Bar Human Rights Committee of England and Wales Writes To PM On Raut

Chair: Kirsty Brimelow QC │ Vice-Chair: Sudanshu Swaroop
Bar Human Rights Committee of England and Wales (BHRC) | 53-54 Doughty Street | London WC1N 2LS |
e-mail: coordination@barhumanrights.org.uk | Tel: +44 (0) 20 7404 1313 ext. 359 | website: www.barhumanrights.org.uk

The Right Honourable Mr Sushil Koirala
Office of the Prime Minister and Council of Ministers
Singh Durbar
Kathmandu, Nepal
P.O. Box: 23312
SENT BY EMAIL AND POST
London, 6 November 2014


Your Excellency,
RE: Dr Chandra Kant Raut charged with sedition

I am writing on behalf of the Bar Human Rights Committee of England and Wales (BHRC). The BHRC is the international human rights arm of the Bar of England and Wales. It is an independent body primarily concerned with the protection of the rights of advocates and judges around the world. The Committee is also concerned with defending the rule of law and internationally recognised legal standards relating to human rights and the right to a fair trial.

The BHRC is contacting you regarding the arrest and prosecution of Madhesi activist Chandra Kant Raut. As you will be aware, on 14 September 2014, Dr Raut was placed under detention for allegedly inciting separatism in the Madhes region of Nepal under S. 2(1)(k) of the Some Public (Crime and Punishment) Act, 2027 (1970).

1 Then, on 8 October 2014, Dr Raut was charged with subversion contrary to S. 3(1) of the Crime against State and Punishment Act, 2046 (1989) for allegedly inciting separatism in the Madhes region of Nepal, an offence that carries a sentence of life imprisonment.2 Of note, on 20 September 2014, Dr Raut began a hunger strike to protest his arrest for denouncing discrimination of marginalised groups and peacefully demanding autonomy for his region. On 1 October 2014, as Dr Raut’s condition became critical, he was visited in hospital by Nepali Congress Party leader and Minister of Information and Communication Minendra Rijal and Communist Party of Nepal (United Marxist-Leninist) leader and Minister of Agriculture Hari Prasad Parajuli. The two Ministers pleaded with Dr Raut to break his fast and gave a written commitment to respect Dr Raut’s freedom of expression. On that occasion, the Vice-President of the Nepali Congress Party Ram Chandra Poudel also visited Dr Raut and made an oral commitment that the charges would not be proceeded with against him.

However, the following week Dr Raut was charged with sedition under the Crime against State and Punishment Act, 2046 (1989). On 15 October 2014, the Special Court granted bail, but Dr Raut refused release on bail as he considered that he would be rearrested immediately on a different charge; the prosecution had stated in court that there was enough evidence to charge Dr Raut with the offence of

The BHRC respectfully draws to the attention of the Government of Nepal Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Nepal has been a party since 1991, and Article 19 of the Universal Declaration of Human Rights (UDHR), which enshrine the right to freedom of expression. Nepal has also ratified the First Optional Protocol of the ICCPR. Nepal’s commitment to human rights and the right to freedom of expression are also reflected in Article 12 (3)(a) of the currently in force Interim Constitution 2007.

Limitations to the right to freedom of expression are legitimate only if they fall within the very narrow conditions defined in the three-part test in Article 19(3) of the ICCPR; these restrictions must be ‘provided by law and necessary’, and there must be a legitimate aim to impose such restrictions.

Similarly, Article 12 of Nepal’s Interim Constitution 2007 allows only for the imposition of ‘reasonable restrictions’ to the right to freedom of expression. The BHRC respectfully submits that the restrictions to Dr Raut’s freedom of expression do not pass the three-part test in Article 19(3) of the ICCPR.

First, the formulation of the offence under S. 3(1) of the Crime against State and Punishment Act, 2046 (1989), with which Dr Raut is charged, does not meet the required standards of clarity and precision, leaving it open to abuse and political expediency.

Second, the current position in international law regarding the balance between national security and expression is that it is illegitimate to criminalise simple speech when no imminent violence is being incited with intent, as in the case of Dr Raut.

Third, limitations to freedom of expression are such as are necessary in a democratic society. The purpose must never be to shield governments from peaceful opposition. In this respect, the Crime against State and Punishment Act, 2046 (1989) is a piece of legislation drafted at the twilight of the Panchayat autocracy (1960-1990). This piece of legislation was enacted to repress dissent and curb the efforts of pro-democracy activists, and as such it has no place in a democracy.

