Sunday, June 28, 2015

No to torture

This appeared in Republica on June 27, 2015.

On June 26 the world celebrated the International Day in Support of Victims of Torture. This is the day the world pays respect to torture survivors. Torture is said to be the mother of all human rights violations as it subjects people to the extreme form of indignity. Broken bodies might heal over time but the impressions they leave in the mind are indelible. Since human beings are extremely attached to their bodies any assault to the body haunts the memory for a long time.

Torture is practiced in police custody in Nepal, although with the intervention of rights activists it is on the wane. State mechanisms like Office of the Attorney General and National Human Rights Commission and lawyers from private organizations like Center for Victims of Torture, Advocacy Forum, among others, carry out detention center visits to check.

Generally, torture is employed by the police to extract confessions. Since our criminal investigation system lacks scientific tools to establish criminality, the police rely on confessions of the accused as evidence. Especially in the cases of theft the police are pressured to nab the criminal and recover the stolen property. The police see extracting confessions as the sure-shot way of sealing evidence. Although any confessions obtained from torture are inadmissible as evidence in the court, judges generally accept them.

The practice of torture was widespread during the conflict. Both the security forces and Maoists tortured detainees. The army and the police tortured detainees to have them disclose the location of Maoist rebels. Maoists, on the other hand, tortured those who failed to give extortion money they demanded or those who were suspected to be informers. With the peace agreement, torture has decreased.

There are various instruments to safeguard detainees from torture. The Interim Constitution of Nepal has explicitly prohibited torture. Article 26(1) has provided that “no person who is detained during investigation or for trial or for any other reason shall be subjected to physical or mental torture or to cruel, inhuman or degrading treatment.” Besides this, Nepal is party to several international human rights instruments including Convention against Torture. Under Article 2 of this convention state parties are obligated to prevent torture and other ill-treatment and under Article 4 torture is an offense under criminal law.

A separate Act against torture also exists. Torture Compensation Act (1996) provides certain safeguards against torture but legal experts believe they are not adequate. For example, the statutory limit for filing complaints for torture is 35 days. This is not practical as the victim may fear reprisals from perpetrators or may be suffering physical or psychological trauma from torture. S/he should be given enough time to prepare for delivery of justice, possibly six months. However, the bruises from torture might disappear by that period.

The name of the Act itself is problematic. Rather than preventing torture it seems content to compensate torture victims. There is a provision of awarding Rs 100,000 to torture victims but since the state provides it and not the perpetrator. Even if there is a provision of departmental action against the perpetrator in police, this provision is rarely enacted. This has effectively let the perpetrator go scot free. But torture is subject to Universal Jurisdiction and the perpetrator can be nabbed in any part of the world, as seen in Colonel Kumar Lama’s arrest and trial in the UK.

Because of the inadequacy of the existing legal protection, the government has prepared a new bill to address torture. In August 2014 the Ministry of Home Affairs tabled the Torture or Cruel, Inhuman or Degrading Treatment (Offence and Punishment) Bill in the Parliament. This proposes to criminalize torture, to provide a mechanism for the investigation and prosecution of torture complaints, and compensation to victims. It puts the onus on officers in charge to prevent torture or ill-treatment and sets out a system of receiving complaints and investigation, including the possibility of detaining those under investigation. With the incorporation of these provisions torture in police detentions could be minimized.  

However, with the increase in custody monitoring, the police have started refraining from inflicting visible torture on detainees. According to Advocacy Forum’s latest torture report, the rate of victims reporting physical torture has decreased but psychological torture seems to be on the rise. “Threats against the detainee or the detainee’s family members increasingly are being reported to AF lawyers. These changes in the methods of torture may lead to torture being underreported, either because the detainee does not perceive threats and psychological manipulation as a form of torture, or because of the difficulty inherent in proving that psychological torture has occurred.”

This reflects the global trend in torture. Darius Rijali in his seminal book Torture and Democracy points at this trend in chilling details. In authoritarian countries the state is least worried about human rights activists and justice so that they have no hesitation in leaving scars and bruises on detainees. But democracies have to uphold minimum standard for treatment of detainees and thus resort to psychological torture that is undetected in medical examination.

Rejali observes “a global decline of the scarring techniques that characterized pre-modern torture. The evidence gleaned from human rights reports, truth and reconciliation commission testimonies, and perpetrators’ confessions confirms a shift toward stealth or clean torture.” Nepal Police seems to have adopted this technique. This is more dangerous than physical torture because it can damage the detainee’s psychology in the long term.

To prevent this form of torture, the state has to modernize its criminal investigative system. Standardized forensic practices in crime investigation will reduce the instances of the investigation officer relying on confessions to establish a crime. Similarly, scientific evidence obtained by thorough forensic evaluations can assist the examining authority in investigating, prosecuting and punishing each incident of torture. In the absence of forensic labs, sometimes torture victims can’t corroborate their claims of torture. This should be avoided. 

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