Asian Federation Against Involuntary Disappearances

TABLE OF CONTENTS

EDITORIAL

COVER STORY

- Realizing A World Without Desaparecidos

COUNTRY SITUATIONS

- The Making of Nepal’s Anti-disappearance Law

- Disappearances & Fake Encounters

NEWS FEATURES

- Claimants 1081

- Tracing Patterns of Disappearances in Latin America

- For the Want of Peace & Justice

- Probing Deeper into Munir’s Death

- Out of the Shadows

- Reclaiming Stolen Lives

PHOTO ESSAY

INTERNATIONAL SOLIDARITY

- Growing Federation

- At the Heart of Buenos Aires

REPRINT

- Submissions to the Independent Group of Eminent Persons

STATEMENTS

- Exhuming Truth

- Joint Statement of Independent Observers for the GRP - NDF Peace Process

POEM

- Of The Vanished

Country Situation

Nepal topped in 2003 the notorious list of Asian countries with the highest number of disappearance cases in the region. This year, it may set another record although this time around, it will be a positive one. To date, only two countries in Asia have anti-disappearance bills: Philippines and Nepal. At the rate the Philippine bill is moving in Congress [13 years now since it was first filed in 1995]; Nepal may be the first Asian country to criminalize disappearances.

In what is deemed to be a response to the call of national and international human rights community, the country’s Ministry of Law, Justice and Parliamentary Affairs drafted a bill to amend the Country Code for the 12th time to incorporate anti-disappearance and abduction provisions. Prior the proposed bill, disappearance and abduction are not criminalized under the existing laws of the state.

The bill defines disappearance as an act that prevents the family of detainees from having access to their family members who have been arrested, detained, or captured by security forces; or having no access to any information regarding their whereabouts after their legal detention period has ceased. Also, any act which deprives the detainees of their legal rights in detention will also be considered as disappearance.   The bill also states that disappearance and abduction are crimes subject to a five-year and twelve-year imprisonment and a penalty of Rs. 50,000 and Rs. 100,000, respectively. The main perpetrator will be charged of murder.

Trail of Disappearances

Nepal’s massive record of disappearance cases can be attributed to two points of references in history: (a) the autocratic Panchayat regime, and (b) the 10-year period of Maoist insurgency. The latter, however, brought about the larger percentage of disappearances as armed conflict continued between the CPN-M and the government. Over the years, the statistics have varied accordingly to the different sources of information. The National Human Rights Commission reported that of the “still disappeared” category, 612 had been perpetrated by security forces and 182 by Maoists. The International Red Cross Committee, on the other hand, puts the total of disappeared during the armed conflict at 812. These records, however, is still exclusive of undocumented cases. Potential threats to the lives of the victims have deterred them from reporting their cases and seeking help from human right organizations.

After the April Uprising in 2006, the Seven Political Party Alliances (SPA) government and the Maoists agreed on November 21, 2006 to publicize within 60 days, information regarding the whereabouts of persons disappeared by both the Maoists and the state security forces. No actions have been carried out yet.

Furthermore, considering criminalization of disappearances is still a work in progress, legal counselors have ever since used habeas corpus in the course of filing cases and seeking legal remedies. However, cases have often been dismissed by the courts due to the absence of substantial evidences which could have otherwise been collected had families and their legal counsels had access to detention centers. More, alleged perpetrators adamantly deny the arrest and detention of the disappeared.

There had been cases when the courts acknowledged the occurrence of gross human rights violations but then perpetrators were not punished.

On August 31, 2006, the Supreme Court (SC) formed a three-member committee led by Judge Lokendra Malik of the Appeals Court in Patan, Lalitpur. The committee investigated the disappearance of four persons namely, Rajendra Dhakal, Bipin Bhandari, Dil Bahadur Rai and Chakra Bahadur Katuwal. Following the investigation, a comprehensive report was submitted to the SC. The document did not say whether the disappeared persons were already dead or still alive. Nevertheless, among its recommendations were a retrospective law on disappearances and a competent commission to further probe into the large number of disappearance cases in the country.

