Prakash Mohara, ALRC;
Rem Bahadur Biswokarma, Jagaran Media Center
1. Are all persons and authorities bound by the same laws?
As per law, no one is above the law, as also guaranteed in the country’s interim constitution 2007. But law does not apply to all persons. For example, there is no law to prosecute severe kinds of human rights violations. A person when committing a crime can be prosecuted, but human rights violations could not be prosecuted. In police torture cases, there is no law to investigate and prosecute. The same laws do not bind all persons and authorities. Ministers who were found to be involved in corruption were not investigated properly and prosecuted, despite enough evidence. Law is not practiced.
2. Are all persons and authorities entitled to the benefits of all laws?
No, persons involved in the practice of caste-based discrimination are hardly punished on the basis of law. The poor, marginalized and Dalits hardly benefit from existing laws. Many do not have knowledge of law, nor access to it. They are not aware about their rights. So how can they know that their rights have been violated and they can go for legal measures? The state systematically tries to block certain sections of society from becoming aware of their rights. The state also shows negligence in making the general public aware.
3. Are all laws publicly made?
Yes, laws are supposed to be made by legislators and approved by the parliament. But there is no real public discussion and debate before making it. Even if there is public debate and discussion, that will be cleverly played by the political parties and bureaucracy and they can change it overnight. When laws come out, certain sentences and sections are kept to play upon. The law commission also publicizes it, but 95 percent of the citizens do not have access to it. For instance, the Torture Act. The government has never discussed this act in public, and the public does not know about its current status. There is biasness.
4. Are all laws promulgated so that all persons can know what the laws are?
Generally it is shared with the public. But the sharing is very limited and people are unaware of available laws. Ignorance of law is no excuse. But in reality there is no environment where the public could know about it. Even if the law and constitution adopted it, the rights of the citizens to know about the available law are questionable, as there is no state policy and program where they circulate information about the laws to the citizens. At the village level, the village officers are not aware about the existing laws, so how can they inform general villagers. The civil society and Bar Association have recommended the government to appoint at least one lawyer at the VDC office, but the government has not started any steps for its implementation.
5. Are all laws applied only prospectively?
Yes, but there is a question of effective implementation. The law is implemented not according to the system, but according to the interest of the persons who have larger hold of the state mechanisms and political authority. For example, it has been found that in order to appoint or promote police officers, the police act and regulations have been amended many times. Many who are in influential positions change laws and acts for their personal benefits.
6. Are all laws administered in the courts?
Courts try to administer the law, but powerful elites and leaders violate it. A journalist was buried alive by five Maoist cadres in 2004 (Dekendra Thapa). When civil society and journalist groups spoke on this broad daylight murder, the Supreme Courts ordered for an investigation to be conducted and the killers to be brought into custody. The then Prime Minister Baburam Bhattarai and the Attorney General clearly obstructed the investigation into the murder. The police thus stopped their investigation and the process came to a halt. In another incident, Bal Krishna Dhungel, who was implicated by the District Court, Appeal Court and the Supreme Court, has been roaming free because of his political influence and position. This is an autocratic thought where they think that ‘I am above the law’. Others have started following it.
There are laws, but they are not efficient due to the lack of professionalism of the police. According to the NHRC, there are over 11,500 trafficked persons as of 2011. Record shows this number of trafficked every year, but merely 180 have been prosecuted. So more than 10,000 of traffickers are scot free, so how can laws be administered in the courts. They are out of the court of law. There is no investigation at all.
There are many reasons behind this. People do not believe in police and they do not believe in the justice system. The state cases act has given authority and responsibility to the government attorneys to prosecute cases, but practically it has not been effective due to corruption. Also, gross human rights violations have never been prosecuted. Often they say that there is no law and pretend they are not aware of international law. They are also not capable enough to address criminal cases related to drugs, human trafficking and so forth.
7. Are the laws accessible to all?
No, laws are not accessible to all. Dalits are largely denied access. It has been often found that even when Dalits try to register a case as per the caste based discrimination crime and punishment act 2011, it is often registered as cases of stealing, beating and arson. First there is no access in making the laws, no consultations in law making process. Even after the law has been made, there is no access for ordinary citizens. Access is often limited towards elite, politicians and bureaucrats, and business tycoons. There is systematic barring of access to the law for all. This is the ingrained mentality.
