Constitution and Future of Criminal Justice System of Nepal Joint Attorney Yub Raj Subedi Joint Attorney Soorya Pokharel

Transcription

1 Constitution and Future of Criminal Justice System of Nepal Joint Attorney Yub Raj Subedi Joint Attorney Soorya Pokharel PRESENT SCENARIO Nepalese criminal justice system has indigenous growth. However, it has been influenced by common law and continental legal system subsequently. Prior to 1960 A.D. the justice system was close to the French continental system. The sufferer or victim of any crime himself had to complain to the court and the court itself would investigate by its own judicial police. After the promulgation of State Cases Act 1960, the investigation of crime was jointly conducted by the police and the prosecutor. There was the provision to file a charge sheet jointly by them. In 1990 A.D. people overthrew the old regime and legal provision by the Peoples Popular Movement-I. As a result, the Constitution of the Kingdom of Nepal 1990 was promulgated. The Constitutional provision provided sole prosecutorial responsibility to the Attorney General. There was also a constitutional provision which allow delegating the power of Attorney General to his/her subordinate Public prosecutors. Due to new provisions of the Constitution regarding criminal justice system, previous State Cases Act 1960 became outmoded therefore new State Cases Act 1992 was promulgated repealing previous one. The new Act provided police the sole authority to conduct investigation of criminal offences. Hence, public prosecutor confined to prosecution. However, the Act has also provided the authority to the prosecutors to give direction to the police in the course of investigation. The spirit of the Peoples movement-ii of 2006 A.D. led to conclude the Comprehensive Peace Accord between then insurgent (Maoist) and the Government of Nepal. They made commitment to transform ceasefire into sustainable peace and prosperity through the Peace Accord. The Interim Constitution 2007 brought Maoist in the mainstream of the state's affairs. This constitution has been made through the political consensus with a view to institutionalize the achievements made through the revolutions and the movements. The Interim Constitution has the following main objectives; 1 To respect the peoples mandate expressed in favor of democracy, peace and progression. To accomplish the task of restructuring of the state. Fully committed to democratic values and norms. Guaranteed the basic rights of the Nepali people to frame a Constitution for themselves and to participate in the free and impartial election of the Constituent Assembly in a fear-free environment. Abolished the monarchy. Declared Nepal as a federal, democratic republic state. The insurgent group Maoist had participated in the legislative parliament as well as in the government. The Constituent Assembly election concluded in free and fair manner. The Maoist became largest party in the Constituent Assembly. The Interim Constitution stipulated two years time frame to make new constitution through the constituent assembly. However, the task to make new constitution did not accomplish therefore time was extended thrice. The main reasons for prolonging the constitution making process are: the political parties have yet to make consensus on the fundamental guiding principles, restructuring of the state, forms of government, method of election system and so on. 1 Interim constitution 2007, Preamble 1

2 As per the spirit of the people's movement the rule of law and good governance must reflect in the activities of the state. To uphold these values, the criminal justice system of the country should be reformed. It should be made in line with ensuring fair, just and impartial investigation, prosecution and the adjudication. The sentencing policy should also be reformed to meet the changing context of the world. We are therefore going to replace current criminal laws of the state by new codes. In this regard the following proposed codes and bill have been introduced in the legislative parliament: Criminal Code Bill, 2011 Criminal Procedural Code Bill, 2011 Criminal Offences (Assessment and Execution of Punishment) Bill, 2011 THE INTERIM CONSTITUTION 2007 The Interim Constitution was promulgated in 2007 which reflects the people's commitment towards democratic values and norms. This constitution shall be in force until the new constitution is framed by the Constituent Assembly. Most of the rights of an individual regarding criminal investigation and fair trial are protected by the Interim Constitution such as no person shall be deprived of his or her personal liberty 2, every person shall have the right to live with a dignity 3, and no law shall be made which provides for the death penalty 4, any person who is detained during investigation or for trial or for any other reason shall not be subjected physical or mental torture or to cruel, inhuman or degrading treatment. 5 Any act referred as torture shall be punishable by law, any person so treated shall be provided with such compensation as may be determined by law, no person shall be held under preventive detention unless there is sufficient ground of the existence of an immediate threat to sovereignty, integrity or law and order situation of the state. 6 The rights relating to the justice provided by the Interim Constitution are as follows: 7 No person shall be detained in custody without informing him of the reason of arrest. Every person shall have the right to consult a legal practitioner of his choice at the time of such arrest. The arrested person shall be produced before the court within a period of twenty-four hours of arrest and any person shall not be detained in custody except on the order of such authority. No person shall be punished for an act which was not punishable by law when the act was committed Any person shall not be punished more than the prescribed by the law at the time of the commission of the offences. