Forum (Spotlight Weekly)

Legal Reforms to Comply with Convention against Torture

By Bipin Adhikari

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Convention") entered into force on 26 June 1987. After a seven-year drafting endeavour by an ad hoc working group, the General Assembly of the United Nations, by consensus, had adopted Resolution no. 39/46 embodying the Convention, on 10 December 1984, thus opening it for signature or ratification.

According to this Convention, ìtortureî means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

As a signatory to the Convention, Nepal has taken responsibility to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Nepal cannot now plead exceptional circumstances as a justification of torture. Similarly, an order from a superior officer or a public authority may not be invoked as a justification for this. As a party to the Convention, Nepal cannot expel, return ("refouler") or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. It has the obligation to ensure that all acts of torture are offences under its criminal law. The same applies to an attempt to commit torture and to an act by any person which constitutes complicity or participation in this offence. The Convention states that each party to the Convention has to make these offences punishable by appropriate penalties which take into account their grave nature. As such, Nepal is under compulsion to take such measures as may be necessary to establish its jurisdiction over the offences referred above.

Under the terms of the Convention, Nepal is also obliged to ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. There should be systematic review of interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture. A prompt and impartial investigation must be conducted wherever there is reasonable ground to believe that an act of torture has been committee in any territory under Nepalís jurisdiction. Steps should also be taken to ensure that the complainant and witnesses are protected against all ill treatment or intimidation as a consequence of his complaint or any evidence given.

There is an express provision in the Convention that each state party ratifying this document shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation. Nothing shall affect any right of the victim or other person to compensation which may exist under national law. Similarly, each party also has the responsibility to ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

The legal system of Nepal does not have enough provisions to materialize the commitment that Nepal has made by ratifying the Convention against Torture. It is high time that the National Human Rights Commission (NHRC) of Nepal reviews the situation and recommends the government to reform the system, and comply with the treaty obligations.

In this regard, the UN High Commissioner for Human Rights, Sergio Vieira de Mello, has also recently called for expanded definition of torture. Declaring the current definition of torture in international conventions too vague, the top United Nations human rights official said on April 28 that his office would submit an expanded definition that would show how to draw a line - a red line - that made clear that certain acts were not acceptable. He said that even as it now stood in Article 1 of the Convention, the definition was not known as widely as it should be. Although the Committee against Torture frequently advised countries to include that definition in their penal law, far too many had not done so. Encouraging the Committee in its efforts to change that, he said he felt it was necessary to go beyond the definition contained in the Convention since it was still too vague, as he was sure all would agree. He hoped to submit to the Committee at its next session a contribution from his office on how to expand the definition.

Mr. Vieira de Mello also pointed out that the world was living in a period where the principles and norms enshrined in the international human rights instruments were becoming ever more relevant. It was vital to spread information on the contents of these instruments and to ensure that they were implemented, he added.

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Another important step to make the aims of the Convention against Torture a reality is the adoption and speedy entry into force of the Optional Protocol to the Convention which creates an international mechanism to prevent torture and ill treatment. The aim of the Protocol is to establish an expert body, a Sub-Committee to the Committee against Torture, to carry out inspection visits to places of detention and subsequently submit confidential reports to the relevant authorities with concrete recommendations for how to prevent torture and ill- treatment. By focusing on the prevention of torture and ill treatment, rather than on a response to ongoing violations, this global mechanism would be unique within the UN system. The resolution on the Draft Optional Protocol to the UN Convention Against Torture was passed Wednesday 24 July 2002 at ECOSOC (New York) with a vote of 35 in favour, 8 against and 10 abstentions. An amendment presented by the USA to try to reopen the text was fortunately defeated (15 in favour, 29 against and 8 abstentions). During the voting, Nepal had abstained along with Bhutan, Cameroon, Ethiopia, India, Pakistan, Qatar, Russian Federation, United States, and Zimbabwe.

(Adhikari is a lawyer)