Anti-terrorist laws contrary to the Constitution
By virtue of Article 115 of the Constitution of the Kingdom of Nepal, the proclamation of the state of emergency marked a new era in the political and legal life of Nepal. "For the first time since the adoption of a democratic Constitution in 1990, the Nepalese government has chosen to restrict the rights of its citizens. This decision, and its far-reaching consequences on the country’s democratic future, was the condition imposed by the Army for intervening in the fight against the Maoists. If the anti-terrorist law is passed by Parliament, it will mean the end of the civil and political rights granted by our Constitution," explained Subodh Raj Pyakurel, INSEC General Secretary. Indeed, in the name of the fight against the Maoist rebels, the government and the King decided to suspend the seven articles of the Constitution that guarantee fundamental rights: the right to basic freedoms, the press and publication right, the right against abusive preventive detention, the right to property, the right to privacy, and the right to constitutional remedy. Nepalese citizens are thus being deprived, for an undetermined period, of Article 12.2 (a), which guarantees freedom of opinion and expression, and of Article 13.1, which prohibits the censorship of any news item, article or any other reading material. Similarly, the proclamation of the state of emergency, and its renewal in February by Parliament, have put into question Article 15, which governs preventive detention and provides for compensation in cases of abusive detention.
Meanwhile the King, by virtue of Article 118 of the Constitution, decreed that the Nepal Army be deployed throughout the territory and announced, at the government’s proposal, the enactment of the Terrorist and Disruptive Activities Ordinance (TADO) which, as of 20 March 2002, has not yet been adopted by Parliament. The law on terrorist activities includes the "publication or distribution of information about any individual or group implicated in terrorist or subversive activities." In broader terms, this law grants security forces full powers to fight against "terrorists." Police procedures are simplified to the extreme and time limits on detention are extended. A special court was likewise created for the purpose of trying the "terrorists." But as INSEC’s General Secretary remarked, the government instituted only one special court, in Kathmandu, and the fate of Maoist suspects arrested outside of the capital is totally unregulated. In fact, in districts affected by guerrilla warfare, police and army officers actually constitute "ministers of the interior and of justice," with full powers to act as they see fit.
Today, Nepal is endowed with legal texts that include numerous elements contrary to international standards relating to detention, judicial inquiries, and trial procedure. The kingdom is, however, one of the few Asian countries to have ratified most of the international texts relating to the protection of human rights, and, specifically the International Covenant on Civil and Political Rights. Furthermore, "terrorists" and those who support them, risk punishment as harsh as life imprisonment (Nepal has abolished the death penalty).
Self-censorship and restricted access to information
During the interview granted to Reporters without Borders, the Nepalese Prime Minister stated that he was "satisfied" with the co-operation of the Nepalese press in the fight against terrorism. Two days after proclaiming a state of emergency, the head of the Nepalese government addressed the country in a televised message, asking "the entire population, especially the press, to support us, despite all of the difficulties, because our nation has been taken hostage." On 26 November, while police officers were arresting a dozen journalists of pro-Maoist publications, the Minister of Information assembled representatives from the major Nepalese media and asked them to exercise "utmost caution" when covering skirmishes between the army and the Maoist rebels. The Minister also offered to schedule "visits" of combat zones for the journalists. Similarly, on 27 November, a spokesperson for the Nepalese Army ordered the media to request permission before publishing any article or photograph related to the Army. In February 2002, the government assembled the country’s principal private publication owners to ask them not to withdraw their support, and not to defend, in their columns, any journalists arrested by security forces-especially those from their own newsrooms. A journalist close to the opposition reminded us that nearly 80% of all written press advertising derives from the State.
The primary purpose of this call to order was to eliminate "pro-Maoist" tendencies in the private press. In fact, according to several Nepalese journalists (notably the country’s BBC Bureau Chief), since the end of the 1990s, most of the private media have tended to sympathize with the Maoists. "Some newspapers would not even hesitate to present them as Robin Hoods, saying that they are the only ones capable of eliminating corruption," explained Sushil Sharma of the BBC. Similarly, over the past few years, some journalists have indulged in sensationalist coverage of Maoist-led armed operations. "In certain newspapers, Molotov cocktails became ’loud explosions,’ and Maoist meetings ’mammoth demonstrations,’" the same journalist added. Some go so far as to accuse a segment of media professionals of having sided with the Maoists.
For the last four months, the media have been lining up behind the government, with the notable exception of several weeklies close to the Communist Party of Nepal (United Marxist-Leninist, parliamentary opposition faction). In some national press headlines, the Maoists are no longer "rebels" but "terrorists." A small group of publications close to the government have adopted a very violent anti-Maoist rhetoric.
