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Appendix III:
Terrorist and Disruptive Activities (Control and Punishment) Ordinance, 2004: Extract and comment

Extract 

Preamble

Whereas it is expedient to enact legislation for controlling terrorist and destructive acts in order to maintain peace and order in the kingdom of Nepal and ensure the security of the common people and the session of the parliament is not place, His Majesty the King Gynandra Bir Bikram Shah Dev has issued this ordinance. 

1. Short Title and Commencement

1. This ordinance shall be known as the Terrorist and Destructive acts (Control and Punishment) Ordinance 2004.

2. It shall come into force at once.



3. Terrorist and Destructive Crimes

(1) Anyone who commits any of the following acts shall be deemed to have committed a terrorist and destructive crime;

(a) Any act of damaging or destroying property at any place, or formulation of plans to do so, or lacking human life or crippling or insuring human beings at such places, by using any kind of weapons, bombs, explosives or any other means or machine or any act of causing physical or mental harm through arson or otherwise, or any act of taking human life crippling or otherwise causing harm to human life by using poisonous substances in goods of daily consumption or at public places, or any act of terrorizing the common people or people in motion or assembled by committing any of the abovementioned acts, with the objective of affecting or hurting the sovereignty or integrity of the Kingdom of Nepal, or security or peace and order of the Kingdom of Nepal or any of its parts, or security of foreign based Nepali diplomatic missions or property or,

(b) Any act of using force or terrorizing anyone in any place or vehicle or abducting from such place or vehicle or anyone traveling in such vehicle along with or without the vehicle, by threatening to kill, cripple, injure or otherwise harm anyone by using or threatening to use any of the materials mentioned in Clause (a), or any other material or means other than such materials, or terrorizing anyone through such acts in order to fulfill the objective mentioned in Clause (a).

(c) Acts of producing, distributing, accumulating, transporting, importing, exporting, selling, carrying or installing any kind of weapons, bombs, explosives or poisonous substances, or intentionally helping in any such acts, with the objective mentioned in Clause (a) or (b).

(d) Acts such as gathering people and providing them with training with the objective mentioned in Clause (a) or (b).

(e) Acts of extorting cash or goods or looting property with the objectives mentioned in this sub-section.

(2) In case anyone attempts or conspires to commit a terrorist and destructive act, or abets or compels others to do so, or assembles more than one person to gang or group to commit such acts or issues orders and instructions to commit such acts or participates in such acts with or without obtaining remuneration, or publicizes such acts or obstructs the governmental communication system, he too shall be deemed to have committed a terrorist and destructive crime.

Provided that no action that anyone has been forced to take shall be deemed to be a terrorist and destructive crime.

(3) Persons who commit any of the acts mentioned in sub-Section (1) or (2) shall be subjected to action and punishment as provided for in this Act.

4. Extra-Territorial Application of the Act

Even if any person engaged in terrorist and destructive acts has committed a crime targeting the kingdom of Nepal or Nepali citizen or any property of the Kingdom of Nepal by residing outside the Kingdom of Nepal. He shall be deemed to have committed the crime from within the Kingdom of Nepal and subjected to action and punishment under this Act.

5. Special Powers to Check Terrorists and Destructive Acts

Nothwistanding anything contained in current law, His Majesty's Government may issue orders for taking all or any of the following actions to check terrorists and destructive crimes in all or any of the parts of the Kingdom of Nepal while a Security Officer may do so to check such crimes in his area:

(a) Arrest anyone on the basis of adequate and reasonable suspicion that he is engaged in terrorist and destructive acts, and furnish information of such arrests along with reasons thereof.

(b) Search at any time the house, shop, warehouse, means of transport or any other places of any person after information him in advance in case it is suspected that illegal arms and ammunition, bombs or explosives are stored or any suspicious person connected with terrorists is hiding there, and issue receipts of goods recovered, if any in the course of the search.

(c) Search at any place or on any thoroughfare anyone's person or belonging or the means or vehicle he is using in order to check terrorist and destructive acts.

(d) Use necessary force if anyone obstructs or opposes the act of making arrests under Clause (a) or conducting search or taking any other actions under Clause (b) or (c), use weapons if anyone obstructs or opposes such acts with weapons.

(e) Use necessary force or weapons in case any person who is committing or has committed a terrorist and destructive act is likely to run away or escape, or in circumstances when it appears that he cannot be arrested.

