A fact finding report published by National Human Rights Commission of Nepal[1] on Maleth incident that took place on March 6, 2017 has drawn flak from the Madhesi community and Human Rights Defenders as it is biased and not based on the human rights principles. The NHRC had probed police firing that killed five people and injured several other protesters and ordinary citizens in Maleth of Saptari district on March 6, 2017.
Terai Human Rights Defenders Alliance issued a press statement on 17/07/2018 condemning the report. It says that the report failed to analyze the collected evidence and interview key people and stakeholders. The report is contradictory because on the one hand, it says that the police did not follow the laws of use of lethal force, neither did they follow the chain of command but, on the other, the report concludes that it was not an excessive use of force. This conclusion, therefore, violates the principles of use of force like necessity, legality and proportionality. The report says that 1500-2000 police officers were able to control the crowd from the very beginning to the end of the program, but it has not substantiated as to who issued the order to fire bullets in the last hour of the event. Importantly, the human rights commission’s report should not be a political report and it has to find out the accountability of state agencies for not protecting the life of the people. But the report despite acknowledging that five persons were shot dead and many others were seriously injured and all the bullets hit were above the waist of the persons, the report says that the Communist Party of Nepal (CPN-UML) and the United Democratic Madhesi Front were mainly responsible for the incident. The report, rather pointing out the accountability of the security personnel or the district administration, says that had the police not fired the bullets, the situation could have caused more damages.
Background of the Incident (based on THRDA Fact Finding Report)
On 6 March 2017 more than 5,000 the security forces (of Nepal Police and Armed Police Force) had surrounded the Industrial Area of Maleth, Saptari from around 2pm as the CPN-UML was to organize a mass meeting in the Industrial Area compound. Around 2000 UDMF cadres came protesting with black flags. The security forces stopped them at the Jolhari Chowk. Security forces and the protestors scuffled on the way and it was reported that the protestors and police both pelted stones at each other. At around 4.15pm, KP Oli (the Chairperson of erstwhile CPN_UML) entered the Industrial Area and the protestors started sloganeering loudly and tried to break the security cordon. One of the UDMF cadres who tried to show black flag in front of Industrial Area gate was beaten severely by the security forces. The police resorted to baton charge resulting in injuries to more than two dozen protestors, travelers and local bystanders. The police reportedly fired more than one hundred rounds of tear gas canisters. The Jolhari Chowk area was full of smoke caused by tear gas. Due to the spread of tear gas locals were forced to come out of their houses. The protestors, however, threw the same tear gas shells at the security forces. The wind blowing in opposite direction affected the security forces when tear gas canisters were hurled at the security personnel by the protesters.
At around 5.15pm, Mr. K.P. Oli was to leave the Industrial Area after delivering his speech. At that time all the security forces were concentrated to the gate of the Industrial Area. At the same time a stone hit one of the police personnel near his eye. The security forces then opened fire and the first bullet injured Anand Sah. The security forces then ran towards the Jolhari Chowk area randomly firing bullets which injured more than 9 people. This indiscriminate bullet firing continued for around 10-15 minutes. Eye witnesses claimed that Mr. Sanjan Mehata was shot in the head by a policeman after he was taken under police control. Thus, Sanjan Mehata died on the spot. Two others (Pitamber Mandal and Anand Sah) died while being transported to the BPKIHS Dharan for treatment. Birendra Mahato and Inar Yadav died later while undergoing treatment at BPKIHS Dharan. Other protestors, who were beaten up by security forces with batons and rifle butts, received treatment in the Gajendra Narayan Singh Zonal Hospital, Rajbiraj and were later discharged. Out of nine bullet injured persons one was a minor of age13. All the bullet injuries were above the waist and jacketed bullets have been used. It is reported that the security forces had brought a water canon at the place; however it was not used during the whole incident. The government of Nepal awarded compensation of NPR 1,000,000 to the family of deceased persons.
Nepal Police claimed that 31 police officers were also injured in due course of confrontation; however, THRDA was not given the details of the injuries of the police by the DPO Saptari. The then CDO of Saptari Mr. Uddhb Timilsena, SP of Nepal Police, Mr. Dibas Lohani as well as SP of APF, Mr. Jay Bahadur Khadka were transferred from the district immediately after the incident on 7 March 2017.
Concern Raised by UN Special Rapporteurs
UN Special Rapporteurs (the Special Rapporteur on extra judicial, summary or arbitrary executions; the Special Rapporteur on promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the right to freedom of peaceful assembly and of association; and the Special Rapporteur on minority issues) jointly wrote a letter to Nepal government on 7 June 2017[2]. In this letter, the Special Rapportueurs wrote in reference to Maleth incident “On 06 March 2017, more than 5000 security forces (Nepal Police and Armed Police Force) surrounded the Industrial Area of Maleth, Saptari as the CPN-UML was organizing a mass meeting in the industrial area Compound, which gathered 2000 party cadres. Violent clashes erupted when the police attempted to stop the protestors. The police resorted to injuries to more than two dozen protestors and bystanders. The police also reportedly fired more than one hundred rounds of tear gas and subsequently opened fire on the protestors. The first bullet injured Mr. Anand Sah. The law enforcement forces then run towards the Jolhari chowk area around 10-15 minutes, injuring more than nine people. Mr. Sanjan Mehata was reportedly shot in the head by a policeman after he was taken under police control and died on the spot. Messrs. Pitamber Mandal, Anand Sah, Birendra Mahato and another person were also wounded and later died. Post mortem reports indicate the use of jacketed bullets which are highly lethal. Out of the 43 people injured nine had bullet injuries above the waist.”