Moreover, the Maoist leaders’ communiqués which used to be published in the editorial pages or on the front page of Nepalese newspapers no longer appear. Obviously, the worsening hostilities have disrupted existing networks between the Maoists and the press, but journalists are now reluctant to publish or quote messages from Maoist party leaders. One journalist with the Nepalese BBC news service admitted that he had received several communiqués since last November but had chosen not to publish them. The same journalist contended that the main problem with covering the conflict is the restricted access to information: "Military operations have resumed since four months ago, but the chief of staff has not held a press conference. It is practically impossible to obtain any comments or specific data from the armed forces." Every day, reporters are forced to base their articles on routine communiqués from the Ministry of Defence and on information gleaned by their local news correspondents. "We are all aware that the government wants to reveal only part of what is really going on in the field. There is very little mention of civilian casualties, for example, while our contacts and human rights organizations have tallied many exactions," explained a BBC correspondent. Several journalists have been arrested and warned for having published communiqués or interviews with Maoist leaders. For example, on 31 December 2001, Pushkar Lal Shrestha, owner and Editor-in-Chief of the Nepalese daily Nepal Samacharpatra, was interrogated for several hours by a police officer for having published an interview with Maoist leader Baburam Bhattarai. The journalist was told that the publication of a "terrorist" text is a crime because it "compromises the security forces’ morale."
According to several reporters’ testimonies, officials are less and less accessible for interviews and comments. Tara Nath Dahal, the General Secretary of the Federation of Nepalese Journalists (FNJ), explained that journalists have been denied access to government buildings on several occasions, particularly in the Singhadurbar district, in which many government departments are located. "It is incredible-now journalists are even afraid to show their identity or press card to security forces. We have become suspects and work conditions for numerous journalists are becoming increasingly difficult," Mr. Dahal affirmed. Finally, on 27 December, police arrested Bijay Prasad Mishra, a reporter with the Kantipur daily in Siraha (south-east of Kathmandu) because he had written an article about the arrest of journalists in the area that he covers. He was freed the next day, after several parties intervened, including the Federation of Nepalese Journalists.
Despite all of this, several private publications are showing courage by refusing-in the name of their independence-to submit their articles for approval before printing them. For example, on the day after the army ordered the media to stop printing any articles or photos related to the military institution without prior authorization, Kantipur published a photograph showing soldiers blocking public access to the Army’s general headquarters. There was no reaction. In addition, at the end of February, Kantipur sent one of its reporters into a district in the far western part of the country, where over 100 police officers and soldiers had been killed by Maoists. The journalist informed Reporters without Borders that he did not have any problem passing through the multiple check points. On the other hand, three Kantipur correspondents had been kept in custody for several hours during the first weeks of the state of emergency. "After that, we realized that the accusation of demoralizing the army was becoming a real threat to us. But we never stopped writing about corruption and human rights," explained Yubraj Ghimire, Kantipur’s Editor-in-Chief. However, a human rights organization official has accused certain newspaper managing editors of having set aside articles about violations of human rights committed by the security forces. "No one ever mentions this conflict’s civilian casualties. What is worse, no data are ever released about the number of Maoists wounded. Have they all been killed?" the INSEC official wondered.
Maoist attacks on freedom of the press
In the last few years, the Maoist Party has managed to turn freedom of the press and the media’s interest in their "people’s war" to its advantage. The country’s pro-Maoist publications were obtaining some financial backing from the Maoist Party led by Prachanda, but even more importantly, they were fed exclusive information. A BBC journalist related that the majority of Nepalese journalists, and even the authorities, would read these publications assiduously because they were the only ones that would report news about activities in the more remote districts. "It was also a good way to better understand how the Maoist Party operates and changes," the journalist added. Janadesh, for example, had one of the biggest press runs among the weekly papers. Moreover, Maoist leaders were regularly sending press communiqués to the main Nepalese media-not a paltry forum for an outlawed movement whose principal leaders, probably staying in India, were making only very rare appearances. The Party’s no less outlawed demonstrations were, however, covered by the journalists.
Now that the state of emergency has been declared, the deal has changed and the Maoists, who had executed dozens of militants of the ruling Congress Party and, more recently a human rights activist, might be tempted to turn against the journalists accused of "collaborating with the government," particularly correspondents in remote districts. So far, no significant incident has been reported. In the past, the Maoist Party was in the habit of asking the media-as well as the majority of private companies in the country-to pay a "revolutionary tax." On several occasions, militants threatened newspaper managers with retaliation if they failed to pay the tax. Some media also received threats for having openly criticized the Maoist Party. Thus, in the late 1990s, Baburam Bhattarai, one of the most influential Maoist leaders, declared that Rajendra Dahal, Editor of the Deshanter independent daily, should be buried in the same plot as the Prime Minister. Deshanter had described the Maoists’ bank robberies as "the acts of gangsters."
A war without pictures
For the last six years, ever since hostilities first broke out between the security forces and Maoist rebels, pictures and news reports of military operations in the Nepalese and international press have been few and far between. The fact that these combat zones are hard to access is one of the reasons for this invisible war. In addition, the Nepalese armed forces have not been eager to bring journalists into the fields of operation. "We know that our requests to access the combat zones will be systematically denied. We can get to a location where a skirmish has taken place to count the dead and take photos of destroyed buildings. But the army will not authorize us to follow them into the field. Perhaps because they are afraid that we will witness their shortcomings, or the collateral damage involving civilian populations," explained a reporter with a major Kathmandu daily.
