NEPAL: Person re-arrested and detained by the security forces despite release orders from the Supreme Court

Dear friends,

The Asian Human Rights Commission (AHRC) is gravely concerned by a new report from the Advocacy Forum, a local human rights organization, of a person named Jeewan Sharestha being detained and re-arrested by the Nepalese security forces upon his immediate release by the Supreme Court.  According to the information we have received, Jeewan Sharestha was re-arrested by the police soon after court orders from the Supreme Court granted him his release. He was not given an opportunity to talk with his wife or lawyer, who were both present at the time. Jeewan’s wife and family members reported that they asked to pay a bribe to the police at the time of re-arrest of the victim, if they were to have him released.  Jeewan has also reported that during his detention in army barracks, he has been tortured in the security force’s attempts to have him admit association with Maoists and the use of extortion.

The case of Jeewan Sharestha’s is yet a further example of security force’s action to undermine court orders and intimidate and harass persons by arbitrarily arresting and detaining them immediately following their release.  To view similar cases, to which AHRC has repeated reported, please click on the following: UA-127-2004, UA-95-2004, UA-86-2004, UP-38-2004, UA-74-2004, UA-51-2004.

Please send a letter to the Major General Sharma Thappa asking him to intervene into this case and to ensure Jeewan is released in accordance with court orders. Please also ask the government of Nepal to investigate the case, together with those that have occurred in the past and take disciplinary/legal action against those security forces that have violated the rights of these victims.  Finally, please request the government of Nepal to instruct the army and the police to refrain from harassing persons who have been granted release, to strictly abide by court orders, and to stop all attempts to weaken the judiciary and rule of law.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

Name of victim: Jeewan Sharestha, 38 years old, permanent resident of Sankhuwa Sabha District, Wana VDC ward no 1, residing in Kathmandu for some years
Date of arbitrary arrest: On 15 September 2004 by a group of Royal Nepal Army personnel deployed from Singhanath Gan, Suryabinayak, Bhaktapur
Date of re-arrest: 16 November 2004

On 15 September 2004, Jeewan Sharestha was arrested at his shop in Kathmandu by a group of Royal Nepal Army personnel deployed from Singhanath Gan, Suryabinayak, Bhaktapur. According to eyewitnesses, a person called Bhola was also arrested by the Army personnel. When Jeewan asked the army personnel why he was being arrested and where were they taking him, the army told him to shut up and did not respond to his questions.

It has been suggested that the army went to Jeewan’s shop on the basis of information provided by Mr. Kuber Rai of Panchthar District, who together with Bhola Limbu and others was accused of collecting donations in the name of Maoists.  After arresting both Jeewan and Bhola, the army personnel searched Jeewan’s shop and residence.  Jeewan was sharing the same residence as Bhola.  During the search, the army took Jeewan’s phone and Nepalese Rs. 8,000 (about US$115) cash.

After the arrest, both Jeewan and Bhola were kept at Singhnath Gan (Singhnath Army Barrack) for 6 days.  Jeewan was then produced before the Chief District Officer (CDO), Bhaktapur on 22 September 2004.  The CDO gave him a detention order in accordance with the Terrorist and Disruptive Act of 2001, then imprisoned him in Bhadra Bandi Griha of Central Jail, Kathmandu.

In prison, Jeewan told lawyers from Advocacy Forum that he had been tortured whilst in the army barracks and forced to confess the crime of being a Maoist and for being involved in extortion.  On the request of Jeewan and his wife, lawyers from Advocacy Forum filed a case of habeas corpus on 7 October 2004.

On 16 November 2004, the Supreme Court issued orders to have Jeewan released.  The same afternoon the jail authorities released him in accordance to those orders.  Jeewan’s wife was made to sign a release document by the jail authorities; his lawyer was not given access to this signing.  Immediately after his release at 4:45pm, Jeewan was re-arrested outside the prison compound, by police deployed from Bhaktapur Police Station.  He was not given an opportunity to talk with his wife or lawyer, who were both present at the time, and was put in a police van with the registration Ba. A. Jha. 1656.