The BHRC therefore respectfully requests the Government of Nepal and appropriate institutions to call to account the current actions that have led to Dr. Raut’s loss of liberty with a view to securing his release without fear of further arrests. Further, it should reconsider the appropriateness of the Crime against State and Punishment Act 2046 (1989). The BHRC calls upon the authorities to ensure the internationally protected right to freedom of expression to all Nepali citizens in order to preserve the rule of law and administration of justice in Nepal. This is particularly important at this delicate moment of negotiations over the new constitutional settlement.

Yours sincerely,
Kirsty Brimelow QC
Chair, Bar Human Rights Committee of England and Wales (BHRC)
Cc : Embassy of Nepal in the UK
Cc : British Embassy in Nepal


1 S.2 – Prohibition to commit some public crime (1) No person shall commit any of the following acts: (k) To commit any act or express anything, which causes intimidation or terror in general public and breaks public peace, by entering or not entering in any public gathering, assembly or demonstration; or to show weapon. See: http://www.lawcommission.gov.np/index.php?option=com_remository&Itemid=25&func=startdown&id=611&lang=en

2 S.3 (1) – If someone causes or attempts to cause any disorder with an intention to jeopardize the sovereignty, integrity or national unity of Nepal, he/she shall be liable for life imprisonment. See: http://www.lawcommission.gov.np/index.php?option=com_remository&Itemid=25&func=fileinfo&id=712&lang=enChair: Kirsty Brimelow QC │ Vice-Chair: Sudanshu Swaroop

Bar Human Rights Committee of England and Wales (BHRC) | 53-54 Doughty Street | London WC1N 2LS |
e-mail: coordination@barhumanrights.org.uk | Tel: +44 (0) 20 7404 1313 ext. 359 | website: www.barhumanrights.org.uk cybercrime for posting political material on his website, and the reportedly outstanding case under the Some Public (Crime and Punishment) Act, 2027 (1970).

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CK Raut Has To Be Released Unconditionally And Immediately

Gandhi Also Refused To Pay Bail

No ifs and buts. The arrest was wrong. And he has to be released unconditionally and immediately.

The courts could do it. The courts could release him unconditionally and immediately.

The Prime Minister could do it. The Prime Minister could release him unconditionally and immediately.

The Home Minister could do it. The Home Minister could release him unconditionally and immediately.

Accept that you made a mistake in arresting him. Apologize. And let him go.

That is my opinion. That is the opinion of all the top human rights organizations in the world.

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Nepal's Population: One Count

The total comes to 96.34. Over three per cent are not accounted for. But is this accurate? Are the Madhesis (minus the Tharu, the Muslim, the Terai Dalit) only 15% of the population? Are all of them together only 35% of the population? Frankly I don't know. But I am a little suspicious.

I have never been the one to argue the Tharu, the Muslim and the Terai Dalit are all Madhesi, whether they like it or not. If those three groups do not want to wear the Madhesi hat, they have every right not to do so. One can choose to be a Tharu and a Nepali, not a Tharu who is also a Madhesi who is Nepali. The same applies to Muslims and the Terai Dalits. I think it is in the best interests of the Terai Dalit to claim an independent identity. They are not exactly "accepted" within the Madhesh.

नेवार त धेरै बुद्धिस्ट छन। भने पछि पहाड़मा बाहुन, क्षेत्री र दलित छन, वैस्य छँदै छैनन् त? That is interesting.

यो तथ्याङ्क सही हो भने त एक मधेश एक प्रदेश होइन, एक मधेश ३-४ प्रदेश बनाउनु पर्ने देखिन्छ।

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Human Rights Watch Says Drop Charges Against CK Raut

English: Human Rights logo: "FREE AS A MAN" esp ->svg Français : Logo pour les droits de l'homme : « Free as a man ». Русский: Свободен как человек, победитель в международном конкурсе логотипа, символзириюущего Прав человека, http://humanrightslogo.net/ (Photo credit: Wikipedia)

Many Nepalis have recently struggled to break out of feudal structures and ensure democratic rights. Freedom of expression is a cornerstone of a good democracy. But the government is going after an activist expressing concerns about marginalized communities from the Terai.