The UN SRs also asked the Government of Nepal to reply within 60 days about the progress in investigation, relief and compensation provided to the victims. However, the Government of Nepal did not respond to the UN so far.
Concern of Political Party
The Rastriya Janata Party Nepal has raised objection over the report and has requested the NHRC to revisit the report. It has said in its press statement that the report is biased, unilateral and has not analyzed the evidence and fact properly and thus is unacceptable.
Many Human Rights organizations have raised concerns against the report in many districts of Terai and have organized several protest programs tool.
Note of Dissent from the NHRC Commissioner
Only Madhesi/Muslim commissioner of NHRC Mrs. Mohna Ansari has wrote her note of dissent in the NHRC. In her note of dissent she has clearly objected to the contradiction of the report on the basis of human rights principles. She has also requested the NHRC to reexamine the theoretical aspects of the report.
These are the major highlights
“The report has concluded that the United Democratic Madhesi Front and CPN-UML are to be blamed for the incident but the fact finding team under my leadership had found all the three parties including the security forces were responsible on the incident.
The report concluded that there was necessity to fire bullets but the security forces did not follow the legal process governing the use of lethal force bullets were not fired below the knee which cannot be justified under the human rights principles. Though the report says all the five deaths were caused as the victims were shot above the waist and most of the injured persons sustained bullets injuries above the waist , the report concludes that had the security personnel not fired bullets, the situation could have caused more damage. This cannot be justified under the universal principle of use of force which has accepted norms of necessity, legality and proportionality. The report has officially recorded that there were 1500-2000 security forces who were able to control the crowd of estimated 5000-7000 from the morning. The report also says that it was not clear as to who issued the order to open fire. Additionally, the report says that the spot scene shows there were indiscriminate firing. On medico legal examination part, the report has suggested many reforms to be made on medical examination reports, but rather than interviewing the concerned doctors for details the report just accuses the medical report that it has not suggested clearly from how far the bullets were fired. The political analysis of the situation, cause of incident of the report may be right but human rights report can’t ignore the state’s responsibility. While the report examines that there was no proper security analysis made by the local administration and the precaution to avoid confrontation was not taken, the report does not hold the state accountable. Even from the facts recorded in the report, it is clear that the local administration did not act to declare the area as a prohibited zone, no prohibitory order was made, the report fails to acknowledge the incapacity of the then CDO to take precaution to save life of the public.
The Human Rights investigation report must clearly state the command responsibility of the security forces. Not holding security personnel responsible for illegal use of lethal force that resulted in death of five ordinary citizens in Maleth and injuries in dozens of citizens points to the fact that the NHRC report is flawed.
The human rights investigation from National Human Rights Commission must be credible, fair and impartial. It must not prepare any ambiguous and abstract report. The report should be supported by facts and evidences and the analysis must be made on the basis of universal principles of human rights”.
It is important to note that the report was submitted to the NHRC by a high level fact finding commission formed by NHRC itself under the chairmanship of an ex Supreme Court Judge, Tahir Ali Ansari which submitted its report a year ago on 12 June 2017 to the NHRC. But NHRC on 16 June 2017 disowned the report by issuing a press release once it was reported in the media and criticized by HRDs. However, after a year, the same report has been owned and published by NHRC again. In between this period, the NHRC chairperson himself in an interview claimed that the government of Nepal has not cooperated with NHRC in its probe on Maleth incidnet[3].
Conclusion
With all the details of the above mentioned facts and analysis, it is clear that the Government of Nepal is unwilling to investigate the allegation of extra judicial killings in the incident of Maleth where five people were killed by police and dozens were injured. The NHRC also has failed to make a credible and fair investigation. Nepal government has also been irresponsible to furnish reply to the UN Special Rapportueus on those issues. These are clear indication of a prima facie violation of the right to life and security of every person and not to be arbitrarily deprived of his her life as well as right to justice and freedom of opinion expression and peaceful assembly as set forth in articles 6(1), 19 and 21 of the International Convention of the Civil and Political Rights. THRDA, thus urges the government of Nepal to ensure fair and credible investigation on it. THRDA also urges in the international community to pay a serious attention to ensure accountability of the state.
[1] http://www.nhrcnepal.org/nhrc_new/doc/newsletter/Investigation_Report_on_Maleth_Incident.pdf
[2] AL NPL 1/2017
[3] Naya Patrika, June 19, 2018
