Nepal cannot legally block citizens’ return, experts say


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Nepalis wait after being blocked at the border in Darchula district, in the far west, on 31 March © Nepali Times

My latest article for Nepali Times, published today, 31 March, focused on the Government of Nepal’s policy of not letting citizens into the country since a lockdown began one week ago. Hundreds of people, most of them day labourers who were left without work after a similar lockdown in neighbouring India, are being blocked from entry at the India-Nepal border.

Nepal and India stop citizens from returning

Nepali workers in India headed home on foot and by bus only to find their own country was not allowing them in.

With thousands of Nepalis stuck on the Indian side of the border, legal and human rights experts say the government of Nepal cannot legally deny entry to its citizens during the COVID-19 pandemic.

Meanwhile, Indian nationals working in various parts of Nepal have also been prevented from entering India, and Sastra Seema Bal (SSB) border police fired into the air at the Raxaul checkpoint on Monday to stop them. They had arrived in Birganj from various parts of Nepal, and were trying to walk across the Friendship Bridge at the Nepal-India border.

Nepali workers in India headed home on foot and by bus after India declared a three-week lockdown on 27 March, only to find their own country was not allowing them in. A handful who swam across the Mahakali River in Darchula district have reportedly been arrested by Nepal Police.

Petition filed in Supreme Court

“The government of Nepal should respect the Constitution and its international obligations,” says advocate Madhav Kumar Basnet. His writ petition, filed with advocate Meena Khadka, calls for authorities to allow the return of citizens who have been denied entry since before the country went into lockdown one week ago.

On 25 March the Supreme Court refused the petition’s call to order the government to open the doors to Nepalis abroad who wish to return. A second hearing has been scheduled for 6 April.

In an interview, Basnet points out that Article 45 of the Constitution guarantees that citizens will not be exiled and argues that the current situation is “exile-like treatment”.

On 20 March the government imposed a partial lockdown, halting long-distance transportation services, international flights and non-essential services. Two days later it sealed international borders to the movement of people, then imposed the nationwide lockdown from 24 March.

Article 12 (4) of the International Covenant on Civil and Political Rights (ICCPR), one of the bedrock human rights laws, to which Nepal is a party, states: ‘No one shall be arbitrarily deprived of the right to enter his own country.’ According to Niranjan Thapaliya, director of Amnesty International Nepal: “The government has a duty and responsibility under international law to ensure the rights of its citizens, wherever they are.”

1st quarantine, then dignified return home

“It should let these people in, put them under quarantine to ensure they are healthy, and afterwards they should safely and in a dignified manner be allowed to go home,” Thapaliya told Nepali Times. Quarantine must also adhere to a human rights approach, ensuring that the sick, elderly, women and children receive any different treatment they require, he notes.

Thapaliya says that freedom of movement can be curtailed in certain situations but those exceptions must be of short duration, notified in advance, and communicated clearly. Nepal’s border closure was “too sudden, too quick”.

According to Meenakshi Ganguly, South Asia director of Human Rights Watch, “The need right now is for people to be safe where they are to contain the spread … Nepal should strengthen its healthcare systems, including quarantine wards, on an urgent basis, and ensure that stranded citizens are able to return.”

Basnet points out that the writ petition does not demand that every Nepali citizen overseas be repatriated. “But if a Nepali is going to be removed from another country, or if a citizen arrives at the border on her or his own, they must not be turned away. That is not allowed.”

The government’s argument has been that it cannot risk the health of its population from people bringing the virus from outside, and that it does not have enough facilities for quarantines and testing. Foreign MinisterPradeep Gyawali said in an interview with RSS on Monday: “We have not made any plans to repatriate any students or workers from abroad. It is not the right away, and it is not safe for them to travel at the present time.”

Indeed, Basnet was asked at the Supreme Court hearing if it was a good idea to repatriate Nepalis when the country has so few resources to handle the virus.

“I answered, ‘which country has the medicine and all the resources needed to deal with Covid-19? None of them is prepared’,” he said.

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