8. Are the laws, so far as possible, intelligible, clear and predictable?
No, they are not. Common people never understand what is written and available in the law. This is impossible in Nepalese context.
9. Are questions of legal rights and liabilities ordinarily resolved by the application of the law and not through the exercise of discretion?
No, issues and disputes are settled outside the courts and legal framework. The caste based discrimination and untouchability crime and punishment act provides 1-3 years of imprisonment and 25 thousand to 1 hundred thousand in fine. But in reality, judges use self-consciousness and give the verdict accordingly, less than what it is in law.
There is not a certain benchmark. Ones who have access to the law try to take benefits for personal interests. Then the authorities take it for granted. For example, CDOs could decide certain cases, such as those regarding arms and ammunitions. They are not professionals, only administrators, without the necessary legal background. But they do it in influence and for personal benefits.
10. Do the laws of the land apply equally to all? (save to the extent that objective differences justify a differentiation)?
No, caste, class and politics matter. There is a lot of discrimination. There are still practical flaws in the gender and caste based discrimination laws. The society could not internalize the issues of discrimination from the society, policy and overall sector of the state. There is no such policy and programs from the government, which helps the general public and society to feel that they are equal before the law.
11. Do the laws afford adequate protection of fundamental human rights?
The Constitution guarantees fundamental human rights. But it is merely a showpiece, which cannot be implemented. There should be laws made in order to implement it, but laws are never made. The constitution guarantees the right against torture and made torture punishable by law. But there are no laws against torture.
The use of torture in police investigation is a regular issue. There is no witness protection law. Human rights defenders and journalists are threatened and also killed. But perpetrators, even when identified, are not brought before the court of law due to pressure from political parties.
The Constitution guarantees no discrimination. But in practice, it is not implemented.
The government has not ratified the convention on disappearances. There is no fair trial. There is systematic practice of torture.
12. Are means provided for resolving, without prohibitive cost, or inordinate delay, bona fide disputes which parties themselves are unable to resolve?
No, delay is always there. With delays come rising expenses. There is a legal provision to provide legal aid for those who cannot afford the legal fees, but again it is a showpiece. Legal aid is not effective. There is also a question mark in the professionalism and capacity of government paid lawyers. These provisions are made for show, but when it comes to credibility, it does not help the parties seeking assistance.
Even for a trial, alleged accused have to stay in judicial custody for 6-7 years due to delay in their cases. Same is the situation of the SC. There are cases that are pending in the SC for over 12 years. For instance, the torture case of Hom Bahadur Bagale (2002) is still pending in the SC.
There is political meddling in cases. Victims and even witnesses face security risks after proceeding for justice.
13. Do the ministers and public officers exercise their powers reasonably and in good faith, for the purpose for which the powers are conferred?
No, there is high misuse of power for personal benefits. Also there is the issue of corruption. Even the CIAA has not given adequate attention on these issues.
There is no system and benchmark for making them professional. There is no authority and mechanism to monitor their performance. This makes them free to do as per their will and interest. There is no close monitoring. Even there is no clear mechanism to monitor who is responsible to whom.
14. Are the adjudicative processes provided by the state fair?
No, decisions are made in closed party meetings and brought before the public. The public learns of the decisions only after they are made. In most of the cases, the public does not come to know about it. Therefore it is not fair.
Even some lawyers have become hindrance towards it. Lawyer’s council act can punish lawyers working against their profession, but those have never been punished. The process of appointing the AG is on a political basis, rather as political cadres. So when lawyers from the same political parties are found committing misdemeanours, they are not punished.
When cases are registered in the courts, many cases are dropped on the basis of political pressure. It has raised a culture of impunity where people turn to become political cadres in order to remain out of prosecution.
15. Does the state comply with its international obligations?
No, the government does not send reports to the UN Human Rights Council and UPR process for years. Nepal has not sent periodic reports on caste-based discrimination for six years now.
The recent comments received for the ICCPR and UPR recommendations present the government situation on its international obligations.