice; military and police officials; members of the National Human Rights Commission and the National Women's Commission; the Chief Commissioner of the Commission for the Investigation of Abuse of Authority; Judges of the Supreme, Appellate and District Courts, including the Supreme Court Chief Justice; officers of the Nepal Bar Association; lawyers; officials from political parties; diplomats; non-governmental organisations; and victims of human rights abuses.

The mission took place against the backdrop of an ongoing seven-year armed insurgency waged by Maoist rebels. In November 2001, following the collapse of peace talks, a nation-wide emergency was declared and the Army was called up to confront the insurgency. The King promulgated an ordinance giving the Government expanded powers of arrest and detention, which was subsequently adopted by Parliament as the Terrorism and Disruptive Activities Act (TADA). In October 2002 the King dissolved the Parliament and appointed a new government. During the ICJ/CIJL visit, a cease-fire was announced. A renewed process of negotiations between the Government and Maoists has since commenced.

Although the mission noted certain positive aspects, such as an independent superior judiciary, and a vibrant, though politicised, bar and civil society, its overall impression was of a country undergoing a crisis in the rule of law and little political will to address a grave human rights situation. The integrity of the Nepalese Constitution itself is under severe strain, with the King having failed to call new elections within the mandated six-month time frame following the dissolution of Parliament. The present Government is composed of largely unelected figures from outside the major political parties or the dissolved parliament. The mission considers that Nepal is perilously close to slipping from a constitutional to an absolute monarchy.

Nepal has ratified the six principal human rights treaties and these instruments are directly incorporated in law. However, there is general unawareness among a large proportion of the Government, bar and bench of the applicability of the human rights treaties, and they have not substantially been implemented in judicial or administrative practice. The practice of arbitrary detention is widespread, particularly in cases related to the insurgency, and the adoption of TADA has effectively legitimised this practice. The remedy of habeas corpus is often ineffective, as persons whose release is ordered are often rearrested immediately upon securing their liberty. The Government on a number of occasions has altogether disregard judicial orders for release and thereby undermined judicial authority in the country.

The Army holds a significant number of persons in detention without legal authority, but with de facto connivance or acquiescence by Ministers at the highest levels of government. Those detained are held incommunicado, beyond access to lawyers, relatives or the courts. Torture of such detainees is routine. A number of lawyers have been arbitrarily detained and tortured, simply because of association with their clients.

A large number or cases of enforced disappearances and extrajudicial killings have been documented. There is near total impunity for officials of the Army, Armed Police Forces and police who engage in serious human rights violations including torture, unlawful killings and war crimes. Gender and caste discrimination remain a substanåtial problem, both in law and practice.

National institutions that address human rights concerns are weak and ineffective. The National Human Rights Commission appears unable or unwilling to look into the vast majority of cases it receives and may not be fully independent. Human Rights cells recently established in the Army, Armed Police Forces, and police have thus far been wholly ineffective, and their establishment appears to be a mere cosmetic gesture.

Courts are under-resourced, and lower courts typically fail to receive judgements of the Supreme Court in a timely manner, if at all. The Supreme Court appears to be taking preliminary steps to address the serious problem of judicial corruption.

Access to justice for citizens of Nepal is sorely lacking. In at least 13 Districts, there were no courts in operation, leaving a number detainees stranded indefinitely in detention. More than half of all detainees, many of whom face lengthy prison sentences, go unrepresented by counsel. Judges rarely inquire into the means by which statements of defendants have been obtained.

Defendants passing through the criminal justice system often do not receive a fair trial. Most evidence used for conviction consists of "confessions", a large proportion of which have been extracted through torture or other ill-treatment. Torture itself has not been made a specific crime, as required by the Convention against Torture, and perpetrators of torture are seldom prosecuted. Existing torture compensation legislation has not served victims well and does not provide for individual responsibility of perpetrators.

The mission has issued 38 recommendations for implementation by the Government of Nepal and assisting bodies and agencies.

Human rights concerns are squarely before the negotiators in the present peace talks and any accord is expected to contain a human rights component. With or without a peace agreement, human rights monitoring is urgently needed throughout the country.

INTRODUCTION

1. This report contains the findings of a Mission to Nepal sent by the International Commission of Jurists (ICJ) and its Center for the Independence of the Judges and Lawyers (CIJL). The mission's mandate was to examine the functioning of the administration of justice in Nepal, including the existing legal framework and actual practice, and to evaluate the effectiveness of judicial and administrative implementation of international standards. The mission also sought to evaluate the impact of recent Nepalese law and practice on the fulfilment of Nepal's international human rights obligations. Some of the particular areas of question and concern were whether there existed effective means to challenge unlawful or arbitrary detention, such as habeas corpus; the implications of the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA) and other legislation used in context of countering the ongoing Maoist insurgency; the practice of torture of detainees by the authorities and the adequacy and effectiveness of means to prevent and remedy incidents of torture and other ill-treatment; the extent to which judges were willing or able to carry out their professional functions independently and impartially; allegations of harassment of lawyers in the country, including cases of arbitrary detention and violent assault. The Mission also sought to gather information with a view to determining, on a preliminary basis, Nepal's capacity building needs in the area of administration of justice.

2. The members of the mission team were Justice John Dowd, A.O. (Australia), (Supreme Court of New South Wales, Australia; President ICJ Australian Section (Head of the Delegation); Michael Ellman (United Kingdom) Solicitor and Officer of the Board of the International Federation for Human Rights (FIDH); and Paul Harris (Hong Kong), Barrister, Founding Chairman, Hong Kong Human Rights Monitor. They were accompanied by two members of the ICJ legal staff, Ian Seiderman and Hassiba Hadj-Sahraoui, who also served as mission rapporteurs.

3. By letter dated 16 December 2002, the ICJ Secretary-General, Louise Doswald-Beck informed the Permanent Representative of Nepal to the United Nations in Geneva, Ambassador Shambhu R. Simkhada, that the ICJ wished undertake a mission to Nepal. At a meeting in Geneva on 17 December, the Ambassador indicated to the Secretary-General that the ICJ would be welcome to visit Nepal. He also gave assurances of the full co-operation of the authorities in arranging appointments with relevant Government officials.

4. The ICJ would like to express its gratitude to the Government of Nepal for extending its full and active co-operation with the Mission in Nepal. The ICJ is also deeply appreciative of the efforts of the Advocacy Forum, a Nepalese non-governmental organisation composed of lawyers focusing on human rights, and the ICJ Nepal National Section for their assistance in facilitating the mission.

CHAPTER ONE: CONDUCT OF THE MISSION

5. The mission held meetings in Kathmandu with senior Government officials, judges, lawyers, police officials, non-governmental organisations, national institutions, and diplomatic personnel from 26 January to 3 February. The mission also visited Nepalgunj, in the Western Region of Nepal, on 29-30 January. A summary of these meetings follows below.

A. Government Ministers

6. Toward the end of the visit, the mission met separately with the Prime Minister, Mr. Lokendra Bahadur Chand and the Home Minister and Justice Minister, Mr. Dharma Bahapur Thapa (holding both portfolios). We put to the ministers a number of the central concerns that had arisen as a consequence of our inquiries during the course of the visit and presented to them lists of a number of the persons we believed to have disappeared or were being held in unacknowledged detention.

7. The Prime Minister affirmed his Government's overall commitment to promoting a human rights culture in Nepal and as evidence pointed to the establishment of human rights cells within the Army, the Armed Forces Police and Police. He also conceded that there was an outstanding need for personnel in various governmental services to receive expert advice and training in human rights. However, to the mission's regret, the Prime Minister was quick to advance the perceived exigencies of countering the Maoist insurgency as an excuse for the grave human rights situation and for the inadequacies of the Government in redressing the situation. He openly acknowledged that the Army was continuing to detain persons unlawfully. Contradicting the assertions made to us by Army officers, the Prime minister contended that the army had received no authorisation from the Government to carry out such detentions. Despite being charged with constitutional responsibility for overseeing the Army, the Prime Minister appeared not to accept it as his obligation to end this widespread practice through instructions to the Army and other security forces, instead opting to conceptualise the problem as one of individual cases that he might look into.

8. Mr. Dharma Bahapur Thapa, holds both the posts of Home Minister and Minister of Law, Justice and Parliamentary Affairs. The mission was deeply troubled by this Minister's approach to the human rights situation, whereby he blithely defended the Government's practice of immediately re-arresting persons who are released pursuant to court orders. The Minister told us that such persons were "too dangerous" to be released, despite a judicial determination that there was no basis for their detention. He also declined to acknowledge that torture was at all practised in Nepal, even though we came across numerous cases of convincing evidence of torture, including of lawyers, and almost all other Government and non-governmental sources had indicated to the mission the existence of a grave problem in this regard. The mission met the Secretary of the Ministry of Law, Justice and Parliamentary Affairs, Mr. Udaya Nepali Shrestha. The Secretary informed the mission that he in fact effectively ran the Ministry on a day-to-day basis, as the Minister himself was almost invariably occupied with his duties at the Home Ministry. Indeed, the Secretary suggested that the merging of these portfolios might pose a conflict of interest for the Minister. In response to queries regarding serial instances of official defiance of judicial orders, the Secretary assured the mission that the independence of the judiciary was well respected in Nepal and that any problems regarding the Government's respect of judicial orders simply resulted from "misunderstandings".

9. The Mission also met with a Spokesman for the Ministry of Foreign Affairs, Mr. Gyan Chandra Acharya, who has since taken up a post as Ambassador to the United Nations in Geneva. The mission informed Mr Acharya that it considered that the country would be well served by the establishment of an office of the UN High Commissioner of Human Rights, which would carry dual monitoring and advisory functions. Mr. Acharya expressed his desire to accept technical assistance from the international community in the human rights area and affirmed his desire to address the extensive delays of the Government in submitting its periodic reports to the supervisory organs of the six major human right treaties.

B. Military and Armed Forces Police

10. The mission met with the Deputy Inspector and Advocate General of the Royal Nepalese Army, BA Kumar Sharma, and two associates in the Army's recently established Human Rights Cell, Lieutenant Colonel Ramindra Chettry and Deepak Gurung. Most of the activities undertaken by this unit to date appeared to fall within the area of human rights training, although we were assured that a monitoring and investigative function was central to its mandate. The officers conceded to the mission team that the Army did hold persons in unacknowledged detention without charge and access to family and lawyers and in contravention of Nepalese legislation. They insisted that they had been granted special dispensation to do so from the highest levels of governmental authority, including the Prime Minister. They were, however, unable or unwilling to provide the mission with any written instructions or orders legally underpinning this putative authority. The Advocate General promised to investigate specific cases submitted to him by the mission, but this commitment has remained unfulfilled.

11. The mission called on Gyanendra Raj Rai, Deputy Inspector General and Head of the Human Rights Cell of the Armed Police Forces. The Armed Police Forces, consisting of some 15000 personnel, had been established in 2001 as part of the emergency response to the Maoist insurgency. It was tasked to assist both the Royal Nepalese Army and the Nepalese Police in carrying out their respective counter insurgency operations. The Human Rights Cell was a nascent unit and most of their projects were of a prospective character. The Deputy Inspector was unable to present the mission with rules of engagement. He denied that the APF was detaining people, although we received information from a number of sources insisting that the APF had been responsible for widespread torture and instances of extrajudicial killing.

12. The mission paid a surprise visit to the Chisapani Army Barracks in Nepalgunj, Banke district, as it had learned that upwards of 100 persons were being held by the Army in Banke in secret detention, with a substantial proportion of these detained at these barracks. Although the mission failed to gain admittance to the barracks, the junior officer who spoke to us conceded that "seven or eight" detainees were presently held. The Chief District Officer told us that he had not been informed of any such detentions, nor had the Army transferred custody of the detainees to his civilian authority as required by law.

C. Police Adviser

13. The mission met with Richard Miles, an advisor to the police sponsored by the United Kingdom Department for International Development (DFID). Mr. Miles, a former assistant chief constable in the United Kingdom, confirmed the appraisals we had heard repeatedly regarding the widespread use of police torture. He noted that the police frequently encountered substantial political interference in their work. Corruption was prevalent and there was a near complete absence of financial accountability. He reported that practice in the preparation of case files and record keeping was appalling. A principal reform needed was to link recruitment and promotion to merit. Police needed training on evidence-gathering techniques, although the infrastructure was not appropriate yet for high-tech methods.

D. Judiciary

14. The Mission visited the Supreme Court of Nepal and met with the Chief Justice (Kedar Nath Upadhaya), Justice Arbinda Nath Acharya, Justice Hari Prasad Sharma, the Registrar, Shree Prasad Pandit and the Joint Registrar, Ram Krishna Timilsena. The Justices informed us that they had experienced no overt pressure or threats to their independence. They expressed concern, however, that in a number of cases, especially those involving public interest litigation, the Government had been slow to adhere to the court rulings. The Justices also highlighted problems of serious delays in judicial proceedings, especially in respect of civil litigation. They expressed dissatisfaction at the advent of special courts under the TADA legislation, and were confident that the ordinary judiciary had the capacity to adjudicate cases arising out of the civil conflict. The Justices acknowledged that a certain degree of corruption obtained within the judiciary of Nepal, but they indicated that they were unable accurately to gauge its extent. The mission brought to the Justice's attention a serious problem regarding the administration of justice in a number of districts, namely that there were no courts operating in these regions, even though there were persons held by police and Army. The Judges seemed unable to formulate a means by which to address this alarming situation. On the day after its visit, the mission was pleased to learn of the announcement by the Supreme Court that they were empanelling a team of senior judges to visit some of the outlying districts, with a view to looking into this problem as well as allegations of judicial corruption.

15. The Mission also visited two Appellate Courts, for Patan and Banke Districts. At Patan, the mission met with the Chief Judge Khil Raj Regmi and Judge Mohan Siraula, who had also formerly served as a judge at the special court established under TADA, as well as the Court Registrar. In contrast to repeated complaints registered to us by lawyers, these judges seemed satisfied that habeas corpus cases were being handled properly by the police. They suggested that their main difficulties were a lack of human resources and the cumbersome requirements of judicial process. They indicated that court staff were unable to gain access to remote areas affected by the insurgency.

16. In Banke we met with the Acting Chief Judge, Rajendra Koirula and Judges Komal Nath Sharma, Judge Dihirendra Bista and Judge Krishana Prasad Babyal. These judges acknowledged the problem of torture. One Judge noted that police officers sometimes usurped court authority and they highlighted the problem of the falsifying of records by police officers. They considered themselves powerless to issue charge warrants vis-à-vis Army activities, although they said that they were well aware of cases of unacknowledged detention by the Army. The Judges seemed unaware of their authority to rely on international human rights treaty standards, even thought these standards form part of Nepalese domestic law.

17. The mission visited District Court Judges in Kathmandu Judges O.P. Mishra, S.P. Ghimire and Bhatt and Registrar Mr. K.D. Adhikari. In Nepalgunj, the mission met with Chief District Court Judge Prem Bahadur, Judge Karunanidhi Sharma and the Registrar, Lekh Nath Paudel. The judges informed the mission that there were cases in which the Government had not carried out court orders and some lawyers were unlawfully detained. However, they did not consider their independence impeded. One judge recognised that the "police are not treating people humanely", but seemed unaware of the duty of these judges to investigate cases of torture.

E. Bar

18. The mission team participated in a round table meeting of the Nepal Bar Association, attended by eight prominent members including the President and the Secretary of the Bar Association, and the former Minister of Law and Justice (see annex I). These lawyers expressed a number of serious concerns, including the widespread instances of arbitrary arrests; the ineffectiveness of habeas corpus petitions; the Government's strategy of re-arresting persons whose release had been ordered by the courts; the denial by the authorities that detained persons were being held in custody; the problem of detention by the Army, despite its having no legal power to detain persons; the persecution, including arrest and torture of lawyers who are identified with their clients, particularly in the case of Maoist suspects; and the problems of rampant corruption throughout the court system.

19. The mission also observed a protest demonstration on 31 January sponsored by the Nepal Bar Association, at which some 300 lawyers participated. The lawyers were demonstrating generally against the defiance by the Government of court orders and the particular case of five colleagues who were held despite orders from the Supreme Court for their release.

F. Joint Consultative meeting

20. The mission attended a human rights consultation session organised by the Advocacy Forum in Nepalgunj. Some 27 persons were present, including the Chief District Officer of Banke District, three Judges from the Banke District Court, the District Court Registrar, the Inspector of the District Police Office, a District Police Officer, the President and Secretary of the Nepal Bar Association Appeal Court, the President of the Nepal Bar Association District Court Unit, Advocates from the Nepal Bar Council, an advocate from the Centre for the Victims of Torture (CVICT), advocates from the NGOs HURON, CeLLrd and CAPCORN, the Editor of Nepali Express Newspaper, a reporter from Kantipur Daily, a reporter from Channel Nepal, and lawyers from the Advocacy Forum.