(f) Use necessary force or weapons in the course of securing the release of any place or vehicle, aircraft, ship or any other means of transport forcibly captured by persons engaged in terrorist and destructive acts, or of the persons being held hostage by them in such means, so as to protect the life and person of such hostages from any harm or danger or other losses.

(g) Use necessary force or weapons in case any person or group attacks any security personnel with or without weapons while on duty.

(h) Use necessary force or weapons in case any person or group threatens or attempts to threaten by carrying any weapon with objective of harming the life and property of any security personnel working in any specific place.

(i) Use necessary force or weapons in any case any person or group attacks with the objective of physically harming persons who are to be provided security personnel, or the common people or employees deputed on government duties who are being provided security by security personnel or government's good or security personnel.

(j) Use necessary force or weapons in the event of an encounter with any armed person or group, or in event of obstruction to security personnel by any armed or unarmed person or group while performing the prescribed functions.

(k) Use of necessary force or weapons by security personnel against persons or groups carrying arms or in areas where arms are hoarded or training conducted with the objective of committing terrorist and destructive acts. 

(l) Security personnel taking under their control and custody the weapons possessed by armed person or group, or disarming such armed persons or groups, according to need.

(m) Subjecting any suspicious person or place to surveillance, or arresting such persons or locking up or cordoning off suspicious places if necessary.

(n) Freezing for a specified period the bank account or passport of any person who on the basis of adequate and reasonable grounds is suspected of being engaged in terrorist and destructive acts.

6. Power to Requisition Property

His Majesty's Government or the Security Officer may requisition any private or government vehicles, foodstuff, or other materials, goods or property needed for controlling and preventing terrorist and destructive acts, subject to payment of an appropriate compensation equivalent to their current value, or on a returnable basis.

7. Power to Declare Terror-affected Areas and Terrorists 

(1). His Majesty's Government may declare any area affected or likely to be affected by terrorist and destructive activities as a terror-affected area.

(2) His Majesty's Government may declare any person, association, institution, organization or group involved in any crime which is punishable under this act as a terrorist.

(3) Notwithstanding anything contained in this section, terror-affected areas shall be deemed to have been declared automatically when a state of emergency is declared or ordered under the 1990 constitution of the kingdom of Nepal.

8. Power to Prohibit Moving About with Arms or Ammunition

(1) Notwithstanding anything contained in current law, in terror affected areas declared under Section 7, His Majesty's Government may issue an order prohibiting the carrying in person of arms or ammunition licensed under current law, or requiring such arms or ammunition to be deposited at the prescribed place, for specified period.

(2) Arms or ammunition possessed by person who violates the order issued under sub section (1) shall be confiscated.

9. Power to Keep under Preventive Detention

In case where there exists appropriate grounds for believing that a person has to be stopped from doing anything that may cause a terrorist and destructive act, the Security Officer may issue an order to keep him under preventive detention up to 6 months in a humanely place. If there are reasonable grounds to believe that the person has to be prevented from committing any terrorist activities for longer than that, on the approval of His Majesty the Government's Home Ministry, the Security Officer can issue additional six months order of preventive detention. 

10. Penalties

(1) In case the commission of any terrorist and destructive act which is deemed to be crime under this Act has led to the death of anyone, the main person who committed or caused to be committed or conspired to commit the crime, and the person who ordered its commission, shall be punished with life imprisonment along with confiscation of entire property.

(2) In case a crime mentioned in this Act has been committed but no loss of life has occurred, the main person who committed or caused to be committed or conspired to commit the crime, shall be punished with life imprisonment.

(3) In case anyone attempts to commit any crime mentioned in this Act, or instigates or compels others to commit such a crime, or assembles more than one person or forms a group to commit or cause the commission of such a crime, or orders to commit or cause the commission of such crime or participate in such an act with or without remuneration, or produces, distributes, keeps transport imports exports or give or takes in any way arms, bombs, explosives or poisonous substances, or conducts or causes to be conducted publicity with the objective of committing such an act, he shall be punished with imprisonment for a term ranging between five and 10 years, according to the extent of his crime.

(4) In case any loss of property has been caused by a person who has committed a terrorist or destructive act, compensation therefore shall be realized and paid by confiscating his share of (ancestral) property, in case the amount to be paid as compensation is not fully realized from his property, the outstanding payment shall be treated as equal to non payment of fine and converted to period of imprisonment according to current law.

