According to the convention, almost all forms of punishment constitute torture. Acute suffering, both physical and mental whether it is inflicted for obtaining information or confession, punishing, intimidating and coercing for any reason is torture if is inflicted by a public official or other person acting in an official capacity or on his/her consent. The convention has thus given very broad definition of torture. Though Nepal has constitutionally criminalized torture, the government seems to be phony in criminalizing it in practice. The Torture Compensation Act 1996 (2053 BS), for example, has provision only for compensation for victims and departmental action to the guilty. As this act came into existence after Nepal became member of the CAT, the act had to, necessarily, criminalize torture. Also there is a provision in Evidence Act 1974(2031BS) that states statement made under the influence of torture should not be considered authentic evidence. Yet, there has been no substantial change as the interrogation of the alleged still follows the age old principle of “first hit and then only inquire and listen.”
Though enshrining criminalization of torture in the constitution deserves applause, torture in Nepal remains one of the most prominent challenges. One of the key issues on which the peer countries engaged during Universal Periodic Review of Nepal in January 2011 was torture. According to a study of the Advocacy Forum, Nepal, from July to December in 2010, 22.5 percent detainees in 57 detention centers claimed that they were subjected to torture or other cruel, inhuman or degrading treatment. The study shows a significant increase in the percentage of torture from 15.8 percent in the period of January to 22.5 percent in June. It is also noticeable that there was a significant rise in the percentage of torture of female detainees which increased from 7 percent during January to 13.3 percent in June.
Though the government has provided lip service to end torture, no concrete initiation has been taken in amending laws and criminalizing torture in practice. So, immediate and urgent measures must be taken to render inflicting torture a history in this country.
Similarly, 26.7 percent of juvenile detainees claimed that they were subjected to torture. The study report also shows that a large number of people arrested under charges such as attempted rape (50.0 percent), possession of arms and ammunitions (48.1 percent), kidnapping (41.1 percent), theft (39.5 percent), robbery (29.6 percent), arson (28.6 percent), cheating (25 percent), drugs (23.7 percent) and public offence (22.4 percent) are tortured and ill-treated during the course of arrest and interrogation. The complaints recorded at the National Human Rights Commission also testify this figure. The record shows torture in increasing orbit. There were 86 such complaints in the fiscal year 2009/10 as opposed to only 76 one year before. Though the government has provided lip service to end torture, no concrete initiation has been taken in amending laws and criminalizing torture in practice. So, immediate and urgent measures must be taken to render inflicting torture a history in this country.
The CAT convention does not confine the state liability only to its own citizens. It envisions a global community where there is no excuse for torture. Article 3 of the convention has the provision of not extraditing the accused to another country if there is a substantial ground for believing that s/he would be susceptible to being tortured. In May 2003, 18 Tibetans, former inmates from the prison cells in Shigatse, Tibetan Autonomous Region, were repatriated by Nepal to Chinese authorities. It was against the spirit of the convention. Later, it was reported that they were subjected to severe torture by the Chinese police. As a result, Nepal had to suffer loss in garment export to the US and also in the tourism industry.
During the decade long insurgency, torture was very common both among the government security forces and Maoist combatants. With the end of the armed conflict, the situation remains the same. Increasing trend of torturing by the police during the arrest and interrogation is just terrible. Yet, the government officials are never tired of talking about protection, promotion and respect of human rights. The duty bearers hold this notion that they have no sufficient money or physical resources for the betterment in this regard. But what must be remembered is that we do not always need physical resources for improvement. Obviously, during the past armed conflict it was quite easy to defend torture as a consequence of war. Now we are undergoing transitional phase. It may be another good excuse for the escapist. We do not need money or any resources to reduce the torture that is inflicted to the alleged persons who are caged in the custody of police. What is needed is just the change in the behaviors of the officers who are in charge of interrogation. And then they could be the role model of their aides and juniors.
To stop torture and inhuman treatment, comprehensive efforts are needed. Public prosecutor and investigators of crime should review whether their actions are compatible with the international legal framework. What we lack at present is specific legislation to criminalize the act of torture and degrading-treatment. Ensuring victim’s right to the full range of reparations, which include restitution, rehabilitation and guarantees of non-repetition of such deed and financial compensation not only from the state fund but also from the perpetrators pocket, is possible only after the amendment of the present Torture Compensation Act in compliance with the spirit of the constitution and the CAT Convention. Otherwise, observation of June 26 as the International Day in Support of Victims of Torture will remain a mere formality in Nepali society and the perfect hypocrisy on the part of the government.
Writer is a Focal Officer in Policy Research and Planning Division, National Human Rights Commission, Nepal
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