The Supreme Court (SC) on Thursday upheld Section 9 of the Terrorists and Disruptive Activities (Control and Punishment) Ordinance of 2005 that authorises the government to slap a person in preventive detention for up to a year without prosecution or trial.
Acting upon a writ petition filed by advocate Raju Prashad Chapagain and Prakash Mani Sharma, the joint bench of the Supreme Court comprising justices Khil Raj Regmi, Gauri Dhakal and Bal Ram KC delivered a divided verdict, according to reports.
Quashing a writ petition questioning the constitutionality of the provision on the ground that it was against human rights, a bench comprising justices Regmi and Dhakal said, “The provision is in tune with the Constitution as per the Public Security Act promulgated by parliament that entertains preventive detention by the authorities.”
Justices Regmi and Dhakal said that the Act does not contradict the Constitution as statute allows taking a person into preventive custody if that person construes a threat to the sovereignty, integrity or the law and order situation of the country.
Differing on this point, Justice KC said the provision contravenes the Constitution inasmuch as the law is concerned with terms of punishment.
KC further said that if the provision were not declared contradictory to the constitution, the state could both prosecute and keep citizens in preventive detention at the same time.
The SC also upheld the terrorist tag on leaders of the Communist Party of Nepal (Maoist), approving the two-and-a-half-year-old decision of the government to ban the Maoists.
The court said the petitioner who appealed against the government’s decision to term the Maoists terrorists could not produce evidence to prove that the Maoists were a political party.
“Since, under Article 112 of the Constitution, the petitioner could not produce evidence to prove the Maoists a political party, there is no need to scrap the government’s decision,” said the bench’s order.