Tool of terror

The Terrorist and Disruptive Activities (Control and Punishment) Act, 2002 (TADA), was Nepal's reaction to a global apprehension of terrorism since the events of 11 September 2001, and localised in Nepal through continued state of conflict between the government and the pro-republic Communist Party of Nepal (CPN-Maoists).

The comprehensive and convoluted coverage of terrorist and disruptive acts under TADA Section 3(2) targets persons who conspire, cause, compel, commit, instigate, establish, remunerate or publicise acts of terrorism, or harbour persons involved with terrorist and disruptive activities. Terrorist or disruptive activities include damage, destruction, injury, death, kidnapping and threats, and the production, distribution, storage transport, export, import, sale, possession or installation of explosive or poisonous substances, or the assembly and training of persons for these purposes.

One of the dangers of TADA is the inclusion of disruptive activities within the broad definition of terrorist acts. This allows for the application of TADA to political acts that, whilst distinct from terrorism, are determined by the state to have a disruptive effect on the operation of the government or public order. TADA provides that acts covered in Section 3(2) will be taken to have been committed with an intention to undermine or jeopardise the sovereignty and security of Nepal, or committed in a manner to create an environment of public fear.

The National Human Rights Comm-ission of Nepal (NHRC) reports the wide-spread use of abduction and 'disappear-ances' by both the government and the Maoist insurgents. The government is estimated to have been responsible for 170 insurgency-related disappearances. According to Amnesty International, this figure branches into the arrest of 9,900 Maoists (by August 2002) and the extra-judicial execution of an estimated 2,000 Maoists since November 2001. The NHRC has observed that "TADA aids and abets those who, under the guise of maintaining 'law and order' or 'security concerns', continue to violate the human rights of the citizens of Nepal".

Further, the Observatory for the Protect-ion of Human Rights Defenders reports that since the 29 August 2003 breakdown of the seven-month cease-fire between the state of Nepal and CPN-Maoist, incidents of the arbitrary detention, torture, enforced disappearances and extra-judicial killings of pro-Maoists and governmental dissi-dents have risen dramatically.

The following sections in TADA are of prime concern:

Section 5(a): The grant of 'special power' to authorities to arrest without warrant persons suspected of involvement in terro-rist or disruptive acts, allowing for the arbit-rary, capricious and prejudicial application of TADA in violation of Article 9(1) of the International Convention on Civil and Political Rights (ICCPR);

Section 5(m): The grant of 'special power' to authorities to place surveillance upon 'suspicious' persons and places, including the arrest, lock-out or blockade of the person or place, contravening Article 12(2)(d) which constitutionally guarantees freedom of movement and Article 12(1) of the ICCPR. Whilst Article 12 of the consti-tution allows for reasonable restrictions to be placed on freedom of movement, the restriction provided for in TADA, predicated on the existence of 'suspicion', is far from reasonable and is not in the interest of the general public;

Section 5(n): The grant of 'special power' to authorities to freeze the bank accounts and assets and confiscate the passports of any persons suspected of involvement in a terrorist or disruptive act for a 'certain period', contravening Article 17 which provides the right to property. Article 17(2) of the constitution does allow for the requisition, acquisition or encumbrance of property by the state in the public interest, and the freezing of bank accounts and assets is an anti-terrorism measure en-dorsed by the United Nations Counter Terrorism Committee (UNCTC). However, the use of 'sus-picion' as the determinant threshold for the exercise of the power, and the unspecific designation of the suspension period are not in the public interest and are insufficient justification for the suspension of a constitutional right. This power also arguably constitutes state inter-ference per Article 17 of the ICCPR;

Section 7: The grant of power to the government to declare any person, organisation, association or group 'involved' in terrorist or disruptive activities as terrorist in nature. Whilst Article 12 of the Constitution and Article 22(2) of the ICCPR allow for certain reasonable restrictions to be placed on the freedom of association, TADA is un-reasonably imprecise in that it criminalises membership of associations and organisations deemed to be 'involved' in terrorism without providing an adequate explanation of the process through which involvement in terrorist or disruptive activities is determined;

Section 9 and Section 17(5): The deten-tion of persons for periods of up to 90 days on the basis of 'a reasonable ground for believing' that the person has to be pre-vented from committing acts that 'could' result in a terrorist or disruptive act. Whilst Article 15(1) of the Constitution allows for the preventative detention of persons on the basis of the existence of an "immediate threat to the sovereignty, integrity or law and order situation" within Nepal, the 'reasonable grounds for belief' test is an insufficient threshold for suspension of a constitutional right and is a dangerously imprecise reflection of Article 15(1) of the constitution. Further, the arbitrary detention of a person on a preventative basis for such an extensive period clearly negates due process and retracts the ICCPR Article 14(2) provision of presumption of innocence;

Section 10(3): The imprisonment of persons for a term of five to 10 years for the harbouring or hiding of any person in-volved in terrorist or disruptive acts. It is an accepted principle of law that the com-mission of a crime requires evidence of both mens rea and actus reus: intention and action. Further clarification of Section 10(3) is therefore required, as, prima facie, it appears that the mens rea element to this offence has been omitted from the calculation of criminal liability. Accordingly, there is a real danger of the conviction and imprisonment of people who unknowingly house persons involved in terrorist or disruptive acts;

Section 18: The grant of control to the government of means of communication such as letters, telephones and faxes that belong to persons involved in terrorist or disruptive activities. This is a clear violation of the right to privacy outlined in Article 17 of the ICCPR. It is also contrary to the principle contained in Article 22 of the constitution, which states that "Except as provided by law…privacy…is inviolable";

Section 20: The grant of immunity to investigating authorities for any activity carried out or attempted to be carried out in good faith under TADA. The grant of immunity provides vast potential for the use of torture, contravening the right against torture and inhuman treatment [Article 14(4) of the constitution and Article 7 of the ICCPR]; the right not to be compelled to testify against oneself [Article 14(3) of the consti-tution]; the prohibition against coerced confessions [Article 14(3)(g) of the ICCPR]; and the Convention Against Torture and Other Cruel, Inhuman or Degrading Punish-ment or Treatment (CAT) Article 2(2) provision that "no exceptional circumst-ances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture";

Section 22: The grant of rewards to any person who arrests or renders assistance in the arrest of persons who play the main role in the commission of terrorist or disruptive acts. The offering of reward for the appre-hension of suspects opens TADA to possible acts of corruption and abuses of authority in contravention of Article 7 of the Code of Conduct for Law Enforcement Officials.

Acts of terrorism are a direct assault on basic human rights and the sovereignty and integrity of states, and the importance of effective legal instruments in the fight against terror must be acknowledged. However, the government must fulfill its obligations under international human rights instruments and its Article 25(1) constitutional declaration, which states that:

"The chief objective of the State [is] to promote conditions of welfare on the basis of the principles of an open society, by establishing a just system in all aspects of national life, including social, economic and political life, while at the same time protect-ing the lives, property and liberty of the people".

As stated by the United Nations Secre-tary General's statement at the 4453rd Meeting of the Security Council on Threats to International Peace and Security Caused by Terrorist Acts:

"[W]e should all be clear that there is no trade-off between effective action against terrorism and the protection of human rights. On the contrary, I believe that, in the long term, we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism".

– by arrangement with Human Rights Features