Orientation with CA Members on Reforming Criminal Justice System of Nepal

July 07, 2015

On 23rd Aug, 2011, Attorney General Office of Nepal and CeLRRd jointly held an \”Orientation on the Bills Related to Regulating Criminal Law\” for the Constituent Assembly members of Legislature Parliament. The draft bills (Penal, Procedural and Sentencing Codes) currently at the Legislative Committee of the Parliament have been adopted by the Government to carry out historic reform in Nepal’s criminal justice system. The-then Prime Minister Jhalanath Khanal was the chief guest and the-then Attorney General Dr. Yubaraj Sangroula was the chair of the program. Besides, distinguished guests like the Speaker of Constituent Assembly Hon\’ble Subhas Nemwang, former Law Secretary Madhav Psd. Poudel and SC Judge Hon\’ble Kalyan Shrestha also had their presence.

Giving the welcome speech, Mr. Surya Psd. Koirala, Deputy AG said that whatever reforms are made in the Criminal Justice System, they are not satisfactory, and therefore, it is hoped that once the bills are passed, it would kick-start a great leap in the system.

Adding to the objectives of the program, the-then PM Khanal and Speaker Nemwang said that the 158 year old, Muluki Ain (General Code) is already obsolete, and therefore it is unable to address the present day need of the country to curb crimes. \”Such program, I believe will help the process of laws\’ formation more systematic and scientific\”, said Khanal \”The Codes are under discussion in the House and until the session of the Committee begins, we need to wait, and I hope this being the landmark in the field of law and justice, the House will definitely endorse it\”, said Nemwang.

Dr. Yubaraj Sangroula, concluding the inauguration session said, \” If there are new laws, only then the new Constitution works. We have succeeded in only 50% of the crimes. The situation is such that only the affluent and literate can have access to justice, whereas poor have little access\”.

Mr. Prem Bahadur Singh, former Law Minister said, \”We have changed Constitution for a number of times, however we have not updated the basic laws and therefore, this has doomed every Constitution\”. Now the Country Code should stop to govern the country. He expressed pride in being able to register the bills before the Parliament in his tenure.

Then Dr. Sangroula presented paper entitled \”Expectations on the reform of Criminal Justice System and the need to pass the proposed Bills\”. Firstly, he discussed on the existing challenges faced by the societies regarding law and order, and how the available laws are inept to address the increasing and various intricate crimes, especially those happening in this transitional phase. The organized crimes are increasing and impunity is gaining ground. Furthermore, crimes are increasingly being linked with various economic sectors like, real estate, revenue, entertainment and other commercial ones and thus, black money is replacing white money. \”When crimes and economy are inter-related, they are hard to trace and persecute which is exactly happening now\”, he said.

Justice mechanism is weak and therefore, peoples\’ faith is eroded, and this has moreover made the traditional period more torturous. Nepali laws are disparate, and several acts have made several provisions. Departmentalizing cases and justice (Jurisdiction of different agency in case hearing) is yet another setback. Immigration, forest, revenue related crimes are investigated and adjudicated by the respective department, and it is a matter of inquiry whether each department is appropriately looking into the crimes seriously. In around 35% crimes, the departments act as justice delivery agencies whose authenticity is therefore, questionable.

Shedding light on the retributive form of our justice system, he discussed that there persists a weak coordination amongst the justice sector actors, and especially between Attorney General Office and police, and how the role of adjudicatory body like AG office is limited to the legal adviser of police. He advocated that investigation should be a part of adjudication, however the current situation is vice versa. This has led to mismanagement and failure of criminal justice system to a greater extent. Other factors relate to the inability to adopt modern principles like, exclusionary principle, plea bargaining, principle of burden of proof, and access to justice. He expressed hope that the proposed bills will modernize the system and make it more scientific and proof-oriented.