Then on November 2, 2006, in the habeas corpus writ of Nabin Kumar Rai, the SC ordered the Administration Department of SC to collect all habeas corpus writ petitions for final hearing on the ground of severity of the disappearance cases. As of this writing, a total of 25 cases of habeas corpus remain under consideration in the SC; 17 of which were filed by Advocacy Forum. Three hearings had been conducted since then.

Supreme Court Action

On June 1, 2007, in a landmark verdict on disappearances, the SC ordered the government to form an all-powerful commission to probe the whereabouts of disappeared persons and to formulate an anti-disappearance law.

The court also ordered the government and the Home Ministry to file murder cases against army and police officials and bureaucrats involved in the custodial death in December 2000 of Chakra Katuwal, a school teacher from Okhaldhunga district.

In the 129-page order, the court said that it is not clear whether the disappeared people, mentioned in the habeas corpus petitions, are dead or still alive. “There is no situation wherein the state can continue defending disappearances,” the court stated. More, it expressed concern over the lack of priority shown by both the government and the Maoists regarding the issue of disappearances. The SC particularly addressed the government as it emphasized that it is the common responsibility of the state to care for and protect its citizens. Based on the court order, “the responsibility to provide security and guarantee the rights of the disappeared counts more when state agencies are involved in disappearing citizens.” It added that it has seen no serious effort on the part of the government to search for people believed to have been disappeared; and efforts to strengthen and improve the legal system on disappearances by providing remedy and relief to the victims as well as initiating investigations systematically, remain insufficient.

The apex court said the all-powerful commission on disappearances and the anti-disappearance law should be based on the Criteria for Commission on Enforced Disappearance and the International Convention for the Protection of All Persons from Enforced Disappearances, respectively.

Moreover, acting on the recommendation of the court-organized Detainees Investigation Team, the SC ordered the government to provide compensation to the families of the disappeared; Rs. 200,000 to the family of Chakra Katuwal and Rs. 150,000 each for the families of the other missing persons investigated by the team namely, Rajendra Dhakal, Dil Bahadur Rai, Bipin Bhandari and Rajendra Dhakal and Katuwal. Likewise, the court ruled that the families of 89 disappeared persons, mentioned in the writ petitions, be compensated with Rs 100,000 each as interim relief.

Call for Vigilance

The National Human Rights Organizations including some international human rights organizations have long been demanding for an anti-disappearance law. The UN Working Group on Enforced or Involuntary Disappearances and the UN Office of High Commissioner for Human Rights also made various recommendations to the Nepal government on the issue of disappearance but these recommendations haven’t been implemented. Consequently, the proposed bill has been received with much joy as it signified one step forward in this fight against impunity and disappearances.

However, much concern has been drawn from the fact that the government failed to consult human rights organizations in the process of preparing/drafting the bill. More, even prior to the approval of the bill, the government formed a “High Level Probe Commission on Disappeared Persons” on June 21, 2007 under the chairmanship of former SC Justice Narendra Bahadur Neupane. This has brought much criticism from NGOs. In the press statement released by Advocacy Forum, it expressed its deep concern on such government decision as it “fails to satisfy the directives contained in landmark Supreme Court verdict executed on 2064/2/18 and the domestic and international commitments made by Nepal to protect human rights. We feel this decision will strengthen the culture of impunity that will let the perpetrators of these crimes continue to hide from any action against them and deprive the victims of any form of justice” and that “the Court has directed the government to form a commission on enforced disappearance only after enacting a comprehensive law to govern it.”

Civil society strongly advocates for a separate law criminalizing disappearances instead of an amendment in compliance to the UN Convention for the Protection of All Persons from Enforced or Involuntary Disappearances which NGOs are lobbying for the government to sign and ratify. This also comes in accordance to the SC’s landmark verdict on disappeared persons calling on the government to consult the UN Convention before drafting and enacting such a law.

People then are called upon to stay vigilant to make sure that a law on disappearances will be passed and more importantly, will genuinely serve its purpose.

A lawyer by profession, Kopila Adhikari leads the human rights documentation unit of Advocacy Forum, one of Nepal's leading non-governmental organizations who recently joined AFAD. She represents her organization in the AFAD Council.

VOICE August 2007