ICJ calls on Nepali government to not renew anti-terrorism ordinance

The ICJ today said that Nepal’s Terrorist and Disruptive Activities Ordinance (TADO), is in violation of the country’s human rights obligations and strongly recommended that the Government not renew the Ordinance.

“TADO is fundamentally flawed and should not be renewed. The application of this Ordinance is creating more violence and making the armed conflict more difficult to resolve,” said Nicholas Howen, ICJ Secretary-General.

“If it is considered necessary to have anti-terrorist legislation it should be developed through a democratic legislative process and be in line with Nepal’s Constitution and international obligations,” said Nicholas Howen.

TADO has been re-promulgated every six months since it first came into force in October 2004, replacing the Disruptive (Control and Punishment) Act (TADA) of 2002. The TADO was amended when it was most recently re-promulgated in October 2005.

It is widely recognised that the TADO provides a semblance of legal cover for human rights violations carried out by the Government including arbitrary detention, violations of fair trial standards and provides immunity for security forces and government officials when they commit violations. With fewer safeguards TADO has provided an environment under which detainees have been tortured and extra-judicially executed. The ICJ and other human rights organisations have documented cases of human rights violation committed under TADO.

“By not renewing TADO the Government would be giving a sign that it takes seriously the impact of the Ordinance on the people of Nepal,” said Nicholas Howen.

Despite criticism from national and international human rights organisations and the OHCHR the TADO (Article 9), still authorises Government officials to preventively detain individuals without charge for up to one year. TADO detainees do not have any access to judicial review and are often held for far longer than the one-year. This kind of administrative detention without the right to an effective judicial remedy to challenge the lawfulness of the deprivation of liberty is a clear violation of the Article 9 (4) of the International Covenant of Civil and Political Rights (ICCPR) and Principle 32 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. The ICJ considers that this kind of detention amounts to arbitrary detention.

Nicholas Howen recalled that, “under international law administrative detention must remain an exceptional measure, be strictly time-limited and be subject to frequent and regular judicial supervision”.

The October 2005 TADO also erodes the right to a fair trial that is guaranteed by the Constitution and by Article 14 of ICCPR. Article 15 of the TADO allows the Government to constitute special courts and all trials to take placed in closed hearings in contradiction with international standards. TADO’s provisions on trial procedures also fail to guarantee the right of defence. Article 17 of the TADO, shifts the burden of proof, in specific instances, onto the accused violating the right to be presumed innocent until proved guilty by the court.

“The ICJ is gravely concerned that under Article 15 all cases under TADO should be heard in closed session,” said Nicholas Howen. “While international law provides that trials may be held in closed session if necessary to protect national security, the necessity must be assessed by the court in every individual case. The ICJ is also gravely concerned that the TADO erodes the principle of presumption of innocence”.

TADO provides that Government officials cannot be prosecuted for any “work performed in good faith”. Such a legal immunity clause will perpetuate impunity for human rights violations committed in the course of security operations and will lead to a cycle of human rights violations. This clause will not only further entrench the prevailing culture of impunity within the security forces in Nepal but will also exacerbate the political conflict.

On Friday 24 March the Supreme Court ruling, in the case related to the constitutionality of preventative detention article of TADO, did not assess the compatibility of TADO with international law when reading out the judgement. “This ruling cannot be used as legal justification for the renewal of TADO,” said Nicholas Howen, ICJ Secretary-General.