21. This meeting presented an opportunity for all sectors responsible for the administration of justice to discuss and debate the human rights situation. On the positive side, it was noted that local government was gradually becoming aware of the obligation to provide legal detainees with basic needs and prisoners were becoming increasingly cognisant of their basic rights. However, multiple problems were reported: torture allegations were often not registered by police or judges; many lawyers had been and remained unable to visit detainees; detainees were often unaware of fundamental rights, including the right to a lawyer; police and judges rarely asked for medical examinations to be carried out; detainees were released and immediately rearrested under TADA; the Army detained persons unlawfully and were not subordinate to civilian authority; bail was only available for those accused of minor offences and those who could afford the unduly high amounts set; prisons were overcrowded; judges believed that they could not inquire into allegations of torture. The Superintendent of Police for the District indicated that torture allegations were exaggerated.

G. National Institutions

22. The mission met with members of the National Human Rights Commission (NHRC), including the Chairman, Justice Nayan Bahadur Khatri, members Dr. Gauri Shankar Das, Ms Indira Rana and the Acting Secretary, Kedar Prasad Poudyal. The mission learned that the NHRC had broad jurisdiction to hear individual complaints of human rights abuse and to carry out investigations, but were only competent to make non-binding recommendations and, accordingly, lacked power of enforcement. Most of the complaints presently received were said to arise from the insurgency and many involve cases of disappearances. Present NHRC projects include "responding to crisis project" and monitoring. The mission also discussed the case of two girls allegedly raped by officers of the armed forces, which had recently been publicised by Amnesty International. The mission was appalled to learn that the NHRC apparently had accepted the girls' retraction of the allegation and much of the Army account in the case, despite the fact that the retraction had been made after they and their family had been visited and subjected to intense pressure by army officers.

23. The mission also met the recently appointed NHRC National Rapporteur on Trafficking in Women and Children, Dr. Renu Raj Bhandari. The appointment, supported by the UN Task force against Trafficking, was the first of a thematic expert to be established by the NHRC. We learned that trafficking was an enormous problem and that the legislation against trafficking was poorly implemented. The Rapporteur informed us that she was hoping to establish a complaint mechanism.

24. The mission met with members of the National Women's Commission, including Prativa Rana (Vice-Chairperson), Uma Shah, and Maha Laxmi Upadhya. The Commission, established in March 2002, is a monitoring body aimed at ensuring that international instruments and national law concerning women are implemented. It had recently conducted visits and carried out surveys in 53 Districts with a view to producing its own statute, which would have to be approved by Parliament. The draft contained no enforcement mechanism.

25. The mission met with the Chief Commissioner of the Commission for the Investigation of Abuse of Authority (CIAA), Surya Nath Upadhyay and the Secretary, Madhab Prasad Ghimire. The CIAA, established under article 97 of the Constitution, is composed of five Commissioners appointed by the King upon recommendation of the Constitutional Council and accountable to Parliament. The CIAA has no jurisdiction over military personnel and judges, but may investigate court staff. (Jurisdiction to discipline judges resides with the Judicial Commission). The Chief Commissioner told us that while the CIAA maintained jurisdiction over the police, he had focused his own efforts primarily upon corruption, not human rights abuses. He did not consider himself to have jurisdiction over abuse or corruption in the Army, and believed separate agencies should be established for that purpose.

H. Political Parties

26. The Mission met with representatives from the two largest political parties, Mr. Jhala Nath Khanal, Standing Committee Member and Chief of Department for International Relations Communist Party of Nepal (Unified Marxist-Leninist) and Mr. Narahari Acharya, Nepali Congress party. Both party representatives expressed disillusionment with what they perceived as unconstitutional usurpation of power by the King and selection of ministers from outside the Parliament and main political parties. Both representatives called into question the legitimacy of the existing Government.

I. Non-Governmental Organisations

27. In addition to the extensive interaction with the mission's facilitating organisation, Advocacy Forum, and the ICJ Nepal Section, the mission met with a number of representatives of non-governmental organisations.

28. The mission met with the General Secretary of the Informal Sector Service Centre (INSEC), Mr. Subodh Pyakurel. INSEC is a leading human rights NGO operating throughout the country. The General Secretary provided the mission with a substantial study it had carried out on human rights throughout the country, including testimony from victims. He alleged that the Government had failed to comply even with the already restrictive terms of TADA. Since emerging from barracks two years ago, the Army, unaccustomed to dealing with a counterinsurgency, had cast suspicion upon virtually every villager in affected areas of participation in Maoist activities. The result had been a spate of extrajudicial executions. For their part, the Maoists had compensated for their shortfall in weaponry by instilling generalised terror in the population. Police had taken reprisals upon lawyers and human rights activists seen as defending Maoists. The General Secretary believed that the establishment of human rights cells in the armed forces was a positive sign, but the gesture fell substantially short of the large scale reforms needed to address the human rights crisis.

29. The mission met with the Chairperson of the Human Rights and Peace Society (HURPES), Mr. Krishna Pahadi. HURPES was said to have 2500 active members in the country. It advocates a general policy of non-violence. It had held human rights training seminars in some 41 districts. He expressed concern that most Nepalese people were sandwiched between the Army and the Maoists, and indicated that presently the Maoists had lost control of their militias, making discipline difficult.

30. The mission visited the Centre for Legal Research and Resource Development (CeLLRD), which is connected with the Kathmandu School of Law. There it met Professor Yub Raj Sangraul, Director of the School of Law and Kishor Silwal, Director of CeLLRD. Professor Sangroula gave the mission a thorough briefing on the legal history of Nepal and the challenges it faced in reforming its antiquated legal codes and judicial structures. He noted that much of the procedural legal content in Nepal is derived from civil law. In 1963 Nepal moved to an adversarial model, resulting in a hybrid system. He stressed that the primary difficulty in achieving such reform rested not in the paucity of material resources, but in entrenched attitudes and lack of training and education of judges and lawyers in contemporary legal developments. He also indicated that with the dissolution of the Constitution and the arrogation of powers to the King and his hand-picked ministers from outside the parliament, the Constitution had effectively ceased to exist. There had been a large political vacuum left, whereby the monarchy and the Maoists were the only players wielding effective power.

J. Victims

31. The mission met individually with several victims of human rights violations, including three lawyers, many of whom were reluctant to have their identity revealed for fear of reprisal. Some of these cases are highlighted in the report. These meetings produced vivid and credible testimony, corroborating accounts consistently conveyed to us by other sources of arbitrary detention, torture, and harassment of lawyers and human rights defenders.

32. Finally, the mission met with a number of diplomatic personnel from donor countries and the European Commission with a view to gathering information on the present donor activities vis-à-vis the administration of justice and to see where needs for capacity building remain.

CHAPTER TWO: HISTORICAL AND POLITICAL BACKGROUND

33. Nepal is the world's only Hindu kingdom. A landlocked country sandwiched between India and Tibet, it has an area of 147,181 square km and a population of about 25 million. It is among the world's poorest countries, with a per capita income of US$220 in 1998 and more than half the population earning less than US$1 per day. Most Nepalis live in rural areas and subsistence agriculture is the main occupation. Population growth is rapid. This high growth rate and the resulting pressure on land in a mainly agricultural country is a major contributory factor to Nepal's many economic, social and political problems.

34. Geographically Nepal can be divided into the Terai, the flat land bordering India which is physically part of the Indo-Gangetic Plain; the Pahad or hill region, in which the capital Kathmandu is located; and the high Himalaya Region, which contains eight of the world's ten highest mountain peaks, including Mount Everest.

35. Apart from agriculture, the mainstays of the Nepali economy are manufacture of garments and carpets; tourism (currently in deep recession because of Nepal's unstable political situation); overseas aid; and remittances from Nepalis working abroad. Nepal's small amount of industry is mainly located in the Terai.

36. Ethnically the people of Nepal are a mixture of Indo-European peoples originating from India and Tibeto-Burman people originating from the Himalayas. Broadly speaking the former are Hindus while the latter are Tibetan Buddhists. Nepali, a Sanskrit based language related to Hindi, is the national language and is generally understood.

37. Nepalis are divided by caste as well as ethnicity. Although inter-caste marriage now occurs in the cities, in rural areas rigid caste distinctions are still a dominant feature of life. Throughout Nepal's modern history political power has been held by Brahmins of Indo-European origin from the Pahad region. Of the Tibeto-Burman groups, the Gurungs, Rais and Limbus are noted for their military prowess and form the bulk of Gurkha recruits and of the Nepali Army, while the Sherpas are famous for their mountaineering skills. Other ethnic groups include the Tamangs of the Himalayas, the Newars of the Kathmandu valley and the Thakurs. Discrimination against dalits (untouchables) remains a major feature of Nepali life.

38. Prior to the 18th century Nepal was a collection of small principalities, many ruled by Rajputs originating from India, and the three kingdoms of the Malla dynasty, Kathmandu, Patan, and Bhadgaon (modern Bhaktapur). From 1742 the ruler of the Gorkha principality, Prithvi Narayan Shah, conquered neighbouring states. To counteract his enhanced power, the Malla rulers brought in forces lent by the British East India Company. When these were withdrawn in 1769, Prithvi Narayan Shah was able to conquer the Malla kingdoms and unite Nepal as one state with the capital at Kathmandu. His descendants remain the hereditary kings of Nepal today.

39. In 1814 Nepal fought a war with the British East India Company as a result of which it was forced to cede much of the Terai by the Treaty of Suguali in 1816. However, much of this territory was returned to Nepal in 1868 as a British reward for Nepali support during the 1867 uprising (the "Indian Mutiny"). The British were so impressed by the military skills of the Nepalis in the 1814 War that they began recruiting Nepali mercenaries, known as Gurkhas, into their Army, beginning a tradition which continues to the present day.

40. From 1816 to 1951 Nepal was officially closed to foreigners. Although the Shah dynasty reigned throughout this period, from 1846 they were reduced to figureheads as real power was seized by a nobleman from Western Nepal, Jung Bahadur Rana, who established a system of hereditary Prime Ministers, the Ranas. Under their rule, Nepal was closed, autocratic, conservative and hierarchical.

41. After World War II the achievement of independence by India and the Communist Revolution in China followed by the Chinese seizure of Tibet led to political upheaval in Nepal. In late 1950 King Tribhuvan, assisted by India, seized power from the Rana Prime Minister and established a Government consisting of both Ranas and commoners from the Nepali Congress Party ("NCP"), a party led by B.P. Koirala and loosely modelled on the Indian Congress Party. Nepal gradually re-opened its doors to the outside world, establishing diplomatic missions with other nations. However the Ranas have remained powerful and influential. Both the present King Gyanendra and his brother, the late King Birendra, married members of the Rana family.

42. Politically, from 1951 to 1990 successive monarchs attempted to retain effective power and to resist pressure to restrict themselves to the role of constitutional monarchs. A democratic constitution provided for elections, which were held in 1959, resulting in victory for the NCP. However, in 1960 King Mahendra had the Cabinet arrested and assumed total control of the country. In 1962 he introduced a system of non--party government known as Panchayat. Local panchayats (councils) chose representatives to district panchayats, which in turn chose some members of the National Panchayat. However power remained with the King, who appointed 16 of the 35 members of the National Panchayat, and appointed the Prime Minister and the Cabinet of his choice.

43. In 1972 King Mahendra died and was succeeded by his son, Birendra. Gradually rising discontent with the Panchayat system erupted in violent riots in 1979, and in response the King announced a referendum on the future of the Panchayat system. A referendum was held in 1980 and resulted in a vote of 55 percent in favor of the Panchayat system. Following this vote King Birendra made modifications to the Panchayat system which gave it a more democratic appearance. The District Panchayats were abolished, and the majority of members of the National Panchayat were directly elected with a five-year term. The number of members of the National Panchayat appointed by the King was reduced to 20, and the National Panchayat elected the Prime Minister. In addition, certain constitutional rights were guaranteed. Yet behind this semi-democratic façade the King wielded almost complete power and the Panchayat operated as a rubber stamp for his decisions. The military and the police were almost wholly unaccountable, censorship was strict, and torture and arbitrary arrests were widespread.

44. In 1989 the opposition parties formed a coalition to fight for multi-party democracy with the King as constitutional head. In 1990 a "people power" movement known as the Jana Andolan gathered momentum. The King initially responded with force, and several hundred people died when police fired into crowds. However as a result in part of pressure from foreign aid donors the King in April 1990 announced the end of the Panchayat system, the introduction of multi-party democracy, and his acceptance of the role of constitutional monarch.

45. Since 1990 Nepal has been a multi-party democracy characterised by weak and unstable governments prone to collapse. The early optimism of the years immediately following the Jana Andolan were followed by widespread disillusion with the ineffectiveness of successive democratic governments and their inability to bring about meaningful improvement to Nepal's social and economic conditions. From 1990 to 1994 the governing party was the NCP under the leadership of Girji Prasad Koirala. In the following general election, the NCP was defeated by the United Marxist-Leninist Communist Party (UML), which had been the largest opposition party. A UML Government took office with Man Mohan Adhikary as Prime Minister, making Nepal the world's first Communist monarchy. After a brief period, Parliament was again dissolved in 1994 and in the ensuing election no party gained an overall majority. Several years of unstable coalition government ensued, with five governments emerging over a five-year period.

46. It was during this period of instability that the present Maoist insurrection began. A Maoist party called the United People's Front (UPF) had contested the 1991 general election, winning nine seats. A rift subsequently occurred in the UPF leadership, leading to the establishment of the United People's Front (Bhattarai) under the leadership of Dr Baburam Bhattarai. This party combined with the Communist Party of Nepal (Maoist) founded by Pushpa Kamal Dahal, commonly known as "Prachanda", and in February 1996 insurgent activity started under the leadership of Dr Bhattarai and Mr Prachand, who declared a "People's War".

47. The immediate reason given by the Maoists for this declaration was the failure of the NCP Government of Sher Bahadur Deuba to respond to a memorandum listing 40 demands, including the abolition of royal privileges, the promulgation of a new constitution and abrogation of the Mahakali treaty regulating relations between Nepal and India relating to water, electricity and the common border. The movement attracted a degree of popular support as a reaction to rampant corruption, poverty, and the caste system.

48. Since February 1996 the Maoist have engaged in violent insurgency involving killing of police, public officials and ordinary civilians. The Maoists have been responsible for torture, bombings, kidnapping, extortion and intimidation. They have been active in more than 50 of the country's 75 districts, and are particularly strong in the western districts of Rolpa, Dolpa, Kailali, Kalikot, Jajarkot, Jumla and Accham, and in the eastern district of Sindhuli. The Maoists have killed scores of members of other political parties. They are said to have made teachers one of their primary targets and to have killed 28 members of the Nepal Teachers Association. In some districts the Maoists have effectively supplanted the authority of the central Government which is able to mount armed incursions but does not have firm control of territory outside a few command centres. In these districts buildings symbolising central government authority, including courts, have often been destroyed by the Maoists, who operate instead their own so-called "People's Courts".

49. In May 1999 the NCP gained a Parliamentary majority in the general election, raising the prospects for renewed political stability. However the previous pattern of short-lived governments continued, under Krishna Prasad Bhattarai from 31 May 1999 to 17 March 2000; G.P. Koirala from 20 March 2000 to 19 July 2001; and Sher Bahadur Deuba from 23 July 2001 to October 2002.

50. On 1 June 2001 Crown Prince Dipendra shot and killed nine members of the Royal Family including his father King Birendra, his mother Queen Aishwarya, and a younger brother of the King, before shooting himself. It was alleged that he did so because he was angered by his mother's disapproval of his choice of bride. Some suspected a political motive, but no firm evidence was adduced to support this hypothesis. The King's surviving brother Gyanendra succeeded to the throne. Gyanendra's accession to the throne was greeted with serious public unrest. In an attempt to assuage this unrest a commission of inquiry was set up into King Birendra's death. The matter remains controversial and sensitive.

51. In the latter part of 2001 peace talks were held between the Government and the Maoist rebels. The talks and the accompanying cease-fire broke down on 23 November 2001, followed by an attack by the Maoists on police and Army posts in 42 districts. The authorities responded on 26 November by declaring a nation-wide emergency and for the first time deploying the Army, rather than the police. (In February 2002 the Parliament extended the state of emergency) The King also announced the Terrorism and Disruptive Activities Ordinance 2001 (TADO) making legal provision to control terrorist and disruptive activities and provide improved public security. This ordinance was superseded by the similar Terrorist and Disruptive Activities (Control and Punishment) Act 2002 passed by Parliament on 4 April 2002.

