Kamal Pathak, Focal Person, Asian Human Rights Commission, Kathmandu, Nepal
Acountry’s criminal justice system is based primarily on the ideals envisioned by the constitution of that country. An independent criminal justice system was established in Nepal along with the new constitution in 1990. That constitution upheld the concept of a fair and an impartial criminal justice system. However, laws enacted after 1990 were not implemented properly or evenly.
After the April 2006 uprising, Nepal in 2007 enacted a new interim constitution, which was prepared in consultation with all major political parties. It is dedicated to the sovereignty of the people and designates the prime minister as the head of state in the place of a king. The concept of equality in justice, with fair and impartial investigations, is again upheld by the interim constitution of Nepal. It aspires for a free and fair criminal justice system, and thus anything contradictory or inconsistent with this aspiration can be deemed unconstitutional.
Criminal justice agencies
The police and office of the attorney general are the most important actors in bringing cases for prosecution before the judiciary of Nepal.
Police
The police are under the general supervision and control of the Ministry of Home Affairs. The cabinet appoints the inspector general of police and other senior police officers. The police are subdivided into the Nepal Public Police Force, Armed Police Force, Guard Police Force, Riot Police Force and Traffic Police Force.
Crime investigating is carried out by the Crime Investigation Department (CID), which is headed by an assistant inspector general of police, under the Nepal Public Police Force, Nepal Police Headquarters.
The CID has police officers organised across five regions, 14 zones, and the 75 districts in Nepal. The regional police offices are each headed by a deputy inspector general of police, and the Zonal Police Offices are under the command of senior superintendents of police. The district level police offices are under the command of superintendents of police or deputy superintendents of police. The District Police Offices are local investigating bodies with a mandate to investigate cases in their territory. They are the most widespread investigating units, however, not all the districts have separate CIDs. They may also lack experts and important resources for effective and immediate investigation. Regional Police Offices on the other hand are supervising and coordinating bodies that are not directly involved with investigations. They serve as the middlemen between district units and the Central Crime Investigation Department at Nepal Police Headquarters in serious cases.
The CID is divided into units according to the nature of crimes and in order to make the investigating system easier and more systematic: Crime Investigation Groups, National Level Dog Section, Narcotic Control Unit, Crime Investigation School, Crime Research Branch, Foreign Branch, Anti-Terrorist Branch and the Scientific Resources Coordination Branch. The Foreign Branch is divided into three sub-sections: Foreign Politics, Interpol, and Telex. The Anti-Terrorist Branch is divided into internal and external terrorist sections. The Scientific Resources Coordination Branch deals with criminal behaviour, fingerprinting, photography and forensic science. The Crime Research Branch includes the Central Women’s Cell, Records Section, Research Section, Crime Investigation Information Section and White Collar Crime Section. Some of these branches, like the Women’s Cell, were set up only in recent years. The cell now exists in major cities, including Kathmandu, Biratnagar and Pokhara. Likewise, the Special Crime Investigation Team has been set up to comprise of experts to be called upon in cases where immediate and urgent investigation is required.
Attorney general
The prosecution of crimes is the attorney general’s constitutional responsibility. Article 135(2) of the Interim Constitution of Nepal 2007 states that the attorney general should represent the government in
cases wherein the rights, interests, or concerns of the government is involved. This article further states that the Attorney General has the power to make the final decision as to whether or not to initiate proceedings in any case on the behalf of Nepal’s government in any court or other judicial authority. Article 134(1) states that the attorney general should be the chief legal advisor to the government and advise government officials in all matters regarding constitutional and legal affairs.
Section 17 of the State Cases Act 1993 bequeaths the power of deciding whether or not to initiate judicial proceedings against a suspect to the district government attorney. Therefore, the attorney general functions as the sole prosecutor in Nepal.
The Office of the Attorney General in Kathmandu is the highest authority. The Appellate Prosecutor’s Offices correspond to the Appellate Courts, and the District Prosecutor’s Offices work alongside the district courts. There are 16 Appellate Prosecutor’s Offices, and 75 District Prosecutor’s Offices to carry out the work of the attorney general.
Judiciary
Nepal does not have a separate criminal trial court or a criminal bench. According to the current interim constitution, the Supreme Court is the highest court; lower on the judicial hierarchy are the Appellate Courts and the District Courts.
The Supreme Court is a writ jurisdictional court whereby a single bench hears writ petitions and other subsequent hearings are heard by a divisional bench or a full bench as befits the gravity of the case. Decisions of the Supreme Court are final unless there is a flaw in the interpretation of the law or non-observance of past precedents whereupon any case disposed is subjected to review. The prime minister appoints the chief justice in the Supreme Court upon recommendation from the judicial council.