Brad Adams, Asia director

Human Rights Watch: Nepal: Drop Sedition Charges against Madhesi Activist

The Nepal authorities should immediately withdraw sedition charges and unconditionally release rights campaigner Chandra Kant Raut, who was arrested for his expression of peaceful political opinions. Nepal should amend its practices to comply with international and domestic standards to protect freedom of expression. ......... Raut was arrested on September 14, 2014, for allegedly advocating that the southern plains of Nepal, known as the Terai, be allowed to secede from the rest of the country as part of a long-standing debate on state restructuring. On October 8 he was charged with sedition, presumably under the Crime against State and Punishment Act 1989, which forbids any “attempts to cause any disorder with an intention to jeopardise sovereignty, integrity or national unity of Nepal.” It carries a penalty of life imprisonment. Police also said that Raut has written articles and books advocating secession by Madhesis, the Terai community. There is no evidence that Raut advocated the use of violence, or that his actions led to violence. ......... Nepali politicians have long been drawn largely from the upper-caste hill tribes. Following the ceasefire agreement of 2006 after a 10-year civil war, the country embarked on a constitution-writing process which promised inclusion for traditionally marginalized communities, including from the Terai. Central to the promise of inclusion was the pledge to re-draw the state to create provinces or regions without giving dominance to the upper-caste hill tribes. However, the constitution remains in limbo as political parties have failed to come to a consensus. ............ The debate has been filled with anxiety that the Terai, which runs east to west along Nepal’s porous border with India and is a critical transit for trade in the land-locked country, will seek greater autonomy. Raut, formerly a US resident, returned to Nepal in 2011, and leads a group that seeks to establish an independent Madhesh in the area. ........ “Raut’s call for an independent Terai has to be understood in the historical and political context in which the discussion on state restructuring is occurring,” said Adams.

“His arrest threatens the chances of a robust debate on federalism, and undermines the promise of inclusion. Raut’s arrest shows that minority voices can and will be easily sidelined.”

........... Nepal is a state party signatory to the International Covenant on Civil and Political Rights, which guarantees the right to free expression. Any limits placed on free expression must be set out clearly in domestic law, be nondiscriminatory in impact and must be strictly necessary for national security or public order. The authorities have not produced any evidence that Raut’s peaceful call for an independent Terai was a threat to national security or public order that could justify his arrest. ........

“Instead of releasing Raut for lack of a genuine threat, the authorities decided to justify their arrest by slapping sedition laws against him, nearly a month later,” said Adams. “Such laws are typically used by repressive regimes to control critical speech, and it appears that Nepal has decided to go down this unseemly route.”

Drop sedition charges against activist, Nepal told

The Nepal authorities should immediately withdraw sedition charges and unconditionally release rights campaigner Chandra Kant Raut, Human Rights Watch said Tuesday.

Asian Human Rights Commission: NEPAL: Fair trial possible for Dr. Raut?

The right to a fair trial is a universally recognized human right, enshrined in international law in both the Universal Declaration of Human Rights (the “UDHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”). Fair trial rights are also guaranteed in Article 24 of the Interim Constitution of Nepal. ....... The right to a fair trial is made up of a number of more specific individual rights, including pre-trial rights, which, when recognized and provided for, together ensure that a person charged with a criminal offense is treated fairly while the justice system determines their guilt or innocence. ....... Fair trials are essential to protect the rights of the accused, to have all evidence tested thoroughly by an independent and impartial court, and to ensure the proper administration of justice. Recognition and provision for fair trial rights and due process prevents arbitrary and unjust interference with the lives of citizens, the misuse of political or state power, or the application of “summary justice”. As a general principle, regardless of the nature of the alleged offense, all accused persons must be given a genuine opportunity to answer charges, present and challenge evidence, examine and cross-examine witnesses, and do so in a neutral and dignified setting. ........ Fair trial rights apply to those accused of all criminal offences, no matter how shocking or abhorrent the alleged offense, and no matter how strong the evidence available to the prosecution appears to be. This principle has to be respected........

However, in the case of Dr. C.K. Raut, all these principles have been circumvented. He was first arrested on one charge (public offence) and later charged with another (subversion) after political negotiations among cabinet members and public prosecutor as reported in the Nepali media. This shows that the decision on the charge against him was not made independently.

....... There is a domination by one hill community through the judicial system which sees the demand for the right to secession from a patriotic and “traditional nationalism” point of view and do not support the idea. In contrast, Dr. Raut advocates for the right to secession to be included in the new constitution currently being drafted by the Constituent Assembly which is what he had told the Constitutional–Political Dialogue and Consensus Committee (CPDCC) on August 21 when CPDCC Chair Baburam Bhattarai invited him for a discussion on co .............

Dr. C.K. Raut, a Madhesi activist, was arrested on September 13 by almost two dozen police personnel

deployed by the District Police Office; Morang, while returning home from a mass meeting organized by the Santhal tribe. Dr Raut, who holds a PhD degree from Cambridge and has written a book on History of Madhes, had addressed the meeting as the chief guest. Dr. Raut says he was invited to the programme as a historian. He was arrested along with his associate, Satya Narayan Mandal, but Mandal was released within a few hours. ................

Raut was served neither an arrest warrant at the time of his arrest nor a search and seizure warrant before being searched by the police.

