• An arrestee must be produced before competent authority
• Relatives must be informed

Kathmandu, July 20

Under the Muluki Criminal Code Act 2017, which comes into force on August 17, law enforcers will face the criminal charge of enforced disappearance if they do not produce an arrested person before a competent authority within the stipulated time.

This is the first time a law has been enacted defining illegal detention as crime.

Section 206 of the code states that if a law enforcement officer does not produce an arrested person before a competent authority and if relatives are not allowed to meet the arrestee, such an act will be deemed a crime of enforced disappearance.

According to Section 206 (7) perpetrators of enforced disappearance will be slapped up to 15 years jail term and a fine not exceeding Rs 500,000. Accomplices in this crime will be slapped half the punishment.

Chairman of Nepal Law Commission Madhav Prasad Paudel, who was involved in drafting the penal and civil code, said the penal code had criminalised enforced disappearance and torture and therefore it was necessary to define it as failure on the part of law enforcement officers to produce an arrested person before a competent authority. “Nepal has expressed firm commitment to human rights and rule of law and all acts of law enforcement officers must conform to human rights and rule of law,” he said.

Paudel argued that at times law enforcement agencies may have valid reasons for not producing  an arrestee before a competent authority within the stipulated time, but in that case, they should inform the arrested person’s relatives of his/her whereabouts.

If law enforcement officers neither produce an arrested person before a competent authority nor inform the arrestee’s relatives of his/her whereabouts and charges, then such an arrest amounts to enforced disappearance as per the new penal code, Paudel said.

He also said the Criminal Procedure Code Act 2017 mandated the police to seek prior permission from a competent court before arresting a person. This is in line with the modern concept of liberty and fundamental rights,” he said.

Criminal lawyer Senior Advocate Krishna Prasad Sapkota, however, said although it was a globally accepted rule that an arrestee should be produced before  a competent authority within 24 hours from the time of arrest, criminalising law enforcement officers’ failure to produce an arrested person before a competent court was an unnecessary measure.

“When law enforcement officers do not produce an arrestee before a competent authority within 24 hours, then his/her detention becomes illegal and anybody, on behalf of the victim, can file a petition for a writ of habeas corpus in the court,” Sapkota said. “I do not think police officers should be held guilty of enforced disappearance just because they do not produce an arrestee before the court within the stipulated time.” He, however, said that if law enforcement officers did not allow the family of arrestees to meet them for days, then that could amount to a crime of enforced disappearance.

Spokesperson for Nepal Police Shailesh Thapa Kshetri said Nepal Police had the responsibility of protecting people’s fundamental rights and the organisation was committed to implement the penal code. “There is no reason for law enforcement officers to be scared of this new provision,” he added.