At one point during this whole ordeal, Jeewan’s wife and family members were asked to pay a bribe to the police to have Jeewan released.  Furthermore, this morning (18 November 2004) a person named Basanta Man Singh Adhikary, who was a former member of parliament from the right wing National Democratic Party (RPP), asked Jeewan’s family for money, saying that the army had demanded money be paid for Jeewan’s release.  Jeewan’s cousin, Mr Gopal Shrestha, has reportedly paid Nepalese Rs. 7,000 (about US$ 100) to Mr. Adhikary.  

Jeewan was later found at the District Police Office in Bhaktapur.  Police Inspectors at the District Police Office said that Jeewan was arrested by the order of the Royal Nepal Army, and that they do not know what the Army will do with Jeewan next.

ADDITIONAL INFORMATION:

Current events in Nepal have exposed the chaotic state of affairs in the country. Since 1996 Nepal has been gripped by a brutal civil war between the state’s poorly trained military and police and a retrograde Maoist movement.   More than 10,000 Nepalis have died and many more have disappeared, been tortured and/or intimidated.  The situation of “law and order” and internal security has deteriorated to near unmanageable proportions.  Such a state of affairs reflects the government’s inability to ensure the safety and security of its people. The current wave of events is not intended to do any good to the dilemma faced by the people and the government of Nepal. It is very clear that government has a limited capacity to deal with the situation and to protect its citizen.

In an effort to combat Nepal’s internal unrest, the government of Nepal abolished the previous Terrorist and Disruptive Activities (Punishment and Control) Act on 12 October 2004, and replaced it with a more severe and draconian version of the same law: the Terrorist and Disruptive Activities (Control and Punishment) Ordinance. Clause 9 of the latest TADA states:

“If a security official feels the need to prevent a person from carrying out any terrorist and disruptive activity, such a person can be kept under house arrest for a maximum period of one year, six months at his [Security Official’s] discretion and another six months after obtaining permission from the home ministry, in any place after fulfilling common humanitarian conditions”.

It is due to such changes, and the power the new TADA provides to security officials, that security forces have been able to re-arrest detainees immediately upon their release by court orders. The immediate re-arrest of detainees is merely serving to weaken, threaten and to humiliate the courts, lawyers, and the victims so that they might refrain from challenging illegal detentions again. The systematic re-arrest of individuals indicates the failure of the judicial system in Nepal as the judiciary is unable to safeguard the authority of its decision or stop the security forces from abusing the legal process by re-arresting individuals freed by the courts.   

Significantly, the current practice of re-arrest by Nepal’s forces, and certain elements of the revised TADA, are a breach of international humanitarian law (in accordance with Nepal’s current state of civil war) and other international laws such as the International Covenant on Civil and Political Rights (particularly in regards to ‘right to liberty) to which Nepal is a signatory.  

The AHRC calls upon His Majesty’s Government of Nepal and Major General Sharma Thappa to make genuine efforts to put an end to the practice of re-arresting persons immediately upon their release.  This practice is a breach of international law and is a blatant tool of intimidation by the ruling military of Nepal.  The AHRC denounces the delusion that brute force and intimidation will bring all parties in the conflict to dialogue.  Rather, by introducing strict laws and giving security forces unlimited powers, the government is stimulating the ongoing systematic and widespread human rights violations and crimes against humanity being committed by the security forces with absolute impunity.  The government must instead adopt a realistic and sincere approach towards a solution; otherwise, the blind, unnecessary and blatant use of force coupled with the impunity of state security officials will continue to result in further violations of human rights.

SUGGESTED ACTION: 
Please send a letter, fax or an email to Major General Sharma Thappa and ask him to take immediate action into this case.

To support this case, please click here: SEND APPEAL LETTER