Appellate Courts hear cases as one body or in the form of a divisional bench. The Court of Appeal has the right to exercise and hear writ petitions (excluding writs of certiorari, quo warranto and prohibition). Like the Supreme Court, it does not have a large bench.
District Courts are courts of first instance. There is one for each district and all cases, whether civil or criminal, are subjected to hearing by a single bench. Section 7 of the Judicial Administration Act provides the District Courts with the first instinct of jurisdiction on all kinds of cases within their territory. The jurisdiction includes the power to conduct a trial, take necessary proceedings and or make a judgment.
Criminal investigation and prosecution Filing of First Information Report
The victim, the victim’s relatives or any individual who is aware of a crime can lodge a case at the nearest police station to where the offence has been perpetrated or is likely to be perpetrated. The State Cases Act requires that the complaint, the First Information Report (FIR), be lodged with evidence and information about the alleged perpetrators. The FIR should contain the area and date of commission of the crime, the names of the actual culprits, their actions, evidence and other descriptions regarding the offense.
The State Cases Act provides that if a verbal report is made by anyone, the officer-in-charge of the police station should keep the record in the form of writing as narrated by the person. The police officer should then read out what he has written before the complainant and then keep it in the register book with the person’s signature. If police authorities refuse to file an FIR, the State Cases Act permits the complainant to approach a higher police authority if it exists in the place, or the office of the Chief District Officer (CDO). In the event that the CDO also refuses to register the FIR, then a complainant can go to the Appellate Court or Supreme Court.
It is the prime responsibility of the police to accept an FIR and lead the investigation. But in reality the police regularly refuse to register complaints when the accused are high-level state officials. There are also instances in which police and even the CDO have refuse to register complaints against state security forces or leaders of the Communist Party of Nepal (Maoist). The victims have then moved to Supreme Court.
The cases of Arjun Lama & Maina Sunuwar
The story of what happened to Arjun Lama illustrates the problems of registering an FIR in Nepal.
On the afternoon of 19 April 2005 Maoists abducted Arjun Bahadur Lama, 48, during a ceremony. According to those who witnessed subsequent events, they marched him through villages in the Kavrepalanchowk district before he disappeared. He was killed in late June 2005.
Advocacy Forum supported the family in filing an FIR but the police in Kavre refused to register it, fearing reprisals from the Maoists. As required by law, the complainants moved to the CDO, but he also refused to register the case. A writ of mandamus was filed in the Supreme Court on 16 July 2007, demanding an order for the police to register the FIR and start impartial investigations and prosecution. At time of writing the case is still pending before the court.
Even if an FIR is registered after a court order, the delay in investigation and obvious reluctance of the police to make inquiries greatly hamper the prospects for justice. In this respect the case of Maina Sunawar is illustrative.
On 19 January 2004, a group of 15 uniformed Royal Nepalese Army (RNA) soldiers took Maina Sunuwar, 15, from her home in Kavrepalanchowk district (see article 2, vol. 3, no. 6, pp. 26-28). The next day security forces denied having arrested Maina. Her mother’s inquires were denied until April 2004, when she was informed at RNA headquarters in Kathmandu that Maina had been killed. It required another year of sustained international pressure before the army proceeded with an internal inquiry, which mildly sentenced the perpetrators. It wasn’t until 13 November 2005, under pressure from the Office of the UN High Commissioner for Human Rights, that the police proceeded with investigations. Her body was discovered illegally buried at the Panchkal army camp. She had been tortured to death, but no further investigations were conducted.
Her family, with legal support from Advocacy Forum, lodged a writ of mandamus at the Supreme Court on 10 January 2007 seeking an order to complete the investigations. It required an additional three Supreme Court orders and another year before police completed a charge sheet in February 2008. The case has spent over four years in the legal system and to date only charges have been filed.
Arrest and interrogation
The investigating police can arrest a suspect according to the information received. Article 24 of the Interim Constitution of Nepal 2007 reads that no suspect should be detained in custody without being informed of the grounds for arrest. Similarly, section 14(1) of the State Cases Act also states that an arrestee should be told why they are being put under arrest. Furthermore, clause 121 of the section on Court Management of the new Civil Code of Nepal prescribes that the arresting officer deliver a notion of the grounds of arrest to the person before detention.