(5) Half of the punishment due to the perpetrator of any offense punishable under this Act shall be awarded to his accomplice.

(6) In case anyone wilfully obstructed or opposed any search operation carried out under Clause (b) or (c) of Section 5 he shall be punished with imprisonment for a term not exceeding one month, or with a fine not exceeding Rs.500 or with both.

11. Judicial Inquires to be Conduced by Keeping (The Accused) in Detention

Persons accused of committing a crime under this Act shall ordinarily be kept in detention during judicial inquires into the case, depending on the gravity of the crime.




Comment: New TADO the latest instrument to facilitate disappearances and other gross abuses
A Statement by the Asian Human Rights Commission (AS-40-2004, 20 October 2004)

With the expiry of the Terrorist and Disruptive Activities (Punishment and Control) Act-2058 this 12 October 2004, His Majesty's Government of Nepal has introduced a more severe and draconian version of the same law in its stead: the Terrorist and Disruptive Activities (Control and Punishment) Ordinance-2061. Clause 9 of the latest TADO states that if a security official feels the need to prevent a person from carrying out any terrorist and disruptive activity, such a person can be kept under house arrest for a maximum period of one year, six months at his [Security Official's] discretion and another six months after obtaining permission from the home ministry, in any place after fulfilling common humanitarian conditions.

This legislation is a clear indication that the government of Nepal has surrendered its authority to the military, and given it a green signal to continue with gross human rights violations including arbitrary detentions, torture, disappearances, and extrajudicial and summary executions. Most of the victims of the abuses committed by the state security forces working under the Joint Command of the Royal Nepal Army-as well as those committed by the Maoists-are ordinary people innocent of any crimes. The security forces have also targeted journalists, lawyers, human rights defenders, victims and witnesses of their atrocities.

The Asian Human Rights Commission (AHRC) is particularly concerned by the rapid growth in numbers of forcibly disappeared persons in Nepal. Although there are now around 2000 cases of disappearances reported, the actual number is unknown; army officers are said to have had involvement in a large number of the recorded cases. These continuing disappearances show the lack of sincerity of the government in its expressions of concern to promote and protect human rights of its citizens.

The perpetrators of these disappearances are protected by the systemic impunity extending over the security forces in Nepal. All attempts to break this condition have failed. Given the existing circumstances, where the domestic court system has completely collapsed and no avenue exists through which to address any human rights violations in the country, the introduction of this newest TADO only confirms that the army is completely above the law. It also illustrates the complete lack of government sincerity towards the catastrophic human rights situation in the country.

The AHRC calls upon His Majesty's Government of Nepal to make genuine efforts to put an end to the practice of forced and involuntary disappearances by state security agencies. Disappearances are a crime against humanity stemming from a mistaken belief that the use of unrestrained force will resolve the country's political and security problems. The AHRC denounces this delusion-prevalent at the highest levels of government-that brute force will bring all parties in the conflict to dialogue. Rather, by introducing strict laws and giving security forces unlimited powers, the government is stimulating the ongoing systematic and widespread human rights violations and crimes against humanity being committed by the security forces with absolute impunity. The government must instead adopt a realistic and sincere approach towards a solution; otherwise, the blind, unnecessary and blatant use of force coupled with the impunity of state security officials will continue to result in mass disappearances and other serious violations of human rights. 

Realising that His Majesty's Government of Nepal lacks both the will and ability to deal with the problems in the country, the AHRC urges the international community to become fully engaged and make sincere efforts to put an end to the ongoing disappearances and impunity enjoyed by the security forces. In this, it should be noted that these practices and the offensive laws that permit them are all in clear violation of Nepal's international obligations, especially under the International Covenant on Civil and Political Rights, and hence, demand an international reaction. 

The AHRC also calls upon all concerned international agencies and officials, including the International Criminal Court, UN Human Rights Committee, Working Group on Disappearances and Special Rapporteurs to pay special attention to the situation in Nepal, specifically the continuous disappearances and crimes against humanity being committed on a large scale.

Finally, the Department of Peacekeeping Operations-UN Secretariat should UNDER NO CIRCUMSTANCES engage the Royal Nepal Army for any peacekeeping operations in light of its proven lack of professionalism and respect for human rights as well as humanitarian principles in its own country.

Posted on 2005-01-12

Asian Legal Resource Centre
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