Nepal's
TADA - Tool of terror
By
Human Rights Features
21 January, 2004
The
Terrorist and Disruptive Activities (Control and Punishment) Act, 2002
(TADA), was Nepal's reaction to a global apprehension of terrorism since
the events of 11 September 2001, and localised in Nepal through continued
State conflict with the pro-republic Communist Party of Nepal (CPN-Maoists).
The comprehensive
and convoluted coverage of terrorist and disruptive acts under TADA
Section 3(2) targets persons that conspire, cause, compel, commit, instigate,
establish, remunerate or publicise acts of terrorism, or harbour persons
involved with terrorist and disruptive activities. Terrorist or disruptive
activities include damage, destruction, injury, death, kidnapping and
threats, and the production, distribution, storage transport, export,
import, sale, possession or installation of explosive or poisonous substances,
or the assembly and training of persons for these purposes.
One of the dangers
of TADA is the inclusion of disruptive activities within the broad definition
of terrorist acts. This allows for the application of TADA to political
acts that, whilst distinct from terrorism, are determined by the State
to have a disruptive effect on the operation of the government or public
order. TADA provides that acts covered in Section 3(2) will be taken
to have been committed with an intention to undermine or jeopardise
the sovereignty and security of Nepal, or committed in a manner to create
an environment of public fear.
The National Human
Rights Commission of Nepal (NHRC) reports the widespread use of abduction
and 'disappearances' by both the government and the Maoist insurgents;
the government is estimated to have been responsible for 170 insurgency-related
disappearances. According to Amnesty International, this figure branches
into the arrest of 9,900 Maoists (at August 2002) and the extra-judicial
execution of an estimated 2,000 Maoists since November 2001. The NHRC
has observed that "TADA aids and abets those who, under the guise
of maintaining 'law and order' or 'security concerns', continue to violate
the human rights of the citizens of Nepal".
Further, the Observatory
for the Protection of Human Rights Defenders reports that since the
29 August 2003 breakdown of the seven-month cease-fire between the State
of Nepal and CPN-Maoists, incidents of the arbitrary detention, torture,
enforced disappearances and extra-judicial killings of pro-Maoists and
governmental dissidents have risen dramatically.
Recent examples,
reported by organisations such as the Center for Human Rights and Democratic
Studies (CEHURDS), Reporters Sans Frontières, and the World Organisation
Against Torture, include:
" 19 December
2003: Indian police arrested journalist Marika Poudel of the Nepal One
television station, New Delhi. Poudel's current whereabouts remain unknown;
" 10 December
2003: Nepali security forces detained at least 15 journalists, among
them Ram Krishna Adhikari of the Sanghu publication and Times FM radio
station. Adhikari was apprehended shortly after attending a Human Rights
Organisation of Nepal (HURON) meeting. The Government has provided no
information as to the current whereabouts of the journalists;
" 18 November
2003: Dhan Bahadur Magar, a former journalist with the pro-Maoist Janadesh
newspaper and an employee of the Federation of Nepalese Journalists
(FNJ) in Kathmandu, was arrested by Nepalese security forces. Previously
detained for nearly four months in 2002 for writing pro-Maoist articles,
Magar remains in solitary confinement;
" 27 September 2003: 17-year-old Manoj Raj, a student from Naxal,
was arbitrarily detained and severely tortured in the Hanumandhoka District
Police office. Despite the lodging of habeas corpus claims against the
detention, Hanumandhoka authorities continue to refuse to release the
boy;
The following sections
in TADA are of prime concern:
" Section 5(a):
The grant of 'special power' to authorities to arrest without warrant
persons suspected of involvement in terrorist or disruptive acts, allowing
for the arbitrary, capricious and prejudicial application of TADA in
violation of Article 9(1) of the International Convention on Civil and
Political Rights (ICCPR);
" Section 5(m):
The grant of 'special power' to authorities to place surveillance upon
'suspicious' persons and places, including the arrest, lock-out or blockade
of the person or place, contravening the Article 12(2)(d) constitutional
provision of freedom of movement and Article 12(1) of the ICCPR. Whilst
Article 12 of the Constitution allows for reasonable restrictions to
be placed on freedom of movement, the restriction provided for in TADA,
predicated on the existence of 'suspicion', is far from reasonable and
is not in the interest of the general public;
" Section 5(n):
The grant of 'special power' to authorities to freeze the bank accounts
and assets and confiscate the passports of any persons suspected of
involvement in a terrorist or disruptive act for a 'certain period',
contravening the Article 17 constitutional provision of the right to
property. Article 17(2) of the Constitution does allow for the requisition,
acquisition or encumbrance of property by the State in the public interest,
and the freezing of bank accounts and assets is an anti-terrorism measure
endorsed by the United Nations Counter Terrorism Committee (UNCTC).
