I am writing to draw your attention to several issues arising from the recent declaration of a state of emergency, the promulgation of the Terrorist and Disruptive Activities (Prevention and Control) Ordinance, 2001 (hereafter TADO), the declaration of the Communist Party of Nepal (Maoist) (hereafter Maoists) as "terrorists" and the deployment of the army to combat the Maoists.
First of all, I would like to stress that Amnesty International appreciates the grave threat to law and order facing the country after the Maoist leadership called off a cease-fire on 23 November and subsequently attacked army camps, police stations and public and private property... . We acknowledge the government has a right and duty to protect the rights and safety of the people, and we have appealed to the Maoist leadership to bring an immediate halt to unlawful killings and other abuses of international humanitarian law.
However, any legislation enacted or action taken must be in full conformity with international human rights standards. Under Article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which Nepal is a state party, states may suspend certain rights in times of emergencies but only "to the extent strictly required by the exigencies of the situation", as long as the suspension does not conflict with the nation's other international obligations, and if the government immediately informs the UN Secretary General about what rights have been suspended and why.
The suspension of Article 23 of the Constitution which denies people access to judicial remedy (apart from habeas corpus) is of particularly grave concern. It prevents judicial scrutiny of the measures recently taken by the government. In Amnesty International's view, this is contrary to the provisions of Article 2 (3) of the ICCPR.
Amnesty International is concerned at the grave threat to the right to life in Nepal under the current circumstances. Article 4 (2) of the ICCPR clearly states that there can be no derogations from the duty to uphold the right to life and the right to freedom from torture in any circumstances, even "in time of public emergency which threatens the life of the nation". Given that the Constitution of Nepal does not explicitly guarantee the right to life, we are concerned that the declaration of the state of emergency and the suspension of fundamental rights could be interpreted by army and police personnel to include a suspension of the right to life.
We are particularly concerned about reports that the army and police in [some districts] have been given the authority to "shoot on sight" any curfew violators. This appears to give official sanction to the security forces to commit extrajudicial executions. Providing such powers would be in direct violation to Article 6 of the ICCPR which guarantees the right to life and prohibits arbitrary deprivation of life.
While Amnesty International does not take a position on the deployment of the army per se, we would like to raise various questions with regard to the operational aspects of this decision:
- Under the Army Act of 1959, the army has the authority to arrest people and hold them for up to 48 hours. Given that this provision contradicts the constitutional requirement under Article 14(6) that anyone who is arrested and detained should be produced before a judicial authority within 24 hours of arrest, will the government clarify what directions the army personnel has been given in this regard?
- At which places of detention are people held after their arrest by the army?
- What safeguards are in place to ensure the safety of the detainees held in the custody of the army?
- What are the processes of accountability for any possible human rights violations by the army?
With regard to the definitions of "terrorist" and "person who works in collusion with terrorists" contained in the TADO, we are concerned about the vague definition used which includes "any individual who is in contact with or involved with the person involved in terrorist and disruptive activities" and "any person who directly or indirectly supports financially and by any other means a person or group involved in terrorist and disruptive activities". We are concerned that several of these terms may indicate activities which do not involve any encouragement to commit violent or criminal acts. On the contrary, it might include the peaceful, private discussion of political ideas. This wording could thus lead to violations of the right to freedom of expression as in Article 19 of the ICCPR.