Nepali Times
Guest Column
Disappeared rights


That Nepal now tops the world in the number of 'disappeared' is old news. Or so it appears, given the lack of news, analysis and most importantly, outrage.

Yet, this is not so surprising. We are caught in the middle of two cruel cultures: a culture of fear and a culture of impunity. Both feed on each other.

Amnesty International defines a disappearance as 'a deprivation of liberty of a person, perpetrated by agents of the state or by persons or groups acting with the authorisation, support or acquiescence of the state, followed by an absence of information regarding the deprivation or refusal to acknowledge it, or by the refusal to provide information on the fate or whereabouts of the disappeared person or the concealment thereof'.

Given our world renowned rate of disappearances, current donor initiatives to strengthen the rule of law must be applauded, including resources spent to spread awareness and consciousness of laws and rights. However, it is also clear that such funding does not consider a critical issue: lawyers and our legal system are the only recourse to justice for the disappeared, their friends and families.

As demonstrated by the ongoing tussle between the Supreme Court, the army and the countless stories of lawyers filing habeus corpus petitions on behalf of the disappeared, all the legal profession can do is essentially rely on its moral authority. Clearly, that holds little or no value in our increasingly militarised state. Outright denials of the existence of the disappeared from within the system is a norm, even when human rights lawyers have talked to detainees behind bars.

Witnesses to disappearances live in fear. Earlier this year, security personnel in eastern Nepal searching for a woman who was an eyewitness to the arrest, rape and killing of two young girls. They took her 15-year-old daughter girl instead who is now disappeared. These examples are illustrative of the moral level, as well as impunity, within which the state currently functions. How far away are we from the Peruvian situation of the 1980s in which whole villages of people were killed in order to erase evidence of extra-judicial killings by state forces?

It is not surprising that witnesses or victims are unwilling to go to court even if such cases happen to reach that stage. Indeed, lawyers who have themselves been illegally detained and tortured, are afraid and unwilling to come forward. Our judicial system, as in other countries, relies on people coming forward to testify and press charges. In this current environment, this is not an option.

The educated elite, including lawyers, know that disappearances, torture and extra-judicial killings are illegal. We know that legally, the army can only try army personnel and not civilians. And houses can only be legally searched during the day time, we have a right to ask for identity cards and we have a right to search the search parties before they enter our houses to make sure that they carry nothing that could be planted and then used against us.

We need no media campaign to let us know of our rights. But to what end? At a recent talk, the chair of the Nepal Bar Association said something simple and startling: "Human rights are the most fragile of our rights". We can clamour all we want, but when a gun is pointed at us, our rights don't stand a chance.

Those of us happily deceiving ourselves that as 'civil society' we have the moral edge and are the great bastion of democracy must realise that our levels of apathy and increasingly larger tolerance for known crimes, aids state encroachment of our rights. To break the cycle of fear and impunity, and to restore the moral authority of our judicial system, requires the voices of outrage from us, the relatively safe, and thus richly complacent, middle-class.

(11 JAN 2013 - 17 JAN 2013)