Forum (Spotlight Weekly)

Nepal And Committee Against Torture

By Bipin Adhikari

The adoption on 10 December 1984 by the General Assembly of the United Nations of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment rounded off the codification process to combat the practice of torture. In developing this valuable instrument, the United Nations did not merely put in writing a series of articles on prevention of torture, but also created a HYPERLINK "http://193.194.138.190/html/menu2/6/cat.htm" Committee against Torture" according to Article 17 of the Convention. This Committee is a monitoring body. Its main function is to ensure that the Convention is observed and implemented. At their initial meeting held at Geneva in April 1988, the members of the Committee against Torture adopted rules of procedure and defined the Committee's working methods, in conformity with the provisions of the Convention.

As a state party, Nepal has an obligation to submit to the Committee, through the Secretary-General of the United Nations, periodic reports on the measures taken to give effect to its undertakings under the Convention. As to the actual formulation of the report, the Committee has prepared general guidelines containing precise instructions on their form and content in order to inform fully the Committee on the situation in each State Party. For the examination of the reports, the Committee invites representatives of the States Parties to attend the meetings when their reports are considered. After its consideration of each report, the Committee, in accordance with article 19, paragraph 3, of the Convention, may make such general comments on the report as it may consider appropriate. The Committee is empowered to receive information and to institute inquiries concerning allegations of systematic practice of torture in the States Parties.

Nepal submitted its initial report to the Committee against Torture on 6 October 1993 after one year delay. This initial report of Nepal (CAT/C/16/Add.3) was considered by the Committee under Article 19 of the Convention at its 179th and 180th meetings, on 21 April 1994 (see CAT/C/SR.179 and 180). The report was scant on detail and did not follow the guidelines of the Committee (CAT/C/4/Rev.2). The report was, however, supplemented by additional information provided during the oral introduction. The Committed noted that Nepal is taking positive steps to meet its obligations under the Convention and has in place the democratic institutions necessary to do so. It also pointed out Nepalís endeavors at that point of time to legislate a crime of torture into its domestic law, including a separate compensation scheme for the victims of torture.

The Committee showed the concern that the proposed definition of torture was not as wide as that required by Article 1 of the Convention. It hinted that the capacity to collect the data necessary to carry out its reporting functions under Article 19 of the Convention may also be lacking. The Committee made a point that several cases of police maltreatment of prisoners and asylum-seekers were reported by non-governmental organizations and the Special Rapporteur of the Commission on Human Rights on questions relating to torture, but no evidence had been produced by Nepal of criminal prosecution of such officers.

In this background, the Committee recommended that an additional report setting out in full answers to the questions raised by the Committee, and any other pertinent information to be prepared by Nepal be forwarded to the Committee within 12 months. Such additional report was to follow the guidelines laid down by the Committee. It also encouraged Nepal to enact legislation incorporating the definition of torture as contained in the Convention as soon as possible, together with ancillary compensation legislation. A separate point stressed that a vigorous programme of education be undertaken with police officers and border guards, so that they may more readily understand their obligations as agents of the State pursuant to the Convention.

Unfortunately, His Majestyís Government of Nepal has not responded to the Committee after receiving these queries in 1994. The record shows that the first periodic report of Nepal under the Convention was due on 12 June 1996 and the second on 12 June 2000. This gives a very poor image about our treatment to international treaty obligations.

Torture remains a systemic problem in Nepal. Indeed, torture has actually increased over the past several years. Although the Nepalese authorities have made repeated commitments to eliminate this serious violation of human rights, and have enacted some legislation aimed at implementing these commitments, the concept of torture in the law still does not reflect the requirements of the Convention. Although many acts constituting torture are susceptible to prosecution under penal laws of the country, torture as such is still not a criminal offense in the Kingdom. Legal deficiencies such as the lack of effective complaints procedures, barriers to access to legal counsel, the lack of consolidation of the exclusionary rule barring the admission of evidence obtained through illegal means and the lack of an unambiguous presumption of innocence on the part of the police and security personnel, combined with the deeply-rooted belief that tortured confessions are necessary to reign in crime, all undermine Nepal's compliance with the Convention. Moreover, in practice the goals of the Convention (such as educating and informing citizens on the prohibition against torture) are often sacrificed in favor of other goals (such as shielding state security organs from public scrutiny) that contribute to the widespread use of torture. When prosecuted at all, torturers are usually dealt with leniently, and certain kinds of torture outside the regular judicial process, such as torture in administrative detention and in non-custodial situations, are committed with complete impunity in most of the cases.

It is high time that Nepal demonstrate clearly and unequivocally its opposition to torture and strong determination to take steps to eradicate it. The country needs new incentive to take a self-critical look at what can be done to make these international commitments a meaningful reality in the country.

(Adhikari is a lawyer)