(June 26 is observed every year as the United Nations International Day in Support of Victims of Torture.)
Nepal successfully held the Constituent Assembly (CA) election on April 10th, 2008 and was declared a Secular, Federal Democratic Republic by the Constituent Assembly of Nepal on May 28th. It is a significant milestone in Nepal’s history and reveals the success of democracy and democratic values. While many difficult tasks remain to be dealt with, the most challenging task for the incoming governement will be how to deal with the past crimes during the conflict period and ensure effective transitional justice.
Torture is one of the major concerns with regard to rehabilitation for the victims of past crimes and the restoration of the order of justice in the country. According to one leading local human rights organisation, Advocacy Forum, it has alone documented 2,271 cases of torture committed by the law enforcement officers and Maoists over five year period from July 2001 to April 2006.1 Sadly the wide practice of torture did not end despite the abdication of the absolute rule after the People’s Movement in April 2006 and the end of armed conflict between the government and the Maoists. The same human rights group again documented 1313 new cases of torture during a period of one year up to June 2007. 2
Umesh Lamas case is a good example. 3 He was arrested by the officers from the Hanumandhoka Metropolitan Police Range on 1 April 2008 and reportedly tortured for 5 hours until he fell unconscious. The police neither presented an arrest warrant nor informed him of the reason of the arrest. Despite his serious injuries, the police did not provide any medical treatment to him. He was sent to a hospital in Kathmandu on April 9th only after his family made constant requests to the police. Umesh’s sister filed a case against the police officers who tortured him under the Torture Compensation Act on April 28th. However, she withdrew the case on April 30th, after facing constant pressure from the police, including a Deputy Superintendent of Police (DSP) who was heading the investigation into Umesh’s torture.
What does this reflect? Rehabilitation of torture victims does not merely mean the punishment of torture perpetrators and the award of the compensation. It requires genuine and affirmative action from the government to rejuvenate the justice mechanisms so that similar crimes never happen again in future. Umeshs case illustrates that this has not yet begun in Nepal.
In fact, Nepal’s legal system does not provide effective redress to torture victims, although Nepal is a state party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Torture Compensation Act (TCA) neither criminalizes torture nor obligates the government to take action against a perpetrator of torture. In the TCA, compensation may be awarded to torture victims, but the perpetrators are not punished because, as stated, in law, they have not committed a crime. Besides this, the Act is also only recognizes claims filed by torture victims within 35 days of the alleged act of torture, or within 35 days of the victim’s release from detention. Furthermore, according to the legal system in Nepal, the burden of proof is placed on the complainant (the victim), who is often incapable of doing giving sufficient evidence to support his claim.
Moreover, as Nepal has no other specific law that defines torture as a crime the only recourse is to the “assault” section of the Civil Code of Nepal where physical assault is defined as a crime. However, the Civil Code gives fines/punishment according to the nature of the wound. To explain in detail, the maximum punishment for an offence of “general assault” under the Chapter on Assault of the Civil Code is up to 6 months imprisonment and fine of 2,000 Nepali rupees (about USD 30). The offence of “general assault” means causing pains and wounds on a person’s body. For the offence of the “maiming assault”, the maximum punishment is up to 8 years imprisonment and fine of 10,000 Nepali rupees (about USD 160). However, this offence is very narrowly applicable to gross physical assault, for example, loosing a one eyesight or dysfunction of any particular organ of a person’s body. Furthermore, the Civil Code does not make any provision for the psychological effects of torture.
Even more important is the fact that even this ‘assault’ section of the Civil Code does not provide any specific provision for assault which has taken place whilst the victim is in custody, that is, with State involvement. Besides, torture is defined very narrowly in Nepal, and torture by state officers outside custody appears to be totally exempt. Consequently, very few lawyers use this clause in court and torture victim is deprived of the rights to seek an effective legal remedy.
Under the present legal set-up, torture victims will never have the chance to obtain justice, effective legal redress and rehabilitation. The torture perpetrators will continue to enjoy impunity unless the new government takes affirmative action to introduce a law criminalizing torture and establish an effectively functioning criminal justice mechanism in the country. Most of all, the rampant practice of torture will never end and this will only add to the deep distrust of the people and lead to serious tension in society.
In this regard, in November 2005 the United Nation Committee against Torture recommended to the Government of Nepal to adopt domestic legislation “which ensures that acts of torture, including the acts of attempt, complicity and participation, are criminal offences punishable in a manner proportionate to the gravity of the crimes committed, and consider steps to amend the Compensation Relating to Torture Act of 1996 to bring it into compliance with all the elements of the definition of torture provided in the Convention.”4
On the Occasion of the International Day in Support of Victims of Torture, the Asian Human Rights Commission again strongly urges the Government of Nepal to adopt a domestic law criminalizing torture without any further delay and rejuvenate the fundamental justice institutions. Such rejuvenation is a prerequisite to facilitate a smooth process of transitional justice in Nepal which meets the expectations of the ordinary people who are eager to have a great change for a better life after many long years of suffering.
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Footnotes:
1 Advocacy Forum, Sharing Experiences of Torture Survivors June 26th, 2006 (http://www.advocacyforum.org/pdfcoll/26_June_publication.pdf)
2 Advocacy Forum, Torture Still Continues A brief report on the practice of torture in Nepal, June 25th, 2007 (http://www.advocacyforum.org/pdfcoll/26_June_publication.pdf)
3 AHRC Urgent Appeals numbers AHRC-UAC-078-2008, AHRC-UAU-027-2008 and AHRC-UAU-028-2008 (http://www.ahrchk.net/ua)
4 Concluding Observations by the Committee Against Torture, CAT/C/NPL/CO/2
