The renewal of a reformulated Terrorist and Disruptive Activities (Control and Punishment) Ordinance 2004 (TADO) has raised concern. The clause that provides for detention without trial for up to a year has been called a violation of the basic tenets of human rights, an autocratic provision enacted in the absence of parliament against the spirit of the constitution and further fostering a climate of impunity among Nepali security forces.
TADO in any of its avatars has always been condemned for the manner in which it has granted the security forces sweeping powers. At a fundamental level, the military has no real legal basis with which to detain civilians. TADO allows the army to make arrests but detention and prosecution falls under the State Case Act which empowers the police, and not the army, to investigate up to a period of two months.
The recent disclosure to the courts by the army that it has senior Maoists in detention is critically important because it is the first time it has publicly acknowledged detaining people. A ruling in the military's favor paves the way to make the detentions legal and will undermine the role of the judiciary.
TADO also enables the arrest of people on 'suspicion' alone. The arbitrary and subjective nature of deciding what/who is, or is not 'suspicious' aside, as preventive detention this means that no crime needs to have been committed. Yet they are now to be held for up to a year without trial. It is important to remember that even criminals, those who have actually committed crimes, are allowed access to legal recourse within 24 hours of arrest.
President of the Nepal Bar Association, Sambhu Thapa, said this week that the provision for three-month detention without trial under the Public Security Act was sufficient for the government to fight the insurgency. The necessity of denying people basic legal rights in the name of security appears now to be a given.
It is not at all clear that the strategy of preventive detention has had any impact on the state's ability to defeat the Maoists. What is clear is that it is in detention that so many forms of abuses take place: torture, disappearances, rape and killings. TADO legalises this process of making anyone and everyone vulnerable to arbitrary treatment. With the judicial system helpless when security forces deny detaining people and the National Human Rights Commission is unable to have full and unimpeded access to detainees, anyone and everyone is vulnerable to being disappeared.
Writing of the old TADA, the recently released Human Rights Watch 2004 report on Nepal states: 'TADA has allowed the security forces of Nepal to literally get away with murder. The security forces have used their sweeping powers to broadly target anyone suspected of having Maoist sympathies, including lawyers who defend Maoists, members of left-of-centre political parties, human rights workers and civilians who are forced to give shelter to the Maoists.'
State security is officially sounding somewhat conciliatory on human rights lately and has initiated limited steps towards heeding judiciary directives. Indeed, TADO assumes that the army is now taking human rights seriously. But in the absence of independent human rights monitoring in the field, this is a dangerous assumption for either side in a dirty war.
Amidst what Amnesty International has called Nepal's 'human rights catastrophe', TADO only underlines the urgent need for a Human Rights Accord with nationwide monitoring. This is the only way to guarantee real security for ordinary people.