ICJ urges govt not to renew anti-terrorism ordinance
Kathmandu, March 31 - The International Commission of Jurists (ICJ) has called upon the Nepal government not to renew the Terrorist and Disruptive Activities Ordinance (TADO) which is against the country's human rights obligations.
"TADO is fundamentally flawed and should not be renewed. The application of this Ordinance is creating more violence and making the armed conflict more difficult to resolve," said Nicholas Howen, ICJ secretary-general in a statement issued on Friday.
TADO has been re-promulgated every six months since it first came into force in October 2004, replacing the Disruptive (Control and Punishment) Act (TADA) of 2002. The TADO was amended when it was most recently re-promulgated in October 2005.
"If it is considered necessary to have anti-terrorist legislation it should be developed through a democratic legislative process and be in line with Nepal's Constitution and international obligations," said Howen.
It is widely recognised that the TADO provides a semblance of legal cover for human rights violations carried out by the Government including arbitrary detention, violations of fair trial standards and provides immunity for security forces and government officials when they commit violations, the ICJ said.
"By not renewing TADO the government would be giving a sign that it takes seriously the impact of the Ordinance on the people of Nepal," said Howen.
Despite criticism from national and international human rights organisations and the OHCHR the TADO (Article 9), still authorises government officials to preventively detain individuals without charge for up to one year.
Stating that the TADO detainees do not have any access to judicial review and are often held for far longer than the one-year, Howen said, "Under international law administrative detention must remain an exceptional measure, be strictly time-limited and be subject to frequent and regular judicial supervision".
This kind of administrative detention without the right to an effective judicial remedy to challenge the lawfulness of the deprivation of liberty is a clear violation of the Article 9 (4) of the International Covenant of Civil and Political Rights (ICCPR) and Principle 32 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the ICJ said.
"The ICJ is gravely concerned that under Article 15 all cases under TADO should be heard in closed session," said Nicholas Howen. "While international law provides that trials may be held in closed session if necessary to protect national security, the necessity must be assessed by the court in every individual case. The ICJ is also gravely concerned that the TADO erodes the principle of presumption of innocence".
It further said that the TADO provides that government officials cannot be prosecuted for any "work performed in good faith".
"Such a legal immunity clause will perpetuate impunity for human rights violations committed in the course of security operations and will lead to a cycle of human rights violations and further entrench the prevailing culture of impunity within the security forces in Nepal but will also exacerbate the political conflict," ICJ said.
On the Supreme Court's ruling in the case related to the constitutionality of preventative detention article of TADO on March 24, the commission said that the ruling did not assess the compatibility of TADO with international law when reading out the judgement.
"This ruling cannot be used as legal justification for the renewal of TADO," said Nicholas Howen, ICJ Secretary-General.