ASIA: Access to justice and fair trials a distant dream in Nepal, India and Bangladesh

May 27, 2010

Language(s): English only

Fourteenth session, Agenda Item 3, Interactive Dialogue with the Special Rapporteur on the independence of judges and lawyers

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

ASIA: Access to justice and fair trials a distant dream in Nepal, India and Bangladesh

The Asian Legal Resource Centre (ALRC) welcomes the report by the Special Rapporteur on the independence of judges and lawyers and supports the need for increased efforts to improve human rights training and education for judges. In addition, the ALRC wishes to underline that education must be accompanied by structural and systemic reforms � notably concerning appointments, security of tenure and disciplinary mechanisms – as well as legal provisions to ensure the independence of the judiciary and to protect against corruption, without which education alone will not be able to improve the protection of human rights in many countries, notably those with which the ALRC is concerned in Asia. In this statement, the ALRC will focus on concerns relating to obstacles to access to justice, the functioning of judiciaries and fair trials in Bangladesh, India and Nepal.

Nepal: The ten-year long Maoist insurgency has inflicted long-term damage on Nepalese institutions, notably the judicial institutions. The absence of a comprehensive and coherent legal framework and inadequate financial resources are the cause of such damage.

Since the country only has courts at the district level in its 75 district, those living in remote areas have to travel for days to attend courts. Village Development Committees entrusted with limited juridical power can adjudicate petty disputes. Nevertheless, in numerous places the conflict that has affected the country in its recent past has led to the physical destruction of the VDC infrastructure and forced the VDC Secretaries to flee to the cities. In addition, the Prime Minister dissolved the elected local bodies in 2002 further denying rural inhabitants� access to justice.

The poor functioning of the justice institutions denies the country�s citizens their right to due process. According to information received in 2008, the backlog of cases in the country was estimated at around 50,000 cases and this has certainly not been reduced in the interim.

Corruption remains the major concern in the administration of justice in Nepal. Former Chief Justice, Anup Raj, has acknowledged the necessity to fight corruption and malpractices at all levels of the judiciary. According to the Transparency International 2006 and 2007 Corruption Perception Index, the judiciary was deemed the institution most affected by corruption in Nepal.i

Groups or individuals with vested interests exploit this situation to the disadvantage of the most vulnerable groups. Equality in access to justice remains a remote perspective for disadvantaged groups, including Dalits, indigenous communities and women.

The police have been creating obstacles to the access to justice of those groups either by refusing to register cases or by pressuring victims into negotiated settlements with more resourceful perpetrators. In the case of Runchi Mahara, an 11-year-old Dalit girl who was raped and murdered in September 2009, despite strong evidence against the suspect, the police released the suspect, refused to register a case or launch an investigation. Since the suspect received support from local ruling political party members, the victim�s family had to withdraw the case. In the same month, the District Police Office of Morang pressured Ms. Somandevi Sardar, a 60-year-old Dalit woman, who had been accused of witchcraft, beaten up and forced to eat human exacta by her neighbours, into finding a negotiated settlement with the perpetrators and to withdraw her complaint.

Extensive judicial powers granted to police officers by laws such as the Arms and Ammunitions Act, 1962 under which a Chief District Officer has the power to sentence people to up to six years� imprisonment increases the risk of denial of justice and exposes the vulnerable citizens to arbitrary arrest and detention. In 2009, this Act was used in Morang District by the CDO to cover-up a case of torture by the police by charging the victim, Mr. Sushan Limbu, under the Act without hearing the lawyer’s arguments.

Although Article 116 of the Interim Constitution mandates that court orders are to be binding to all, in several cases court orders are not implemented. For instance, in many torture cases in which the court ordered compensation, this was not paid. This system promotes impunity.

Civilian courts are denied the possibility of prosecuting army personnel suspected of having committed human rights violations, as in the case of Maina Sunuwar.ii Major Basnet, the accused in the case, received support from high political figures such as the Defense Minister. Civilian justice has proven unable to overcome the obstacles established by the army and the Maoists in several other instances. Therefore, impunity for human rights violations, which occurred both during and after the conflict, remains the rule.

The country also suffers from regular political interference in the course of justice. The International Crisis Group reported that in October 2008, the Maoist government withdrew 349 criminal cases filed against political party cadres.

In this context, lawyers and judges are vulnerable to threats and pressure, hampering their independence. In April 2009, the Young Communist Leagues cadres in Surkhet district physically interrupted a court hearing demanding rigorous punishment of a suspect and locked-up his lawyer, Mr. Nanda Ram Bhandari, in his chamber. Worryingly, the police refused to register any case against those who had hampered the trial.

Such practices have degraded the justice institution to such an extent that it is now the general public who interfere within the process of justice. In 2009, a lawyer defending a person accused of having murdered a young girl, Khyati Shrestha, saw his house surrounded by ordinary citizens pressuring him not to take up the case.

New constitutional provisions further threaten the independence of the judiciary. The second amendment to Article 155 of the Constitution requires parliamentary hearings for the recruitment of Supreme Court judges, even after the recommendation of the Judicial Council or of the Constitutional Committee. Given the current political turmoil in Nepal, not only does this disposition submit the judiciary to the fluctuations of political allegiances but also gives more leverage to political parties.

