Nepal has been a party to the UN Convention against Torture (UNCAT) since 1991. Since then however, the government has failed to bring about any comprehensive anti-torture legislation in line with the Convention. Nepal’s Torture Compensation Act (TCA) of 1996 only provides compensation to victims if police officers are found guilty of practicing torture, with no mention of punishment for the act of torture. The 2007 Constitution for the first time noted that “torture will be punishable”.
Due to the lack of strong anti-torture legislation, torture is rampant in Nepal. Victims of torture have been living without any rehabilitation services. Due to continued national and international advocacy, the government of Nepal has tabled an anti-torture legislation in parliament, but it is yet to be approved and promulgated. Moreover, the proposed anti-torture legislation is not compatible with the UNCAT as there are no provisions of rehabilitation for the victims of torture, no preventive mechanisms, and no guarantee of investigation of torture cases.
Even if the law is approved and comes into force, many other issues need to be addressed, as merely bringing a law against torture is not enough to end the practice. The state of Nepal’s justice institutions is also important, all of which are designed in such a way that they have become an ally to the rich and powerful, the politicians, and the state. The police for instance, are used by Nepal’s politicians and elite for social control. And for the police, policing a society with available traditional methods and equipment, which is largely the use of torture, is easy and convenient. In fact, the police themselves are against passing the anti-torture legislation, threatening that they cannot maintain law and order in society if this legislation comes into force. Suffering from inadequate pay forces the police to take bribes; most victims are tortured due to the lucrative incentive of making extra cash. For the police, the politicians and the state, torture is thus seen as a necessary evil.
The Nepalese Police is often accused of being corrupt and conniving with crimes. It is hard to differentiate politicians from criminals and criminals from politicians in Nepal. There is a well-established nexus of money, muscle, mafia and political power, which is difficult to dismantle. Politicians force police officers to obey their illegitimate orders, and those who resist are transferred immediately. Even officers who want to maintain law and order face corrupt politicians.
In Nepal, laws are often enacted to appease national and international actors. So far, Nepal has not created a favorable environment where laws can work freely and effectively. From circulation to implementation, the government is simply unable to cope up.
The following measures must therefore be considered during the redrafting of the anti-torture legislation. If any government officers including the police are found guilty of practicing torture, they must be suspended, and their promotion must be suspended. To make it very effective, if juniors are found to be involved in the practice of torture, the head of the police station must take responsibility. Furthermore, if any police officers are found practicing torture, one cannot believe in their investigation and prosecution against their comrades. A separate entity must hence be established, which is able to work without any interference from the police and politicians.
Most importantly, compensation provided to torture victims must be increased. The compensation must come from the perpetrators’ pocket/salary. If expenses for medical treatment and compensation come from the government, torturers remain motivated and the burden remains on the government. Only when the perpetrators are made to give compensation will it act as a deterrent, and reduce the practice of torture.
The role of the government as an institution has been limited to formulating policies it cannot implement, making promises it cannot fulfill and trading hopes that cannot be materialized, resulting in an absence of rule of law and bad governance in Nepal. Anti-torture legislation is urgently required, and it must be redrafted, but not before reforms in justice institutions are initiated, including the police. Nepal needs to formulate robust systems with investments and resources, before torture laws can be effectively put into practice.