According to the Article 28 of the draft, the state can hold individuals in preventive detention without informing the court if it considers their activities a threat to national sovereignty and integrity or “public peace and order”.

A lawyer who declined to be named said national sovereignty has high threshold but “public peace and order” could be legal black hole. “More so, when the government has given the Armed Police Force (APF) authority to arrest,” he said, adding, “The provision will give rise to arbitrariness of security forces, where civil rights will be suspended.”

Rights defenders have taken exception to the government decision to give APF power to issue arrest warrant while Nepal Police has also raised serious concerns over the matter.

The Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO) was enacted based on the constitution right against preventive detention.

The law allowed the security forces to take individuals in preventive detention for up to one year without producing them before the court.

“This is a mockery of democracy,” said Raju Chapagain, a human rights lawyer. “Preventive detention is applicable only when there is a threat to nation but ‘public peace and order’ can be misinterpreted.”

If applied, this provision suspends civil liberty, allowing the state to hold individuals in detention without charge and with no judicial oversight.

The misuse of the provision led to disappearance of 1,300 people and incidents of torture in the detention during the Maoist insurgency.

Chapagain had filed a writ petition against TADO but a divisional bench of Supreme Court Justices Khil Raj Sharma and Gauri Dhakal quashed it stating that the provision was in tune with the constitution as “even the Public Security Act promulgated by parliament entertains preventive detentions by the authorities”. The Act has the preventive detention period of 90 days.

This provision also contradicts the International Covenant on Civil and Political Rights, to which Nepal is a party.

In a statement, the International Commission of Jurists has also urged the government to amend the provision.