Orientation for Government Attorneys

July 07, 2015

On 26th Aug, 2011, similar program was held with Appellate level Government Attorneys to orient them on the Penal, Procedural and Sentencing Codes. Deputy AG Pushpa Raj Koirala chaired the inauguration session. Criminal justice expert, Madhav Psd. Acharya, and other professionals including Madhav Psd. Poudel, former Law Secretary; Dr. Yubaraj Sangroula, the-then AG; Raj Narayan Pathak, Deputy AG were seated in the dais.

Mr. Raj Narayan Pathak, in his welcome remarks highlighted broadly on the need of the Bills to fill the gaps in the existing CJS of Nepal. Mr. Sudeep Gautam provided the rationale behind CeLRRd to jointly execute the project of capacity building of Attorney General Office, of which this orientation for the Government Attorneys on the draft bills

is a component to be replicated to a wider extent across Nepal. On behalf of donor communities including SDC and DanidaHUGOU, Mr. Mukunda Kattel highlighted on the tumultuous context wherein this specific project, Capacity Development of the Office of the AG to Tackle Impunity through Advocacy on Legal Reform and Monitoring of HR and Judgment Enforcement is designed and being implemented initially as a six-months pilot project, and also hinted at the possibility of going together further. Padam Psd. Poudel, Joint-Government Attorney furnished additional clarifications on the objectives of the project: the first is to make the stakeholders (justice sector representatives, including Constituent Assembly members, select political party representatives, civil society organizations and private attorneys) aware of the need for law reform, and mobilize their support in the passage of the bills pending at the Bill Committee of the Legislature-Parliament; the second need is to lay the groundwork necessary for the bills to be implemented once they are passed – this later need requires building, at the minimum, a common understanding amongst all justice sector stakeholders; the third need is to enable the OAG to expand its reach and frequency of unannounced prison monitoring, human rights monitoring in areas where violence has been systematic and unabated and court judgment enforcement monitoring, and the fourth is to have OAG and its sub-national officers (five regional offices and select district officers) networked in order for the OAG to integrate, systematize and harmonize the workings of its offices at various levels.

These bills have also proposed separate codes dealing respectively with civil and criminal matters, as in many countries and introduced as per the modern system.

Khem Raj Gyawali, Sub-Attorney General moderated the first session. In the presentation session that followed, Dr. Yubaraj Sangroula presented on “Expectations on the Reform of Criminal Justice System” where he focused more on the significant roles to be played by the AG office and AGs for reforming the system. “Since AG Office is the bottleneck, it should play more proactive and leading role in all, ranging from directing the police to guiding the courts. We are a sector that exercises special power and therefore, we should perfectly fulfil our responsibilities towards people at large, and the state. Our small mistake can give immunity to a criminal and also persecute an innocent, and therefore we should be sensitive to our duties,” he said. His thrust was, as crime has developed links with corruption and infiltrated every economic sector, the already obsolete and confusing Country Code cannot address the present situation. Hence, it has created a dire need of reform especially into the CJS of Nepal. He also dug into more facts and figures related to crimes happening both on the surface and underneath the carpet, individual and organized.

Mr. Madhav Psd. Poudel  presented on “Reform of Criminal Justice System and its Modality” where he argued that the state mechanism has realized reform into the CJS as  the foremost important step towards state reform. He said that hitherto, the civil and criminal laws and procedures were mingled, however, the three bills pending before the Legislature-parliament have codified them separately, and thus eased in dispensing justice. Delving into some of the important provisions, he discussed that long-arm jurisdiction is adopted; limits to self-defense is defined; judges can use their discretion to some extent to define the sentencing looking into contexts of the crime; provision of plea bargaining and compensation to victims introduced; separate hearing for convicting and sentencing introduced; the provision of never ending court’s jurisdiction is mentioned and the age of criminal liability is increased from 16 to 18 and others.

In the plenary discussion, the Government Attorneys put forward their queries in relation to either supporting or defying the updated provisions or for clarifying the new procedural provisions. Shankar Baral, JA, Hetauda said that due to the transitional phase, we are very backward, however the Sentencing Code is very forward moving, and it would be better if the minimum and maximum compensation limit to victims is defined. Yubaraj Subedi, JA inquired about how to manage the situation of cancellation of polygamy. Adding to it, Sharad Kumar Khadka, Sub-Attorney further inquired that in case a woman is unaware about her husband’s previous marriage, there a separate treatment might be required. Mahesh Sharma Poudel, JA opined that in many cases, regulations might be required and our CJS must have broad jurisdiction in the context of rapid globalization. Durga Bandhu Pokhrel, JA, Pokhara argued that crimes with moral disgrace should be defined. Saroj Psd. Gautam, JA opined to make the provision of compensation more managed and should also consider what to be done in case the perpetrator doesnot have property. Satish Raj Mainali, HR Officer, OHCHR shared that the limit of self-defense is widened.

Dr. Sangroula responded the queries related to confusions about the duties of Government Attorney. He said that there can be no excuse for the Government Attorney for being ignorant about what law to apply in a specific circumstance. Mr. Poudel responded to the procedural confusions. To most of the queries, he said that as they are context specific, they cannot be exclusively mentioned in the Codes. They demand discretion of prosecutors. Answering to the need of provisioning for accidental homicide when there is already homicide through recklessness, carelessness and negligence, he responded that as it is a specific condition of CJS of Nepal, carrying on the provision was deemed necessary. Many provisions of the Country Code had to be continued and it has come as a kind of compromise draft. Regarding whom to do plea bargaining, he said that it is the duty of the prosecutor.

Prof. Madhav Psd. Acharya commented that the draft bills are 70% correct, and 30% of the provisions need to be revised. Regarding plea bargaining, he shared that if the accused helps in investigation, it can be claimed upto 25% and in case of organized crime, it can be upto 50%. He said that though lately plea bargaining is incorporated, it is provisioned only in the mentioned condition; however it is not yet considered from rights perspective. Therefore, appropriate Sentencing Policy should be developed so that when any accused confesses crime in front of the lawyer, he then will not manipulate it in the court, but will try to reduce the punishment and thus, he can maintain his professional integrity. He also supported the provision of separate hearings for convicting and sentencing which he said will do justice to the accused. The context which can reduce the punishment might be relevant and important in sentence hearing but not in conviction hearing.

He furthermore added that the concept of sentencing is yet to be broadly understood; it is not to torture the perpetrator as commonly assumed. The provision of open prison, community service and suspended sentence in the custody of judge is commendable, and they are applicable for the perpetrator of crimes with three or less than three years imprisonment. Hence, the draft has envisioned Parole board to look into such situation.

Giving the concluding remark, Deputy AG Pushpa Raj Koirala contended, “once they are passed and come into implementation, initially there we might feel some awkwardness, but gradually, when we get used to the reformed provisions, they seem rationale to us”.

42 participants including especially appellate level government attorneys, Sub-attorneys, Joint-attorneys attended the orientation.

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