In the context of Nepal, the fact that the 1990 Constitution recognized that torture and inhuman treatment is a violation of individual rights, is an important achievement. Although Nepal the ratified the Convention Against Torture, and other Cruel, Inhuman, and Degrading Treatment and Punisment, 1948 along with some other important international human rights documents, the Compensation for Torture Act was only established in 2053 BS. Current laws of Nepal have not been able to criminalize torture and degrading treatment and neither has it been able to fulfill its international responsibilities as per Article 26 and 27 of the Vienna Convention 1969. There are many cases related to compensation for torture pending in the district courts although some verdicts have been given to provide compensation to many victims also.
The Interim Constitution 2063 criminalized torture and misbehavior but it took five years to bring a bill as per its objectives. Although the Supreme Court issued a directive to make laws to criminalize torture (Rajendra Ghimire Vs Nepal Government) it is likely to take some time before laws that prohibit torture are passed as Acts and implemented.
The current bill was prepared in the background of the ten year armed conflict and cases of human rights abuse, torture and misbehavior by state officials as well as non state actors. Even after the Interim Constitution was promulgated some important reports that have pointed out the cruel torture and misbehavior carried out by state officials have been published. Although there has been a decline in cases of torture and misbehavior from state officials as compared to the period of armed conflict. It is therefore necessary to also look at some of the achievements that countries in Asia and other parts of the world have made with regards to bringing draft bills related to torture and inhuman treatment, keeping in mind the cases of torture and inhuman treatment that took place during the conflict period and Nepal’s international commitment.
Notes on the draft bill
The definition of torture and degrading treatment as defined in Article 2(G) and (J) seems to have been influenced by the definition given in the Convention Against Torture, however the definition given in this Article in inadequate. It would have been better if the definition of torture and inhuman treatment were given as mentioned in the Convention Against Torture.
What our experience shows is that except when Article 2 (f) whether it is individuals protesting in the streets or when arrested and detained they are tortured or treated inhumanly. Therefore it is not only arrested or detained persons who suffer torture or inhuman treatment in the hands of state officials. Anyone can fall victim to torture and inhuman treatment in current circumstances. This situation must be addressed in the bill and amended in the proposed preamble.
The terms “government physician” or “in government service” mentioned in Article 2 (K) devalues the concept of “recognized physican” that is developing in the field of investigation. To make the investigation on torture independent the concept of government physician must be replaced with that of recognized physician. This Article and other like it must be amended accordingly.
In Article 2 (G) intention and objective is not necessary for ill treatment.
The jurisdiction mentioned in Article 9 must be replaced by defining it as “regions that fall withing Nepal’s jurisdiction. Likewise if a Nepali citizen is found to be involved in torture or if a Nepali citizen is a victim of torture, there must be provisions to attract the Acts jurisdiction.
Articles 10 and 11 have recognized international law on torture importantly. It must also prohibit acts of exoneration and general amnesty of perpetrators. Article 37 which states “those who have been indicted by the Court has perpetrators cannot be given amnesty or forgiveness without the consent of the victim.” This can create a state of pressure for the victim. And even if the victim forgives the perpetrator, as torture and inhuman treatment is a crime, there must not be legal provisions to forgive those who torture others.
The provision in Article 12 has given too much authority to the public official and given leverage to use more force than is necessary while detaining or arresting under this article. Force used should only be proportional, and in line with legal and international codes of conduct. Therefore the use of such force must be either prohibited or the article itself removed. If the article is to remain it must be mentioned that the force used must only be proportional to the danger and necessity.
The phrase “good intention” must be removed from Article 35. Torture is never given with good intention nor should it be used for the performance of necessary duties.
The provision of deadline in Article 31 is against the principle of non-derogability and should be removed. Besides this Article 13 mentions a 35 day deadline to register the case, which is a restrictive provison and must be removed. Such a provision could create hurdles for the victim to get justice. The Committee against Torture has already made recommendations to the Nepal government to remove the provision of a deadline for case registration.
According to this bill, investigations into allegations of torture will be investigated by the police themselves. As per Article 15 the same police office is responsible for investigating into cases of torture. Such a provision could create a conflict of interest and put the victim as well as witnesses in danger and pressure. In Sri Lanka and the Philipines torture and degrading treatment has been criminalized. However experiences from these two countries show that unless there is a separate independent agency to listen to complaints and investigate them, victims will be unable to get justice.
That there should be a separate independent mechanism to listen to allegations of torture and to investigate into these complaints was recommended by the Committee against Torture in 2005 and by the Special Rapportuer on Torture and Inhuman Treatment in 2006. It is therefore important that there be a provision in this bill that allows for a separate agency to look into crimes of torture and inhuman treatment. The National Human Rights Commission or the Office of the Attorny General could be given the responsibility of such an agency.
