Workshop on the Proposed Penal, Procedural and Sentencing Codes

July 07, 2015

To orient the district level attorneys on the three draft bills (Penal, Procedural and Sentencing) tabled before the Legislative Committee of the Parliament, one day \”Orientation on the Proposed Bills Relating to Criminal Justice System\” was held on 17 Sep 2011 in Dhulikhel. 33 participants from Sindhupalchowk, Kavrepalanchowk, Dolakha, Dhading and Nuwakot attended the program.

Attorney General Muktinarayan Pradhan chaired the program and former AG Dr. Yubaraj Sangroula, former Law Secretary Madhav Psd. Poudel, Prof. Madhav Psd. Acharya, and Deputy Attorneys Pushpa Raj Koirala and Raj Narayan Pathak were the guests.

Giving the welcome remarks, Deputy AG Raj Narayan Pathak said that the feedbacks of four sectors of CJS including police, government attorney, Bar and court are important to bring into reforms in the system; hence, he urged all to suggest recommendations to finalize the drafts.

Adding to the objectives of the program, Mr. Sudeep Gautam, Director, CeLRRd said that only with the joint effort of all the actors, the already obsolete 158 year old laws, Muluki Ain (General Code) can be appropriately updated, and the program is conducted as a platform to induce ownership towards the draft bills. Mr. Mukunda Kattel, DanidaHUGOU representative expressed that these programs are a part of six months pilot project designed to help curb impunity and the implementation of Supreme Court decisions, and upon the success of this project, grand projects for the reform of CJS could be further designed.

Giving the closing remarks of the inauguration session, the newly appointed Attorney General Mukti Narayan Pradhan said, \”As our works reflect the performance of the state, we should scrutinize our deeds and pay due consideration to our responsibilities geared towards the national interests.\”

Then Dr. Sangroula presented paper entitled \”Expectations on the reform of Criminal Justice System and the need to pass the proposed Bills\”. 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.

Stressing on an American situation, he said that a recent report revealed that out of 1 million prisoners in America, 6% was found innocent; this showed how innocent people are becoming the victims to the justice system. Hence, there lies the necessity of a better functional coordination between all the sectors of the system in Nepal as well to tackle such situation.

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.

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. He expressed hope that the proposed bills will modernize the system and make it more scientific and proof-oriented.

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.

Then Mr. Madhav Psd. Poudel presented on the \”Reform of Criminal Justice System and its Modality\”. Since 2012 BS, a dire need of reform into the system surfaced; however this very lately got materialized. He said that 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\’s 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.

Commenting on the papers, Prof. Madav Psd. Acharya highlighted that a dire need for the reform in the present Nepalese criminal justice system was long felt as there prevails a tendency to deliver justice on the basis of proofs but not on the basis of evaluation of the presented proofs.

33 attendees including district attorneys, court officials, bar representatives and police officials attended the program.

Furthermore, the participants were divided into three groups to provide feedbacks on the Penal, Procedural and Sentencing Codes separately:

For the Penal Code, their major recommendations included to adopt the provision of compensating the victims from the state treasury, compensating the victims of attempt to murder treatment cost, also incorporating the property destroyed during theft in the fine.

To the Procedural Code, recommendations made were, double FIR registration should be limited to the district level, the police should take prior approval from the court while arresting (seeking approval should be managed looking into the gravity of the case), using detail background of people while verifying, making provision of cross-examining a witness that becomes hostile, and also provisioning for the withdrawal of cases of political prisoners being based on insufficient proofs. Some the participants, considering Nepalese context, were seemed hesitant on separate hearing for the determination of punishment.

The Sentencing group recommended clearly defining terminologies like court probation, parole, plea bargaining. Victim relief fund should be established at the district level, secretary to the Punishment Recommendation Committee should also be decided. Who is responsible to pay the fee of the rehabilitation center in case any drug addict is sentenced for taking drugs should also be mentioned in the Act.

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