52. The promulgation of a state of emergency resulted in suspension of many fundamental rights, such as freedom of expression and speech, freedom of assembly, freedom against arbitrary detention, right to privacy and right to constitutional remedies. Habeas corpus was preserved. The police were granted, and employed, wide powers to arrest any person suspected of being involved in terrorist activity. The Maoists were declared a terrorist organisation under the TADO, and anyone thought to be a Maoist sympathiser was likely to be detained as a terrorist. At an all party meeting on 17 May 2002, the political parties opposed a decision of the prime minister to further extend the state of emergency. On 22 May, the Prime Minister asked the King to dissolve the Parliament and call elections. The state of emergency lapsed on 28 August 2002. However violence showed no sign of decreasing and may have increased after that date, with reports of hundreds being killed in clashes between the Army and actual or suspected Maoists.

53. More than 5000 people were arrested in the period of the state of emergency, including lawyers, teachers, journalists and human rights activists. During the emergency period, the Government also instituted some cosmetic measures aimed at addressing human rights concerns, such as establishing a National Women's Commission (March 2002), a human rights cell in the Army (July 2002) and a Dalit Commission mandated to improve the conditions among the "lower" caste communities (August 2002).

54. In October 2002 the King dissolved Parliament and dismissed Sher Bahadur Deuba, on grounds of "incompetence" and replaced him with Lokendra Bahadur Chand, who had previously been Prime Minister under the Panchayat system. A subsequent court challenge to the dissolution of Parliament led to a finding that the action was constitutional. Grave doubts continue however as to the constitutionality of the dismissal of Prime Minister Deuba.

55. A series of bloody encounters between the armed forces and the Maoists during 2002, during which neither side appeared to gain a clear military advantage, was followed on 26 January 2003, during the present mission, by the assassination in Kathmandu of the Inspector General of the Armed Police.

56. At this grave juncture a cease-fire and talks between the Government and the Maoists were unexpectedly announced on 29 January 2003. The talks were on-going as this report was in preparation, led by Social Development Minister Mahendra Singh Pun for the Government and Baburam Bhattarai for the Maoists. The Government agreed to withdraw international police warrants and awards for the arrest of the Maoists and to cease designating them as terrorist. On 13 March 2003 a code of conduct was agreed. Both parties undertook "to cease from armed and provocative activities" and also agreed on fair access to the state run media. The Government also agreed to the release of Maoists detainees. The Maoists, in turn, appeared to be softening their demand that the monarchy be abolished.

57. As this report was being prepared, two sessions of negotiations had been held, but significant progress appeared elusive. The major political parties declined to engage in the process and insisted that the Government as presently constituted was illegitimate and not competent to negotiate the country's future. A dispute has apparently arisen between the Government and Maoists after the Government appeared to renege on an agreement according to which a number of Maoist leaders were to have been released from detention and the Army was to be confined to within five kilometres of their barracks.

58. Regarding negotiations on the human rights concerns, a draft agreement is to be tabled for consideration which will commit both the Government and Maoists to agree to guarantee protection for a number of enumerated rights. The agreement envisions giving the National Human Rights Commission the pre-eminent role in monitoring compliance with the agreement through five regional offices that are to be established.

CHAPTER THREE: THE CONSTITUTION AND LEGAL SYSTEM

A. The Constitution

59. Nepal did not have a written constitution until 1948, at which time a constitution was promulgated by the last Rana Prime Minister that did not substantially challenge the prevailing Rana order. A democratic constitution based on the British Westminster model was adopted in 1959 and was subsequently replaced by King Mahendra's "Panchayat" Constitution in 1962. Both the 1959 and 1962 constitutions enumerated fundamental rights to be protected, but neither instrument provided for any mechanism for enforcing those rights. The rights provisions were therefore generally ineffective and ignored.

60. Nepal's present Constitution came into effect on 9 November 1990 (2047 by the Nepal calendar), a few months after the "Jana Andolan" revolution. It mandates a democratic Government with separation of powers, a constitutional monarchy, and constitutionally guaranteed protection of human rights. Most significantly, for the first time in Nepal's history, it provides expressly for constitutional review of laws to ensure their compatibility with the Constitution. Under article 88, "any citizen of Nepal shall be entitled to file a petition in the Supreme Court for the declaration of any Nepal law or any part thereof as void due to its inconsistency with the Constitution on grounds of unreasonable restriction imposed in the enjoyment of fundamental rights conferred by the Constitution or on any other ground." The Supreme Court has jurisdiction, if it finds the impugned law to be inconsistent with the provisions of the Constitution, to declare it void and inapplicable either ab initio or from the date of its decision. This provision of the Constitution is in active use and, in a number of cases, parts of laws have been struck down as unconstitutional, a notable example being part of the citizenship law in the case of Meera Gurung v. Immigration Department (1995).

61. Turning to the substantive provisions, the Constitution recognises religious diversity, but entrenches Hinduism as the national religion. Article 2 provides that the Nation consists of the people of Nepal "being united by a bond of common aspirations and faith in the independence and integrity of the nation, irrespective of religion, race, caste or tribe." However, article 4 states that "Nepal is a multi-ethnic, multi-lingual, democratic, independent, indivisible, sovereign, Hindu and a constitutional Monarchical Kingdom." Article 6 provides that Nepali in the Devanagari script shall be the official language, but provides that all languages spoken as mother tongue in various parts of Nepal are the languages of the nation.

62. Part II concerns citizenship and provides that citizenship is passed by patrilineal descent, or by naturalisation based on 15 years residence and knowledge of Nepali, or by two years residence in the case of a descendant of a citizen of Nepal. A child born in Nepal of unknown parentage is deemed to be a son of a citizen of Nepal. This anachronistic provision as to passage of citizenship by patrilineal descent only is patently gender discriminatory and in breach of Nepal's international obligations under the International Covenant on Civil and Political Rights and the Convention on the Elimination of Discrimination against Women. We also consider that it provides a constitutional underpinning and reinforcement to pervasive discriminatory attitudes towards women in Nepali society. The United Nations Committee on the Elimination of Discrimination against Women (CEDAW) has similar reservations in this regard. In 1994, "the Committee express[ed] its concern over the situation of women who, despite some advances, continue to be de jure or de facto the object of discrimination as regards marriage, inheritance, transmission of citizenship to children..." These concerns were repeated in CEDAW's 1999 report.

63. Part III, containing Articles 11 to 23, guarantees fundamental rights.

64. Article 11, entitled Right to Equality, provides that all citizens shall be equal before the law, and no person shall be denied equal protection of laws. No discrimination shall be made against any citizen in the application of general laws on grounds of religion, race, sex, caste, tribe or ideology or any of them. The state shall not discriminate against citizens on grounds of religion, race, sex, caste, or ideology. Special provisions may be made by law to protect or promote the interests of women, children, aged or disabled persons or those who are economically or socially backward. No person shall be discriminated against on the basis of caste as an untouchable or be denied access to any public place or be deprived from the use of public utilities, and any act in violation of this provision shall be punishable by law.

65. It is obvious from even the most cursory acquaintance with Nepal that while Article 11 may reflect an official aspiration, it is widely breached and that discrimination on grounds of caste and sex form a pervasive feature of Nepali life. CEDAW noted in its 1999 observations that "the Government has not taken sufficient action...to amend prevailing discriminatory laws" and it was concerned by the retrograde views of the Supreme Court, which had stated "that if any laws do not conform with culture and tradition, society will be disrupted."

66. Despite the express constitutional prohibition on caste discrimination, the mission received information according to which in neither 2001 nor 2002 were there any Dalits ("untouchables") employed in positions traditionally closed to them, such messengers or tea servers, in any Government office in Kathmandu. Even in respect of positions not closed, there is a general practice of employment discrimination towards Dalits. Likewise, although the Constitution guarantees equal remuneration, there is no equal pay legislation and equal pay is the exception not the rule. The ICJ hopes that the establishment of a Governmental Dalit Commission, expressly charged with improving the status of Dalits, and the National Women's Commission will go some way toward ameliorating such discrimination and the debilitating effects it has on affected groups.

67. In its 2001 observations on the periodic report of Nepal to the Convention on the Elimination of all forms of Racial Discrimination, the Committee on the Elimination of Racial Discrimination (CERD) "note[d] that the non-discrimination clauses in article 11 of the Constitution do not cover all the grounds provided for in articles 2 and 26 of the Covenant. It is particularly disturbed by the fact that the principle of non-discrimination and equality of rights suffers serious violations in practice and deplores inadequacies in the implementation of the prohibition of the system of castes. The persistence of practices of debt bondage, trafficking in women, child labour, and imprisonment on the ground of inability to fulfil a contractual liability constitute clear violations of several provisions of the Covenant. The Committee remains concerned at the existence of caste-based discrimination, and the denial which this system imposes on some segments of the population of the enjoyment of the rights enshrined in the Convention."

68. Article 12 guarantees freedom of thought and expression, freedom of assembly, freedom to form unions and associations, freedom to move and reside in any part of Nepal, and freedom of profession or occupation. Article 13 prohibits censorship. The difficulties relating to press freedom are discussed in Chapter 4 below.

69. Article 14 provides for rights regarding criminal justice. It prohibits retrospective criminalisation or penalisation; double jeopardy, self-incrimination as well as torture or cruel, inhuman or degrading treatment of those in custody. It provides that no person who is arrested shall be detained in custody without being informed at the earliest of the grounds of such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. Our inquiries indicate that this provision is widely ignored.

70. We were informed by certain Government officials that there was little or no torture in police custody in Nepal and informed by practising lawyers and NGOs that such torture was commonplace. Our conclusion is that torture is indeed widespread. (See following chapter 4 on serious breaches of human rights.)

71. Article 15 prohibits preventive detention without sufficient grounds and provides that anyone so detained shall be entitled to compensation. Article 16 provides for a general right for any person to "demand and receive information on any matter of public importance. Article 17 guarantees the right to private property and no expropriation without compensation. Article 18 guarantees to every community in Nepal the right to conserve and promote its language script and culture, and to provide mother tongue primary education. Article 19 guarantees freedom of religion. Article 20 prohibits slavery or trafficking in human beings. Article 21 prohibits exile. Article 22, entitled Right to Privacy, provides that the person, house, property, documents, correspondence or information belonging to any person are inviolable "except in circumstances laid down by law".

72. Article 23 provides the right to proceed in accordance with Article 88 (see above) for the enforcement of the rights guaranteed in Part III of the Constitution.

73. This part of the constitution thus guarantees most of the internationally recognized civil and political rights. Moreover, although some such rights are not directly constitutionally guaranteed, such as a general right to a fair trial in all its aspects, Nepal has ratified the six principal international human rights instruments. (However, it has as yet failed to ratify the Statute of the International Criminal Court.) Under Nepali law, such international treaties, once ratified, are directly applicable as part of domestic law without the need for any municipal legislation (Nepal Treaties Act, Section 9). On paper, therefore, Nepal has a comprehensive code of human rights protection. However, as indicated in the examples given above, many of these rights clearly have failed to be safeguarded in practice.

74. Part IV of the Constitution contains the "Directive Principles of the State" (Article 25) and State Policies (Article 26). The principles contain a general commitment to promoting the welfare of the population, economic development, justice, participation in governance, and international comity. The 16 policies are more specific, and include protection of the environment, promotion of opportunities for women, raising the standard of living of "backward" communities, accelerating rural development, providing free legal aid, and working for peace in international relations.

75. Part V concerns the monarchy. Article 27 states that "His Majesty is the symbol of the Nepalese nation and the unity of the Nepalese people. His Majesty shall abide by and protect this Constitution for the best interest and progress of the people of Nepal." Article 31 exempts the King from the jurisdiction of the courts, while making it clear that this does not exempt his Government or any public official. Part VI provides for the appointment of a Raj Parishad or Council of State by the King, to meet if the King dies or becomes incapacitated.

76. Part VII deals with the executive. Article 35 provides that the executive power shall be vested in the King and the Council of Ministers and that the powers of the King are to be exercised by and with the advice and consent of the Council of Ministers submitted through the Prime Minister, except those specifically mentioned as to be exercised by him personally or in some other manner. Article 36 provides that the King shall appoint as Prime Minister the leader of the Parliamentary party having a majority in the House of Representatives and that the Prime Minister shall be responsible to the House of Representatives.

77. Part VIII contains prescriptions regarding the legislature and provides for a bicameral legislature. The House of Representatives consists of 205 members elected by universal franchise from single member geographical constituencies, with the ratio of seats allocated to each district intended to reflect the population. The maximum term of the House of Representatives is five years. The National Assembly consists of 60 members, 10 of whom are nominated by the King from among distinguished persons who have rendered eminent service in different fields of national life; 35, including at least three women, elected by the House of Representatives by single transferable vote proportional representation (STV); and 15 members elected by STV by an electoral college consisting of chairmen and deputy chairmen of village, town and district local authorities. Members of Parliament are required to be aged over 25 for the House of Representatives and over 35 for the National Assembly. Ministers may take part in the proceedings of either House but only vote in the House of which they are members. Article 62 provides free speech protection for Parliamentary debate, but makes it clear that there is no Parliamentary immunity against arrest on a criminal charge. Part IX of the Constitution sets out the legislative procedure for passage of bills. Part X deals with finance, and prohibits the levying of taxes except in accordance with law.

78. Part XI concerns the judiciary. Article 84 provides that the judicial power shall be exercised in accordance with the provisions of the Constitution, the laws for the time being in force, and the established principles of justice. Article 85 provides that the courts shall consist of the Supreme Court, Appellate Courts and District Courts, as well as such other courts and tribunals as may be established from time to time. There is a prohibition on a court or tribunal being constituted for the purpose of hearing a particular case. The articles which follow contain detailed provisions as to the appointment, qualifications and conditions of service of judges. Judges are appointed on the recommendation of a Judicial Services Commission (Article 94) consisting of the Chief Justice, the Minister of Justice, the senior most judge of the Supreme Court, the chairman of the Public Service Commission, and the Attorney-General. All judges have security of tenure. A Supreme Court judge may only be removed by a two-thirds resolution of the House of Representatives. A judge of the appellate or district court may only be removed by the Judicial Council provided for by Article 93, consisting of the Chief Justice, Minister of Justice, two most senior judges of the Supreme Court, and one distinguished jurist to be nominated by the King. The remuneration, privileges and conditions of services of the judges may not be altered to the detriment of the incumbent (Articles 86 and 91).

79. Part XII of the Constitution establishes the Commission on the Investigation of Abuse of Authority (CIAA) to investigate both corruption and other forms of abuse of authority by persons holding public office. One unusual aspect of the CIAA's remit, contained in the Commission on the Abuse of Authority Act, 1991, is that it does not encompass the judiciary. A bill to extend its remit to the judiciary was withdrawn in Parliament in 2001 as a result of opposition from the judiciary. The judiciary have expressed concern that its independence might be threatened by such an investigative power. One solution which has been canvassed is that the CIAA should have power to mount such investigations, but only after prior approval from the Judicial Council (see further chapter on the judiciary below).

80. Other parts of the Constitution provide for the Public Service Commission, the Electoral Commission, and the office of the Attorney-General, who is the Chief Legal Adviser to the Government.

81. Part XVIII contains only Article 115, which provides that if a situation of grave emergency exists due to war or external aggression or armed revolt or extreme economic depression, whereby the sovereignty and integrity of the Kingdom of Nepal or the security of any part of the country are threatened, the King may by proclamation declare or order a state of emergency in all or part of the kingdom. The emergency must be approved by Parliament within three months and lapses in any event after six months. This power was invoked by the Government in November 2001 after the first peace talks with the Maoists collapsed.

82. Article 116 (art XIX) makes provision for amendment to the Constitution by a two- thirds majority of both Houses of Parliament.

83. Of the remaining articles, the most relevant to our concerns are articles 118 and 119, which define the constitutional position of the Army. The King deploys the Army on the advice of the National Defence Council. The National Defence Council consists of the Prime Minister, Minister of Defence and the commander in chief of the Army. The King is the Supreme Commander of the Army and appoints the Commander in Chief.

84. Under Article 122 the King has a general power to commute the sentence of any court.

85. We note that a key demand of the Maoist insurgents is for revision of the Constitution. While revision of the constitution in aspects such as the monarchical system of government are matters beyond the terms of reference of the mission, we are concerned that there should be no changes which might weaken the protection of democracy, the rule of law, and fundamental human rights for which the existing Constitution provides. As already indicated, we consider that the key problem for Nepal is how to ensure that the rights protection set out in the existing Constitution is fully implemented, which is a matter of bringing other laws and administrative practices into conformity with the constitutional provisions which already exist. The principal changes which we regard as desirable to the constitution itself are (1) the removal of the discrimination of women in relation to nationality contained in Article 11 and (2) a clearer statement of the subordination of the Army to the democratically elected government (see chapter 5).

