NEPAL: Mass withdrawal of cases violates Nepal's international human rights obligations and promotes impunity
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NEPAL: Mass withdrawal of cases violates Nepal's international human rights obligations and promotes impunity

Kathmandu : Nepal | May 24, 2011 at 8:07 AM PDT
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At least 28 children were abducted in the Terai region of Nepal during 2010, according to Human Rights Watch

The Asian Human Rights Commission (AHRC) is deeply concerned by the Home Minister's statement on Friday that his office is planning to withdraw cases filed against Maoist cadres from the time of the conflict. According to news report, the cases filed at the district level likely to be withdrawn may amount to 300 and may include cases of serious human rights violations, such as the forced disappearance and murder of Arjun Bahadur Lama.

Nepal is party to the International Covenant on Civil and Political Rights which mandates each State to ensure that victims of human rights violations have a right to effective remedy (article 2-3). Withdrawing cases of rape, torture or murder would undoubtedly constitute a breach of Nepal's international obligations, as well as of the commitments it has taken during the Universal Periodic Review to end impunity by "addressing the past and maintaining the rule of law at present."

The Home Minister's mere explanation is that those cases were "politically motivated" in the first place and that "the cases related to conflict time are against the spirit of the Comprehensive Peace Agreement and they should be withdrawn" He fails to mention that in the CPA, both parties specifically agreed to "express their commitment and state that necessary investigation will be undertaken against any individual involved in violating the rights mentioned in the agreement and action will be taken against ones that are found guilty. Both parties also ascertain that they will not protect impunity and along with it, the rights of the people affected by the conflict and torture and the families of the people who have been disappeared will be safeguarded." (Article 7.1.3). This disposition shows that concerns for justice, accountability and rights to remedy for the victims were at the heart of the CPA and were considered the bedrock of the democratic system fostering the peace process. Withdrawing criminal cases amount to granting amnesty for conflict crimes including for gross human rights violations. It deprives the people of Nepal of their ownership of the peace process by encroaching on their legitimate aspirations for redress and justice and deprives them of their ownership of the peace process.

It is not the first time that the government has taken a decision to blatantly disregard the right to justice of the victims and the basic functioning of the rule of law. In October 2008, as many as 349 criminal cases were withdrawn by the Maoist government, under the same pretext that they were "politically motivated". This mass withdrawal had a disastrous effect: by trampling on their previous commitments to human rights and justice, the government eroded the public confidence and by hampering the due course of justice, it stroke a real blow at the rule of law and opened the way for more withdrawals and denials of justice to the victims.

The consequences of mass withdrawal were acknowledged by the UN Office of the High Commissioner for human rights in Nepal who wrote in its 2011 report to the UN Human Rights Council, that the government practice of withdrawing criminal cases under pressure "has […] expanded to cases occurring after the conflict, with political parties, armed groups and indigenous and ethnic groups demanding that criminal cases against their supporters be withdrawn. Successive governments have agreed to withdraw cases under such pressure, including some carrying serious charges such as murder and rape […]. The practice has continued despite a Supreme Court interim order in 2008 directing the suspension of further withdrawals." The report further warns that "the practice encourages political interference in the rule of law, demoralizing police officials, prosecutors and judges working on such cases, contributing to public insecurity by allowing alleged criminals to escape prosecution, and further eroding public confidence in law and order institutions and the Government."

The AHRC calls upon the government to learn from those past mistakes and to reject any action promoting the impunity which fuels instability and insecurity in Nepal. Intervention of the executive in the due process of justice poses a serious challenge to the independence of the judicial system. Further undermining its authority may come at a high price, as an independent, strong and active judiciary is a fundamental element of a vivid democratic system able to protect the rights of the people.

The AHRC is particularly concerned that among the cases to be withdrawn are the charges filed against Agni Sapkota, now Minister for Information and Communications for the alleged abduction and murder of a school teacher, Arjun Bahadur Lama in 2005. The victim was abducted by three Maoists on 29 April 2005 and from that moment on his family was without news of him. The Maoists refused several times to reveal his fate. It later came to be known that Mr. Lama was taken to some place in the Kavre district and was recruited into the Maoists' armed militia for armed training in the first week of July in 2005. Mr. Lama was finally handed over to Agni Sapkota, for further investigation, one week after he had been recruited to the armed training. Later, his family learnt Mr. Lama was killed and then his body was found buried allegedly under the instruction of Agni Sapkota.

This case invalidates the claims that the cases to be withdrawn by the Home Ministry were registered in a political move as the victim's widow had to face tremendous difficulties to even have her complaint registered at the police station and was turned down both by the District Police Office and District Administration Office. It took a Supreme Court order to the DPO, Kavre to have this case properly registered, which was eventually done in August 2011 after another five-month delay. Even after doing so, the police did not undertake a proper investigation into the case and the alleged perpetrator has been authorized to go scot-free and has been promoted within the Maoist hierarchy without facing any inquiry or trial. The victim's widow and family have been denied justice continuously for the last six years and the nomination of the person who allegedly ordered the murder of their loved one has added insult to injury. Now, the withdrawal of the charges would come as an additional blow for them who have been fighting for justice for six years. This case illustrates at length the price which would be paid by the victims' families if the government gets on with the plan to withdraw the criminal cases.

The AHRC wishes to recall its stance that the state of Nepal should firmly stand in favour of the aspirations for justice and accountability of its people and stress that in a democratic state there is no space for impunity, where fundamental rights have been violated. We strongly denounce the government's intention to withdraw criminal cases as one more step toward impunity and blatant disregard of the victim's rights and call on the government to focus on accountability, security and implementation of the rule of law rather than on developing impunity-fostering strategies.

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The International Criminal Court can only hear cases that occured after July 2002
The International Criminal Court can only hear cases that occured after July 2002
chnarendra is based in Hyderabad, Andhra Pradesh, India, and is a Reporter for Allvoices.
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