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).

Related articles

• Nepal: Drop Sedition Charges Against Madhesi Activist, Says HRW
• Nepal: Drop Sedition Charges against Madhesi Activist
• Rights group demand release of Madhesi activist
• Court orders Raut's release
• CK Raut: The Legal Process Could Last Weeks, Months
• CK Raut Arrest Is Human Rights Blasphemy

Amnesty International Repeats Demand For CK Raut's Immediate, Unconditional Release

AMNESTY INTERNATIONAL
PUBLIC STATEMENT - NEPAL: AUTHORITIES MUST UNCONDITIONALLY RELEASE CK RAUT WITH IMMEDIATE EFFECT
Index: ASA 31/007/2014, 17 October 2014

NEPAL: AUTHORITIES MUST UNCONDITIONALLY RELEASE CK RAUT WITH IMMEDIATE EFFECT



Amnesty International calls for the immediate and unconditional release of Dr CK Raut who was charged with sedition on 8 October 2014 under Nepal’s Crime against State and Punishment Act 1989. He faces the possibility of life imprisonment. CK Raut was first arrested and detained without charge on 14 September 2014 following his participation in a public rally in Morang. In his speech, he called for the right to secession to be enshrined in Nepal’s new constitution. He was arrested without a police warrant on his way home from the rally and subsequently charged under the Public Offence Act for his alleged involvement in “anti-national activities” and a campaign for an “independent Madhes.” He undertook an 11-day hunger strike in protest.

Following the arrest, there were reports of clashes between police and demonstrators supporting CK Raut. Media reports at the time indicated that at least six people were injured in Bharadaha, Saptari, and four protestors were arrested in Siraha. Amnesty International sent a formal letter to Nepal’s Minister of Home Affairs on 18 September 2014 calling for CK Raut’s release and expressing concern about the police’s alleged excessive use of force against protestors. A month later no response has been received from the Government of Nepal.

The arbitrary arrest and detention of CK Raut on the basis of his peaceful expression of his political views is a breach of his right to freedom of speech as enshrined in Article 7.7.1 of the Interim Constitution of Nepal; it is also a violation of Nepal’s international obligation to guarantee freedom of expression.

The sedition charges later brought against CK Raut by Nepal’s Special Court are of particularly grave concern, not only because they violate his right to freedom of expression, but because they carry such a heavy sentence which appears designed to deter others from exercising their right to freedom of expression.

The Government of Nepal has an obligation not only to protect the right to freedom of expression, but also the right of others to receive information and ideas. The apparent attempt to silence CK Raut undermines the prospect of an open debate among all communities in Nepal about the country’s proposed federal structure.

Related articles

• Rights group demand release of Madhesi activist
• HUMAN RIGHTS WATCH tells Nepal to drop sedition charges against CK Raut
• Right To Self Determination: Where CK Raut And The Madhesi Parties Meet
• CK Raut slapped with sedition charge
• Court orders Raut's release
• Nepal: Drop Sedition Charges Against Madhesi Activist, Says HRW
• Nepal: Drop Sedition Charges against Madhesi Activist

The Federalism Question: Maps

I personally would be happy with three states - Koshi, Gandaki, Karnali - that has the existing 75 districts, where half the MPs come from the Terai. This was the first map I drew. That was in 2005. But I don't see anyone going for it. I called it a purely economic federalism. This map would be the best one for Nepal's economic progress.

One tangent would be to go to 25 districts from the current 75, but that might be even more far fetched in terms of the political reality, but I think 25 districts would be a good idea. The district governments would be stronger.

This below was the map I proposed to try and be in the same league as the Maoist-Madhesi sentiment. The NC-UML objection I believe is more to the names of the states than the map itself. What if some states are combined and all are given geographic names? So you would combine Magarat and Tamuwan to call it Gandaki, you would combine Tamang and Newa and call it Bagmati, Kirat would be called Koshi. Khasan would be Karnali, Madhesh would be called Eastern Terai, Tharuwan would be called Western Terai. Would that be more palatable? I think so.

These two maps below do a good job of exhibiting the differences between the two camps on federalism.

What I dislike about the six province model is that it is violently disrespectful of the fact that Kanchanpur, Chitwan, Sunsari, Morang and Jhapa are integral parts of the Terai. Otherwise four states in the Hills like in that map, and two in the Terai, all six with geographical names might be a good compromise map between the two camps. The 11 province model I find treacherous. It also seems to have lost the people's mandate.

A good compromise position is that the Maoists and the Madhesis should be okay with purely geographic one word names for the states, and the NC and the UML should respect the geographical integrity of the Terai. States with names Eastern Terai and Western Terai that include Kanchanpur, Chitwan, Morang and Jhapa will be as likely to produce Pahadi Chief Ministers as Madhesi ones. Why is that not a good idea? By now a lot of Madhesis live in Kathmandu Valley. I want to see a Madhesi Chief Minister of the Bagmati state some time over the next decade.

I say create six geographic states with 25 districts from districts merged from the existing 75. As in, no new geographic boundaries.

And everyone seems to have forgotten the idea of a non geographic state for Dalits. That bothers me. Proportional elections where DaMaJaMa participation is guaranteed is a must. One third for women, 10% for Dalits, all that is a must. 49% reservation for the DaMaJaMa for all new vacancies in the bureaucracy, police and the army, all good ideas. It is called state restructuring. The biggest restructuring though is downsizing. Nepal needs a parliament that is 200 strong, not 600 strong. Not even America and India have 600 strong parliaments. The bureaucracy could be half as big, the army could be 10% as big, the police could be one third as big. All that downsizing would be good for the DaMaJaMa as well the Bahun-Chhetris, because it would be best for Nepal's economy. More teachers and health workers, less soldiers. Less red tape.

Related articles

• Three Governments In Four Years
• Good Options For Maoists And Madhesi Parties
• One Madhesi Party Needed
• How Madhesi parties envision a future Madhes
• The Geography of Nepal
• Nepal polls: Prachanda wins by thin margin