Focusing on the specialties and the need to pass the bills, he said, as Nepal is a signatory to several international instruments related to child rights, civil and political rights and rights against torture, there is a need that our national laws adopt the international standards and also because the context and popular demand pinpoint to such modernization. It should also then make some arrangement for crime victims, and sentencing should be individualized.

Hence he discussed on the proposed strategies to be adopted towards the bills: to institutionalize democracy, rule of law and foster human rights, the desired modern CJS is a prerequisite; the development of CJS is not an unproductive sector, and only when law and order situation is good, there is a possibility of economic prosperity; the country cannot keep going with the traditional justice system; the development of CJS is not the only responsibility of the Executive and Judiciary, but the rigorous engagement and monitoring of legislative is required for the reform of the system; and also to combat the politicization of crime.

Madhav Psd. Poudel then presented the second paper on the \”Reform of Criminal Justice System and its Modality\”. In 2065 Mangsir 18, a 12-member task force was formed to outline reforms to be made. It then presented six bills with regards to reforming criminal and civil laws; two are related to civil laws, three to criminal laws and one to manage the transitional phase. The previous laws are corrected or fused or new laws incorporated or some laws repealed. Since 2012 BS, a dire need of reform into the system started surfacing, however this very lately got materialized. He said finally it has come as a kind of compromise draft as it needed to consider so many interest groups, but basically it has relied upon the Country Code and separate Acts; Draft Penal Code developed by the Law Reform Commission and other Study groups; Indian, Australian and few other countries\’ Penal Codes; Judicial Principles developed by the Supreme Court and feedbacks from experts and stakeholders.

He then elaborated on its nature: the bills have come with broad idea of criminalization, attempts, accomplice, conspiracy, imprisonment, fine and compensation; the bills are proposed to be implemented as General Law and crimes segregated as ordinary, serious and grave; extra-territoriality to be applicable in severe crimes against Nepal and its citizens; the bills have not incorporated crimes that need special treatment and provisions (corruption, human trafficking, drugs, abduction, etc). Some of the important provisions made by the Penal Code are: it has tried to increase or decrease the gravity of crime in some cases; forfeiture of property is cancelled as it violates the spirit of human rights; life imprisonment is extended to 30 years and in some grave cases, it is to be applicable till a criminal\’s death; the criminal liability starts after 18 years; to introduce the concept of plea bargaining to control organized crime; and so on. With regards to procedural management, some important provisions introduced are: before arresting, police should take prior approval from court; if any accused confesses doing crime, the case should be immediately decided; two separate hearings should be done for convicting and sentencing; there is also a provision of compensation and victim relief fund. For the effective implementation of these new provisions, Mr. Poudel outlined some reforms to be made in terms of capacity enhancement both regarding infrastructure and human resources, better coordination amongst the judicial actors, using scientific innovations and others.

In the plenary discussion Hon\’ble Yashoda Subedi, President of Legislative Committee gave due commitment to making efforts to finalize the bills from all levels be it procedural, political or personal. Hon\’ble Lucky Sherpa and Buddha Ratna Manandhar opined that the draft Code had better remained silent regarding the provisions related to slaughtering of cows in the context when Nepal is already a secular country.

Answering the queries, Mr. Madhav Poudel said that it has come as a compromise draft where some of the old spirits of law have been carried on. Adding to it, Hon\’ble Kalyan Shrestha, Justice SC and commentator for both the papers said that no constitution or even law can be best; it can only be better. Hence, whatever bills have come, their gestation period is long and we should be happy to be a part of finalizing such a long awaited reformatory changes envisioned by the bills. If these bills do not carry the spirit of secularism, the CA members of the committee can use their discretion and rectify them. However, he said laws have impersonal nature, and therefore they do not belong to a specific community. As this is also the foundation to implement the Constitution, it should be respected in this line and urged the attendees, especially the CA members to take it to a logical end.

29 attendees including the CA members of legislature-parliament, government attorneys, and bureaucrats of Ministries of Law and Parliamentary Affairs attended the program.

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