However, most arrests do not follow these legal provisions. Few are made after delivering a notice of the grounds of arrest to the persons. Moreover, suspects are usually immediately handcuffed and detained without any interrogation. The police also fail to provide arrest warrants in most cases and do not give the suspects access to lawyers as required by law. Around 80 per cent of defense lawyers interviewed by Advocacy Forum claim that they are not given access to detainees immediately after their arrest.
Police can in fact arrest persons without warrants according to the nature of the case, but must produce them before court within 24 hours, excluding the period of journey. However, a recent survey of arrestees reveals that around 38 per cent are not taken to court within this 24-hour period.
According to section 9(1) of the State Cases Act, the interrogation of a suspect should be carried out in the presence of a government attorney. However, 44 per cent of arrestees interviewed in 2007 had none present.
Furthermore, section 9(2) of the act says that if any person is suspected or surely known to possess important information about a crime and if they are trustworthy then the investigating police officer should further question the person and document the statement in the written form. The government attorney thereafter authenticates the statement by signing it. Unfortunately, under the current system the investigating police officers often force the accused to accept allegations and fabricate documents through the making of these records. According to the Evidence Act 1974, any statement made by the accused cannot be accepted if the accused was forced or tortured to give it. Nonetheless, the police often use torture as a tool to force a confession or accept an allegation.
The case of Puradi Prasad Pandy
What happened to Puradi Prasad Pandy exemplifies the problems of arrest without warrant and concomitant abuses, including torture, while in detention.
On 16 December 2006 Puradi Prasad Pandey, 20, a farmer living in Kalikot district, was arrested on the charge of killing Khat Devkota. It was rumoured that Maoists had killed Devkota for drunkenness and slander, but his body was found near Prasad’s home, and the police arrived with a deed of public inquiry and arrested Prasad, severely torturing him during interrogation before subsequently releasing him. This routine was repeated twice in the following days. According to Prasad, the police did not supply him with any kind of arrest letter and family members were refused access to him while in custody.
With the help of Advocacy Forum, Prasad lodged a Torture Compensation writ petition on 23 February 2007 in the District Court of Kalikot. The police and Maoists have repeatedly threatened Prasad’s life if he does not withdraw the petition.
Prasad’s case illustrates how the notion that an individual is innocent before being proven guilty is not part of the thinking of police officers in Nepal.
Search and Seizure
If an investigating officer has reasonable cause to suspect that the person interrogated may have material evidence in their possession, whether objects or another individual, the police officer can search for and seize the evidence. The law requires that only female police officers search women, or that they are searched in the presence of another woman. According to section 10(2) of the State Cases Act, the investigating police officer must submit a written request to another police office to search and seize, and when searching a person or place must have present an official at least at the rank of assistant sub-inspector. The section also states that the police officer in charge of the search should prepare a detailed statement of all the material relating to the crime including the place and date of the search and make two copies: one of which must be given to the concerned person and one that should be kept in the office file.
Clause 172 in the section on Court Management of the new Civil Code also states that there should be a probable cause to conduct search and seize and that the police officer needs to inform the person of the reason for the search. The search should also be conducted in the presence of two or more witnesses of good character. They may be independent and responsible residents of the area, or representatives from the concerned municipality or the village development committee. Upon completion of the search, the officer must make a list of all things seized and the places they were respectively found, with signatures from the witnesses.
Prosecution
The State Cases Act 1993 is critical to the prosecution of suspects. The prosecution begins after the investigating police officers prepare reports of their findings and submit them to the concerned government attorneys. The police can request to terminate the investigation on the grounds that there may be a lack of adequate evidence with which to prosecute the suspect. However, the government attorneys make the final decision as to whether or not to prosecute. The police have complete responsibility to carry out the investigation related to crimes, while the office of public prosecutor has sole authority for prosecution on such cases.
A charge sheet is framed after the prosecutor has compiled all the documents and evidence against the accused. Section 18(1) of the State Cases Act states that the prosecutor, upon examination of the case file shall if it is deemed appropriate submit the charge sheet to the competent judicial authority. If there are no reasonable grounds to justify the submission of a charge sheet, the prosecutor can return the case file together with the evidence to the police.
The charge sheet must state the specific allegation based on the evidence and cite appropriate laws and punishment sought. It must also include the name and residential address of the accused, details of the FIR regarding the crime, description of the crime, allegations made and evidence supporting them, and amount of compensation (if any) that should be given to the aggrieved party.
Adjudication
The judicial process begins only after the prosecutor has submitted the charge sheet to the court. Generally, the trial of a criminal case is carried out by the District Court of the concerned territorial jurisdiction.
