ICTJ in the News

August 27, 2008

No justice for Nepali torture victims

UPI Asia Online

By Kim Soo A

Hong Kong, China -- Nepal's newly appointed attorney general, Raghav Lal Baidhya, this week emphasized the need for restructuring the country's judiciary and recruiting competent judges. He also stressed that these reforms should be done at the same time the state is being restructured.

However, what is the use of the judges' competence if they have little chance to exercise it? This is the bitter reality shown by the stories of Nepali torture victims.

The story of Umesh Lama serves as an example. After he was brutally tortured by the Kathmandu district police in April, his elder sister registered a case for compensation on his behalf at the district court. However, she withdrew her case two days later after facing severe intimidation from the officers investigating Umesh's case. Ironically, the investigation team was from the same police office where he had been tortured. As a result, the court never had a chance to hear Umesh's case or afford him justice.

In another case, a man named Kamal Pun was arrested by the Myagdi district police for a petty offence in July. He was reportedly tortured with an iron chair that caused multiple fractures in his left arm. After the police refused to register his complaint, he filed a case for compensation at the court in hopes of getting justice. However, he has reportedly faced new threats from the police since then.

How long will he be brave enough to persevere in seeking justice, while risking his life? It is most likely that the court will never have a chance to hear his case, either.

These two stories are not exceptional. In a recent report, the Office of the High Commissioner for Human Rights stated that the police rejected many of the First Information Reports filed by victims and their relatives concerning past and ongoing human rights violations by security forces and abuses by the Communist Party of Nepal (Maoists). It is impossible for the court to provide effective legal remedies to torture victims if there are no transparent and effective police investigation and witness protection mechanisms in Nepal.

This is only one of the problems that torture victims face when they seek justice in Nepal. Almost all such victims file cases for compensation with the courts, because Nepal has no specific law that defines torture as a crime. The only recourse is to the "assault" section of the Civil Code of Nepal, which provides for very light fines or punishment according to the nature of the "physical" wound.

The maximum punishment for an offence of "general assault" is up to six months' imprisonment, while the maximum punishment for the offence of a "maiming assault" is up to eight years' imprisonment. However, the "maiming assault" offence is very narrowly applicable, resulting in permanent dysfunction of any particular part of the victim's body.

Most torture cases in Nepal fall under the category of "general assault." This discourages torture victims from filing criminal cases with the courts. The victims would question why they should go to court, putting themselves at risk, just to see the guilty parties imprisoned for six months. Whether the judges are competent or not, the court cannot provide effective justice to torture victims in Nepal under the present legal set-up.

It is no different for torture victims who file for compensation under the Torture Compensation Act of 1996. For example, according to this act, torture perpetrators may be subject only to "departmental action." In reality, the guilty officers are often merely transferred to another police station if a torture incident arouses public criticism. Besides, the burden of proof lies heavily on the complainant - the victim - who is often incapable of producing sufficient proof. (To learn more about torture victims' experiences under the TCA, see the 2008 report by a leading local organization: "Hope and Frustration - Assessing the Impact of Nepal's Torture Compensation Act-1996.")

In Nepal, torture is a major concern with regard to the rehabilitation of victims of past crimes. In a 2007 survey conducted by the International Center for Transitional Justice and the Advocacy Forum, the most common type of violation reported was torture (51 percent), followed by disappearance (23 percent) and extrajudicial killings (20 percent). The survey also showed that 66 and 65 percent of the respondents respectively did not trust the police or the army.

In his first live televised speech last Saturday, the first elected prime minister of the Federal Democratic Republic of Nepal, Pushpa Kamal Dahal, promised full commitment to modern democratic principles including the rule of law. The prime minister also emphasized the need for national unity among various ethnic groups and appealed to security organs for their support to the new government.

However, history shows that "true" rule of law and "true" national unity can never be achieved in a country where the majority of the people do not trust the police and the army. Mere support from the security organs to the new government would only continue "rule by fear" in the country.

"I don't care about justice. I don't care even if I become disabled for the rest of my life. I just want to die in peace at my house," Umesh Lama's lawyer quoted him as saying.

The cries and frustrations of torture victims should end in the newly established Federal Democratic Republic of Nepal. The new government should take affirmative action to rejuvenate the justice mechanisms so that torture crimes never happen again in future. The same principle applies to all other past and ongoing human rights violations in the country. Reforming the policing system should be given priority and such reforms should be done at the time of restructuring the state.

 

"No justice for Nepali torture victims" originally appeared in UPI Asia Online.