By Kabiraj Khanal
As a party to the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (also known as Convention Against Torture- CAT), Nepal submitted its 2nd periodic report to the UN’s Committee Against Torture in March 2004. The hearing on the report was held on Nov. 9-10, 2005 in Geneva, Switzerland. Ambassador of the Permanent Mission of Nepal in Geneva, Gyanchandra Acharya, led the three-member Nepali delegation.
A coordinated alternative report was also submitted to the committee by Nepali NGOs claiming the state report is unable to highlight some weaknesses of the government in complying with CAT. Furthermore, INGOs such as Amnesty International and Asian Commission on Human Rights also submitted their reports to the committee. The committee gets inputs from various sources. In the hearing, however, as per the UN practice, the interaction was held only between the government delegation and the committee members. General Secretary of a human rights group INSEC, Kundan Aryal, was present in the hearing as an observer.
Earlier, the committee had sent a 30-point list of issues to be dealt with during the examination of the second periodic report of Nepal on CAT to the government. The government had submitted its response to the committee few days before the hearing.
The committee Against Torture consists of ten members, and at present majority of them are Europeans. Most members of the committee raised their questions and concerns over the situation of torture and human rights in Nepal in general and some other contemporary issues as well. On the first day of the hearing, after opening speech by the leader of the Nepali delegation, the committee members raised their queries on about 45 issues. The members showed no mercy to the Nepali delegation in putting their questions. As per the practice of the hearing, the response from the delegation was furnished on the 2nd day of the hearing.
The Nepali delegation left no stone unturned while responding to the queries. All of the concerns related to torture and human rights, except some individual cases, were taken on board by the Nepali side. The major issues that were discussed in the hearing were as follows:
Systematic Practice of Torture:
The committee members alleged that torture prevails in Nepal in a large scale. Their allegation was mainly based on a statement made by Manfred Nowak, Special Rapporteur on Torture, who visited Nepal in September this year and various non-governmental sources. They repeatedly quoted the words ‘systematic practice of torture’ contained in Nowak’s statement. The Nepali side denying the allegations claimed that the state has no policy at all to allow torture as a method to extract confession or solicit information from detainees, and some reported cases of torture were due to individual mistakes, and those found guilty are prosecuted. However, the committee members, it seemed, were more relying on information supplied by the non-governmental sources, on this issue.
Admission of practicing torture by security officials:
The committee members tried to upset the Nepali delegation by quoting Nowak’s press statement, which mentioned of ‘frank admission by senior police and military officials (to Nowak) that torture was acceptable in some instances’. The Nepali side opined that individual and informal remarks reportedly made by some officials couldn’t be generalized as a state policy. However, the committee members were not convinced with the clarification, and viewed that admission of torture by senior security officers to a senior envoy of UN could not be discarded merely as private conversation.
Definition of torture:
The Committee members expressed their concern on narrow definition of torture adopted by Compensation Relating to Torture Act, 1997. Their suggestion was to widen the definition so as to comply with CAT. The Nepali side responded that such concerns and suggestions will be given due consideration while reviewing the legislation.
Criminalization of torture:
The committee members gave high priority to the issue that Nepal had not yet made torture a criminal offence in its legal system. “As you do not criminalize torture, how can you prosecute the offenders and sentence them?” they asked. In response, the Nepali delegation tried to convince the members that HMG is serious about the need for criminalizing the torture in the domestic legal system as early as possible. They also quoted the provision of proposed draft Penal Code, in which torture has been accepted as a criminal offence.
Allegation of extra judicial killings and disappearances:
On the issue of disappearances, the Nepali side presented well. By citing the number of cases already clarified to the concerned UN mechanisms, the government officials opined that it would not be appropriate to draw a conclusion only on the basis of number of allegations made by individuals and NGOs. They also asserted that there is a significant drop in the allegation of reported disappearances this year.
Culture of impunity:
In the hearing, the committee members alleged that there is a culture of impunity in the Kingdom. Their allegation was based on lack of legal provision on criminalization of torture and a large number of cases of torture reported by non-government sector. The government side defended their position by denying the allegation and gave some examples of actions taken against by security agencies to their personnel, who are accused as perpetrators.
Re-arrest:
The committee members repeatedly raised the issue of re-arrest of persons, who are released by the Court order. The government side responded that it has no intention to do that and no person has been re-arrested on the same charge. The government also has given instructions to prevent the re-arrest of persons.
Compensation:
On the issue of compensation, the committee members alleged that the government is not serious to compensate the victims of torture as per the court decision. However, the government side cited the cases of compensation provided to the victims as decided by the courts and the National Human Rights Commission (NHRC).
The other issues on which discussions were held included incommunicado detention in army barracks, independence of judiciary in relation to the Royal Commission on Corruption Control (RCCC), long period of preventive detention, management of prison and detention centers, access given to the NHRC and others to visit the places of detention, amendment of law through ordinance, making disappearances a criminal offence under the proposed draft penal code, protection of human right defenders and lawyers, and a large number of detainees (than the prisoners).
The discussion also encompassed the areas of caste discrimination, gender biased laws, monitoring mechanism of trafficking in persons, effectiveness of human rights education to law enforcement officials, involvement of NGOs in human rights education, legal status of directives (issued by Home Ministry to its subordinate offices), domestication of CAT, application of CAT by the courts, status of refugees and Tibetan Welfare Office, burden of proof (to the victim), witness protection scheme, confession in the Courts, relationship of Chief District Officer with security agencies and (not) obeying the order of the Court by security agencies. Questions such as “Are security agencies autonomous in Nepal? How transparent are HR Cells established in various agencies?” were also raised.
The Committee members commended some positive aspects such as relatively good condition of prisons given its resource constraints, presence of vibrant civil society and local press, access given to NHRC and UN OHCHR to visit places of detention, invitation to UN Special Rapporteurs, hospitality provided to refugees and asylum seekers and education and training to law enforcement officials on human rights. The Nepali delegation tried its best to convince the committee that the situation was not as ‘bad’ as reported by non-governmental sources and also enumerated a number of steps taken by HMG to protect human rights. The discussion was frank and conducive.
The conclusion and recommendation of the committee is yet to be received. The lesson we learnt from the hearing is that if the government does not act promptly and immediately on certain issues such as widening of definition of torture in compliance with CAT, making torture a crime in its legal system and a high level commitment to prohibit torture, the government will have to face severe criticisms in coming days, particularly at the upcoming session of UN’s Human Rights Commission, in March, 2006.