Rights activists say new anti-torture law should have retroactive effect

Kathmandu, September 1

Human rights activists and torture victims have highlighted the need for amendments to the new anti-torture bill, especially the provisions relating to the definition of torture, punishment for the perpetrators and compensation for the victims.

They also said that the new torture law should have retroactive effect in order to enable the state to punish the conflict-era perpetrators of torture.

Addressing an interaction organised by Accountability Watch Committee and Democratic Freedom and Human Rights Institute here today, human rights lawyer Govinda Bandi said the current bill’s definition of torture did not match the definition contained in the United Nations Convention against Torture to which Nepal is a party.

“Torture has already been defined in international law and hence it should not be defined locally,” he said, adding that if the definition of torture did not match its definition in international law, Nepal would continue to draw flak at UN forums. “Under international law, he argued, there is no statute of limitations for cases of torture, but the current bill proposes statute of limitations of 90 days,” he added.

Bandi said the bill criminalised torture by public officials in custody but that definition should expand to any place. He said the National Human Rights Commission or the Office of the Attorney General should be given the power to investigate cases of torture.

Presenting a paper on the bill, Advocate Om Prakash Aryal said torture was a serious crime under international law and there must be jail term for the offence but the bill envisages the provision of ‘jail term or fine’ which was wrong.

“The bill proposes five-year imprisonment or a fine of Rs 50,000. How can a perpetrator of such a serious crime be let off with just fine?” he wondered. Aryal said the bill did not fully incorporate the legal doctrine of universal jurisdiction. Four-year jail term for those who gave shelter to the perpetrator or assisted the perpetrator was too high, he argued.

Aryal said the bill did not cover the crimes of torture committed during Maoist insurgency.

He also said that basic compensation should be provided to victims by the state. Proposing fine for making false accusation would discourage the real victims from filing complaints, he argued.

Madhabi Bhatta, member of the Truth and Reconciliation Commission, said the transitional justice mechanism also had to investigate cases of torture but it would not be able to carry out its assigned duties unless the required amendments were made.

Attorney General Raman Kumar Shrestha said lawmakers needed to file amendment proposal in the Parliament to make the bill compatible with universal standards.

“If the new law fails to meet international standards then we all know what will happen,” he said in an oblique reference to the application of universal jurisdiction.

Janak Bahadur Raut, who identified himself as a torture victim, said the bill did not criminalise torture that could take place after the arrest of somebody and before s/he was put into a detention centre. He also said that non-state actors could also subject somebody to torture but the bill did not criminalise such acts.

Dev Bahadur Maharjan, who identified himself as a torture victim, said the bill did not propose enough protection for torture victims who could be victimised by their perpetrators after lodging complaints.