Nepal is a country where torture and ill-treatment are widely practised by state and non-state actors. Torture haunts detention centers, and there is no mechanism for the investigation of allegations of torture in the country. The culture of impunity strengthens its hold in Nepal, despite the armed insurgency having ended, and the Comprehensive Peace Agreement signed, in 2006.
The police have been using torture as if it is the most credible form of investigation. Both the police and the courts are under resourced and suffer from lack of training. The incapacity of the police to investigate a case scientifically and the abuse of power in Nepal restrict the liberty of Nepalese citizens.
Impunity and the incapacity of the Nepal police to investigate cases have been exposed continually. Earlier this year, the police brutally tortured Kalu and Hikmat Chaudhari for trying to teach them about law and jurisdiction. The Nepal police have even tortured children aged 9 and 11. The police are shrewd and try to cover up their tracks. They frequently torture victims when victims are detained in police stations. After releasing them, the police often call them back to torture them again. In some cases that the Asian Human Rights Commission (AHRC) has helped document, such instances of serial torture have continued for over a year.
Nepal has acceded to the Convention against Torture (CAT) on May 14, 1991. In 1996, the Government of Nepal promulgated the Compensation relating to Torture Act, 1996, also known as the Torture Compensation Act (TCA), which demonstrates a lack of understanding of torture and fails to match the standards of the CAT. Nevertheless the TCA prohibits torture, provides for compensation to victims of torture, and prescribes departmental action against government employees who inflict torture.
The Interim Constitution of Nepal, 2007, penalizes torture. Apart from the TCA and the Interim Constitution, the National Human Rights Commission (NHRC) Act, 2012, the Evidence Act, 1974, the Draft Criminal Code and Country Code, 1963, also contain important provisions against torture. However the NHRC is restricted to only receiving complaints of torture and making recommendations to the government; the government has been turning a deaf ear to these recommendations. And, laws and provisions have not safeguarded more and more Nepalese from falling victim to torture.
None of the provisions and laws related to torture criminalizes the act in Nepal. The government has failed to criminalize torture despite a 2007 Supreme Court order directing it to do so.
The government prepared a bill to criminalize torture; it was tabled in Parliament in 2012. However, Parliament was dissolved before the bill could be passed. The AHRC has learned that the police have expressed strong resentment to the proposed law. Threats have been made that if the government were to pass such a law, the police would not be able to maintain peace and order in society.
Torture and ill-treatment are widely practised on victims who have no connection to the crime being “investigated”, in particular to help fabricate charges and extract confessions. And, virtually no perpetrators of torture and fabrication of charges have been tried and punished in Nepal.
When there is an allegation of torture, the allegation is not investigated, forget about being tried and proven, as both the perpetrators and investigators are police officers, often working in the same police station. Consequently, torture remains unaddressed by the institutions of the Nepal State.
The Government of Nepal has to not taken steps to reduce the incidence of torture. It continues to express commitment to criminalize torture, to investigate cases of torture, and to reform the functioning of security forces. These commitments remain unfulfilled.
There is need for an anti-torture law in Nepal, in line with the definition stipulated in Article 1 of the CAT. The Government should also ratify the Optional Protocol to the Convention against Torture (OPCAT) and become a state party. There is also need to bring a Witness Protection Act with robust mechanisms. And, separate mechanisms should be introduced in order to provide trauma counseling services to torture victims.
However, simply promulgating such a law or laws will be insufficient; as such laws are not enforced in practice. To address the core problem, the country will need to strengthen its criminal justice institutions. A legal framework needs to be developed so investigations and prosecutions are possible in the cases of human rights violations, including torture. Unless Nepal strengthens its criminal justice institutions, the practice of torture is going to remain a tool for “investigation”.
