The right to a fair trial is a universally recognized human right, enshrined in international law in both the Universal Declaration of Human Rights (the “UDHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”). Fair trial rights are also guaranteed in Article 24 of the Interim Constitution of Nepal.
The right to a fair trial is made up of a number of more specific individual rights, including pre-trial rights, which, when recognized and provided for, together ensure that a person charged with a criminal offense is treated fairly while the justice system determines their guilt or innocence.
Fair trials are essential to protect the rights of the accused, to have all evidence tested thoroughly by an independent and impartial court, and to ensure the proper administration of justice. Recognition and provision for fair trial rights and due process prevents arbitrary and unjust interference with the lives of citizens, the misuse of political or state power, or the application of “summary justice”. As a general principle, regardless of the nature of the alleged offense, all accused persons must be given a genuine opportunity to answer charges, present and challenge evidence, examine and cross-examine witnesses, and do so in a neutral and dignified setting.
Fair trial rights apply to those accused of all criminal offences, no matter how shocking or abhorrent the alleged offense, and no matter how strong the evidence available to the prosecution appears to be. This principle has to be respected.
However, in the case of Dr. C.K. Raut, all these principles have been circumvented. He was first arrested on one charge (public offence) and later charged with another (subversion) after political negotiations among cabinet members and public prosecutor as reported in the Nepali media. This shows that the decision on the charge against him was not made independently.
There is a domination by one hill community through the judicial system which sees the demand for the right to secession from a patriotic and “traditional nationalism” point of view and do not support the idea. In contrast, Dr. Raut advocates for the right to secession to be included in the new constitution currently being drafted by the Constituent Assembly which is what he had told the Constitutional–Political Dialogue and Consensus Committee (CPDCC) on August 21 when CPDCC Chair Baburam Bhattarai invited him for a discussion on constitutional issues. In this context, can the trial be fair, independent, and unbiased?
Dr. C.K. Raut, a Madhesi activist, was arrested on September 13 by almost two dozen police personnel deployed by the District Police Office; Morang, while returning home from a mass meeting organized by the Santhal tribe. Dr Raut, who holds a PhD degree from Cambridge and has written a book on History of Madhes, had addressed the meeting as the chief guest. Dr. Raut says he was invited to the programme as a historian. He was arrested along with his associate, Satya Narayan Mandal, but Mandal was released within a few hours.
Raut was served neither an arrest warrant at the time of his arrest nor a search and seizure warrant before being searched by the police. His brother Surya Kant Raut filed a habeas corpus writ at the Supreme Court the next day saying that Dr. C.K. Raut’s arrest was illegal and he should be released from custody.
The Morang Police first charged Dr. Raut under the Public Offences Act and produced him before the Morang Chief District Officer who remanded him to six days in custody. In response to the habeas corpus petition, the Supreme Court ordered the government to produce Raut in person. At this point, the police filed a sedition charge against Raut at Special Court. The police state in the charge sheet that Raut has written some books including Madhes Swaraj (Madhes autonomy) and the Manifesto of Alliance for Indpendent Madhesh, advocating for a separate Madhes land and therefore he should be punished under the Crimes Against the State and Punishment Act 1989 with treason.
The Supreme Court denied issuing a writ of habeas corpus as demanded by Raut’s brother, on the basis that he had already been produced in court and charged. The court also ordered the government to allow him to seek medical treatment from the medical centre of his choice at his own expense. The court issued this order after Raut told the Apex Court that the police had denied him medical treatment. Dr. Raut, alleged that the police inflicted mental torture and denied him the facilities normally granted to a political prisoner. Two dozen human rights activists of Nepal condemned Dr. Raut’s illegal arrest. The Asian Human Rights Commission and Amnesty International condemned his arrest and demanded his unconditional release. Nepal’s principal opposition party – the Unified CPN-Maoist and other opposition parties, including Madhesi parties, also condemned Dr. Raut’s arrest and urged the government to unconditionally release him.
Rights activists are surprised to know why Dr. Raut who was called by the CPDCC to record his views on constitutional issues was then arrested for expressing his political views, in fact the same views recorded by the CPDCC.
Dr. Raut believes in a peaceful movement and says what he has been advocating is protected under the right to freedom of speech and expression as guaranteed by Interim Constitution of Nepal and many international treaties that Nepal is party to.
The day the Supreme Court began its hearing on the habeas corpus writ, Raut told the apex court that if the state believed that he was the only one to have such views, then the state could hold a referendum on the right of secession.
Dr. Raut also told the Supreme Court that his deposition before the Morang police was taken under duress and the police did not record all his statements. It was also not recorded in the presence of the public prosecutor, in violation of the provisions in the State Cases Act.
Dr. Raut now faces two cases – one under the Public Offences Act and another under the Crime against the State and Punishment Act 1989. Many were surprised by the subversion (Rajya Viplab) case was filed against Dr. Raut one day after Prime Minister Sushil Koirala told some rights activists and Raut’s family that in a democracy one should not be detained just because he/she has differing views. When Ministers Minendra Rijal and Hari Prasad Parajuli signed an understanding with Dr. Raut in his custody, following which he broke his 11 days hunger strike, the ministers had pledged to respect Dr Raut’s freedom of speech and expression. Raut’s case is sub judice and the merits of the case cannot be discussed, but the fairness of trial can certainly be discussed.
The right to fair trial requires that a public prosecutor must make decisions independently. In Nepal’s context, a public prosecutor charge criminal case depending on a phone call or a conversation with a politician. Immediately after Dr. Raut was arrested, some of the daily newspapers quoted Morang police as saying that the doctor could be implicated under treason law but that would depend on the government’s decision.
The criminal prosecution should be based on fairness, judgment, evidence, public interest, and common sense. In this case, Dr. Raut was first charged under the Public Offence Act and when the Supreme Court ordered the government to produce him, the police charged him under the subversion law. The police appeared to have acted with the intent of detaining Raut as long as possible.
What was the reason of charging Dr. C.K Raut under subversion law, an outdated law enacted during the monarchy, and needs court intervention to be repealed? Most democratic countries has already repealed such laws. Take the case of The Philippines. The Anti-Subversion Law was repealed in September 1992, when then President Fidel Ramos signed into law the Republic Act 7636.
Lawyers and human rights activists in Nepal failed to take timely steps to repeal Rastra Viplab law (Crime against State and Punishment Act, 1989) that says in Section 3 (1) (subversion) that if someone causes or attempts to cause any disorder with an intention to jeopardize sovereignty, integrity or national unity of Nepal, he/she shall be liable to life imprisonment.
Banning the expression of political ideology using this law in a democratic society like Nepal is unfair. Any piece of legislation, which imprisons people for holding differing views and opinions, should be repealed.
About the author: Dipendra Jha is an Advocate at the Supreme Court of Nepal.
