Emotions ran high inside the Supreme Court premises on Monday afternoon when 15 to 20 women, mostly mothers and sisters of the detained Tibetan students broke down in tears after their petition was turned down by the divisional bench. “They are kids, not criminals. They should be home studying for their exams, not thrown in jails.” cried inconsolable Tsering Lhamzong whose son is among the detained.
The Supreme court divisional bench of Justice Tahir Ali Ansari and Justice Komal Narayan Das turned down the Habeas Corpus writ filed against Lalitpur district administration and police regarding the detention of 13 Tibetan students. Two girls and eleven boys were arrested by Lalitpur sub-metropolitan police on 24 February at 2:30 PM from outside UN building in Pulchowk where they had gathered to submit a 5-point memorandum to international body, drawing its attention towards deteriorating human rights situation in Tibet. The students were produced before district administrator’s office on 26th, which sent them into judicial custody. The boys were sent to Nakkhu Jail while the girls have been detained in Central Jail.
The writ petition was filed by Dawa Dolma Tamang from Boudha on behalf of the accused students on 28th, seeking release from what they called illegal detention of the students by misinterpretation of the Public Security Act and maliced intention of infringing individual freedom and fundamental rights. Ten prominent lawyers including Pawan Jaiswal, Satish Krishna Kharel, Dipendra Jha, Tirtha Raj Pasaula, Sher Bahadur KC, Babu Ram Giri and Rakshya Basyal argued in favour of the detained while public advocate Yubaraj Subedi defended the district administration.
The lawyers who presented the case against the detention argued that in absence of a complaint from the UN body or any individual, and with no credible evidence of violence or obstruction to public life, there was no legal basis for their detention. Advocate Jaiswal argued that the detention violated individual’s freedom and right to peaceful gathering since the area was neither a restricted zone nor under any emergency law. Similarly, advocate Baburam Giri said the warrant issued against the students did not charge them of any particular crime and instead used a vague term of ‘public offense’ to make a case of detention. Another lawyer Dipendra Jha argued that the Lalitpur CDO’s decision to send the accused into judicial custody lacked credibility since it did not follow due judicial process of providing them with legal representation or translator during the trial. Jha also questioned the intention of the quasi-judicial body and said it lacked competency in making fair decision in the case. The lawyers drew attention of the court towards international conventions like ICCPR and UDHR to which Nepal is a party state and said that the country stands in violation of its international commitments as well as its own constitution by disrespecting individual’s fundamental freedoms and rights.
Arguing in favor of the district administration advocate Yubaraj Subedi said that the Supreme Court must not entertain the case as there was no basis for Habeas Corpus and that the petitioners should have filed a case with the appellate court if they were not happy with Lalitpur CDO’s decision. But advocate Rakshya Basyal argued that since they rejected the basis of detention in the first place, there was no reason to go to appellate court questioning the extension of detention.
Tsering says the UN must break its shameful silence on the case and put pressure on the government to release innocent children. “Our lawyers presented arguments to which the defendants had no answers. On what basis did the honourable Supreme Court reject our petition?”, she asks with tears in her eyes. She appealed to human rights and civil society leaders to open their eyes to injustice and questioned: would you have remained silent if this would have happened to one of your own?
Tenzing, 15, had gone to the UN building along with those who were arrested. She is a witness to the whole incident and says, “What threat can we pose to the state with police and military? We had only gone there to submit the memorandum. It is our inalienable right as a human being to express concern peacefully for people living in misery back home. I pity conscience of those who watch this injustice in silence.”
In absence of a clear legal status about their identity, young Tibetans have become vulnerable to easy prosecution. Nepal has not issued refugee cards to the Tibetans in the last two decades which has led to an entire generation of Tibetans born or entering Nepal after 1990, living with no identity. They do not legally exist which makes them an easy target. This was evident even during the hearing where the sitting judges refused to entertain judicial precedence of the 2006 Thakur Gaire case citing difference in the legal identity.
Nini Gurung of UNHCR told Nepali Times, ” In principle, Tibetans who arrived in Nepal prior to 1990 and their descendants are entitled to refugee cards attesting to their right to reside in the country. However, the issuance/renewal of such documents has been inconsistent and UNHCR has advocated with authorities at all levels for the issuance of refugee documents to every refugee residing in this country.”
The shifting geo-politics and transition has forced subsequent governments in the last few years to adopt an appeasing policy towards its neighbors. The increasing Chinese concern has prompted the government to clamp down on any kind of gathering by the Tibetans fearing ‘untoward’ incident. International rights bodies like OHCHR and Amnesty International have repeatedly criticised Nepal’s poor human rights record, particularly its treatment of Tibetan refugees but it seems our aspiration to boost stunted economy far outweighs the need to be in human rights good book.