Detention in the Name of Protection: The Answers Nepal’s Government Owes in the Jabara Case
Sanket Kiranti
Police took former Chief Justice Cholendra Shumsher Ja.Ba.Ra. from his home in Maharajgunj to their office in Teku early on Sunday. They say they had received information that he might be attacked, brought him in for his protection and did not formally arrest him. Police also say he left the office several hours later. That account leaves the most consequential questions unanswered: Was Ja.Ba.Ra. free to refuse to go with them? Why could police not protect him at home? And why was a National Human Rights Commission team prevented from meeting him?
A warning of a possible attack is a serious matter for police. If the threat was real, failing to act would itself have been a grave failure of the state. This case should therefore not be examined on the assumption that no threat existed. But saying there was a threat and saying the response was necessary and lawful are separate claims. The first cannot exempt the second from scrutiny. Even while fulfilling its duty to protect a person’s life, the state must account for any restriction it places on that person’s liberty.
Could police have strengthened security at the residence, identified the source of the threat, or informed Ja.Ba.Ra. of the risk and the options available to him? What information led to the decision to take him to a police office during the night, who made that decision, and when? Asking these questions does not require police to disclose a confidential source. Sensitive intelligence can remain protected. The legal basis, necessity and procedure behind the decision must still be open to appropriate scrutiny.
The legal assessment cannot turn solely on whether police call the incident an “arrest” or a “protective measure.” The decisive question is whether Ja.Ba.Ra. had a genuine choice to decline the trip to the police office. If he was informed of the danger and voluntarily chose to go somewhere safe, there should be a record of that decision. If he had no practical option but to comply with police instructions, the resulting restriction on his freedom of movement cannot be dismissed simply by calling it protection. A protective purpose does not place the use of police power beyond legal review.
The question of an arrest warrant also requires care. Police have not said they took Ja.Ba.Ra. in to investigate a criminal offence. It would therefore be premature to declare that every provision governing an arrest in a criminal investigation applies in precisely the same way here. Equally, the claim that there was no formal arrest does not settle every procedural question. If a person was taken from home against his will, the state must explain its authority to do so, why it was necessary and how the decision was recorded. The first task is to establish what actually happened.
The National Human Rights Commission’s inability to meet Ja.Ba.Ra. calls for particularly close examination. The commission says its team was turned away and has sought an impartial inquiry and legal action against any officers responsible for obstructing its work. A security concern should not close off coordination with the constitutional body charged with monitoring human rights. If an immediate meeting posed a specific risk, police could have arranged a safe time, place and method. An inquiry should establish who decided to refuse access and what explanation the commission was given.
The Nepal Bar Association’s objection illustrates a basic principle of the rule of law. The association campaigned for Ja.Ba.Ra.’s departure when he was chief justice; it now objects to the way police took him into custody. That does not mean the disputes over his leadership have disappeared. It means that a person subject to strong criticism remains entitled to lawful treatment by the state. If legal protections apply only to people we approve of, they cease to function as rules.
Police took Ja.Ba.Ra. from his home the day after Prime Minister Balendra Shah returned from the United Nations General Assembly. That sequence is noteworthy, but it is not evidence that the prime minister ordered the action. Rumours that Ja.Ba.Ra. was involved in legal or political moves against the government must not be presented as established fact either. Neither claim is needed to demand accountability. Police operate under the government, which must explain how such an unusual and consequential decision was made. The record of that decision, rather than speculation, should establish who authorised it.
An earlier incident also drew public concern when police questioned government secretary Krishnahari Pushkar for about seven hours over a message he had sent to the prime minister. The Pushkar and Ja.Ba.Ra. cases differ, and the purpose or legal circumstances of one cannot simply be assigned to the other. Both, however, show why the use of police powers requires clear grounds and independent oversight. Whether a matter involves communication with a senior official or a reported security threat, the justification for taking someone into custody must be supported by more than a verbal assertion.
In a separate habeas corpus case this April, the Supreme Court ordered the release of a person held without the required legal procedure. That ruling did not decide Ja.Ba.Ra.’s case, and it should not be treated as though it did. The broader principle remains relevant: when the state interferes with a person’s liberty, it must be able to demonstrate the legality of its actions. Ja.Ba.Ra. does not have greater rights because he once headed the judiciary. Nor does controversy surrounding his past deprive him of the rights held by every citizen.
The government should now answer specific questions. When did police receive the warning? How did they assess the option of protecting Ja.Ba.Ra. at home? What were they told to explain to him? Who decided to take him to Teku? What limits, if any, were placed on his movement and visitors there? Why was the commission’s team turned away? Substantive answers need not expose an intelligence source. The written and electronic records of the decision should be preserved and made available to the commission or another competent independent body for review.
Ja.Ba.Ra.’s judgments, his leadership of the judiciary and the allegations made against him remain legitimate subjects of public debate and scrutiny. This case does not ask the public to pass judgment on all those disputes. It asks what rules the state followed when it took a citizen from his home during the night. If the answer changes according to the person involved, the rule of law is weakened. The questions raised by Ja.Ba.Ra.’s treatment matter just as much for a citizen without his public standing.
The information currently available does not justify a final conclusion about the government’s political motives. Nor does it establish that the police response was appropriate. The path to a sound conclusion is a documented account, independent examination and a clear assignment of responsibility. If the government’s purpose was to protect Ja.Ba.Ra., it must show why taking him from his home was necessary to achieve it. The state’s duty to provide security does not give it an open-ended power to restrict liberty without explanation. Its credibility in this case will rest on the answers it provides.
