Perspective (Spotlight Weekly)

Human Rights Alerts: Don’t Cross Your Bridges Until You Come to Them

By Bipin Adhikari

In response to the widespread allegations of human rights abuse by state forces in insurgency affected areas, the Chief of the Army Staff General Pyar Jung Thapa has now conceded that the security forces need to stay human rights friendly while countering insurgency and violence.

Mr Thapa recently ordered his senior officers to practice restraint while using force to minimize losses of lives and property of the general public. Addressing army generals and other senior officers at the Royal Nepalese Army (RNA) headquarters recently, he also said that they all should pinpoint the real insurgents before they carry out any action against them to protect innocent civilians. Each and every action that we take for people’s security should abide by the principles of human rights and the governing laws. "A minor mistake may result into a huge damage to the dignity of the entire institution and the country, though they are not unnatural." This is perhaps the first time that the Chief of the Army Staff pleaded that the RNA would try its best to adopt necessary measures to minimise hassles faced by the common people.

The challenge ahead is enormous. The best way to remain committed to human rights is to strictly help implement the fundamental rights of the Nepalese citizens including the right to a just system of criminal justice, which has become a mockery at the hands of security forces. The mobilization of security forces to deal with the Maoist menace was pursued since 2001 along with the proclamation of a state of emergency and the enforcement of an ordinance issued by the King. The ordinance which was later passed in April 2002 with some changes and became the Terrorist and Disruptive Activities (Control and Punishment) Act violates the Constitution in several sense. Section 3 of this law, also known as TADA Act, defines a terrorist and destructive crime in very broad terms and it is proceeded with and punished under the TADA Act rather than under other applicable laws. Similarly, it allows the security forces to arrest, search, detain and use necessary force to accomplish the objectives of the Act in utter disregard to the minimum constitutional guarantees. This law makes it easier for the security forces to detain a person for an indefinite period without slapping any specific charges.

Acts of ‘disappearances’ get facilitated because people are held incommunicado for prolonged period. It also violates the existing Constitution of Nepal on at least four principal aspects (a) preventive detention for periods up to 90 days; (b) investigative detention for periods up to 60 days; (c) the curtailment of freedoms of assembly and expression; and the setting up of a special court to try charges under the Act. Habeas corpus has remained an ineffective remedy in relation to "disappearances" and for those detained under the TADA. Moreover, total immunity from prosecutions is given to security forces perpetuating human rights violations under Section 20 of the TADA. The unprecedented level of human rights abuses is embedded in this dangerous and pervasive climate of impunity. The situation is such that no matter how regressive is the TADA Act, the state has failed even to guarantee the protections available under it. Already there are murmurs that TADA Act is not sufficient for them to meet most circumstances.

In fact, even at its current shape the TADA Act requires civilian control of the security forces in all aspects of their mobilisation. The leadership is to be taken by the Chief District Officer. Apart from defining the terrorist and destructive activities, this Act sets out rules (or misrules) for special powers to check terrorist and destructive acts, power to requisition property, declaration of terror-affected areas, movement of arms and ammunitions, preventive detention, monitoring and coordination, confiscation, rules of warrant, control over means of communication, compensation, delegation of authority, and power to give rewards. With reasonable application of these rules, many of the ongoing excesses of the security forces could be checked. The reality is that most of the security forces don’t know that what is applicable is TADA, not the Military Act. Some of them who know it think that even with the curtailment of human rights to this extent, the balance of power under TADA Act is unfairly tilted against the security forces. Of course, such a picture is summarily dismissed by those in the dock.

All of us who love this country have to admit that there is illusion on the nature of battle and the opponents. It is widely accepted that the agencies of the state cannot be equated to militants, that they necessarily have to operate under constraints, that since the state is the only agency which can legitimately use force if it too stoops to the level of its opponents there is no escape from the law of the jungle. A bunch of applicable human rights must stand between the state and non-state actors which is the minimum essential to save the unity and integrity of the nation. In the most trying of circumstances such as this, the burden on the security forces is huge, but offenders must always be subjected to the authority of law. The issue is more about what faith, we as a people and nation, have in our Constitution, the laws of the land, international human rights conventions - in short what is it that we are willing to accept as civilized behavior even under extreme provocation.

[Adhikari is a lawyer. He may be accessed at human_rights_nepal@yahoo.co.uk]