Nepal’s Lawyers Facing Threat From Both Sides Of Conflict-(nepalnews/October 2002)

Since the outbreak of civil conflict in Nepal in 1996, more than 4,000 people have been killed and a third of the country is being ruled by the Maoists and is no longer under government control. In areas controlled by the Maoists, the rule of law has been subverted, and corruption is reported to be endemic in the regions that are still government controlled. These are facts that appear in an extensive report, ‘Nepal in Crisis: Justice Caught in the Crossfire’, released on September 26 by the International Bar Association’s (IBA) Human Rights Institute (HRI).

The report follows a fact-finding mission to Nepal between 11 and 15 June 2002 which was organised by the HRI after an increasing number of intervention letters were received detailing cases where lawyers had, allegedly, been arrested, detained without charge, and in some cases tortured in connection with carrying out their professional duties.

The report highlights the background to the recent arrests and cites as the catalyst the order that declared the Nepal Communist Party (Maoist) to be a terrorist organisation. Following this, the Terrorist and Disruptive Activities Act 2002 enshrines in law that a person, organisation or group that is directly or indirectly involved in, or renders assistance to, the activities of any terrorist organisation is committing an offence which can lead to life imprisonment.

Lawyers defending the Maoists in court have, by association, been labelled terrorists or Maoist sympathisers and have been detained without proper regard for due process. The delegation was dismayed to uncover an increasing reluctance among lawyers to take on cases that could lead to them being considered pro-Maoist and prosecuted.

Equally, lawyers are being intimidated in Maoist-controlled areas where the rule of law has been disregarded and state courts have been dismantled and substituted with ‘People’s Courts’ presided over by local Maoist militia Commanders, who dispense rough justice.

The report concludes that although Nepal holds one of the best records in Asia of being a party to human rights treaties, its obligations under those treaties are being frequently disregarded.

The IBA’s report sets out 22 recommendations, which it argues must be implemented to return the rule of law and respect for human rights to the country. The key recommendations are:

-The government of Nepal should seriously review and implement its obligations under the Torture Convention and the International Covenant on Civil and Political Rights.

-The district courts should be restored to the whole of Nepal and judges, lawyers, prosecutors and court officials should be able to conduct their professional duties without interference.

-The Maoists must stop murdering and intimidating lawyers and judges.

-Judges, lawyers, prosecutors and court officials should at all times carry out their responsibilities with independence, integrity and impartiality. All allegations of corruption should be investigated and those responsible brought to justice.

-The government should ensure that the police, the Royal Nepalese Army and the security forces undergo training to ensure that they are able to comply with the relevant requirements of Nepal’s international human rights obligations.

-Effective procedures for habeas corpus should be implemented.

The delegation consulted widely during its visit to Kathmandu and met the prime minister, chief justice, attorney-general, chairman of the National Human Rights Commission, inspector-general of police and representatives of the Royal Nepalese Army. In addition, the delegation met the leadership and members of the Nepal Bar Association and the Nepal Law Society and a delegation of lawyers from Biratnagar.

IBA executive director Mark Ellis said, “The situation remains both serious and highly volatile. In such situations, human rights and the rule of law are needed more, not less.”