Bangladesh: Article 22 of Bangladesh�s Constitution mandates that ‘the state shall ensure the separation of the judiciary from the executive organs of the state’. In 1999, the Supreme Court directed the government to de-link the lower judiciary from the direct control of the government and place it under the supervision and management of the Supreme Court, a vital step required to ensure its independence.

Finally, in October 2007, the government de-linked the magistrates’ and the sessions’ courts from the direct control of the Ministry of Home Affairs and the Ministry of Law, Justice and Parliamentary Affairs and placed them under the management of the Supreme Court. However, most of the lower judiciary is presided over by the same officers who once worked directly for the government, limiting the judiciary�s independence in practice.

The Judicial Secretariat and Judicial Service Commission required for dealing with recruitment, appointment, transfer, promotion and taking disciplinary actions against the officers of the lower judiciary are yet to be established in Bangladesh. In the absence of the Judicial Secretariat, the Ministry of Law, Justice and Parliamentary Affairs continues to perform this job, thereby effectively annulling any progress that could have been achieved by de-linking the lower judiciary from the government.

The government and politicians directly intervene in the functioning of the judiciary. On 11 April 2010, the President of Bangladesh appointed 17 Additional Judges to the High Court Division. Political allegiance and nepotism prevailed over merits and professional qualifications – most new recruits are closely linked to the ruling political elite, which will seriously affect the independence of the country’s judiciary for years to come.

Two of the nominees had serious criminal charges against them. One is a suspect in a murder case and the other faced charges of arson and destruction of public property concerning the offices of the Supreme Court, during a strike sponsored by the current ruling political party in November 2006. The government withdrew the charges before their appointment. When the media exposed the scam, the Chief Justice refrained from administering the oath to the two, although there is no guarantee that they will not be appointed when the public attention shifts elsewhere.

The appointment, promotion and transfer of government prosecutors also suffer from similar interference from the ruling elite, nepotism and widespread corruption. Whenever power changes hands, prosecutors are dismissed en masse and new officers are appointed on the basis political affinity. The Attorney General’s Department demonstrated its high degree of politicisation in 2010 when it intervened in cases overriding bail orders of persons released from custody after being detained arbitrarily due to political rivalry. The ALRC has recently published a book entitled �Politics � Corruption Nexus in Bangladesh� highlighting such issues.iii

India: Lack of adequate facilities, legal frameworks that provides absolute impunity nullifying the possibility of fair trial, court delays and extra-judicial executions continue to be the most challenging obstacles for seeking justice and redress for human rights violations in India. The absence of courts in the Indian state of Arunachal Pradesh is one example of India’s neglect of justice institutions in general and in the north-eastern states in particular. Though Arunachal Pradesh has relatively low population intensity, it has only two Sessions Courts and has no High Court.

Within the judicial framework of the country, each district is entitled to have a Sessions Court where cases involving serious crimes like murder are tried. Additionally, every state is eligible to have a High Court. North-eastern states like Manipur, Meghalaya, Arunachal Pradesh, Sikkim, Mizoram, Nagaland and Tripura are denied this facility. Due to this individuals have to travel for days to reach the High Court at Guwahati, Assam.

The mandate-holder on independence of the judiciary has repeatedly noted that counter terrorism measures must not be used as an excuse to deny the right to fair trial.iv The Armed Forces (Special Powers) Act, 1958 used in several parts of India, the north-eastern states in particularv literally nullifies the right since this law allows armed officers to shoot to kill on mere suspicion, a practice widespread and misused in the region, particularly in

Additionally, the Manipur state police engage in an alarming number of extrajudicial executions, the latest of which was reported from Mao town of Senapati district. Extrajudicial executions are however not limited to the north-eastern states and are justified as ‘encounter killing’ in the rest of the country.vii In a country where extrajudicial executions are practiced by law enforcement agencies with statutory impunity, the concept of fair trial has no meaning.

The ALRC therefore requests the Council:

1. To engage in dialogues with the governments of Nepal, Bangladesh and India to end corruption, ineptitude and neglect that hampers the functioning of justice institutions;

2. To require the Rapporteur to conduct independent studies and assist the Council to engage the states to address deep-rooted issues affecting justice and fair trial;

3. Request the states to include detailed reports about justice institutions presenting realistic pictures of their fulfilment or denial of the states’ obligation under common Article 2 of the international conventions and covenants and find means to assist the states, in particular Nepal, in rebuilding a justice framework;

4. Request the states, India in particular, to annul legislations that hamper the very notion of fair trial;

5. To conduct in-depth studies with the assistance of internationally recognized independent experts and bodies available within the region and outside with a view to assist the states concerned to develop a dependable judicial framework to fulfil their obligations in providing effective remedies for all forms of human rights violations.



i Global Corruption Report 2007 : Corruption in Judicial Systems, Transparency International
ii Please see details here:
iv A/63/271 (paras. 8-10); A/HRC/4/25 (paras. 52-53); E/CN.4/2006/52; A/60/321 (paras. 30-34)
v The law is not applicable to the whole of northeast but only in selected districts in the region, often covering large areas as in the case of the Manipur state.
vi For further details please see: INDIA: Threats to human rights defenders undermine democracy; ALRC-CWS-13-07-2010, February 24, 2010
vii INDIA: Encounter killing and custodial torture, a disgrace for the nation; AHRC-STM-171-2009, August 14, 2009

About ALRC

The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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