An article from the Kathmandu Post, written by Dipendra Jha forwarded by the Asian Human Rights Commission
by Dipendra Jha
Torture has evolved into a chronic problem in Nepal, particularly after the end of the decade-long Maoist conflict. In October 2012, the Committee against Torture concluded that torture is systematically practiced in Nepal. Data by Advocacy Forum, an NGO, further confirms it: out of 3,662 detainees it interviewed, 16.7 percent claimed that they had been subjected to torture. It was also observed that the rate of torture is significantly higher than the national average in several districts in the Tarai. Some districts such as Morang and Banke are a cause for particular concern, due to their increasing rates of reported torture.
This occurs, despite the fact that Nepal ratified the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment in 1991. The nation, however, has yet to criminalize torture. The existent Torture Compensation Act merely treats it as a civil offense and entitles the victim to receive compensation up to NRs. 100,000.
Costs of complaining
Torture victims often cannot muster enough courage to file a lawsuit against their perpetrators (i.e., police officers) due to the fear of being further victimized. They also fear risking enmity with the police by suing them for torture. The worry is that the police could implicate them in false criminal cases. In addition, a victim of torture has to wait at least two to three years to get compensation through a court order. It is a long and complicated administrative process.
Judicial remedy under existing laws is far from adequate. Even when the court gives a verdict in favor of the torture victim, the punishment meted out to the perpetrator is far from just. The court usually orders departmental action but since there is no mechanism to monitor compliance, the court’s instructions remain unimplemented. In some cases, instead of treating a torture case seriously, the court encourages victims to reconcile with their perpetrators. For instance, after Kalu Chaudhari of Kanchanpur district filed a case against some police officers, the court responded by telling him to reconcile. Due to outcomes like these, most torture victims choose to suffer in silence. The immediate causes of impunity stem from the barriers that arise when victims search for justice.
Since Nepal lacks comprehensive torture laws but torture is subject to universal jurisdiction, Nepali Army Colonel Kumar Lama is currently in trial in the UK for inflicting severe pain against two detainees during the 2005 Maoist war. This is the right time to figure out a way to deal with torture by bringing in a strong legislation to tackle the issue.
Flawed bill
Against this backdrop, the government recently presented a new torture bill in the Parliament Secretariat that seeks to criminalize torture for the first time. However, the bill is far from meeting internationally accepted standards and norms.
Section 20 of the new bill proposes that punishments don’t exceed five years of imprisonment and fines don’t exceed NRs. 50,000 for acts of torture. Section 22 of the same bill proposes a compensation of up to NRs. 500,000 for the victim. The bill also proposes a 10 percent increase in punishment for the perpetrator if an act of torture maims the victim, infects them with HIV, causes mental instability, or makes them unable to perform their profession. Although the bill was brought to deflect the criticism of the Torture Compensation Act, it still fails to criminalize torture by police outside police custody.
Torture can take place in an individual’s house, on the street, or any place other than in police custody. But if this bill is enacted into a law in its present form, crimes of torture committed outside police custody will go unpunished. Moreover, the bill’s definitions of torture do not conform to the provisions of the UN Torture Convention.
Furthermore, the provision of the 90 days’ statute of limitation for filing cases of torture also goes against the UN Torture Convention.
The bill intends to criminalize torture but the proposed administrative action against the superior authority is against the spirit of the anti-torture law. Everyone, whether one is a superior or a lower-level authority, should be punished for inflicting torture on someone else. Merely taking a departmental action against the perpetrator is not justifiable. It is an administrative and civil action that does not match with the criminal jurisprudence punishment theory. There is a need for a judicial council intervention to bring torture cases into the fast track judicial process that can ensure fair trials to victims. Judges should start looking at torture as a serious crime, not forcing victims to go for mediation or reconciliation with their perpetrators.
Police reform
Most importantly, the Nepal Police needs to undergo serious reforms if we are to end this culture of torture. A civilized nation treats all persons humanely. This needs to be at the core of the trainings imparted to the police. Though Nepal’s police force is known to organize human rights trainings for its personnel, their system is far from perfect. Unless the police realize the value of individuals’ human rights and the consequences of violating them, torture will persist.
As the world recently marked June 26 as the International Day in Support of Victims of Torture, the Nepal government could use it as an opportunity to express its commitment to pass an anti-torture bill in line with international standards.
Jha is an advocate at the Supreme Court.