86. We consider that there is an urgent need for better understanding of the Constitution in the community generally as well as among Government officials including those of high rank. We were shocked to be told by the Home Minister himself that a way around any unforeseen problems with the Constitution might be for the King to use his power under Article 127. This power provides that "If any difficulty arises in bringing this Constitution into force His Majesty may issue necessary orders to remove these difficulties". This provision is clearly not relevant to a situation 12 years after the constitution came into force and the suggestion shows a worrying lack of commitment to constitutional norms.

B. The Legal System

87. Nepal's legal system is essentially a common-law system influenced by the common law system of India, but with many traditional Hindu elements still remaining reflecting Nepal's earlier history.

88. The first Nepali legal code was the Manab Naya Sastra, introduced by King Jayasthiti Malla in the late 14th century. Drafted by Orthodox Brahmins, it was an attempt to unify and codify Nepalese social practices. The code was largely a product of traditional Hindu values, with personal rights and obligations being linked to sex and caste. Women had no independent legal status, but rather were always under the guardianship of a male relative. There were strict penalties for breaches of caste rules, with death prescribed for some inter-caste marriages.

89. The first attempt at a legal code in the modern sense was the Muluki Ain (General Code of Law of the Land), promulgated by the first Rana ruler, Jung Bahadur, in 1846. The Muluki Ain is said to have been inspired by the Code Napoleon in Europe. At the time it was seen as a progressive measure, as, for example, it abolished the practice of sati, whereby women were required or pressured to immolate themselves on their husband's funeral pyre. However, it continued to reflect a traditional Hindu approach to the law in most respects, with caste playing an important part in determining an individual's rights and penalties, and women having minimal rights.

90. The first modern code was the New Muluki Ain promulgated in 1963. This legislation replaced Jung Bahadur Rana's code and attempted to introduce a genuine secular legal system. It remains a fundamental part of the Nepali legal system. In its structure, however, it is not intended to be a permanent comprehensive code, but is subject to statutory replacement and/or qualification. Thus, where a statute has been passed by Parliament on the same subject as a part of the New Muluki Ain and makes different legal provisions from that part of the New Muluki Ain those provisions in the New Muluki Ain will be regarded as superseded and no longer good law.

91. Just before the enactment of the New Muluki Ain, an important statute introduced modern common-law concepts into Nepali Law. The State Cases Act 1961 provides for cases to be investigated and prosecuted by the state as a party, doing away with the previous system under which a person acting as an informer was required to provide the evidence of a defendant's guilt. It introduced the adversarial system of justice in place of the previous inquisitorial system, whereby the judge investigated the case.

92. A further reform of the legal system was the enactment of the Evidence Act 1974. It lays down rules for the admissibility of confessions, providing that they must have been obtained while the subject was conscious, understanding what s/he had said, and obtained without torture. The Act expressly obliges the prosecution to prove the case beyond reasonable doubt. It also introduced cross-examination of witnesses. Unfortunately, a third major reform planned at this time, the introduction of a criminal code, never went beyond a draft.

93. The legal system entered a new era with the start of democratic rule and the adoption of a democratic, law-based constitution in 1990. A new State Cases Act 1993 was enacted which further separated the investigation and prosecution functions by delineating the responsibilities of the police and of the prosecution. The provision of the right to challenge laws on grounds of unconstitutionality and the power of the Supreme Court to issue orders of mandamus, certiorari and habeas corpus ensure that its decisions are effectively binding on the lower courts, which in practice was not the case before 1990. The Bar Council Act of 1993 made provision for a modern fully independent legal profession. However, much of the legal system remains unreformed, leaving a patchwork of law in which justice and individual rights are often ignored. This is particularly so in relation to the police and their role in investigating crime, as discussed in Chapter Five.

94. The court system consists of the Supreme Court, 18 Appellate Courts, and 75 District Courts (one for each district). There is no distinction between criminal and civil courts and no jury trial. Large numbers of relatively minor cases are tried not by the Courts, but by the Chief District Officer, an administrative official who is also empowered to try cases under many individual statutes and may pass sentences of up to six months imprisonment.

95. The system of trial of minor offences by a District Officer is a wholly anachronistic and unacceptable colonial style system deriving its origins from British India and other parts of the former British Empire. It is a blatant breach of the principal of separation of powers underlying the Constitution of Nepal. It also contravenes the fair trial provisions of the International Covenant on Civil and Political Rights, Article 14 of which states that in the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair an public hearing by a competent, independent and impartial tribunal established by law. Not only is the Chief District Officer not an independent tribunal, being the head of the executive in the district, but the power of adjudication in criminal matters also makes the District Officer an over-powerful figure in his district with scope for abusing his power by harassing opponents with unwarranted prosecutions and convictions. We strongly recommend that this system be abolished and replaced by a system of magistrates' courts for minor criminal offences.

96. Studies of the operation of the legal system have been carried out by the non-governmental Centre for Legal Research and Resource Development (CeLLRRD) in 1999 and 2001, based on extensive surveys and analysis of the available statistics. These paint a depressing picture of gross inefficiency, brutality, corruption, and ignorance. The criminal investigation system is overwhelmingly based on extraction of confessions, with the majority of persons arrested being tortured in custody to extract confessions. The ability of the police to investigate crime by other methods such as interviewing of witnesses who are not in custody, or collection of forensic evidence, is minimal. Delays with repeated adjournments are the norm in criminal trials as well as civil cases. The ability of judges at first instance to evaluate evidence is often lacking. Only about 60 per cent of prosecutions result in a conviction, a low rate which reflects the absence of any prior screening by prosecutors before cases are brought to court. There is no legal provision for police bail, and bail granted by judges is usually linked to the defendant entering into a bond, which effectively limits bail to the better-off citizens. There is no legal provision for courts to sit in camera when hearing sensitive private matters such as matrimonial cases. Such cases are on the contrary treated as public entertainment. Corruption among police and court clerks is widespread. It is less common among judges, but does occur in significant proportions. There appears to be a gross overloading of the system with civil cases, with no mechanism to prevent minor civil cases being appealed successively up to the Supreme Court.

97. The system does however have some strengths and potential for further improvement. At the higher level the judiciary has established a reputation for independence, and has struck down several laws and actions of Government Departments as unconstitutional. Our findings as to the operation of the courts are considered in more detail in Chapter 6.

CHAPTER FOUR: HUMAN RIGHTS CONCERNS

A. Arbitrary Arrest and Detention

98. The difficulties in respect of the administration of justice in Nepal begin at the point of the first contact of the individual with officialdom. Indeed, in the great majority of cases of detention that came to the notice of the mission, no warrant for arrest had been produced, and no reason had been given to detainees or their families for the arrest. Contrary to the dictates of Nepalese legislation (State Cases Act), arrests are made without warrant before substantial evidence is accrued connecting the suspect with the crime. The purpose of this practice is to facilitate the primary means used by police to gather evidence, custodial interrogation.

99. In most instances involving arrest by police, detainees had been held for 7 to 14 days or more without any opportunity to see a lawyer, contact family members, or appear before a court. During the initial period of detention, detainees typically had been beaten or otherwise ill-treated, and they had been provided little or no food, other than scraps given by other prisoners. Police officials were reported generally to avoid recording the date of arrest until the day before detainees have been taken before the court, so as to convey the impression that such persons had been produced within the 24 hours prescribed by the Constitution (article 14 (6)).

100. Under Nepalese law, the military authorities are not authorised to hold persons in detention. If it is necessary to detain a person during the course of military engagement, the Army must transfer the detainee to the custody of civilian authority within 24 hours. Certainly there may arise exceptional instances for which the 24-hour rule is difficult to apply strictly, such as in respect of operations that take place far from civilian police outposts. However, hundreds of cases have been reported of the Army holding persons in barracks for periods of weeks or months. During these periods of detention, the victims usually undergo interrogation under torture. The detainees are held in unacknowledged detention, beyond any judicial supervision and without notification to the families of detainees. Family members or lawyers who may attempt to visit a person detained in military barracks are invariably denied access.

101. Although initially reluctant to admit to these unlawful cases of detention, both military and civilian Government officials generally conceded to the mission team that the Army was holding a number of persons. Army officials claimed to have been granted authorisation for this practice from the highest levels of Government, while the Prime Minister himself denied having so authorised the Army to act. Military and other government officials tended to maintain that the practice was a necessary consequence of fighting a difficult conflict against ruthless opponents. However, these officials invariably failed to explain why the already broad allowances provided under the Terrorism and Destructive (Control and Punishment) Act 2002 (TADA) were not sufficient to preclude resort to unlawful means of detention.

102. Under TADA, a "Security Officer", meaning the Chief District Officer (CDO), but in theory "any Gazetted Officer-employee of H.M.Government designated by ... notification in Nepal Gazette", may arrest on "adequate and reasonable suspicion ... and furnish information of such arrests along with reasons thereof." The mission saw no evidence that Army officers had been designated as "Security Officer" in the Gazette and was in informed by all sources that the appropriate Security Officer was always the CDO. Certainly the Army invariably gave no information about detentions, including the reasons for arrest, to the detainees or their lawyers.

103. Given that the Army is not authorised to make arrests, it came as no surprise to the mission to discover that there was no budget for food, health or other essential maintenance. Detainees therefore are often forced to subsist on occasional rations shared with them by visitors or sympathetic officers. Overall living conditions are even worse than in police stations or prisons.

104. The following case that came to the attention of the Mission typifies the pattern of arbitrary detention obtaining in Nepal:

M.R., a 17 year-old labourer living in Kathmandu, was arrested on 7 July 2002 by seven police officials in civilian dress, who came to his door at 10 p.m. while he was sleeping and asked for his identity card. M.R. told the officer that he did not have the identification document. Although not holding one's identification documents is not an offence in Nepal, the police brought him, along with his brother and his niece, to Hanuman Dhoka. The next day he was moved to the interrogation section and asked about the place where he kept stolen goods. When he proclaimed his innocence, the police subjected him to torture, which included beatings with a plastic pipe and bamboo stick on his back, legs and buttocks. His thighs were rolled with a plastic pipe. That day he was beaten for about one hour. He was continuously beaten on the first three days for about 15-30 minutes each day, and, thereafter, every two to three days over some 15-20 days. Police kicked him with boots, and prodded his stomach with a stick. Detainees were forced to slap each other and when they refused, the police continued to beat them. M.R. finally was able receive a visit by a lawyer on 1 August. He reported he had pain in his wounds for about 20 days, felt giddiness, pain on his right leg and heart, and he could not sleep at night because of the mosquito bites. He was brought to court 20 days after his arrest, and only then was he provided with money for food. His statement was forcefully taken in the police station, but the manner in which his statement was produced was not addressed in court, and the judge failed to ask him about torture.

Lack of effective remedy

105. Very few cases of arbitrary detention reach the higher courts on habeas corpus writs or otherwise. A large proportion of the habeas corpus orders that are issued are ignored by the police or other authorities. In respect of some cases, there is a manifest lack of will on the part the Government to ensure release. Indeed, in such instances as when a prisoner is held by the Army, the civilian authorities seem to consider themselves powerless to act. The courts lack enforcement capacity, and repeated instances of disregard or delay in implementation of court release orders have served largely to erode the authority of the judiciary in Nepal.

106. In more than a few cases, detainees have been released pursuant to a habeas corpus order, only to be immediately re-arrested, again usually without warrant or stated reason. This practice clearly contravenes international standards, which mandate not only the availability of a remedy against unlawful detention, but also that such remedy be effective. Another frequently reported practice is for the Chief District Officer to provide police officers with pre-signed detention orders authorising a preventive detention under TADA. These orders contain blank spaces, which police subsequently fill in with the names of persons whom they detain. Thus, while only the CDO is authorised to order preventive detentions, police officials instead appear effectively to be doing so.

Lack of Access to Counsel

107. Despite constitutional guarantees (Article 14), there is in practice no right to a lawyer while on remand or under interrogation. In any event, the limited legal aid provisions make enjoyment of this right impracticable for the great majority of defendants, so that there are hundreds of people in custody without access to counsel. One reliable study found that 71 per cent of detainees do not even know of their legal right to a lawyer. Such legal aid provisions as exist involve bureaucratic application procedures, the completion of which is practically impossible for most detainees in police custody. Even when detainees are provided legal representation, there is usually no opportunity for a defendant to consult with the lawyer before trial. From the time of arrest to the commencement of court proceedings the vast majority of detainees will not have spoken to any lawyer. When consultations between detainees and their lawyers eventually occur, these conversations are usually overheard by the police. Around half of cases are said to proceed through the courts without the detainee being represented by counsel.

B. Torture

108. The practice of torture by the police, armed police forces and Army is widespread in Nepal. Torture is used to extract information or to obtain a "confession", to dissuade a person from exercising lawful but unwelcome activities (e.g., to prevent lawyers from representing Maoists or acting as a human rights defender), or simply to impress the prisoner with the power of his captors. Torture is usually carried out in such a manner so as not to leavesigns. Sexual torture is often used on men and women.

109. Under the State Cases Act (1992), interrogation must be carried out by the Prosecutors, who are required to witness any statements. In practice, most questioning is done by poorly trained police officers. Under the Evidence Act 1974, no confessions obtained by force should be used, but it is estimated that some 60 per cent of convictions are obtained solely on the basis of a confession. It was found by one reliable study that 50 per cent of statements are made against the free will of the detainee. Further, only around 12 percent of persons making statements were allowed to read the statements prior to signing them. Some 21 percent of detainees were in any event illiterate.

110. Normally, no food is made available to a detainee appearing in court, even when in police custody. A detainee must be brought before a judicial authority within 24 hours, but in practice the average time between an arrest and a first court appearance is one week. Courts very rarely inquire of persons before them how long they have been detained or whether they have been tortured or otherwise ill-treated. In cases where such inquiries are made, detainees frequently suffer reprisals for having revealed information regarding their treatment.

111. The ICJ received allegations of torture in numerous cases. The cases described below serve as examples:

Lal Bahadur Rokaya left his parents' farm in the mountains at Dolpo at the age of 18 after a group of Maoists insurgents had beaten him for refusing to join their movement. He thereafter went to Nepalgunj and enrolled as a student to obtain his secondary school certificate and train as a teacher. As a young man from a Maoist district, he was apparently viewed by the authorities with suspicion and was detained by armed police in Nepalgunj in December 2001, along with three friends. The police handcuffed and blindfolded him and subjected him to torture every day for eight months. The methods of torture including beatings to his feet with rubber hoses and smearing of his wounds with chilli powder. Eventually his health deteriorated to such an extent that the authorities feared he would die in custody. He was therefore transferred to hospital in a convulsive state, paralysed on his left side. He was diagnosed with cerebral tuberculosis.

J.L., a 20-year old carpet weaver from Dang, was detained by police officials on 8 May 2002. The police did not inform him of the reasons for his arrest. He was taken into custody at Hanuman Dhoka, where he was asked to provide information about a theft case. When he failed to provide the information sought, the police beat him with a plastic pipe and bamboo stick all over his body. The police tied his hands and legs with bamboo and beat him for two hours a day for eight days. They also hung him from the ceiling and beat him with a stick on the soles of his feet and his back for an hour, leaving bruises and contusions all over his body. After 11 days he was taken to court. The judge failed to ask him about his treatment. He was provided with money for food only after being taken to court. (In Nepal detainees are usually required to buy their own food.) There was not enough room to sleep, as he had to share a cell with 15 other detainees.

In June 2001 X, a lawyer, was arrested at his office as he was about to go to court by three civilians who identified themselves as members of the Security Forces. He was taken by private taxi (after changing taxi twice), blindfolded, to an Army barracks. There he was held for 15 days with his hands in handcuffs behind his back and given one meal a day. The meals were the only occasion when his blindfold and handcuffs were removed. He was tortured, including by being punched on his body, kicked with boots, beaten with sticks, and having his fingernails pulled off. On one occasion, he was nearly drowned in a pond. After two days he fell unconscious. He was thereafter hung by his feet, his skin was pinched and pulled and salt rubbed in his wounds. He was questioned as to his professional position, including his defence of persons held in Preventive Detention, his representation of Maoists and his human rights advocacy. After 15 days he was taken to a police station and his handcuffs and blindfold removed. He was denied access to medical care. When his family made legal petitions, the police told the Supreme Court they did not know him. Eventually, after numerous interventions by colleagues and a Bar official, he was released, having spent over three months in detention. He does not dare bring a complaint for fear of further reprisals.

