Preventing torture

It’s not right

June 26, 2017 00:25 AM Praveen Kumar Yadav


Historically the security forces in Nepal have used force, threats and torture to control the population
Torture is an inhuman treatment that destroys dignity of its victims. The use of torture has been condemned in every democratic society. But there is a perception in Nepal that torture received by someone accused of crime is acceptable. This mindset has hindered efforts to end torture.

Though Nepal now has a federal democratic system with constitutional guarantee of human rights and rights against torture, reports by human rights organizations show torture is still prevalent. Out of 674 detainees interviewed by Tarai Human Rights Defenders Alliance (THRD) in 2016, 167 (24.74 percent) said they were tortured by Nepal Police. Another human rights organization, Advocacy Forum, reported in 2015 that 17.2 percent of 1,212 detainees complained of torture by Nepal Police. 

These findings are in line with the reports released by National Human Rights Commission (NHRC) and the Office of Attorney General, the government constitutional bodies. Likewise, the United Nations reports on human rights in Nepal continuously refer to torture as a systematic problem. 

We cannot prevent torture without finding out why security forces resort to it. Police tend to use torture during interrogation to make detainees confess to crimes, according to the reports cited above. Torture has been accepted as a means to extract confession. Police officers who use torture to solve cases are often rewarded within the system. Police personnel resolving high-profile cases, even with the use of torture, are likely to be promoted. Another reason is lack of modern investigative technologies. Such technologies and trained personnel help with the collection and preservation of criminal evidence. But Nepal at present lacks such technologies. 

Finally, defective criminal justice system encourages police to use force to obtain confessions. Police personnel who participated in a research conducted with the support of the University of Sydney claimed that Nepali judiciary is also rather traditional when it comes to examining and admitting evidence, and that Nepali courts rely on confessions to convict. 

Historically, the security forces in Nepal have used force, threats and torture to control the population. During the Panchayat rule, leading members of political parties were tortured by security personnel. When they came to power after 1990, these leaders pledged to uphold human rights, including prevention of torture. Hopes were raised after the country embraced multi-party democracy and promulgated the Constitution of the Kingdom of Nepal 1990. For the first time the constitution guaranteed freedom from torture as a fundamental right. Article 14 (4) of 1990’s constitution prohibited “physical or mental torture” and “cruel, inhuman or degrading treatment.” It also assured that the person tortured would be compensated “in the manner determined by the law”. 

Nepal has also ratified anti-torture conventions such as International Covenant on Civil and Political Rights and its two optional protocols, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture (CAT) among others. After years of deliberations between politicians, lawmakers and civil society leaders, Nepal enacted Compensation Relating to Torture Act (CRT) 1996, as per the requirements of 1990 constitution and CAT. 

The first ever torture-related law, the CRT aimed to provide compensation to the victims of torture, and punish the torturers. But it had limited success. It fails to criminalize torture in line with CAT. For example, the government attorney pleads on behalf of alleged perpetrators and the state provides compensation to them. This is ridiculous. This is one reason our domestic law on torture has been criticized by the human rights community, including the UN. 

Yet efforts to prevent torture continue. The Comprehensive Peace Agreement (CPA) that ended a decade-long conflict agreed in principle to prohibit torture. Nepal’s Constitution (2015) has guaranteed the right against torture and stated that torture will be “punishable by law,” and “any person so treated shall be provided with such compensation as determined by the law”. But in absence of proper laws in line with this provision, CRT remains the only legal recourse for torture victims. Even within the existing laws, when torture-related cases are filed at the courts, those responsible for torture are rarely brought to justice. As a result, thousands of victims of torture from conflict era still await justice.

Advocacy Forum in 2008 had assessed the impact of CRT over its first 12 years (1996-2008) of enactment. It found that only 208 cases of torture compensation were filed in 12 years, only 52 victims were given compensations, and of those who got compensation, only seven victims (13.46 percent) received compensation money. None of perpetrators involved in these cases were brought to justice, according to the report Hope and Frustration: Assessing the Impact of Nepal’s Torture Compensation Act 1996. Inefficient state machinery, lack of accountability, lack of activism and entrenched impunity have all contributed to dismal implementation of torture-related court decisions under CRT.

The most recent review of Nepal’s human rights record was the Universal Periodic Review (UPR) in November 2015. During the UPR process, 73 countries criticized the country for its miserable human rights record, including the practice of torture. During the UPR, Nepal had accepted the need to criminalize and impartially investigate acts of torture. Torture has been prevented constitutionally since 1990 but more needs to be done. Nepal needs a comprehensive law to criminalize torture in line with international human rights law. In 2014, the government tabled a legislation related to torture in the parliament. The proposed bill was a welcome step. Different human rights organizations have recommended that the bill be further improved. But if this bill is enacted, it will be a great contribution to the fight against torture and it will also prevent arrest of our officials in foreign lands under universal jurisdiction. 

On the International Day in Support of Victims of Torture today, let us pledge to end torture-related impunity in Nepal through systematic reforms. 

The author is currently researching torture-related impunity in Nepal for his Master’s degree in human rights under Mahidol University, Thailand and Ateneo De Manila University, The Philippines 

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