However, the use of 'suspicion' as the determinant threshold for the
exercise of the power, and the unspecific designation of the suspension
period are not in the public interest and are insufficient justification
for the suspension of a constitutional right. This power also arguably
constitutes State interference per Article 17 of the ICCPR;
" Section 7:
The grant of power to the Government to declare any person, organisation,
association or group 'involved' in terrorist or disruptive activities
as terrorist in nature. Whilst Article 12 of the Constitution and Article
22(2) of the ICCPR allow for certain reasonable restrictions to be placed
on the freedom of association, TADA is unreasonably imprecise in that
it criminalises membership of associations and organisations deemed
to be 'involved' in terrorism without providing an adequate explanation
of the process through which involvement in terrorist or disruptive
activities is determined;
" Section 9
and Section 17(5): The detention of persons for periods of up to ninety
days on the basis of 'a reasonable ground for believing' that the person
has to be prevented from committing acts that 'could' result in a terrorist
or disruptive act. Whilst Article 15(1) of the Constitution allows for
the preventative detention of persons on the basis of the existence
of an 'immediate threat to the sovereignty, integrity or law and order
situation' within Nepal, the 'reasonable grounds for belief' test is
an insufficient threshold for suspension of a constitutional right and
is a dangerously imprecise reflection of Article 15(1) of the Constitution.
Further, the arbitrary detention of a person on a preventative basis
for such an extensive period clearly negates due process and retracts
the ICCPR Article 14(2) provision of presumption of innocence;
" Section 10(3):
The imprisonment of persons for a term of five to ten years for the
harbouring or hiding of any person involved in terrorist or disruptive
acts. It is an accepted principle of law that the commission of a crime
requires evidence of both mens rea and actus reus: intention and action.
Further clarification of Section 10(3) is therefore required, as, prima
facie, it appears that the mens rea element to this offence has been
omitted from the calculation of criminal liability. Accordingly, there
is a real danger of the conviction and imprisonment of persons who unknowingly
house persons involved in terrorist or disruptive acts;
" Section 18:
The grant of control to the Government of means of communication such
as letters, telephones and faxes that belong to persons involved in
terrorist or disruptive activities. This is a clear violation of the
right to privacy outlined in Article 17 of the ICCPR. It is also contrary
to the principle contained in Article 22 of the Constitution, which
states that 'Except as provided by law
privacy
is inviolable';
" Section 20:
The grant of immunity to investigating authorities for any activity
carried out or attempted to be carried out in good faith under TADA.
The grant of immunity provides vast potential for the use of torture,
contravening the right against torture and inhuman treatment [Article
14(4) of the Constitution and Article 7 of the ICCPR]; the right not
to be compelled to testify against oneself [Article 14(3) of the Constitution];
the prohibition against coerced confessions [Article 14(3)(g) of the
ICCPR]; and the Convention Against Torture and Other Cruel, Inhuman
or Degrading Punishment or Treatment (CAT) Article 2(2) provision that
'no exceptional circumstances whatsoever, whether a state of war or
a threat of war, internal political instability or any other public
emergency, may be invoked as a justification of torture';
" Section 22:
The grant of rewards to any person who arrests or renders assistance
in the arrest of persons who play the main role in the commission of
terrorist or disruptive acts. The offering of reward for the apprehension
of suspects opens TADA to possible acts of corruption and abuses of
authority in contravention of Article 7 of the Code of Conduct for Law
Enforcement Officials.
Acts of terrorism
are a direct assault on basic human rights and the sovereignty and integrity
of States, and the importance of effective legal instruments in the
fight against terror must be acknowledged. However, the Kingdom of Nepal
must fulfill its obligations under international human rights instruments
and its Article 25(1) constitutional declaration, which states that:
The chief objective
of the State [is] to promote conditions of welfare on the basis of the
principles of an open society, by establishing a just system in all
aspects of national life, including social, economic and political life,
while at the same time protecting the lives, property and liberty of
the people.
As stated by the
United Nations Secretary General's statement at the 4453rd Meeting of
the Security Council on Threats to International Peace and Security
Caused by Terrorist Acts:
[W]e should all
be clear that there is no trade-off between effective action against
terrorism and the protection of human rights. On the contrary, I believe
that, in the long term, we shall find that human rights, along with
democracy and social justice, are one of the best prophylactics against
terrorism.