C. Disappearances

112. Disappeared persons generally fall into two categories. In some instances, civilians, military personnel or Maoist insurgents will have been killed in the course of military or paramilitary operations. Religious customs dictate that bodies should be cremated, and this procedure may take place before the body has been identified.

113. The vast majority of cases of disappeared persons are those held in unacknowledged detention. Some of these persons are eventually released and others remain in detention. An indeterminate number of the disappeared are believed to have been extra-judicially executed. The process of informing a detainee's family of an arrest may sometimes be justifiably delayed in remote areas, where communication is difficult. Nonetheless, record-keeping regarding detainees appears to be arbitrary. In cases of Army detention, it is unclear whether any record-keeping system exists. This negligence is unsurprising, given that the Army is not legally or formally authorised to detain persons. Yet even the police do not appear to have a central register of all prisoners, so that an officer may in good faith erroneously tell the court or relatives that they do not hold a person. There is very little communication between the Army and the police until the Army hand a prisoner over to police custody, often weeks after the arrest.

114. The Working Group on Enforced and Involuntary Disappearance of the UN Commission on Human Rights received more cases from Nepal than any other country in 2002. In its report to the Commission of 21 January 2003, the Working Group said that it was "deeply concerned that disappearances have continued in such alarming numbers during 2002."

115. The following case brought to the mission's attention is representative of the situation of the disappeared in Nepal:

Bipin Bhandari is the 23-year old son of a lawyer, member of the Executive Committee of the Nepal Bar Association. He is a student and was elected as joint secretary of the Student Union. On 27 April 2002 security forces, including DSP Vikram Singh Thapa, came armed to his father's house to ask about Bipin and his whereabouts. They stayed for a number of hours, searched the house, threatened the family, and finally left. Bipin did not return home. On 17 June his father heard on the radio that he had been arrested with four other students, including two girls. He applied to the National Human Rights Commission (N.H.R.C.) and made representations to the Red Cross and human rights organisations. Upon petition, the Supreme Court asked the NHRC on three occasions to investigate the matter. The ICJ mission has made inquiries to the Army Human Rights Cell, the police and the Home Minister, but no reply has been received to date. The two girls have been released to police custody, but the whereabouts of the three men remain unknown.

116. There are a large number of unresolved cases of disappearances that are longstanding.

Pravakar Subedi, an engineering student and member of the All Nepal National Free Student Union, disappeared in 1993 after he had gone to buy medicines from a nearby pharmacy. He was not at any of the local hospitals and did not appear on the list of those who died at a student protest in June that year. His brother requested the police for news, but they did not respond. A local newspaper subsequently published his photograph in accompaniment of an article about police cruelty. It was evident that he had been arrested, detained, and injured, but it was not clear whether or not he remained alive. His brother applied for habeas corpus, producing the photograph that he had identified. The photograph was sent together with earlier ones to a laboratory, but they reported that it was slightly overlapped and the two could not be compared. The Police asserted that he had not been arrested or detained and applied to quash the petition. The Supreme Court, citing the problems with the photograph and an alleged discrepancy as to his age, duly quashed it. His family has had no further remedy.

D. Extra-judicial Executions

117. The mission received information, according to which a large number of persons had been shot by the police or the Army, in some cases deliberately. Some of these cases involve persons caught in crossfire in the conflict between the Army or security forces and the Maoists, but in a large number instances cases the killings have been wilful. Investigations into killings are not generally carried out and prosecutions for unlawful killings are rare.

118. During its meetings with the human rights cells of the Army and Armed Forces police, the mission attempted to gain information regarding the rules of engagement in force, but none was forthcoming. Indeed, after initially promising to share such rules with the mission, the representative of the Armed Forces Police later conceded that no such rules existed. While it was clear that some rudimentary instruction in humanitarian standards was provided during the courses of training to the officer corps of the Army, there was little evidence of this instruction having been incorporated into Army practice.

119. The following illustrative case of unlawful execution came to the attention of the mission:

On 21 July 2002, at approximately 10:30 P.M, a group of drunken soldiers kicked down the door of Ram Kishun's house during an Army raid on the village of Jagatiyaa. The soldiers told him to put the light on while they searched the house. They found his daughter Ripa, who was aged about 12 years, dragged her outside to the village well, and shot her in the chest and elsewhere. The soldiers then forced some villagers to carry her body to the police station, where her father was allowed to collect it three days later. He was not allowed to perform funeral rites, but she was buried in a pit he dug in the forest.

E. Women and Children

120. Nepal is party to the UN Convention on the Rights of the Child and the Convention on the Elimination of Discrimination against Women, and these conventions are directly enforceable by the courts in Nepal. In practice, however, remedies are ineffective. A victim of rape, sexual assault or trafficking who brings a complaint does so at great risk of further personal violence and social stigma. In the few cases that have been successfully brought, the defendant has generally been sentenced to a fine payable to the state, with no compensation to the victim. In the area of criminal law, certain offences such as homicide, carry higher penalties for women than for male offenders.

121. There are very few women police officers. Generally, victims and witnesses are not treated with respect by the police and are thus dissuaded from registering complaints. Frequently, court clerks are corrupt and will prolong cases in order to obtain bribes for expediting them. In this system, women and children tend to fall to the back of the queue.

Ms. C.K., aged 28, was arrested on 30 January 2002 with her brother at his house in Kirtipur, where she was working. She was taken to Hanuman Dhoka interrogation section, where female police asked her where a thief was hiding. When she failed to provide information, she was tied up and beaten on the floor every day for three days. Her family members were not informed of her detention. Police officers took 1900 rupees from her and refused to allow her to take a bath or change her clothes, as she could not pay for these privileges. She was asked to sign a paper and gave her fingerprint, although she is illiterate and no one read the contents to her. She believes she might have been arrested for possessing stolen goods.

Tarnum and Tabsum Maniyar, women cousins from Nepalgunj aged 16 and 18, were detained by the Army in April 2002 and taken to the Army camp at Chisapani, where they were raped. The case was thereafter publicised by Amnesty International. The Army immediately sent armed officers to visit them at their home, and pressed them to retract their complaints and deny the incident. Under severe pressure, they retracted their statement and the retraction was broadcast three times on television. The retraction seems to have been accepted by the authorities as final and no further action is likely to be taken.

122. On 26 September 2002, a law decriminalising abortion (Country Code (Mulki Ain) (11th Amendment)) adopted by the Lower House of the Parliament was given royal assent and entered into force. Previously, abortion had been prohibited under all circumstances without exception. Abortion is now permissible up to the 12th week of pregnancy, the 18th week in case of rape or incest, or at any time if the pregnancy poses a danger to the life or physical or mental health of the women or would result in the birth of a disabled child.

123. Before the new law was approved, a study conducted by the Center for Reproductive Law and Policy (CRLP) and the Forum for Women, Law and Development, established that 27 per cent of all women in prison were serving sentences ranging from two years to life for miscarriage/abortion/infanticide- related crimes. The study also established that when facing criminal charges for abortion, many women were subjected to beatings by police to extract "confessions" and were deprived of their right to a legal counsel despite a potential sanction of life imprisonment. In one notorious case, a woman who had just suffered a miscarriage was denied a medical examination and kept in police custody for 17 days. The same study showed that law enforcement authorities arbitrarily tended to classify spontaneous and induced miscarriages as infanticide and women were therefore subject to criminal penalties. The effects of these practices are continuing, as the newly adopted law failed to address the fate of women currently serving prison sentences for having abortions while the ban was in place. At least 60 women are said to remain in prison for such offences.

124. Discrimination against persons from the lower castes (Dalits) is illegal, but widely practised. Women who have managed to achieve some measure of equality are usually members of upper castes.

125. There is also a serious problem of trafficking of women and children, mainly to India, for the sex trade or for domestic or factory work. Traffickers tend to go to the villages and promise to introduce the children into a good household, secure them a good education and pay the parents a small sum, sometimes as little as 300 rupees (less than USD 4.00). The children are treated as chattels and sold on until someone can use them. The case was recounted to the mission of a six-year old boy, who had been forced to work in carpet weaving in India. As it is illegal to employ children, he had to work underground in a dark cellar, and had already gone blind.

F. Freedom of Expression and Freedom of the Press

126. Nepal has a diverse press with numerous daily papers, including several published in English, which the mission team was able to read and compare on a daily basis, and a variety of radio broadcasts. However, the press is overwhelmingly centred in Kathmandu, and its ability to report on events in remote parts of the country is limited both by distance and the lack of reporters based in those remote areas. Regrettably, many reporters are justifiably fearful for personal safety, particularly if they cover matters which may give offence to powerful interests, whether they be the security forces, the Maoists, or local elites.

127. There is strong evidence that the Maoists have systematically targeted those whom they regard as "journalist spies". On 13 August 2002 the mutilated body of Nawaraj "Basant" Sharma was found in western Karnali province. Sharma was the founder and editor of the weekly newspaper Karnali Sandesh (Karnali Message), which since 1999 had been the only independent news medium in the far west, Nepal's poorest region. He was also president of the local branch of the Federation of Nepalese Journalists (FJN). He had previously been kidnapped and detained by a Maoist group in February, and on his release had been detained for five days on suspicion of being a Maoist spy. On 1 June 2002 armed men identified as Maoist rebels stormed his home and kidnapped him. Sharma appears to have been subjected to unspeakable cruelty before being killed, with his limbs hacked off and eyes gouged out before he was shot in the chest. The Maoists are also said to have kidnapped Dhana Bahadur Rokka Magar, a news presenter for state owned Radio Nepal's programme Kham, who was abducted from a bus in the Jaluke District in the west of the country, and Demling Lama, correspondent of Radio Nepal and of the Himalaya Times newspaper, who was abducted from his home in the Sindhupalchok district north-east of Kathmandu but escaped four days later from his captors, who had beaten him.

128. Journalists were particularly affected adversely by the mass arrests which formed part of the state of emergency from November 2001 to August 2002. More than 300 journalists were detained, of whom at least 10 were tortured. (The mission has details of several of these cases, but has decided not to publish their names as it is possible that this might lead to further retaliation against the individuals concerned.) An inquiry in September 2002 identified 26 journalists still held in violation of judicial procedures, in that they had not been taken before a judge and the 90-day limit on their detention had been ignored. Reporters without Borders has described Nepal as "the world's biggest prison for journalists".

129. As well as actual detentions, the military routinely threaten journalists, as a result of which many practise self-censorship. A representative of the British Broadcasting Corporation in Nepal told Reporters Without Borders: "Our field access is very limited. The threats from the military make us fear for the worst if we go to investigate reports of abuses. We have ended up practising a large degree of self-censorship. The Army and the Government have nothing but contempt for provincial journalists and yet we are the ones who are close to what is going on. What is the good of reporting from the field if our editors in Kathmandu just reproduce the communiques put out in the capital by the Ministry of Defence?"

130. This quotation illustrates the extent to which the spirit of freedom of the press has already been blighted as a by-product of the current conflict. In this situation it is likely to become increasingly difficult to expose and prevent human rights abuses unless effective steps are taken to prevent unlawful arrest and detention and torture and to punish abuse of power.

G. Lawyers

131. Nepal has a Bar consisting of a substantial number of committed and capable lawyers who act responsibly for their clients, and vigorously defend those who are prosecuted. The mission met a number of such lawyers during its visit. However, there remain a sizeable number of lawyers who take excessive fees and participate in the corruption of judges and officials. The Bar Association is divided into political factions, and is usually unable to punish malpractice. A mere five per cent of lawyers are women. Many lawyers were said to be reluctant to go to the Bench because of the poor salaries paid to judges. Lawyers who defend Maoists are subject to severe pressure, such as that described under torture (case of "X") above, which was by no means an isolated case. Very few lawyers are prepared to take on the defence of persons out of favour with the authorities.

132. Nevertheless, there is among most lawyers a strong commitment to the rule of law. The mission observed a demonstration by some 300 lawyers in Kathmandu on 31 January protesting against the State's failure to release five lawyers in whose favour habeas corpus decisions had been given by the Supreme Court.

133. While Nepal has ratified the major international human rights treaties and these instruments are incorporated directly into Nepalese law, one reliable survey revealed that some 50 per cent of lawyers were unaware of the Conventions or their applicability. The treaties are usually not relied on, either in domestic legal practice or through existent international human rights machinery. For example, bringing complaints before the United Nations Human Rights Committee under the Optional Protocol to the ICCPR is possible but virtually untried.

H. Government Institutions

134. Corruption is rampant in State institutions. Corruption in the judiciary is typically at the petty level, often 100-200 rupees (USD 1.20-2.50) to maintain favourable terms with the judge and court staff. This rate is not high compared to corruption in other Government departments. The new Chief Justice is widely respected, and is said to have cut the instances of corruption significantly.

CIAA

135. The mission met the Chief Commissioner for the Investigation of Abuse of Authority (CIAA), Mr.Surya Nath Upadhyay, who had refused to take office until a new law had been passed giving him wider authority. He appears to have taken advantage of these expanded powers to bring prosecutions against some senior officials accused of corruption. These powers are recent, and it remains to be seen whether the CIAA will be really effective in combating the endemic corruption, as well as cases of torture and other abuses mentioned above. At present, the CIAA Commissioner is bringing about 80 cases a year, a considerable increase on his predecessor's record. He is also securing a conviction rate over 50 per cent.

136. In respect of cases of torture, the CIAA chief calls on the senior officer to take departmental action in the first instance. If the officer does not act within three months, the CIAA in principle may prosecute, often including the senior officer in the prosecution. However, such prosecutions have rarely occurred in practice. He does not retain jurisdiction over the judges, nor, regrettably, over the military. He maintains that he does send cases involving the military to the Army HQ, but the Army is not at all transparent in respect of their handling of such referrals.

National Human Rights Commission

137. The mission met with the National Human Rights Commission (NHRC). The members explained that they were inadequately financed. They have made a positive contribution in disseminating general information about human rights, but their representations to the Government seem to be largely ignored. The NHRC did not convey the impression of acting vigorously in cases brought to its attention. Indeed, as we subsequently discovered, the vast majority of complaints received are not acted upon at all. The mission also has serious concerns as to whether the NHRC is fully independent. In its entirely unsatisfactory investigation of the notorious case involving the rape of two girls in Nepalgunj by Army officers (see Women and Children above), the NHRC seemed to accept at face value the Army's version of events in the face of convincing evidence contradicting that account.

138. The NHRC has no jurisdiction over the Army, which is subject only to the control of the King and the National Security Council (itself composed of the King, the Prime Minister, Minister of Defence and Commander in Chief of the Army). It lacks the power to compel testimony. Its decisions and conclusions are non-binding and may be ignored by governmental authorities. Its work is largely non-transparent, as a result of which public confidence in it is low as an avenue for victims to seek redress. The NHRC has failed to extend its reach nation-wide, although visits by members to many districts and steps towards setting up regional offices constitute moves to redress this shortcoming.

139. As mentioned in Chapter one, the NHRC recently appointed a rapporteur for trafficking, Dr.Renu Raj Bhandari, who seemed to be highly active and committed. The appointment of rapporteurs in additional thematic areas could substantially assist the work of this fledgling institution.

140. As noted in Chapter two, the National Human Rights Commission is proposing to serve as a monitoring mechanism for any prospective human rights agreements reached between the Government and the Maoists in the course of the peace negotiations. Given its unreliable past performance and indications by the NHRC to members of the mission that it envisages using untrained volunteers to carry out monitoring operations, we do not consider that the NHRC acting alone is fit for this critical task. We believe that the NHRC could best use its capacities by operating in conjunction with an international monitoring mechanism under the auspices of the UN Office of the High Commissioner on Human Rights.

CHAPTER FIVE: NEPAL'S POLICE AND ARMY

A. Police and Armed Forces Police

141. The mission met with the "Human Rights Cell" of the Armed Police Forces; with the Police Adviser of the DFID (British Overseas Aid Agency), and with police officers as part of a round table discussion organised by Advocacy Forum at Nepalganj. The mission also met the Home Minister, who is responsible for the police. We have also reviewed reports on the working of the criminal justice system in Nepal, including those prepared by CeLLRD and Advocacy Forum, as well as reports by Amnesty International about police actions during the emergency.

142. Our overwhelming impression was of a poorly trained and ill-equipped police force, whose methods of operation have little changed since the advent of formal constitutional and human rights reforms. For the most part, police officials appeared to have minimal investigative competence, relying heavily on torture to extract "confessions" in the absence of any facility for gathering evidence by alternative methods. (See Chapter Three.) The gross inadequacies of the police have no doubt been exacerbated by the Maoist insurgency, which has led to well-documented atrocities by the police and Army as well as by the Maoists. However, the roots of the problems with the Nepal Police go much deeper than incidents of brutality and crime during the insurgency.

