By Rajendra Ghimire
Nepal is a party to the UN Convention Against Torture and the Constitution of the Kingdom of Nepal has guaranteed the fundamental right of the people against torture. But in practice, torture is widespread and there are no initiative on the part of the State to stop torture and rehabilitate torture victims and their families. Likewise, the work of NGOs is also not adequate for the rehabilitation of torture victims in Nepal.
On one hand torture is widespread in the country, but on the other, the state has no policy, plans or programmes for the independent investigation of alleged torture cases and the rehabilitation of the torture victims. Likewise, the work of NGOs is also not adequate for the rehabilitation of torture victims in Nepal.
Legal Provisions
Article 14 (4) of the Constitution of 1990 prohibits “physical or mental torture” and “cruel, inhuman or degrading treatment” and states that any person so treated shall be compensated “in the manner determined by the law”.
Detainees have the legal right to receive visits by family members, and they are permitted access to lawyers once authorities file charges. In practice the police grant access to prisoners on a basis that varies from prison to prison.
The vaguely worded Public Security Act allows the authorities to keep a person who allegedly threatens the “sovereignty, integrity or public tranquility and order of the Kingdom of Nepal” in preventive detention for a period of up to twelve months, without specifying any criminal charge.
Terrorist and Disruptive Activities (Control and Punishment) Act
Under the state of emergency declared in November 2001 security forces were given additional powers to arrest and detain suspects on preventive detention orders under the Terrorist and Disruptive Activities Ordinance (TADO). The ordinance was later replaced by the Terrorist and Disruptive Activities (Control and Punishment) Act (TADA), which was enacted into law for two years in April 2002.
TADO also allows for preventive detention for up to 6 months, without being presented before a court. Provided a security official (this can be a member of army, police or APF; rank not specified) is satisfied that reasonable ground exists to believe that a certain individual must be restrained to prevent vague-defined terrorist and subversive activities from taking place, an order may be issued to detain such person for a period of six months in a “location fit for human accommodation”. An extension for a further six months is possible with the consent of the Home Ministry
Torture Compensation Act (TCA), 1996
A torture victim showing scars of beating on the back. (Photo courtesy: CVICT Nepal)
A torture victim showing scars of beating on the back. (Photo courtesy: CVICT Nepal)
TCA was promulgated to make appropriate legal provision for the effective implementation of Article 14(4) of the Constitution of the kingdom of Nepal and the obligations derived from the CAT as a state party to the convention. The main objective of the promulgation of TCA was to provide compensation to a person for having been subjected to physical or mental torture or cruel, inhuman or degrading treatment while in detention for investigation or awaiting trial or any other reason.
The Act has made a mandatory provision of medical check-up by medical personnel of physical condition of an arrestee before arrest and at the time of release or in case of unavailability of such medical personnel, by the arresting authority itself but in practice this provision is not implementing properly by most of the cases. Properly implementation of this provision can play important role to reduce torture in detention centers.
The Jurisdiction of hearing of torture compensation case is on concerned District Court. If the court satisfies with the claim of plaintiff it may award compensation amount up to NRs. One Hundred thousand depending upon the severity of torture and the court shall order the concerned authority to take a departmental action according to existing law against the government employee who commits the act of torture.
One survey report has rightly reported “Conditions in Nepal are worsening, despite the introduction of special, but flawed, legislation to allow torture survivors to claim compensation.
Total 26 cases have been decided by the courts awarding compensation to the torture victim after the promulgation of TCA but till now only one victim has get the compensation amount from the Government after immense pressure from human rights community and human rights organizations to the government. There is no any transparent system to know whether departmental action taken or not against and what type of action taken to the perpetrator.
Chapter on False Imprisonment in National Code is directly related to torture and illegal detention (Beritsanga Thundako Mahal). Till now n o case has been initiated under this chapter on the issue of torture. One of the reasons of the avoidance of invoking this provision by the victims would be the very low amount of compensation and punishment to perpetrator.
Suggestions and Recommendations
It is positive that Constitution of the Kingdom of Nepal, 1990, has prohibited any form of torture and Nepal has promulgated TCA for the prevention of any form of torture and some NGOs are working in the field of torture prevention in the country. But there are many things to be done to comply with CAT and to eradicate torture from the country. Following are some recommendations to minimize torture in Nepal:
All forms of torture and attempt to commit torture and an act by any person which constitutes complicity or participation in torture should be defined as criminal offence by domestic law and should lay down appropriate penalties to the perpetrator.
The upper limit of compensation amount (Nrs. One hundred thousand) is extremely low therefore it is recommended that the upper limit of compensation amount should be increased and lower limit should be laid down.
The 35 days statutory limitation to file torture compensation case should be widened to make appropriate provision in this regard.
The provision of defending by government to the perpetrator should be changed and the provision of legal services to the victims should be introduced.
There is no provision of investigation by independent authority on the event of torture as required by Article 12 of CAT. An independent body should be set up to conduct investigation in case of torture and other atrocities by police and other security personnel
There is no any provision of redress and right to fair and adequate compensation as required by Article 14 of the CAT in Nepal therefore it is recommended to make legal provision for redress and fair and adequate compensation to the torture victim.
Human Rights organizations should be given access to visit detention centers.
It has been noticed that almost all the detainees are being tortured who have been detained in army barrack and other illegal detention places. Therefore all the detainees who are being detained at illegal detention places including army barracks should be transferred to legal detention centers as soon as possible.
Government should establish and publish publicly the places for detention and detainees should be kept only on these legal detention centers. All the places of detention must maintain records regarding every detainee, including the date, time, and location of arrest, the name of the detainee, the reason for detention etc. The records must be available to detainees’ families, legal counsel, and other legitimately interested persons. All transfers of detainees should be reflected in the records.
Repeal or revise laws that undermine constitutionally guaranteed protections against human rights violations, such as the Public Security Act, the Public Offense and Punishment Act, the Anti-State Crimes and Penalties Act, and TADO.
Legal provision for victim and witness protection should be promulgated. The case of Keshav Thapa (see AI Urgent Action appeal of 17 June 2005; ASA 31/053/2005) is an example of the risks people filing TCA cases face, especially in the heightened climate of impunity in the period post-February 2005. Keshav Thapa was rearrested by the army after he filed a complaint under the TCA and was then tortured once again.
The government should stop re-victimizing torture victims by not providing the decided amount in the name of scarcity of budget.
Home Ministry, Defense Ministry and other concerned authorities should follow court orders promptly in the habeas corpus and other cases on human rights violation
Sign and access the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Sign and access the Rome Statute of International Criminal Court to demonstrate the government’s willingness in prosecuting alleged perpetrators of committing crime against humanity under its jurisdiction.