The foreign press, however, is showing little interest in the resumption of hostilities in Nepal. The Afghan war mobilized most of the reporters present in the region and the hardships involved in accessing Maoist zones have put off foreign journalists. What is more, the security forces are blocking access to certain areas within the country. On 15 December 2001, the government ordered Nepalese and foreign journalists to leave the combat zones. The following day, Tilak Pokharel, a journalist with the Katmandu Post, and a group of Kantipur journalists, received the order to immediately leave Dang Valley (in western Nepal) where they were covering army operations against the Maoist guerrillas. Three officers went to their hotel and informed them that the order had come from the capital to eject all journalists from those zones. At the same time, Indian and Italian television crews were asked to return to the capital.
Foreign journalists have tried to cover the conflict by using tourist visas, attempting to enter zones held by the Maoists, but as a French reporter explained upon his return from Nepal, the Maoists have become "invisible" and "networks have disappeared." In this context, news about this war in the foreign press is limited to news briefs about military losses suffered on both sides and to the most spectacular skirmishes.
Conclusions and recommendations
The breach by the Maoist Party of the cease-fire and of negotiations, in November 2001, marked an historical turning point in the civil war that has been raging in Nepal since the mid-1990s. The conflict, which has caused the death of at least 3,000 people, has grave human, economic, social and political consequences for this Himalayan kingdom. The proclamation of a state of emergency and intervention of the Nepalese Army in the hostilities marked the start of an all-out war against "terrorism." If nearly all of the country’s national dailies have sided with the government, many journalists, and most emphatically those who work for far-Left weeklies, have paid dearly for the Nepalese regime’s determination to win victory at any price. And that cost has been very high. Nepal has thus become the country with the highest number of imprisoned journalists and press contributors in the world.
Curiously, despite all of these developments, Nepal’s private publications and radio stations have not given up their right to criticize the government. However, fear of arrest has led most journalists to avoid reporting on certain subjects that have become taboo-notably those related to the armed forces.
The war against the Maoist Party promises to be a long one, and the democratic Constitution of 1990 guaranteeing freedom of the press has been mortgaged on behalf of the anti-terrorist war. Already, voices are being raised demanding the authorities to provide effective mechanisms that will prevent any resurgence of a press willing to condone violence.
In this bloody conflict, the government has received the support of the major foreign powers. In February 2002, the United States Ambassador in Nepal compared the Maoists to members of the pro-Islam Al Qaida network, and the U.S. government promised to supply new weapons to the Nepalese armed forces. Similarly, India, Russia, Great Britain and-most surprisingly-China, support the anti-Maoist campaign in Nepal. However, no foreign country has openly cautioned the Kathmandu government against permitting the abuse of local civilian populations, notably journalists, by the security forces. In his interview with Reporters without Borders, the Prime Minister acknowledged that in Nepal, as in Afghanistan, the anti-terrorist conflict could, unfortunately, lead to abuses and errors. "If the American military can make mistakes, why should Nepalese soldiers be any different?" he asked.
Recommendations to the Nepalese Authorities
RSF demands the immediate release of the journalists and press contributors in respect of whom the police have no tangible and documented proof that they are members of the Maoist Party.
RSF demands compliance with the international commitments made pertaining to human rights, in particular the International Covenant on Civil and Political Rights, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, both of which were ratified by Nepal in 1991.
RSF demands the repeal of all extraordinary legislation, particularly the TADO, which has made it possible to imprison dozens of journalists in accordance with procedures contrary to the standards of international justice.
RSF demands that the International Committee of the Red Cross (ICRC) and Nepalese human rights organizations be given access to all prisons and detention centres in the country, and that procedures for family visits be simplified.
RSF suggests that weekly press conferences on military operations be held that include representatives of the armed forces.
RSF demands that Nepalese and foreign journalists be permitted to freely access conflict areas.
RSF requests that the observations and actions of the National Human Rights Commission (an independent institution created in 2000 by the Human Rights Commission Act) be implemented, in particular by the Chief District Officers (CDOs).
RSF demands that the Nepal Supreme Court’s decisions be carried out in respect of the habeas corpus procedures initiated by the families of imprisoned journalists.
Recommendations to the European Union and to the United States
RSF demands that any aid contributed to the Nepalese government be made dependent upon upholding the freedom of expression.
RSF expresses the desire that the representatives of the United States and of the European Union in Nepal publicly condemn the arrests of journalists to the extent that they are not directly implicated in the Maoist movement.
RSF expresses the desire that the European Union and the United States intervene within the United Nations to ensure that any cases of abusive treatment involving Nepalese journalists be referred to UN special rapporteurs covering such issues as torture, freedom of opinion and expression and arbitrary detention.
Recommendations to Nepalese Journalists
RSF condemns any justification in the media of violence and of organizations guilty of war crimes.
RSF also condemns the occasionally virulent criticism expressed by certain public media of publications and prominent individuals who support a political solution to the conflict.
RSF recommends that coverage of these events be both thorough and objective, given that politicization of the press may compromise a political solution to the conflict.