143. Among the serious long-term problems which have been identified are:

(1) Widespread and routine use of torture to extract confessions. A survey by CeLLRD for its report on the criminal justice system in Nepal found that of 222 arrested persons interviewed 50 per cent stated that they had been tortured;
(2) Widespread unlawful detention. Article 14(2) of the Constitution provides that suspects may not be detained for more than 24 hours without being brought before a court, excluding the time necessary to travel from the place of arrest. However the same CeLLRD study found that in only 37 per cent of the cases surveyed was this time limit respected;
(3) Absence of prosecutorial screening aggravates effects of police abuse. Prosecutors systematically neglect to ensure that the cases brought to them by the police involve genuine possible wrongdoing, as opposed to a wrongful arrest or an obviously innocent defendant. Although under Section 17 of the State Cases Act the investigating authority should refer a case to the prosecuting attorney, who may ask the court to acquit for lack of evidence, in practice this important procedural safeguard is not applied;
(4) Lack of judicial concern over police abuse of their detention powers. The majority of judges appear to be indifferent to breaches of Article 14(2), so that the police were able to ignore it with impunity as a matter of routine. Of the cases surveyed by CeLLRD, applications for remands for further detention were made in 219 cases. These applications were refused in only eight cases, granted after scrutiny of the investigation process and grounds for seeking the remand in 21 cases, and granted without any scrutiny of the investigation process and the grounds in 193 cases, or 87 percent of the total;
(5) Refusal of access to lawyers. Although Article 14(5) provides that all accused persons have the right to counsel of their choice, it is extremely rare for police to allow arrested persons to access to a lawyer within the first 24 hours of their detention. The rare cases wherein such access is granted concern arrested persons who are wealthy or otherwise influential;
(6) Perjury is almost never treated as crime in Nepal. There is therefore no disincentive to witnesses, including police officers, to lie in court;
(7) Absence of promotion on merit within the police force;
(8) Endemic corruption, including bribery of senior police officers by politicians to enable the police to be misused for electoral purposes;
(9) General lack of investigative competence, with many serious crimes handled by generalist sub-inspectors of police with little or no training in crime investigation;
(10) Insufficient use of forensic or serological testing as part of investigations;
(11) Inadequate keeping of case files and other records;
(12) Severe lack of resources including equipment, accommodation and food. Many police posts do not have electric power. In at least one police station, 300 police officers share a building designed for 100 persons. We were told that the entire police budget is usually expended on salaries, with no separate allocation for maintenance, equipment and supplies. In some areas, because there was no separate budgetary allocation for food for an arrested person, the prisoner would receive no food unless the police shared their own food with him or her.
(13) Poor donor planning or co-ordination, resulting in waste of aid resources. We were given the examples (1) of one aid agency providing 14 women and child centres staffed by police, but without any provision for them to have telephones; (2) another agency providing the police with cameras and recording equipment, but without any budgetary allocation or other provision for films or batteries.

144. The combined effect of these problems is that the police have every incentive to abandon proper procedures and to beat confessions out of suspects, with very little chance of any sanction against them for doing so. As their pay and working conditions are poor they remain prone to accepting bribes. 145. We consider that the police force requires a fundamental overhaul of its working ethos, including both substantial investment in equipment and training, and a rigorous policy of promotion on merit with sanctions against corrupt and incompetent officers. Money alone will not be sufficient to solve the force's deep-rooted problems. What is needed is a change in culture, which can only be brought about by very determined pressure from the highest levels of governmental authority over a prolonged period.

146. We heard favourable comments on the commitment of the present Inspector General of Police to improvement of his force. However, we consider that the scope for such reform may be limited under the present Ministerial direction of the Police. We found the Home Minister, Mr Dharma BahadurThapa, to be ill-informed and unreliable in his analysis of the situation. Out of all the meetings we had in Nepal, it was only at the meeting with him that the statement was made to us that "there is no torture by police". This patent unwillingness by the Minister with supervision of the police to confront an obvious and grave problem indicated that there is little prospect of the culture of torture being eradicated or ameliorated in the near term. Likewise, the Minister's denial that persons were being held by the police in breach of Supreme Court habeas corpus orders meant that meaningful dialogue with him was unlikely, as the previous day had seen the large demonstration by the Nepal Bar Association mentioned above and attended by some 300 lawyers for the release of five named individuals who remained detained in defiance of such orders. We do not see a realistic prospect of reform unless the Minister is a person with a recognition of problems and a genuine commitment to solving them.

147. We were equally unimpressed by the Human Rights Cell of the Armed Police Forces. After initially offering to show us the Armed Police's Rules of engagement, the Head of this organisation, Deputy Inspector General Gyanenda Raj Rai, rapidly retracted his offer when it was taken up. We were left with the strong impression that no such rules of engagement existed, which corroborated what we had learned from other sources and that the Human Rights Cell had a largely public relations function designed to impress critics such as international organisations and aid donors. Unless it can be transformed into an effective human rights component of the police it should be disbanded.

148. There is at present no legal provision at all for police bail. This is an obvious gap which should be remedied by legislation as soon as possible.

B. The Royal Nepalese Army

149. The mission met with Lieutenant Colonel Ramindra Chettry and Deputy Advocate General of the Royal Nepalese Army, BA Kumar Sharma, at Army Headquarters in Kathmandu. They were representing the recently established Army Human Rights Cell. The mission also attempted to visit the Royal Nepal Army camp at Chisapani, near Nepalganj, where large numbers of civilian detainees are believed to be held. The mission was refused admission to these premises, although we were able to see through the entrance gate persons who appeared to be civilian detainees, undertaking labour under the supervision of soldiers. The presence of civilian detainees contradicted information given to the mission that day by the local District Officer that there were no longer any civilian detainees at Chisapani. But the ranking officer present at the base, a lieutenant, confirmed that detainees were being held there.

150. The Royal Nepal Army has about 53,000 troops and a number of helicopters. It remains, in structure and culture, largely the same army which existed before Nepal became a democracy and is known for its strong personal loyalty to the King. Indeed, it has never been brought under the control of any civilian government. Its troops have extensive experience of United Nations Peacekeeping missions around the world, but until 2001 they had not been engaged in combat in or for Nepal for over 100 years. This relative dormancy changed dramatically with the declaration by King Birendra of a state of emergency in November 2001, following the breakdown of the first peace negotiations with the Maoist rebels.

151. During the months of the state of emergency and afterwards numerous credible reports emerged according to which the Nepalese Army engaged in gross human rights abuses in the course of its campaign against the Maoists. These accounts were paralleled by equally serious reports of atrocities against civilians by the Maoists. For example, during 2002 Amnesty International submitted to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions details of more than two hundred people killed by the Army. Amnesty International's report on human right abuses in Nepal including those by the Army has been indignantly denounced by some Nepalese commentators, but contains much detail about incidents which critics of the report have not rebutted. Our own meetings with NGOs, lawyers and victims of Army detention satisfied us that the Amnesty International report presents a generally accurate picture of the situation between the state of emergency and the recent cease fire.

152. A particularly shocking massacre by the Army occurred on 14 February 2002. Thirty-five labourers involved in construction of an airport at Suntharali (Kalikot District) were deliberately killed by an Army patrol after first collecting their identity cards. The killing took place in the aftermath of the killing of 56 soldiers by the Maoists at Mangalsen in Achham District on 17 February, and of the firing by Maoists at an Army helicopter at the same airstrip on 20 February. As far as we were able to ascertain, no Army personnel have been charged or disciplined in relation to this massacre.

153. There have been numerous other cases of extrajudicial killings of civilians, including women, and large number of enforced disappearances. At the end of 2002 at least 199 cases of such disappearances reported in the context of the Maoist insurgency and counter-insurgency had been submitted to the UN Working Group on Enforced or Involuntary Disappearances. The Working Group reported 108 of these cases to the Nepal Government and only 3 had received a response.

154. There have been documented numerous cases of torture, including rape, by the Army. The notorious case of two Muslim girls abducted by a captain in the Army and held overnight and raped by the captain and an unidentified officer, reported by Amnesty International (see chapter three), occurred at the Chisapani camp, which we attempted to visit. This camp is suspected also to be the place where some of those who have disappeared are or have been held. On 3 April 2002 two young Muslim girls were abducted by a captain in the Army, taken to Chisapani and there held overnight and raped by both the captain and another unidentified officer.

155. After this case was publicised by Amnesty International the two girls were again taken away by the Army and were later produced by the Army to the press, and in the presence of Army personnel, retracted their earlier claims of rape. We have concluded on the basis of close investigation into this incident that the two girls were raped as they originally stated and that the later retraction of the rape claims was made under duress from the Army. We were informed that following a rising tide of indignation at the treatment of the girls the captain concerned had fled the country at the time of our visit.

156. Senior Army personnel whom the mission met appeared to be in a state of denial with regard to Army human rights abuses. We were told that the Army did not detain people outside the legal system, but sometimes just made a brief arrest to get information, such as about stolen weapons. When we informed the Lieutenant Colonel that we had been told the previous day by the ranking officer at the Chisapani camp that detainees were being held there, he then admitted that detainees were indeed being held for intelligence purposes and their identity was not disclosed. There was no time limit on how long detainees were held. The colonel was unable to point to any legal authority for such detention. He was also unable to be precise about numbers of such detainees, and added: "What does it matter if there are 3 detainees or 300?" When asked about the Chisapani barracks rape case, the Colonel simply said that the case had been thoroughly investigated. When asked for a copy of the document authorising the Army to detain people outside the legal system, the meeting degenerated into confusion, and we were eventually told that no documents could be provided to us without Government permission.

157. Although our direct contacts with Army personnel were limited, they overwhelmingly confirmed information from lawyers, ex- detainees, local and international NGOs and diplomats that the Nepal Army is feudal in its outlook, contemptuous of human rights, and operating as a law unto itself. There is an urgent need for education about the Geneva Conventions and about the role of the Army in a democracy. The Army Human Rights Cell is officially designed to carry out this role, but is a toothless and largely fictitious entity, designed as window-dressing to disarm critics rather than as a serious institution contributing to the process of reform.

158. We share concerns that have been expressed by legal experts and the representatives of the major political parties with whom we met, that the Constitution does not clearly subordinate the military to the civilian power. By Article 119 of the Constitution, the King is the Supreme Commander of the Army. Article 118 provides that he shall perform the operation and deployment of the Army on the recommendation of the National Defence Committee, which is chaired by the Prime Minister. According to Article 119, the Commander in Chief of the Army is to be appointed by the King on the recommendation of the Prime Minister. In practice there has never been any effective democratic control over the Army. In a situation such as that prevailing presently, where the democratically elected prime minister has been dismissed and replaced by a prime minister chosen by the King, there is clearly no democratic control at all over the operation of the Army. In these circumstances it is not surprising that the Army's loyalty appears to be only to the King and that its commitment to democratic values appears weak.

CHAPTER SIX: THE JUDICIARY AND THE ADMINISTRATION OF JUSTICE

A. Institutional framework and impediments to the administration of justice

159. The judiciary in Nepal is structured as a three-tier hierarchy. The district courts are the courts of first instance and are located in all 75 districts of Nepal. They have jurisdiction over both civil and criminal matters. At the second level, sixteen courts of appeal are established in various regions of the country. The Supreme Court, the highest court in the country, is the guardian of the Constitution. It is composed of fourteen Judges and ad-hoc judges, who are appointed by the King on recommendation of the Judicial Council. All courts, except for the Military Court, fall under the supervisory control of the Supreme Court.

160. The Constitution also establishes a Judicial Council, a body responsible for providing recommendations to the King regarding the appointment, transfer, disciplinary actions and dismissal of services of the judges. It is composed of the Chief Justice of Nepal as ex-officio Chairman, the Minister of Justice of Nepal, the two most senior justices of the Supreme Court as ex-officio members and a distinguished jurist of reputation nominated by the King as a member.

161. Over the past ten years, the caseload has increased markedly in all courts, especially in the Supreme Court. This expanded workload has led to an overburdening of the whole system and to longer periods of adjudication. Although the bulk of dockets consist of civil cases, both the civil and criminal justice systems have been hampered as a result of understaffing in courts. Criminal trials often stretch over extended periods of time, sometimes greater than a year and the defendant is usually detained during the trial period. The slow functioning of the system poses an unjustifiable encumbrance to the accused person's liberty and leaves him or her vulnerable to human rights violations.

162. Several factors contribute to this phenomenon. First, the Government has neglected to deal with the exigencies of the expanded caseload by concomitantly increasing funding and staffing. In addition, the authorities have failed to distribute existing resources in a coherent and rational manner. While urban courts are desperately overburdened and many remotely situated courts have a scant caseload, the proportional distribution of funds among courts fails to reflect realities on the ground.

163. The Basic Principles on the Independence of the Judiciary provide that it is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions. The Government is clearly in breach of this principle. Typically, Court judgements are not delivered in the form of a written opinion, even if substantial questions of law are at issue. Systematic and timely dissemination of judgements in the official bulletins or by electronic means is glaringly lacking. Throughout the court system there is an absence of computing facilities and even more basic equipment. Although the Supreme Court has a website, it is frequently inoperative and not reliably updated. A number of judges and lawyers expressed their frustration to the mission team that it was not possible to receive judgements of the Supreme Court in a timely fashion.

164. The judiciary in Nepal benefits from a substantial degree of independence. Indeed, the Chief Justice of Nepal, judges of the Supreme Court and the Registrar and Joint Registrar of the Supreme Court, informed the members of the ICJ mission in a consultation meeting at the Supreme Court that they had not experienced overt pressure or threats to their independence. However, there have been numerous instances wherein the Government has declined to carry out the orders of the court. On 31 January 2003, as mentioned in chapter one, the mission observed a protest demonstration of some 300 lawyers sponsored by the Nepal Bar Association. This action was aimed at the general lack of respect for court orders by the Government and at demanding the release of five colleagues held in defiance of release orders from the Supreme Court. In the consultations between the mission and the judges of the Supreme Court, the judges made clear that they were aware of the problem of government non-compliance, but seemed unable to formulate proposals to alleviate the situation. The courts have been especially reluctant to issue robust contempt orders in such cases.

165. Judges at the superior levels appear to be highly competent. Many complaints, however, have come to light regarding judicial corruption. Indeed, there is a pervasive public perception of a high level of corruption among the judiciary. A top official of the Nepal Bar Association told the mission that he estimated that some 90 per cent of the judges had been receiving bribes before the appointment of the current Chief Justice, but that this figure had since dropped to about 50 per cent. The Ministry of Justice strongly disputed these estimates during discussions with the mission. The mission raised its concerns regarding corruption with the Chief Justice and other Supreme court judges. The following day, the Chief Justice announced that teams of judges would be visiting all regions of the country, inter alia, to investigate these concerns.

166. While guidelines governing judicial conduct apparently exist, they are not generally disseminated or implemented. The Judicial Council, in charge of disciplinary matters, far from taking action against corruption, appears instead to be shielding the members of the judiciary. It is therefore not surprising that the Judicial Council also lacks popular confidence.

167. The Commission for the Investigation of the Abuse of Authority (CIAA), a serious and relatively effective institution, has authority to investigate complaints on matters of corruption and abuse of power by the authorities. While it may look into conduct of court staff, the CIAA lacks competence to supervise the judges themselves. Therefore, corruption and abuse of power by the judiciary goes largely unchecked. Nepal is in critical need of an independent authority, which itself is beyond suspicion of corruption, to investigate and discipline abusive behaviour within the judiciary.

168. The qualifications of court personnel are in many cases unsatisfactory. There is a tendency to recruit general clerical staff, instead of employing staff with a legal background. To ensure that fundamental fair trial standards are met, it is necessary that all court staff entrusted with important responsibility in handling cases, and not only judges, be properly trained and qualified.

169. The present annual disposal rate of cases is less than 50 per cent of cases initiated in the year, resulting in half of the cases being backlogged to the following year. While some delays may be the inevitable result of shortfall of resources, it is also in part occasioned by slackness on the part of some judges and judicial personnel, particularly in outlying districts. There exists no audit or other mechanism to assess the effectiveness and efficiency of judicial work and little possibility of penalising poor performance.

170. Another extremely worrying condition revealed to the mission was the complete absence of functioning courts in a number of districts, particularly in regions affected by the insurgency. According to the Nepal Bar Association, there are no courts or judges in 13 districts. While it may well be that judges have been forced to abandon their posts for security reasons, there can be no justification for leaving detainees stranded indefinitely in detention without access to courts. In such instances, it is incumbent on the supervisory courts to order the transfer of detainees to venues where their cases may be judicially processed.

