Human rights in crisis: ICJ issues fact-finding report

Human rights violations are rampant and the Nepalese people are poorly served by the administration of justice in the country, concludes an ICJ report released today.

Although a tentative peace process is underway, Nepal remains in danger of sliding from a constitutional to an absolute monarchy.

The Royal Nepalese Army keeps numerous people detained in barracks, without legal authority and without acknowledging the detentions. Torture by the army and police is systematic. Impunity for human rights offenders is near absolute. Most criminal suspects lack access to justice and do not receive a fair trial.

Nepal has an independent judiciary, but the Government has engaged in a pattern of disregarding court orders it considers unwelcome.

The ICJ’s Centre for the Independence of Judges and Lawyers has observed little political will thus far on the part of the Government to address the human rights crisis.

Human rights concerns are squarely before the Government and Maoist rebels as they attempt to negotiate an end to a seven-year conflict conflict. Whether or not a peace agreement is achieved, the ICJ’s Centre for the Independence of Judges and Lawyers considers that human rights monitoring is needed urgently and immediately throughout the country.

The ICJ’s Centre for the Independence of Judges and Lawyers conducted a fact-finding mission in Nepal from 26 January to 3 February 2003 in the context of a constitutional crisis and a seven-year armed conflict between the Government and the Maoist rebels. During the visit, a cease-fire was announced and peace negotiations have since commenced.

In November 2001, a nation-wide emergency had been declared in Nepal and King Gyandera promulgated an ordinance, subsequently adopted by Parliament, giving the Government expanded powers of arrest and detention. In October 2002 the King dissolved the Parliament and appointed a new government mainly consisting of unelected figures from outside the major political parties. The King has failed to call new elections within the six months mandated by the Constitution.

The ICJ’s Centre for the Independence of Judges and Lawyers has issued 38 recommendations for implementation by the Government of Nepal and assisting bodies and agencies. Among the mission’s principal findings:

  • The practice of arbitrary detention is widespread, particularly in cases related to the insurgency. 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 disregarded 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 substantial 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.
  • 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.
  • 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.

The mission team consisted of Justice John Dowd, A.O. (Australia), (Supreme Court of New South Wales, Australia; President ICJ Australian Section); Michael Ellman (United Kingdom), Solicitor and Officer of the Board of the International Federation for Human Rights (FIDH); and Paul Harris (Hong Kong), Barrister and Founding Chairman of the Hong Kong Human Rights Monitor. The mission team met with senior Government ministers, military and police officials, members of the National Human Rights Commission, judges of the Supreme and lower courts, lawyers, non-governmental organisation and victims of human rights abuses.

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