Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

ACHR REVIEW
[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for 2 November 2005
Review: 97/05
Torture in Nepal: A Case for investigation by CAT

After 11 years, the United Nations Committee Against Torture (CAT) is scheduled to examine the second periodic report of Nepal (CAT/C/33/Add.6 of 14 January 2005) during its 35th Session from 7 to 25 November 2005. Asian Centre for Human Rights has submitted an alternate report titled, Torture in Nepal: A Case for investigation by CAT. ACHR provided information on the prevailing situation and specific recommendations for possible inclusion in the Final Concluding Observations.

Since the examination of the initial report in May 1994 by CAT, Nepal has been caught in serious internal armed conflicts with the Communist Party of Nepal (Maoists) since 1996. Over 12,000 persons have been killed and gross human rights violations including torture have been perpetrated both by the security forces and the Maoists.

Since the Royal takeover by King Gyanendra on 1 February 2005, human rights violations such as arbitrary arrest, detention, torture, rape, disappearances and extrajudicial killings have intensified.

The definition of torture under the Compensation Relating to Torture Act of 1996 does not conform to Article 1 of the Convention Against Torture. Torture is not defined as a “criminal offence” under any domestic law. Although the government of Nepal urged that under the Nepal Treaty Act of 1991 international treaties ratified by Nepal prevail over the domestic laws, in practice, there is little awareness on international treaties among the judges!  Since the Torture Compensation Act came into force in 1996, according to Special Rapporteur on Torture, Manfred Nowak, compensation has actually been paid out only in one case to date, despite several decisions by the courts to award compensation.

The Terrorist and Disruptive Activities Ordinance (TADO) imposed in October 2004 and the Public Security Act provide the police and the army sweeping powers to detain suspects for preventive reasons for prolong period. Detainees are subjected to brutal torture in detention, and the lack of adequate guarantees of the rights of persons deprived of liberty including, inter alia, to notify a close relative or third party, to have access to medical assistance, not to be subjected to torture or incriminate oneself are further jeapordised by the immunity granted to the officials under Section 20 of TADO for any activity carried out or attempted to be carried out in good faith.

The security forces have been responsible for excessive use of force against peaceful demonstrators including sexual violence such as alleged biting, beating and poking batons at the sensitive organs of the women demonstrators during arrest as well as under detention. Women face sexual violence including rape especially from the Royal Nepal Army.

The Tibetan refugees have been consistently refouled in clear violation of the Article 3 of the Convention.  On 21 January 2005, the government of Nepal closed down the Tibetan Refugee Welfare Office, thereby further increasing their risks.

The prisoners are denied of access to proper healthcare, radio and newspapers and are treated inhumanely. There were as many as 611 prisoners against its actual capacity of 200 inmates in Morang jail as of May 2005. At least 80 prisoners were made to sleep in one room, which lacked proper ventilation. The inmates had to wait for at least two hours in queue to get their turn to take bath or to go to the toilet. In Prasi jail, the inmates had to sleep by turn due to lack of space. Inmates in Kharipati Electricity Training Center in Bhaktapur too had no sufficient space to sleep at night, and there was only one toilet to be used by 60 detainees including females.

Hundreds of persons have been held under incommunicado detention as detainees are never produced before the court and many are listed as “disappeared”. The UN Working Group on Disappearances in its report to the 61st session of the UN Commission on Human Rights observed that “Nepal was the source of the largest number of urgent-action cases transmitted by the Working Group in 2004”. The Working Group transmitted 136 new cases in addition to 166 old cases that occurred between 1998 and 2003. Yet, the RNA reportedly told the Office of the High Commissioner for Human Rights mission in Nepal that they only have 30 long-term detainees (since 2003-04) in their custody. As the access to the detention centers depend on the whims of the RNA, it is not possible to verify their claims.  Since April 2005, the ICRC had to stop its visit to the detention centres because of the unaccepatble conditions imposed by the RNA and it is yet to resume visit to the detention centres.

The government of Nepal has systematically destroyed the national mechanisms which are mandated to protect and promote human rights. On 16 March 2005, the government formed a nine-member high-level Human Rights Committee headed by the Attorney General to undermine the National Human Rights Commission. In May 2005, the government issued an ordinance to amend the appointment procedures of the NHRC and King Gyanendra appointed new members of his choice.

The independence of judiciary has been destroyed through the establishment of the Royal Commission for Corruption Control (RCCC) on 15 February 2005 with the mandate to investigate, prosecute and hand out judgments on cases related to corruption including of the Supreme Court judges. In a written communication to the Supreme Court in September 2005, the RCCC made it clear that the Supreme Court could not examine its formation and orders. On 26 September 2005, RCCC also asked the Supreme Court not to intervene in its decision to jail Sher Bahadur Deuba and Prakash Man Singh, as it is a “political matter”. Therefore, the decision of the RCCC cannot be even subjected to judicial review.

The security forces continued to defy the orders of the Supreme Court by re-arresting people immediately following their release by the court, sometimes from the premises of the Supreme Court. At least 41 persons have been re-arrested by the security forces since the royal takeover on 1 February 2005.

The government has been muzzling the press and made human rights defenders defenseless by introducing respectively the “Ordinance Amending Some Nepal Acts related to Media” of 2005 and the Code of Conduct for NGOs. These measures have further increased the risk of torture and other human rights violations given the restrictions under which media and NGOs are constrained to operate.

In its second periodic report, the government of Nepal appears to have adopted “diplomacy of acceptance” by acknowledging occurrence of human rights violations in its territory to beguile the Committee Against Torture. As UN Special Rapporteur, Manfred Nowak stated on 16 September 2005 after a field visit to the country, torture “is systematically practiced in Nepal by the police, armed police and the RNA in order to extract confessions and to obtain intelligence, among other things”.

Nepal is a fit case for investigation by the Committee Against Torture.

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