B. Criminal proceedings

171. The legal framework is an outdated patchwork of enactments from different periods. Various projects to draft new codes of criminal law and procedure have been under way for many years, but these efforts have not yet reached fruition. A substantive criminal code draft has been formulated, but there is presently no legislature in place to enact the code. To some extent, the inadequacies in human rights protection in municipal substantive law are mitigated by the fact that Nepal has ratified the major human rights treaties (the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of Discrimination against Women (CEDAW), the Convention on the Elimination of Racial Discrimination (CERD) and the Convention against Torture (CAT)) and that according to article 9 of Nepal's Treaty Act, the provisions of the international treaties become part of Nepalese law upon ratification. However, this safeguard is at present of limited practical use because of the inadequate knowledge among lawyers and judges about the existence of these treaty provisions.

172. The inadequacies of the present legal framework and practice have adversely affected the entire criminal justice process. Serious abuses by the police begin during the investigation phase, continue during the prosecution phase, and are thereafter sanctioned by the courts during the adjudication phase. While gross violations such as torture happen mainly at the hands of the investigative officers, i.e. the police, they are made possible only through the willingness of the courts to overlook these violations and thereby effectively act in complicity with the perpetrators of the violations.

Investigation Stage

173. In Nepal, the investigative stage of the criminal proceedings falls entirely under the dominion of the police. The role of the police in the treatment of detainees, previously discussed in this report, bears repeating. It is during the pre trial process that the situation of suspects is most precarious, as they are often held in unlawful detention in overcrowded prisons, without being granted their most basic procedural rights, thereby becoming easy targets of police violence. Detainees are not informed of their right to communicate with counsel, and are systematically denied access to their family, to a lawyer and to a doctor.

174. The police systematically arrest all criminal suspects. Arrest generally occurs without a warrant, in violation of Nepalese law. Typically, no notice of the grounds for arrest is delivered to the detainee. Regrettably, the Supreme Court has held that no notice has to be served in cases of arrest for the purpose of investigation. The jurisprudence of the Supreme Court in this respect is in clear conflict with the ICCPR. Article 9 (2) of the ICCPR makes no distinction among the grounds of arrest, but rather provides that all persons must be informed of the charges brought against them.

175. While Nepalese law mandates that detainees be taken before a judge within 24 hours of the arrest, this right, often ignored, is anyway of little significance in practice in the absence of notification of the rights and access to counsel. As the UN Special Rapporteur on Torture has observed, most people arrested are not brought before a court within the 24-hour period and are held incommunicado in detention for prolonged periods, often in unofficial places of detention. Moreover, as only appellate courts have the power to grant habeas corpus, that remedy is effectively unavailable to those held in areas far from regional appellate courts. In the 13 districts for which there are no courts, persons are held in detention indefinitely. In addition, habeas corpus, in practice, is not enforced by an officer of the court, as prescribed by law.

176. In most instances, remands requested by the police are summarily granted by the court in the absence of a lawyer for the detainee. District courts fail to scrutinise evidence and related documents while ordering remand for detention, thus making pre-trial detention a virtually automatic measure at the investigation stage. Although the period for remand ordered by the court should not, in law, exceed 25 days, in practice repeated remands are requested by the police, making the period of pre-trial detention virtually endless. Suspects who have been released are frequently re-arrested, without further evidence.

177. Conditions in most places of pre-trial detention do not conform with international standards. While the Prison Act and Regulations provides that persons awaiting trial should be held separately from convicted persons, this injunction is not followed in practice. Also, in breach of the Children Rights Act, juveniles are usually not separated from adults.

178. Arbitrary and incommunicado detention, which are widespread, are facilitated by two special laws. Under the Public Security Act, the police have wide powers to detain individuals for up to 90 days. This period may be extended for an additional 90 days by the Ministry of the Interior, and, for a further 12 months from the original date, if such extension is approved by an advisory board established under the Act.

179. The Terrorist and Disruptive Activities Act (TADA) grants authority to the police to arrest any person believed to be involved in activities covered by the Act. It allows for holding persons in preventive police detention for 90 days. Persons detained under TADA are not informed of the reason for the arrest, are not brought promptly before a court and are held for prolonged periods without charge. During the mission, the judges of the Supreme Court expressed reservations about the special courts introduced through TADA and were confident that ordinary courts had the capacity to adjudicate cases arising out of the conflict. In practice, the Special Courts have only been used in a very small number of cases to date.

180. The Judiciary has largely avoided confronting the alarming practice of military detention. Asunderscored previously in this report, a substantial number of persons continue to be held in incommunicado military detention, even though there is no legal ground for such military detention in the law. A judge of the Appellate Court of Banke admitted that he knew "personally", but not officially, of this practice.

181. According to a judge of the Appellate Court in Patan, no detainee has ever protested in court against military detention on the ground that it has no basis in law. The problem, however, is that persons held in military detention are not brought before the judiciary. When a habeas corpus petition is filed on behalf of persons believed to be held in military detention, inquiries are made to the civilian Chief District Officer (CDO), who will usually deny any knowledge of the detainee's whereabouts.

182. The mission considers that this systematic resort to detention without judicial guarantees and without supervision by a court amounts both to a violation of rights of detainees under Nepalese law and a systematic breach of Nepal's international obligations under the ICCPR. The UN Human Rights Committee has emphasised in its General Comment to ICCPR article 9 that pre-trial detention must be the exception and not the rule and should be as short as possible. Practice in Nepal clearly shows the opposite tendency. Prolonged incommunicado detention also constitutes a violation of the right to be treated with humanity and with respect for the inherent dignity of the human person enshrined in article 10 (1). Critically, incommunicado detention leaves those held vulnerable to torture and other ill-treatment, as borne out by practice in Nepal.

183. The failure of the authorities to inform the detainee of his right to counsel and to grant access to lawyer also constitutes a breach of Article 14 (3) (b) and (d) of the ICCPR. The Human Rights Committee has consistently held that the refusal of access to a lawyer during police investigation contravenes Article 14 (3) (b) and (d). The Committee has further noted that that Article 14 (3) ICCPR requires that persons should have access to a lawyer "in conditions giving full respect for the confidentiality of their communications". The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Principles 17 and 18) and the Basic Principles for the Role of Lawyers provide that detained persons shall be entitled to have assistance of, and to communicate and consult with legal counsel, and that confidential communication with counsel shall be ensured to detainees (Principles 5 through 8).

184. Denial of rights to access to a lawyer, relatives and doctors, has contributed to the frequent instances prolonged pre-trial investigation, which in turn places the detainee at high risk of human rights violations. Torture or inhuman or degrading treatment are systematically practised in police custody in order to extract "confession" from the detainee and has been reported in well over half of all cases of detention. According to one reliable Nepalese research report, the investigator is "more concerned with forging or taking evidence, rather than discovering it".

185. Under the CAT, to which Nepal is a party, the state is obligated to enact legislation banning evidence obtained through torture or any other form of inhuman and degrading treatment from criminal proceedings. Article 4 of the CAT requires Nepal to make torture a specific offence under Nepalese law. Both the Human Rights Committee and the Committee against Torture have stressed that allowing impunity for the crime of torture constitutes as much a breach of international obligations as the acts of torture themselves. Article 14 of the CAT grants victims a right to fair and adequate compensation, including the means for as full rehabilitation as possible.

186. In dereliction of all of these obligations, Nepal law does not make the practice of torture a specific offence or provide for the suppression of evidence obtained through torture. In practice, officials responsible for acts of torture or cruel, inhuman or degrading treatment are never held accountable for their abuse of power, either by way of criminal sanction or by way of civil accountability. While a right to compensation for torture victims is provided under the Torture Compensation Act, prosecutors are not mandated to prosecute officials for torture, but only to defend police officers in compensation cases. In addition, the compensation granted to the victim is not levied from the perpetrators, but from state funds. There is therefore no individual responsibility specifically for acts of torture under Nepalese law.

187. Nepal does not adequately comply with any of the preventive measures for the eradication of torture mandated under the Convention against Torture, such as the training of law enforcement personnel and other public officials, of the systematic review of interrogation rules.

Prosecution stage

188. After concluding the investigation, the police officer in charge of the case reports the findings to the concerned government lawyer. The government lawyer decides, on the basis of the evidence submitted to him, whether to initiate a prosecution. Although the prosecutor is in principle fully responsible for supervision of the investigation, prosecutors in practice frequently abdicate this function and have simply processed the results of the police investigation without review. The low ratio of convictions compared to prosecutions seems to indicate that the prosecution treats many decisions in a superficial manner. While the rate of convictions for public order offence, is very high, it stands well below 40 per cent in other cases, leading to the conclusion that the prosecution is not adequately filtering or preparing cases.

Adjudication stage

189. After the appearance of the suspect and submission of the charge sheet to the court, the adjudication stage begins. Here, violations of human rights committed during the investigation stage could and should be redressed. In practice, the judiciary usually turns a blind eye toward official abuses and frequently relies on "evidence" obtained through unlawful methods to convict the accused.

190. The registration of the charge sheet triggers the bail proceedings, immediately followed by the deposition of the suspect. The deposition should be recorded, but judges do not always follow this procedure. Bail may be granted as a privilege for offences for which the punishment is less than three years. However, bail is often only granted against the deposit of a monetary value bond. As a consequence, bail is generally only available to those who have the means to afford the required sum, making it a privilege of the relatively wealthy. Some District Court judges acknowledged the unfairness of this practice to the mission. This discriminatory policy with regard to bail is also arbitrary and violates the principle of equality before the law. It is problematic that bail is only granted for offences carrying a maximum penalty of less than three years, because it increases the instances of unnecessary incarceration and calls into question the presumption of innocence for those not accorded bail. The mission considers that the purpose of bail is to ensure the appearance of the defendant in future judicial procedures and its availability should not be connected principally to the length of sentence applicable to the charges.

191. In respect of a substantial proportion of cases, defendants go unrepresented by counsel at trial, even when faced with the most serious charges. Some defendants are unaware of their right to be represented by counsel, but in many cases the defendant simply lacks the financial means to retain a lawyer. The Legal Aid Act of 1997 provides for the possibility of legal aid to indigent persons. In fact, a lawyer is appointed to each Court of Appeal and in most District Courts to ensure free legal representation for persons unable to afford counsel. These lawyers are paid remuneration on a monthly basis. Yet, these arrangements are inadequate and poorly administered, as more than half of the persons convicted do not have legal representation. These shortcomings infringe the right to representation by counsel under article 14 of the ICCPR. Similarly, the Basic Principles on the Role of Lawyers enjoin governments to ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons.

192. The Secretary of the Nepal Bar Association told the mission that outside of Kathmandu, Maoists or persons held on suspicion of collaboration with Maoists do not get legal aid. Moreover, as the Bar Association complained to the mission, lawyers themselves have been tortured or arbitrarily detained simply because of association with their clients, particularly in the case of Maoist suspects. These practices contravene the basic Principles on the Role of lawyers, which place a duty upon the state to protect lawyers in the discharge of their functions and explicitly provide that lawyers shall not be identified with their clients or their clients' causes as a result of carrying out their professional functions.

193. Judges routinely fail to investigate allegations of torture and generally ignore the manner in which "confessions" have been obtained. While legislation prohibits reliance on evidence obtained through use of force, the Supreme Court has placed the burden of proving that torture was inflicted onto the accused. According to a report of the Center for Legal Research and Resource Development, confessions were taken from 85 per cent of detainees in police custody. Some 42 per cent of these detainees complained that the confession was obtained through ill-treatment. Yet, 60 per cent of those complaining about ill-treatment were nonetheless convicted. Taking into account that many persons subjected to ill-treatment do not report their ordeals owing to intimidation or fear of reprisal, even these statistics necessarily understate the true scope of the problem.

194. The failure to investigate allegations of torture constitutes a violation of international human rights law. As the Human Rights Committee and the Committee against Torture make clear, an independent and impartial investigation must be conducted every time there is an indication that an individual may have been tortured. If the allegations are well founded, the investigation must lead to the prosecution and punishment of the perpetrator.

195. The resort to violent methods to extract statements is deeply worrying not only because of the violation to the physical integrity of the victim. In addition, the confessions obtained during the investigative phase remain the primary source of proof against defendants in criminal cases and thereby undermine the possibility of a fair trial. Although the Supreme Court has established that the statement of the accused cannot be the sole basis for conviction, judges still mainly rely on the "confession" of the accused for their findings. Moreover, they rely on "confession" before the police officer or prosecutor, rather than on the statement of the accused in court. Indeed, judges tend to pay scant attention to the suspects' or witnesses' depositions in court.

196. During the mission's visit to the appellate courts, some judges acknowledged the problem of torture and of falsified police records. However, they did not seem to consider it their task to provide remedy for such human rights abuses. Some judges in Banke were unaware of international human rights treaty standards, although Nepal has ratified all major treaties and these standards forming part of Nepalese domestic law. The same attitude was evinced in the district courts in Kathmandu, where judges were aware of the inhumane treatment in police custody, but did not consider it their duty to investigate and punish these abuses.

197. It is entirely unsatisfactory that courts in Nepal frequently only rely on evidence not directly produced in the courtroom. Although Nepalese legislation prohibits the reliance on evidence obtained through ill-treatment, this legal proscription alone is not a sufficient safeguard. The judge should concentrate on evidence produced in the oral hearing, mainly the deposition of the accused, witness testimony and forensic science. Forensic science may be difficult to obtain given that the police and government attorneys tend to eschew the gathering of forensic evidence in the vast majority of cases. However, judges can play a role in changing the practice of police and investigators by rejecting uncorroborated "confessions" as a basis for convictions.

198. The Government lacks a serious policy for protection and rehabilitation of victims. When considered as witnesses, victims are seldom provided with protection, so that many persons are reluctant to testify in court against police or other government officials. There are no provisions for giving testimony in closed sessions or through remote television monitor.

199. There is a dearth of victim rehabilitation programs in Nepal, although we learned that an initiative is under way for one to be established through donor contributions. Fines paid by offenders go to the states coffers, rather than victims, so that crime becomes a source of revenue for the state. Beyond the Torture Compensation Act, there is no law for the compensation and rehabilitation of victims of crime.

CHAPTER SEVEN: CONCLUSIONS AND RECOMMENDATIONS

200. Most of the recommendations set forth below are intended for implementation by the Government of Nepal. Some, however, are directed to the various governments and agencies which are now, or which may be prepared, to assist the Government of Nepal in improving its legal system and judicial system generally.

201. As our terms of reference pertained to the administration of justice, it was not generally within the mandate of the mission to examine the conduct of the Maoists during the course of the armed insurgency. Needless to say, many Maoists insurgents are responsible for a large number of well-documented atrocities, including acts which may amount to international crimes. It is to be hoped that the discussions between the Maoists and the Government will proceed to a successful conclusion. In the unfortunate event that further armed conflict, the insurgents no less than the Government must fully respect their obligations under international law.

I. THE RULE OF LAW AND GENERAL CONSTITUTIONAL QUESTIONS

Conclusion A

202. The most fundamental question arising in the context of the present peace process is whether Nepal should adopt a new constitution; amend the existing Constitution to enshrine new constitutional arrangements; or leave the existing constitutional arrangements in place. It is well beyond the terms of reference of this mission to offer any views on this weighty question. However, as the peace process unfolds, Nepal should continue to operate under a constitutional government. The dissolution of parliament, combined with the failure to hold elections within the six-month time frame required by the Constitution, and the formation of a government consisting of unelected ministers from outside the major political parties, has placed a profound stress on the democratic and constitutional framework of Nepal. Because the principal ministers seem to be answerable only to the King, Nepal is perilously close to slipping from a constitutional towards an absolute form of monarchy.

203. In principle, the Government would need to hold instant elections to preserve the integrity of the present Constitution. Recognising that the holding of elections or restoration of the previous parliament may be now both impracticable and generally unwelcome in light of the impending peace negotiations, certain immediate steps might yet be taken to vest the interim Government with some modicum of constitutional and democratic legitimacy. In particular, the inclusion in a broad-based government of members of the dissolved parliament from among the major political parties could be one step in the process.

Recommendation 1

205. Until a legitimate parliament is constituted, the Government should not legislate by ordinance and its activities should be strictly limited by the terms of the Constitution.

Conclusion B

206. At present, there exists no mechanism by which to determine the limit of the monarch's authority under the Constitution. The Constitution provides that actions of the monarch are non-justiciable. Therefore, a monarch carrying out an action arguably outside his constitutional authority or in clear breach of such authority cannot be legally challenged for such transgression. It is certainly not unusual under a constitutional monarchy for difficulties to arise in ascertaining the relationship between the head of state, the parliament and the judiciary. We consider that this following recommendation should be implemented because it is fundamental that the branches of the government are clear as to the limits of their functions in relation to one another.

