Cruel, inhuman and degrading

JUN 26 -

Since the UN International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) was established 15 years ago, this day was marked as the UN International Day in Support of Victims of Torture, reminding us

about the survivors of torture at least once a year. While Nepal acceded to this Convention on May 14, 1991 and the Interim Constitution of Nepal criminalized torture in 2007, there has yet to be a separate and specific act for criminalising torture and bringing the perpetrators to book for their criminal offence.

It is encouraging that after more than two decades of continuous negotiations, the “Torture, Degrading Treatment, Punishment and Compensation Act 2012,” which criminalizes torture, has been registered at the Parliament Secretariat. The Bill defines acts that amount to torture and inhuman and degrading treatment. It provides space for developing regulations for detailing compensation and witness protection and also has provisions for not accepting evidence obtained by torture and preventing extradition when there is a fear of torture. This was already provisioned in the Evidence Act of 1974 (2031BS).

At the same time, it is equally disappointing that the drafting process was hardly consultative as the stakeholders were bypassed during the drafting process. It was so non-transparent that even the National Human Rights Commission (NHRC) — which has the constitutional mandate to provide inputs to the Government of Nepal (GoN) that the spirit and provisions of international human rights instruments have been endorsed in the law—was not consulted. Despite this, government initiative of drafting separate and specific legislation for criminalising torture deserves applause. With the demise of Constituent Assembly (CA) of Nepal on May 27, the shadow of CA Legislative Parliament is also no longer in existence. So, the stakeholders have an opportunity to express their concern that the upcoming Act complies with the provision of CAT and other international human rights instruments.

The Supreme Court made the directive order on December 16, 2007 to enact an anti-torture law in compliance with Nepal’s international treaty obligations. Moreover, the conformity of the anti-torture legislation with the treaty obligations has been recommended by a number of UN mechanisms including the Committee Against Torture and the UN Special Rapporteur (UN SR) on Torture.

UN SR on Torture Prof. Manfred Nowak reported after his visit to Nepal in 2005 that torture was systematically practiced in Nepal. This finding mainly referred to the practice of torture by the security forces in armed conflicts with the Communist Party of Nepal (Maoist). Advocacy Forum (AF) claims that since the end of the conflict in April 2006, the occurrence of torture by both the security forces and the Maoists has reduced. Nevertheless, AF concludes it remains habitual and widespread, especially in police custody in a considerable part of the country and in relation to certain categories of detainees such as juveniles and members of certain ethnic groups.

Torture was a key issue that peer countries discussed during the Universal Periodic Review of Nepal in January 2011. The Committee against Torture suggested that Nepal should adopt domestic legislation as per the provision of the Convention and to amend the Compensation Relating to Torture Act of 1996. In reality, though, none of these basic requirements have been met. Torture is not defined as a crime in criminal law. Not a single individual has been prosecuted in civilian jurisdictions for torture. Nepal responded to the Committee’s report by stating that a draft Torture Act had been prepared which incorporated the definition of torture in the spirit of the Art 1 of the Torture Convention, even though there was no such progress. Yet now that it has finally drafted, there is no legislative body to give life to it.

The CAT Convention has envisioned a global community where there is no excuse for torture, and thus, it has not confined criminalizing torture to national territory alone. Article 3 of the Convention provides that persons should not be extradited to another country where there are substantial grounds to believe they would be subjected to torture.

After 21 years of acceding to the CAT Convention and five years after the directive order of the Supreme Court, we still do not have a specific act to criminalise torture. In absence of law, the perpetrators are not punished, thereby encouraging the state of impunity and frustrating the torture survivors. To stop torture, comprehensive efforts are needed. What we lack at present is not just specific legislation to criminalise torture, but also the will power to work for human rights. Providing justice to victims of torture is plausible only after the bill is enacted, but without Parliament, the torture victims have to march on thorny paths. To translate commitments into deeds, state agencies, victims and other factions of society have to work sincerely and without losing faith. In the meantime, we can accomplish more by exploring the other provisions of laws to end torture.

Shrestha is the head of policy research and planning division at the National Human Rights Commission

Source: http://www.ekantipur.com/2012/06/26/oped/cruel-inhuman-and-degrading/356177/