Right to freedom from torture in Nepal

PhD Thesis


Sharma, Hemang. 2016. Right to freedom from torture in Nepal. PhD Thesis Doctor of Philosophy. University of Southern Queensland.
Title

Right to freedom from torture in Nepal

TypePhD Thesis
Authors
AuthorSharma, Hemang
SupervisorGray, Anthony
Pace, John
Institution of OriginUniversity of Southern Queensland
Qualification NameDoctor of Philosophy
Number of Pages323
Year2016
Abstract

This dissertation examines the right to freedom from torture in Nepal. I will evaluate the local impact of international human rights law, especially the right to freedom from torture, from the viewpoint of established normative frameworks, judicial interventions, and reporting obligations and monitoring by United Nations (UN) mechanisms. My research finds that accession by Nepal to key anti-torture mechanisms has not been enough to counter widespread instances of torture, and that many of the obstacles to the rights to freedom from torture are rooted in State mechanisms and social structures. The key mechanisms are: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), other UN human rights instruments, Interim Constitution of Nepal and certain legal provisions, and formal commitments made by the Nepalese government.

Torture is a grave violation of human rights and is prohibited by customary international law and treaty-based international law. The CAT prohibits torture under international law. It also defines standards for the right to freedom from torture and other forms of ill-treatment, and State obligations for protecting and promoting this right. Torture is practised however in many parts of the world, mostly in the course of criminal investigations and to meet political ends. Most notably, after the September 11, 2001 terrorist attacks in the USA, many countries started to use torture to extract confessions from suspected terrorists. The impact of this practice has expanded into many parts of the world. Judicial intervention can play an effective role in protecting people’s rights to freedom from torture. Similarly, international pressure can have some positive influence in preventing torture.

As a signatory to the CAT, and other major international human rights treaties, Nepal guarantees the right to freedom from torture and other forms of ill-treatment as a fundamental right. As in other parts of the world, torture is closely associated with the criminal investigation process, so that the implementation in Nepal of legal protections including those found in the CAT is questionable. Research undertaken for this dissertation revealed torture as a systemic problem, used as a means of obtaining confessions and/or information and as a misuse of power by the police and other law enforcement officials. Generally, people have little understanding about their rights and consequently, the rate of acceptance of torture is high in Nepalese society. Poverty, corruption, impunity, inadequate training for police and resource constraints for criminal investigation are linked as factors that are exacerbating the prevalence of torture in Nepal. Poor and marginalized sections of the population are vulnerable to torture and cannot articulate their needs, defend themselves or assert their rights. Other
factors which make it challenging for the vulnerable in Nepalese society to access justice include a lack of criminalization of torture in the statutory law, the absence of independent and prompt investigation of torture, inconsistencies legal provisions, and lengthy, costly and complex court procedures.

Nepal has seen some instances of judicial support for the right to freedom from torture. These include public interest litigation and some torture compensation cases. Nevertheless, conflicting decisions on the non-admissibility of confessions obtained through torture and inadequate analysis of law, precedents and facts in the decisions of torture compensation cases are also found to have hindered the protection of rights to freedom from torture. The Government has consistently repeated its commitment to fulfill its obligations under international human rights law through periodic reports and participation in constructive dialogue with UN mechanisms and processes in this field. Nevertheless, its implementation of recommendations and history of missing reporting deadlines is sub-optimal. The reporting requirements in CAT (and other UN human rights instruments) require a level of sophistication in bureaucratic systems (including data capture and analysis) that is not yet present in Nepal.

This study recommends a holistic approach for legal reform. Anti-torture measures required in order for the prevention of torture in Nepal to succeed will include effective judicial intervention, strong political will and institutional commitment. More specifically, new legal provisions will be required in order to bring Nepalese law in line with the CAT in forthcoming constitution and anti-torture law. Changes required at a social and cultural level will include: empowering individuals and community members; strengthening the institutional capacity of the police, the judiciary and other concerned officials; and effective monitoring in domestic and at UN contexts.

Keywordstorture; international human rights law; investigation; impunity; perpetrator; poverty; legislative measures
ANZSRC Field of Research 2020489999. Other law and legal studies not elsewhere classified
Byline AffiliationsSchool of Law and Justice
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