However, there are other provisions that allow quasi-judicial institutions to conduct trials and pass sentences. For instance, a custom office may proceed on the crimes underlined by the Import and Export (Control) Act. Many crimes under such legislation allow administrative offices to conduct investigations, prosecute and adjudicate simultaneously.
Trial
The main legal instruments governing the procedures relating to the trial of criminal cases are the section on Court Management of the new Civil Code, the Judicial Administration Act 1991, District Court Regulations, and Evidence Act 1974.
The trial process can be divided into three parts: the bail hearing, post-bail hearings and final hearing.
Bail hearing
When the charge sheet is filed, the judicial trial process begins at once. The accused is produced and the charge sheet presented to the court. The charge sheet is registered and the statement
Prosecution
of the accused is recorded before the judge. The judge then considers bail. This is the first time that bail is available for the suspect; there are no institutions in place that allow a suspect to be released on bail while in police custody.
The sitting judge rules whether or not to grant bail depending on the nature and severity of the charges, and a number of subjective factors. For any offence which is punishable by more than a three-year sentence, bail will be refused provided that the evidence submitted with the charge sheet provides grounds to reasonably establish the detainee’s involvement in the crime. For lesser charges, bail may be offered at the discretion of the sitting judge. Typically bail will be granted with a bond of land, cash, or other property. In rare cases where the charges are not severe, bail may be offered without a bond. The amount of the bond is typically outside the means of many citizens, who either do not own property of sufficient value or are unable to appraise the value of the property they do own. Thus, only wealthy detainees are typically able to afford to be released on bail.
An accused who is not granted bail or is unable to produce the required bond is returned to custody to await the trial date. In the event that the accused is convicted of the crime, the days spent in custody while awaiting trial will be counted against the sentence.
Post-bail hearings
There are two provisions for re-evaluating a defendant’s bail orders if bail was initially denied.
If the original court, upon hearing witnesses testify to depositions made during the investigation, deems that depositions that affected the initial bail hearing were false then bail will be re-evaluated.
Alternatively, there may be a post-bail hearing in an Appellate Court, where the accused or representatives of the accused submit to the court a petition to reverse the order of the lower court. The higher court may review the decision of the lower court and correct a bail order if finding it defective. However, this happens very rarely because many detainees are unaware of this provision and go to trial without being represented by a lawyer.
The exhibits are then confirmed and the testimonies of witnesses and expert witnesses are heard. Unlike courts in many other countries, witnesses in Nepal are heard before, not during, the final hearing. These hearings are often greatly prolonged by the difficulties of the prosecution in producing witnesses.
Final hearing
After all the witnesses have been heard, the final hearing is scheduled. It begins with the opening statement of the prosecutor wherein the charges against the accused are supported with facts and evidence and sentencing is demanded as per the charge sheet. Next, the defense offers supporting facts and evidence in favour of the accused person. The prosecution is entitled to a final closing argument, rebutting this defense. Finally, the court passes a verdict, deciding on both the facts of the case and the sentence. Since Nepal has no jury system, the judge is the sole arbiter.
If the accused is convicted of the crime the judge gives a sentence. There are very few formal regulations for sentencing. The judge is given great discretionary power to decide the type of punishment and length of imprisonment. In theory the judge considers the aggravating or mitigating circumstances, and background and culpability of the convicted person when determining the sentence. However, since there are no specific formulae, there is great inconsistency from one court to the next. But on the whole there are few judges who think in terms of reform of convicts and as such severe punishments are frequently imposed for relatively simple crimes.
The law guarantees the right to appeal. An appeal must be registered within 70 days of the sentence. This right is exercised after virtually all convictions and so the appeal process is greatly prolonged by the overload of cases on the Appellate Courts.
Criminal justice problems and possible solutions
The following points are considerably abbreviated from the conclusions of three studies: an Advocacy Forum survey of judges, lawyers, politicians, detainees, convicts and victims on the problems with the criminal justice system in 2007; the Center for Legal Research and Resource Development’s Baseline Survey of the Criminal Justice System of 2003; and a report of Penal Reform International in association with the Centre for Victims of Torture, Nepal from 2000. The Advocacy Forum study finds that despite considerable political changes since 2006, few of the problems identified in the earlier reports have been remedied, and few of the recommended reforms have been effectively implemented.
The major problems with the criminal justice system in Nepal are:
1. The insensitivity of police officers, government attorneys, trial judges and lawyers to the importance of fair and free trials.