Recommendation 2

207. Whether through a new constitutional arrangement or amendment to existing constitutional provisions, the Constitution should clearly set out those powers of the monarch which are not subject to review and should provide that any question of excess of the monarch's authority shall be subject to review by the courts.

II. INTERNATIONAL MONITORING, ASSISTANCE AND COOPERATION

Conclusion C

208. Despite ratifying and incorporating into national law the six principal international human rights treaties, Nepal has failed adequately to cooperate with United Nations human rights mechanisms and has not taken full advantage of the possibility of using the services of the Office of the High Commissioner on Human Rights. Nepal has been derelict in its reporting obligations to several of the human rights treaty supervising bodies and has not always responded to requests for visits or for information by UN special procedure mechanisms.

209. The capacities of the United Nations Office of the High Commissioner for Human Rights (UNOHCHR) are clearly needed, both to monitor and report on the human rights situation in Nepal and to assist in the implementation of the large number of programmes presently carried out by other agencies and organisations. This presence would also ensure that human rights questions are adequately addressed in the course of the ongoing peace process. The UNOHCHR's recent dispatch of an adviser to work under the auspices of the United Nations Resident Representative, is a welcome, albeit insufficient, step toward that end.

Recommendation 3

210. Nepal, as a matter of priority, should submit all outstanding reports to the United Nations human rights treaty supervisory bodies.

Recommendation 4

211. The United Nations Office of the High Commissioner Office for Human Rights should establish and the Government should accept a field office with monitoring, co-ordinating and technical assistance functions.

Conclusion D

212. Nepal at present benefits from the activities and assistance of foreign governmental and inter-governmental agencies and donors, as well as of local and international non-governmental agencies. Yet co-ordination of such activities is not satisfactory. In order to fill existing lacunae in respect of such assistance, as well as to prevent unnecessary duplication and misdirection of energies, donor countries and agencies should establish a mechanism to better co-ordinate their activities. Non-Governmental Organisations, both external and internal to Nepal, should also seek to enhance their coordination by collecting and providing information as to available assistance and by determining the nature of additional assistance that may be required. Such a procedure should operate independently of the Government and in no way be used to restrict the existence or activities of local or external NGOs.

Recommendation 5

213. Two co-ordinating mechanisms should be set up, one for external governmental or international government donors and agencies and one for external NGOs and all internal NGOs and bodies. Those mechanisms should provide a system for the achievement of enhanced co-ordination so as to provide maximum assistance to the Government and people of Nepal and to identify those areas where no assistance is being provided and new assistance can be directed. The NGO mechanism should be entirely independent of Government.

III. THE JUDICIARY

Conclusion E

214. The judiciary in Nepal maintains a substantial level of independence and many judges at the highest levels appear to be highly competent. However, the judiciary historically has been subject to various complaints and occasional removal and there is a strong perception of judicial corruption held by the Nepalese community. The Judicial Council, which is responsible for discipline of judges, lacks popular confidence. Judges are widely seen as being unable or unwilling to police their own activities. The Commission for the Investigation of the Abuse of Authority (CIAA), which is charged with investigating and prosecuting official corruption and abuse of power, has no jurisdiction over the judiciary. While apparently guidelines exist governing judicial conduct, they are not widely disseminated or implemented.

Recommendation 6

215. Either through reform of the existing Judicial Council or new constitutional or statutory provisions, an independent body, consisting of a mix of constituents from within and outside of the bench, including the C.I.A.A., should be established to investigate and discipline instances of corruption and other abuses of judicial authority.

Conclusion F

216. The courts, at all levels, frequently fail to issue written judgements, even in respect of cases where a significant question of law is at issue. When such judgements are issued, there are often substantial delays in the dissemination of the judgements through bulletins or electronically. The Supreme Court website is frequently inoperative and judgments are usually not posted thereto in a timely manner. The appellate and district courts typically lack computer facilities that would allow for the easy retrieval of judgements and the undertaking of research. In addition to the judgements themselves, there is an urgent need for the computerisation of records on case dockets. There is a need for a culture change for judges to adjust and to be assisted to make use of modern technology.

Recommendation 7

217. The judiciary, especially at the Supreme and appellate court levels, should issue written judgments in a timely manner and these judgments should be dispatched expeditiously for use by the judiciary, lawyers and the general public, including through electronic means. The courts are in need of the capacity and training to keep electronic records. The Judicial Academy has played a useful educative role and its activities should be expanded. In particular, greater legal resources should be provided to judicial officers working in more remote locations.

IV. HUMAN RIGHTS AND THE ADMINISTRATION OF JUSTICE

Conclusion G

218. The adoption of the Terrorist and Disruptive Activities Ordinance Act (TADA) has effectively legitimised the widespread practice of arbitrary detention, in contravention of articles 9 and 14 of the International Covenant on Civil and Political Rights. Persons detained under TADA are particularly vulnerable to torture. Such persons are often not informed of the reason for arrest, are not promptly taken before a court, and are held for prolonged periods without charge, whether for preventive or investigative purposes. As no state of emergency now exists in the country, TADA on its face contravenes Nepal's international legal obligations.

Recommendation 8

219. The Government should at present desist from implementing TADA. At such time as a legitimately constituted parliament convenes, TADA should be repealed or substantially amended to bring it in conformity with Nepal's international obligations under articles 9 and 14 of the International Covenant on Civil and Political Rights.

Conclusion H

220. There is near total impunity for officials of the Army, armed police forces and police who engage in serious human rights violations including torture, unlawful killings and war crimes.

221. By failing to make torture a specific crime in its legislation, Nepal is in dereliction of a core obligation under the Convention against Torture. Although torture victims may seek compensation under the Torture Compensation Act, such compensation, when granted, is the responsibility of the state, not the torturer. Thus, under Nepalese law, there is a complete lack of individual responsibility, either criminal or civil, for the international crime of torture; i.e., near total impunity. Indeed the public prosecutor has the responsibility to defend the police in Torture Compensation Act cases, but is not charged with the mandate to prosecute suspect police officials for offences of torture. In practice, neither the police, the prosecutor, nor judges either undertake or order investigations of torture allegations. Most torture victims are fearful of pressing cases for fear of reprisal. Judges do not consider it a component of their responsibility to inquire into a detainee's treatment or to question how "confessions" are obtained. Judges should have a power to refer torture allegations to an investigative authority.

Recommendation 9

222. The Government, including the Minister of Law and Justice, the Attorney General, prosecutors and police should investigate and prosecute serious violations of human rights including extrajudicial killings and torture. Nepal should comply with its obligations under the Convention against Torture, including by making the prohibition on torture and inhuman and degrading treatment a specific crime under national law.

Recommendation 10

223. Judges should have and exercise the power on a prima facie case of torture or inhuman or degrading treatment to order an independent investigation. Such investigations should be carried out urgently by officials who are independent and administratively separate from the ordinary police. Victims providing accounts of torture should be given appropriate protection against reprisal.

Recommendation 11

224. Assistance for complaints and compensation claims for torture or inhuman or degrading treatment should be provided by way of legal aid.

Conclusion I

225. An unknown but substantial number of persons are presently held in unacknowledged incommunicado military detention without trial. Many such detainees are subject to interrogation under torture. These detentions are unlawful, as the military have no authority to hold persons. The Chief District Officer has responsibility for detainees in cases falling under the Terrorist and Disruptive Activities Act (TADA) and the police have such responsibility in all other cases. When these civilian institutions abdicate their responsibility to see to it that the Army hands over suspects to their control, an independent authority, or the Attorney General, should exercise power to oblige the Chief District Officer or police to answer, subject to powers in the nature of contempt. Because only the appellate courts, not district courts, have the power to grant habeas corpus, persons held in areas far from regional appellate courts have difficulty in filing habeas corpus petitions.

Recommendation 12

226. All persons presently detained in military custody should immediately either be released or handed over to the custody of the police or, where appropriate, to the Chief District Officer, who should then decide whether to charge the detainee with a cognisable crime or to release the detainee.

Recommendation 13

227. The power to hear habeas corpus cases should vest in the District Courts, as well as the appellate courts. An independent authority should be able to call upon the Chief District Officer to provide details of all persons held longer than twenty-four hours and for the release on application to a local district court for persons held longer than twenty-four hours.

Conclusion J

228. Many persons who encounter the justice system in Nepal lack the most basic access to justice. Persons arrested are typically not informed of their right to a lawyer and many are tried without counsel, even for the most serious offences. Even in respect of defendants who are eventually represented, lawyers are generally not given access to their clients until the trial phase. Almost all interrogations take place without counsel. Existing legal aid provisions are inadequate in scope to cover the overwhelming majority of defendants who cannot afford counsel and in cases where the court appoints counsel pursuant to a defendant's request, the rates of remuneration are too low to make acceptance of representation attractive.

Recommendation 14

229. All persons upon arrest should be informed of their right to a lawyer. Access to counsel should be granted at the first stages of custody, including prior to questioning. Police should notify lawyers of the detention of their clients without delay. Legal aid schemes should be expanded. Under no circumstances should any person be tried without legal representation for an offence which carries a sentence of more than six months.

Conclusion K

230. A number of lawyers have been arbitrarily detained, some for prolonged periods and subject to torture, simply because of association with their clients.

Recommendation 15

231. The Government should scrupulously respect the United Nations Principles on the Role of Lawyers, particularly Article 16 and Article 18, which provides that lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.

Conclusion L

232. It is clear that confession is the primary source of proof of many criminal prosecutions and that in many cases such confessions are improperly obtained. Part of this methodology is a by-product of grossly inadequate police training in criminal matters. International expertise is available in criminal investigations, including police training techniques and relatively efficient forensic science facilities, which would reduce the reliance on torture as the means of obtaining evidence. While certain forensic facilities might be beyond Nepal's resource capacity, some means are relatively inexpensive to implement.

Recommendation 16

233. The Government should invite international policing experts to provide training inside and outside Nepal in interrogation and investigative techniques to improve police investigations and so decrease the incidence of torture and improve the administration of justice.

Recommendation 17

234. Forensic science facilities should be developed and provided through international assistance to improve police investigation.

Conclusion M

235. Nepal does not have appropriate forms of non-custodial penalty such as probation, community service orders, parole or release on licence. Enactment of a law to provide for such non-custodial penalties or facilities is a compelling reform which should not be unduly complicated to implement.

Recommendation 18

236. That a system of probation and parole supervision be implemented using models now available throughout the world. This is a cheaper and less socially damaging means of supervising transition back to the community and is less expensive than holding people in custody.

V. NATIONAL HUMAN RIGHTS INSTITUTIONS

Conclusion N

237. The National Human Rights Commission (NHRC) is a significant national institution for protecting and promoting human rights in Nepal. Yet while certain NHRC members bring a seriousness of purpose to their work, others appear ready to accept unlawful or otherwise inappropriate Government activities or inactivity with little or no serious investigation. To date the NHRC has been devoid of the capacity to deal with the many complaints it receives. It lacks essential powers to carry out its work effectively, such as the power to compel testimony. Its decisions and conclusions are non-binding and may be ignored by governmental authorities. Its work is largely non-transparent, as a result of which public confidence is low in the institution as an avenue for victims to seek redress. The NHCR has failed to extend its reach nationwide, although visits by members to many districts and steps towards setting up regional offices constitute moves to redress this shortcoming. The NHCR is expected to play a leading role in monitoring the human rights components of any agreement that may be reached between the Government and the Maoists. Any such monitoring should be conducted in conjunction with an international monitoring team from the Office of the UN High Commissioner for Human Rights. Monitoring teams should be composed of paid and qualified human rights professionals, rather than poorly trained volunteers, as suggested by the NHRC.

Recommendation 19

238. The National Human Rights Commission should be reformed, upgraded and expanded to include representatives from a broad cross-section of the community including more representatives of human rights NGOs and other independent bodies. It should be provided with enhanced resources commensurate with the magnitude of its mandate as the primary official organ protecting and promoting human rights. The NHRC should be granted power to enable it to compel testimony and, unless there are compelling counter indications, it should publish its findings pursuant to its investigations. In monitoring the human rights situation pursuant to any agreement reached between the Government and Maoists, it should seek to work in conjunction with international monitors to be provided by the Office of the UN High Commissioner for Human Rights.

Recommendation 20

239. The National Human Rights Commission should appoint rapporteurs along the lines of the existing mechanism on trafficking of women and children, so as to rationalise its work and give pronounced and expert focus to critical areas of thematic concern, such as enforced disappearances and torture.

Conclusion O

240. The human rights bodies established by the police, the armed police forces and Army are little more than public relations units and do not control abuses of human rights. Because they fail dismally to carry out proper investigation and prosecutions of serious human rights abuses occurring within their ranks, near total impunity prevails within each of these institutions. The human rights promotion programs carried out by the Army and Armed Police Forces are also largely without substantial effect, primarily because such programs tend to be targeted at the level of high-ranking officer, with little training imparted transmitted to the non-officer ranks.

Recommendation 21

241. The regular Army and the Armed Police Forces should be subject to published rules of engagement, which incorporate fundamental human rights and humanitarian provisions to prevent war crimes and crimes against humanity. Human rights and humanitarian law training should be provided amply to personnel at all levels.

Recommendation 22

242. The National Human Rights Commission should be given the resources and the power to investigate abuses by the Army.

VI. GENERAL RECOMMENDATIONS TO ENHANCE THE ADMINISTRATION OF JUSTICE

Conclusion P

243. In addition, we make the following recommendations for improvements to the legal system:

Recommendation 23

244. There is a need for enforceable sanctions to be clearly stated within the law for perjury, whether evidence is given by way of oath or affirmation in the courts. Such sanctions should apply to all persons giving evidence, including police and law enforcement officers, so as to improve overall respect for the law.

Recommendation 24

245. Detaining authorities, police or otherwise, should keep continuous records of every person coming under custody, recording time and circumstances of arrest, medical conditions and treatment, legal visits and personal visits. A record of hand over of the detainee to the courts or to the legal authorities should also be kept. Such records should be accessible by court order, and copies should be kept centrally.

Recommendation 25

246. Provision should be made for the immediate notification, at a maximum within 24 hours, of family members and lawyers when an arrest occurs, regardless of where the detainee is held. A record should be kept indicating by whom and when such notification occurred. Such records should be continuous and accessible by the courts.

Recommendation 26

247. Bail or conditional release laws should be expanded to include offences carrying a maximum of three-years' imprisonment, to reduce unnecessary incarceration and to strengthen the presumption of innocence. In serving a sentence, credit should automatically be given for time spent in detention pending trial.

Recommendation 27

248. Measures to expedite the procedures from arrest to completion of trial - now often two to three years -- should be introduced as a matter of priority

Recommendation 28

249. Persons awaiting trial should be held in custody separate from convicted persons, as provided for in the Prison Act and Regulations, but widely breached in practice.

Recommendation 29

250. Generally, alternatives to incarceration, such as rehabilitation homes, should be used for juveniles. When juveniles are incarcerated, they should be held in detention facilities separate from adults, both while awaiting trial and in the event of conviction, as provided for in the Children Rights Act, but widely breached in practice.

Recommendation 30

251. The Attorney General or an independent body, who is answerable to the parliament but not the executive, should be given authority over prosecution of military and civil police to take action on behalf of the state. The CIAA might also fill this function.

Recommendation 31

252. The Attorney General and the CIAA or another independent body should have coextensive authority and power to prosecute serious human rights and war crimes violations.

Recommendation 32

253. Habeas corpus must be enforceable by a proper officer of the court, as presently provided in law, but not practice. Officials failing to comply with such orders should be subject to orders in the nature of contempt.

Recommendation 33

254. The court before which a habeas corpus writ is returned should be given the power to prohibit re-arrest, unless further cogent evidence is produced to the satisfaction of the court that such re-arrest is appropriate.

Recommendation 34

255. Any evidence produced in court that flows from an unlawful Army detention is necessarily tainted and should be inadmissible in court.

Recommendation 35

256. There should be an authority for the protection of witnesses and provision for the hiding of witnesses where appropriate, particularly when testifying against Government or military officials. Provision should be made, pursuant to the court's exercise of discretion, for witnesses to give testimony in closed session or by means of remote television monitor.

Recommendation 36

257. Legislation should be adopted and implemented to mandate statutory discounts for those pleading guilty to offences.

Recommendation 37

258. Women serving prison sentences for abortion-related offences should be released, at least in cases where the conviction was pursuant to conduct that is no longer criminal under the reformed abortion legislation.

Recommendation 38

259. Nepal should ratify the Optional Protocol to the Convention against Torture and so move to prevent torture by providing for visits to places of detention by national and international mechanisms.