“Dhol, Gawar, Shudra, Pashu, Naree, Ye sab Tadan ke adhikari.
Drum, Illiterates, Dalits, Animal and Women are entitled to torture.
The lines explain how traditional Hindu society takes torture as
commonly usable method to tame others.
Torture had three facets;
Traditional, Structural and Domestic. The fourth; Globalization has been added
under the titles of global Security and fight against Terrorism.
Background
Nepal is the party to Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment CAT ratified on 14 May 1991, and
the Interim Constitution of Nepal criminalized torture in 2007, there has yet
to be a separate and specific act for criminalizing torture. It has not
ratified the optional protocol (OPCAT) in spite of strong demand from the civil
society. Nepal is one of the first 7th countries of the world
that expressed commitment against torture .Nepal had extend support when Sweden
proposed a resolution against torture in the third committee on the UN general
Assembly in 1973 . After more than two
decades of continuous pressures from human rights community, the “Torture,
Degrading Treatment, Punishment and Compensation Act 2012,” which criminalizes
torture, has been registered at the Parliament Secretariat.
In the political life of Nepal,
Civil Society led by Human Rights Defenders has been instrumental in all
political changes. That was the reason of ratification of most important human
rights convention in 1991 by the interim government after dawn of democracy.
But same thing could not happen after second Peoples’ Movement of 2005, which
has brought drastic changes in the political life of Nepal; by declaring Nepal
Republic and Federal. It shows how adamant are the political players towards
correcting the predecessors culture and state structures of delivery of
justice.
This law fails to meet normative standards to prevent torture. The main
objective of the law is to compensate torture victims in a very limited way,
not prosecute the perpetrators. The legislative framework in Nepal is does not
have any additional provisions to prevent torture. It is not mentioned in the
existing criminal law in the country.
Witness protection:
There is no witness protection law in Nepal. To make matters worse, it is
neither a practice of the courts in the country to ensure any form of
protection to the witnesses or to the victims when an accused is released on
bail in a criminal case. It is common practice in Nepal for the accused in
crimes, to intimidate and threaten witnesses and victims.
Nepal conflict Report
Recent document by OHCHR titled
Nepal Conflict Report studied 9000 Cases based primarily on the Human Rights
Documentation by several Nepali NGOs, National Human Rights Commission (NHRC)
and Victim Profile posted by INSEC, has been instrumental to establish that the
culture of torture was rampant during the decade old ‘Peoples’ War’. Most of
the cases during that period fall under the War-Crime, thus considered Serious
Crime against Humanity. The conflict report submits that out of 14000 cases
9000 were of very serious nature and attracts immediate redressed and justice.
In the name of ‘People’s War’ by Unified Communist Party) UCPN (Maoist) and
security by Security personnel serious crimes were conducted against perceived
opponents and so-called informers ranging from heinous killing, torture, rape
(molestation, maiming) and what not. Nepal law does not have any restriction on
torture except that the victim is entitled to get relief if tortured within
government custody. The worst form of torture is found within family. Domestic
violence against women happens to be the biggest challenge. Surprisingly
domestic violence is on rise every year where women are targeted victims. Cases
of rape proves that our society have adopted Man-Hood as most cruel disorder.
Nepali Colonel Lama serving in UN Peace
corps in South Sudan was arrested by British Government on 3rd
January 2013 on the charge of torturing civilians during his command in 2005 at
a district called Kapilvastu, the birth place of Lord Buddha. After his arrest
we noticed hue and cry by the Prime Minister and his Party Chief Comrade Pushpa
Kamal Dahal. They framed that none of the cases relating with conflict era
should be examined by criminal justice system be it related with State or the
Rebels. It gave an account of fantastic partnership of rebels and rulers.
Lack of accountability
Although torture is not a
specific crime in Nepal, the Nepali government is bound by international law to
ensure that serious international crimes such as torture are investigated and
those responsible are prosecuted. The failure to prosecute these cases also
contradicts the Nepal government’s public pronouncements about delivering
justice for wartime atrocities and orders of the Nepali Supreme Court to
investigate and prosecute wartime abuse cases. Several people alleged to be
responsible for these abuses from both the Nepali security forces and the
former Maoist insurgents have been promoted, some to positions in which they
can directly interfere in criminal investigations[2].
Torture Still Continues
The perpetrators of the human
rights violations continuously enjoy impunity and victims are routinely denied
justice. This has only strengthened the culture of impunity and lowered the
people’s confidence in the potential success of the People’s Movement. Popular
calls for a comprehensive transitional justice mechanism have also been
ignored. Nepal has witnessed a number of commissions of enquiry that have been
empowered to investigate and reveal the facts of human rights violations; yet
not a single recommendation has been implemented.[3]
The custodial torture has significantly
increased in the percentage as per the latest reports. This increase is due to
the ongoing political instability in the country and growing activities of
armed groups in several districts of Terai region. Among others, there has been
a significant increase in the percentage of torture on female detainees According to Advocacy Forum an organization documenting
custodial torture in 5 thousand cases they monitored in 57 districts it is
found that more than 35% were tortured in police custody. In 2011
and 1012 average tortured victims in custody is Male 22% and Female 12%. It is
astonishing that 34% of the children in custody have been inflicted torture out
of 474 cases.
Conclusion and recommendations
All victims of torture require a comprehensive holistic
treatment from a multidisciplinary team to achieve complete reparation/rehabilitation.
The government of Nepal should take immediate action to have a mechanism for reparation
of victims of torture as Nepal has ratified the Convention against Torture;
Torture is not considered as a criminal offense thus the law enforcing agencies
are enjoying complete impunity. Nepal should take effective procedure to
prosecute those responsible for “widespread and deliberate practice of torture”
in coming days.
Upholding the
value of Human Dignity, Pluralism and Human Rights can only make us free from
fear and infliction of torture. Merchandising of politics and Globalization of
Market has given free hands to the perpetrators. Reforming values, upholding rule of law and
solidifying people’s awareness can only bring solution.
For more
information:
Informal Sector Service Centre (INSEC)
Kalanki, Syuchatar
P.O. Box 2726, Kathmandu, Nepal
Tel: +977-1-4278770 Fax: +977-1-4270551
[1]Paper Presented at
the two day meeting of South Asia Network against
Torture and Impunity (SANTI) at Bangladesh about the State of torture in South
Asian countries, held on22-23 February 2013.
[2]http://www.hrw.org/news/2013/01/04/nepal-warning-rights-abusers
[3]http://nepal.ahrchk.net/pdf/AHRC-FP-011-2007-Nepal.pdf
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