2. A prevailing culture of impunity that allows for corrupt and criminal acts among officials without fear of reprimand.
3. Numerous discrepancies in domestic laws, which remain vague, inconsistent, or in conflict with Nepal’s international commitments.
4. Institutionalised torture and illegal detention.
5. Insufficient objective norms in law regarding bail, sentencing and identification of bogus cases.
6. Exclusive authority of police over all facets of criminal investigations.
Police noncompliance with court-ordered investigations into police affairs.
Some possible means to address these problems are through better legislation, more evidence-based investigations, better checks and balances inside institutions,
Legislation
A comprehensive and uniform criminal code is long overdue. Existing laws are either far too vague—as regarding bail requirements and sentencing procedures—or are in conflict with other laws or international standards: the Compensation of Torture Act for instance fails to criminalize torture as required by Nepal’s ratification of the UN Convention against Torture in 1991. Under the Compensation of Torture Act, 1996, torture is not defined as a criminal act, and at worst “institutional action” is taken against perpetrators, which falls far short of what is envisaged by the international treaty.
A project to draft a comprehensive code was initiated as early as 1973, but was never instituted. As Nepal looks forward to a new era of democracy, now is an opportune time to construct a comprehensive criminal code that rationalizes the numerous legislative inconsistencies, specifies objective standards, and firmly applies international norms.
Evidence-based investigation
A fair and free trail is dependent on adequate evidence obtained by scientific means or provided by witnesses via thorough torture and coercion-free investigation. To change the existing confession-based investigative practices into evidence-based investigative practices police must be appropriately trained and equipped. Such work must be combined with an effort to reform the police image: Advocacy Forum’s survey found that around 40 per cent of crime victims do not report to police for a want of trust.
To support and necessitate these changes, judges and government attorneys must refuse to allow self-incrimination, or dismiss any case when the accused person’s constitutional or human rights have been violated. For courts to do this, judges must specifically ask detainees if they have been tortured during their detention, as per the requirements of the Evidence Act 1974. Advocacy Forum’s study found that only 37 per cent of accused were asked whether or not they had been tortured. There must also be significant changes in the torture compensation act, which at present requires a medical checkup, but fails to necessitate that an independent practitioner performs it. A total of 31 per cent of accused persons interviewed reported that they did not receive a health checkup at all.
Public prosecutors can also assist in forcing change by filtering out obviously bogus cases, or those that are manifestly based on self-incrimination. By refusing to allow cases with insufficient
“Public prosecutors can assist in forcing change by filtering out obviously bogus cases, or those that are manifestly based on self-incrimination
or inappropriate evidence to go to the courts, the prosecutors will remove a huge burden from the courts time, and force police investigators to perform more thorough investigations.
Government attorneys should be incorporated into the investigation process, and the investigation should be thorough and systematic. Currently, investigators often have an insufficient understanding of scientific techniques, and evidence is lost for this reason. Investigators must be specialized and separate from other police authorities. Education and training that teaches systematic investigation procedures is needed, whether scientific equipment is available or not.
Checks and balances
Until perpetrators of human rights offences, particularly high ranking officials, are punished harshly for their illegal actions, the culture of impunity will remain and there will be very little incentive to change. The establishment of more effective checks and balances and internal investigative measures is essential to check impunity.
Currently, the Police Act places the power of investigation, prosecution and adjudication solely under the administration of the Special Police Tribunal, which includes a police officer as one of its members. This system provides no safeguards to ensure impartial proceedings, and thus is susceptible to corruption and injustice. To ensure accountability, the practice of self- investigation, prosecution, and adjudication must be discontinued, and a new separate and impartial institution be formed to perform these functions. The Police Special Court should be under the supervisory control of the Supreme Court. Furthermore, its jurisdiction should be limited to offences involving a pecuniary penalty, while all other sentencing is the duty of the ordinary courts.
To prevent torture, interrogation must be carried out in the presence of a lawyer for the detainee. If the suspect cannot afford one, this service should be provided by the state. Private rooms should be available for consultation with legal counsel, and police should supply the defence attorney with the documents needed to appear in court.
Final thoughts
No criminal justice system is incorruptible. While reforming legislation, using more scientific evidence and improving checks and balances may help to create a workable and just system, it is ultimately the people working within the system that shape it. Thus, a fair criminal justice system will only be realized by promoting progressive thinking, punishing corruption or criminal action, and appointing to significant positions individuals that make human rights and the rule of law their uppermost priorities. Improvements should at all times foster respect among police and other officials for individual rights, from the lowest-ranking police officer to the inspector general.