His brother Surya Kant Raut filed a habeas corpus writ at the Supreme Court the next day saying that Dr. C.K. Raut’s arrest was illegal and he should be released from custody. ............. The Morang Police first charged Dr. Raut under the Public Offences Act and produced him before the Morang Chief District Officer who remanded him to six days in custody. In response to the habeas corpus petition, the Supreme Court ordered the government to produce Raut in person. At this point, the police filed a sedition charge against Raut at Special Court. The police state in the charge sheet that Raut has written some books including Madhes Swaraj (Madhes autonomy) and the Manifesto of Alliance for Indpendent Madhesh, advocating for a separate Madhes land and therefore he should be punished under the Crimes Against the State and Punishment Act 1989 with treason........... The Supreme Court denied issuing a writ of habeas corpus as demanded by Raut’s brother, on the basis that he had already been produced in court and charged. The court also ordered the government to allow him to seek medical treatment from the medical centre of his choice at his own expense. The court issued this order after

Raut told the Apex Court that the police had denied him medical treatment. Dr. Raut, alleged that the police inflicted mental torture and denied him the facilities normally granted to a political prisoner. Two dozen human rights activists of Nepal condemned Dr. Raut’s illegal arrest. The Asian Human Rights Commission and Amnesty International condemned his arrest and demanded his unconditional release. Nepal’s principal opposition party – the Unified CPN-Maoist and other opposition parties, including Madhesi parties, also condemned Dr. Raut’s arrest and urged the government to unconditionally release him.

.......................... Rights activists are surprised to know why Dr. Raut who was called by the CPDCC to record his views on constitutional issues was then arrested for expressing his political views, in fact the same views recorded by the CPDCC. ........ Dr. Raut believes in a peaceful movement and says what he has been advocating is protected under the right to freedom of speech and expression as guaranteed by Interim Constitution of Nepal and many international treaties that Nepal is party to. ........ The day the Supreme Court began its hearing on the habeas corpus writ,

Raut told the apex court that if the state believed that he was the only one to have such views, then the state could hold a referendum on the right of secession. .... Dr. Raut also told the Supreme Court that his deposition before the Morang police was taken under duress and the police did not record all his statements. It was also not recorded in the presence of the public prosecutor, in violation of the provisions in the State Cases Act.

............ Dr. Raut now faces two cases - one under the Public Offences Act and another under the Crime against the State and Punishment Act 1989. Many were surprised by

the subversion (Rajya Viplab) case was filed against Dr. Raut one day after Prime Minister Sushil Koirala told some rights activists and Raut’s family that in a democracy one should not be detained just because he/she has differing views. When Ministers Minendra Rijal and Hari Prasad Parajuli signed an understanding with Dr. Raut in his custody, following which he broke his 11 days hunger strike, the ministers had pledged to respect Dr Raut’s freedom of speech and expression.

Raut’s case is sub judice and the merits of the case cannot be discussed, but the fairness of trial can certainly be discussed. ........... The right to fair trial requires that a public prosecutor must make decisions independently. In Nepal’s context, a public prosecutor charge criminal case depending on a phone call or a conversation with a politician. Immediately after Dr. Raut was arrested, some of the daily newspapers quoted Morang police as saying that the doctor could be implicated under treason law but that would depend on the government’s decision. ........ The criminal prosecution should be based on fairness, judgment, evidence, public interest, and common sense. In this case,

Dr. Raut was first charged under the Public Offence Act and when the Supreme Court ordered the government to produce him, the police charged him under the subversion law. The police appeared to have acted with the intent of detaining Raut as long as possible.

............. What was the reason of charging Dr. C.K Raut under subversion law, an outdated law enacted during the monarchy, and needs court intervention to be repealed? Most democratic countries has already repealed such laws. Take the case of The Philippines. The Anti-Subversion Law was repealed in September 1992, when then President Fidel Ramos signed into law the Republic Act 7636. ...... Lawyers and human rights activists in Nepal failed to take timely steps to repeal Rastra Viplab law (Crime against State and Punishment Act, 1989) that says in Section 3 (1) (subversion) that if someone causes or attempts to cause any disorder with an intention to jeopardize sovereignty, integrity or national unity of Nepal, he/she shall be liable to life imprisonment. .... Banning the expression of political ideology using this law in a democratic society like Nepal is unfair. Any piece of legislation, which imprisons people for holdAHRC-ART-082-2014-01.jpging differing views and opinions, should be repealed.

The Hindu: Rights group demand release of Madhesi activist

Mr. Raut is a former employee with Raytheon, a contractor with the US Department of Defence. He returned to Nepal in 2011 and since then has been campaigning for independent Madhes. Until his arrest, not many people in the country knew abut him or his activities.

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