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VOL. 27, NO. 9, October 12, 2007 (Ashwin 25 2064 B.S.)
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DETAINEES
Rights And Realities
By SAHISNU POUDYAL
“When I was arrested along with my child- who is now only two and half years old - was naked. He did not have any cloth to cover his body for weeks. For days, my child survived just on one piece of clothe donated by an inmate in the prison," said 40 years old Mina Chepang (name changed on her request) who was arrested by the police in the jungle in Chitwan a year ago.
Unaware about the provision made by law regarding right to prison inmates, she did not ask for any thing for her child who had to live without clothes for a week. According to Clause 8 of Prison Act, the government is responsible to take care of inmate's minor children –who are totally dependent on their parents who have to serve prison term.
She even found problem in getting together with her family. After having written a letter to her family members, she could not find out if it reached her parents. “I wrote a letter to my family but I don't know whether they got it or not," she said.
Due to lack of awareness about their legal rights, most of the detainees and prisoners like her are being deprived of their rights. "Because of my poor economic condition I am unable to consult a lawyer," said Ram Bahadur (name changed as per request) at Dillibazar Jail.
According to constitutional provision, prisoners are allowed to defend their cases and can choose their lawyer.
The research conducted among 90 detainees who were in the custody and under
investigation in the period between 12 March to 10 June, 2007 in four detention centers - Dillibazar Prison, Bharatpur Prison and detention centers at Baneshwor Police beat and Metropolitan Police at Hanumandhoka - revealed that there is rampant violation of rights of detainees because of lack of awareness among them.
The response given by eighty detainees out of ninety when asked if they were aware about their rights or not, fifty seven detainees said they were unaware - which means 71% do not know about their rights.
In a situation when they even don't know their own rights then how could they raise their voice against their violation? For a solution, the concerned persons who are working in sectors like human rights commission need to visit them to make them aware about their rights and it is also the demand of most of the detainees. 63 detainees out of 69 or 91% said they wanted to be guided by experts.
Detainees are also deprived of their rights because of the violation of laws by concerned officials. "All kinds of prisoners, those who have already been convicted by the court and the detainees who are still under investigation are placed in the same place because of lack of infrastructure. Though the number of detainees increase, the capacity of prisons remain the same as it was a decade ago." said Deepak Kumar Joshi, Director of Department of Prison Management.
According to Clause 6 of Prison Act, 2019 there should be different centers for different cases. According to the act, convicted detainees of different age, health (healthy and unhealthy) should not be placed in the same place as far as possible. Detainees who are under investigation and those who are already convicted should be kept separately. The article 11of Universal Declaration of Human Rights stipulates that everyone with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
Being a member of the UN, Nepal needs to follow the provision made in the declaration but it is not practiced in prisons of Nepal. All the prisoners are treated equally as murders and the pickpocket and kept in the same place. This shows that there is direct violation of National as well International law by the concerned officials.
The condition of overwhelming majority of such detainees under investigation is poorer than the detainees who are convicted. It is clearly written in the declaration that such detainees who are in the process of investigation should be treated as innocent but here they are treated as criminals and are equally treated and kept in the same place. Because of this they will have to face adverse effect on their social prestige. A report presented by Jail Reform Committee, formed under the chairmanship of Badri Ram Bhandari in 2047 had also recommended the concerned department to separate the place for the two kinds of detainees because those who are under investigation might have adverse effect on their social life if they are kept with other inmates.
Besides this, the first and the foremost problem of the detention centers seem to be lack of space for the detainees to stay. If one watches the place one can realize how congested the places are. It is like an animal farm. They keep maximum number of detainees than their capacities. "The capacity of the center is 150, but we have 324 detainees here," said Krishna Prasad Sapkota, chief of Dillibazzar Prison. The situation is same in Bharatpur prison at Chitwan. The capacity of the Jail is only hundred and there are 228 prisoners. "This is the common problem of most of the Jails in Nepal," Sapkota added.
Another problem faced by detainees is the long and time-consuming process of getting justice.
"Even after four years of hearing, the court is yet to decide my case. It is a big torture for me. The court should decide the case in time," said Dhamendra Chettri (name changed), another detainee at Bharatpur jail. The same problem is faced by another detainee at Dillibazar jail. "I am here for three years," said 30 years old Magar.
There are many provisions in the national and international laws to safeguard the rights of the detainees and prisoners. The clause 8 of Civil Code (Muluki Ain) protects the rights of detainees.
Similarly, the clauses 3, 6,7,8,9,11,14,15,18,21 of Prison Management Act 2019, Prison Manual 2020, the Constitution of Nepal, International laws, Universal Declaration of Human Rights, International Convent on Civil and Political Rights (ICCPR), Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Right of the Child, International Covenant on Economic, Social and Cultural Rights and other international doctrines have been made for the welfare of the people including detainees.
Unfortunately they are not implemented. "The officials use vulgar words against us," said (Rajan Koirala), a 15-year-old boy of Nuwakot who is kept in the custody on the charge of committing crime at Metropolitan police at Hanumandhoka. "We are not given proper food. Dal is like mixture of yellow ginger, salt and water. The place where we stay is so congested that even air can't pass between us. We are five/six people sitting together in a small room. Number of lavatory is very few in comparison to the people here. In winter season we even can't see the face of the Sun."
According to the law, "no person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture, nor shall be given any cruel, inhuman or degrading treatment. Any person so treated shall be compensated in a manner as determined by law.”
Although there are many national and international laws, it seems that they only remain as a piece of paper.
"What is the name of this place where we are staying?" this was the question asked by some of the detainees at Baneshowor police beat. It shows some of the detainees even don't know where they are kept in or are told in which detention center they are being kept. The staffs use the word "cage" for the place where the detainees stay.
"We accept that we are not running as per the National and International policies and laws provided. Unless and until the new policies and new infrastructure are not provided to us, we are unable to solve the problem of space and other requirement of the detainees, because we are bound to work under limited budget on the basis of old infrastructure." said Deepak Kumar Joshi, Director of Department of Prison Management.
Detainees and prisoners in prisons are given 170 grams of rice and 30 rupees per day, which the prisoners claim are not enough to sustain. "170 grams of rice and 30 rupees are not enough for us, we have to buy our essential goods from outside the prison, "said Hari Jaaar Kaat (33) in the Bharatpur Jail.
He added, "We want to earn money doing some work here but lack of opportunity prevents us from doing that. We are also not given any kind of training so that when we are released, we can start new life.” This is also one of the main problems faced by them -
when they are released from prison, they don't know how they would be reintegrated in the society.
Detainees also complain that they are not treated humanely by the staffs. The reply of the 85 detainees who participated in the questionnaire showed that 43% complained of inhumane behavior.
The detainees also said that they are most concerned about the situation of human rights and wanted the government to address this issue.
The detainees also complained at the lack of library facility or books/magazines, sports facilities and so on.
According to the latest data provided by Department of Prison Management, there are 6228 detainees under investigation. Out of them 5811 are male, 417 are female and 42 are children who are dependent to their parents. According to the data, there are altogether 73 jails, one in each district of Nepal excluding four districts, Bhaktapur, Bara, Sunsari and Dhanusha. There are two prisons each in Kathmandu and Dhading. And there are 33 detention centers in Kathmandu Valley which is under Home Ministry.
(Excerpts of a research conducted for National Human Rights Commission under a scholarship for media person)