Article 13 mentions that the victim, or family members of the victim, or a lawyer appointed on behalf of the victim may register a case. However the Convention on Torture has given the state the responsibility to itself register complaints if information is received through private or public information mediums. Therfore there must be provisions in the bill that ensure that either the Attorny General or a government prosecutor register the case on their own. Besides, Article 135 of the Interim Constitution has given the Attorny General the responsibility of hearing about the state of the detainee or prisoner.
Under Article 15, if any person is seen to be given torture, the court may order a high level official to investigate into the matter as per Article 13, 14.3 and 15. There are also provisions for the court to order a higher level officer to investigate if the complaint is against the chief of the district police office. It has been found that the police refuse to investigate into allegations of torture and inhuman treatment.
Articles 6, 7.1 and 7.2 has given the burden of proof to the office head. This provision in is in favour of the victim. However this is against the principles of Article 14(2) of the International Covenant on Civil and Political Rights which states that the burden of proof shall lie with the prosecutor. The language and terms used in these articles must not contradict established norms and the provision of burden of proof must be used adequately.
Protection of victims and witness
Article 28 mentions that the witness must be provided protection if under threat. This is an important provision that allows the victim the right and ability to file a complaint against a powerful agency of the state. This provision must be extended to the victim as well as the family of the victim besides the witness for they could also be endangered.
Article 13 of the Convention Against Torture has included complainees in the group that must be given adequate protection during the time of legal proceedings. The Committee Against Torture had also recommended to the government of Nepal in 2005 to provide protection to individuals who file complaints of torture or inhuman treatment or witnesses or who give information relating to such.
Article 14 mentions that the health of the detainee victim must be checked within three days of the complaint being filed by the victim. Reports have mentioned that many victims were tortured without even being detained or were tortured for a while and released. Therefore there must be provisions allowing for even those who are not in currently in detention to be given a physical examination. The court must also be given the authority to order for a physical examination if it has enough reason to suspect that torture was given.
Under this Article only a government physician can conduct the examination although international norms, and the Istanbul Protocol has stressed on an independent physician to ensure that differences in opinion with the police are controlled. Like in many other Asian countries Sri Lanka and Philipines too have criminalized torture however they still have issues with independent physicians and forensic examinations. Therefore there must be provisions enabling a second opinion if the victim and the independent physician are not satisfied. This bill must also have provisions to avail opportunities to physicians to regularly train on health check up and documentation preparation.
Article 23 provides a maximum of Rs 500,000/- as compensation to victims of torture and inhuman treatment. The principle of reparation has four elements – compensation, rehabilitation, satisfaction and non-repetition. These elements are mentioned as the fundamental principles and guidelines on compensation rights of victims of torture in Article 14 of the Convention Against Torture and international human rights and humanitarian laws.
Article 14 (2) has provisions to provide physical examinations to the victim as and when necessary. The issue of rehabilitation has not been raised in the bill. The bill should also mention that the services of specialized physicans and psychologists and social services should be sought. The bill should mention that there should be no hinderances or discrimination for the victim to get free service in rehabilitation centres.
Article 24 has provisions for compensation implementation on the basis of the victims request. The state has the responsibility of providing compensation as per the courts order and it is not necessary to have a separate provision for the victim to claim compensation. As per the language used in the current provision the Chief District Officer may decide to make provisions for immediate compensation to the victim as per the courts order.
Article 34 mentions that those who register false complaints can be fined Rs 10,000. Such provisions discourage victims from filing cases against abuse of public officials. This provision can be mis-used especially by authoritarian systems. The emphasis must not based on the idea that the states public officials can be prosecuted or that there might be too many false accusations. This provision therefore must be removed.
This investigation and recommendation was prepared by Advocate Hari Phunyal along with eiht other advocates and inputs from women, Dalit, Madhesi, youth and other related pressure groups for the Nepal Constitution Foundation. The Foundation is grateful towards Shovakar Budathoki, Charan Prasai, Durga Sob, Jiwan Pariyar, Nirupma Yadav, Sambojan Limbu, Bharat Raj Gautam, Biswa Adhikary, Furpa Tamang, Baburam Giri, Uday Sapkota, O P Sen Thakuri, Bhim Prakah Oli, Abhishek Adhikary, and Dr. Bipin Adhikary.
This study was carried out with the help of The Asia Foundation but the views expressed here are solely those of the concerned writers. It does not reflect the views and opinions of the Foundation.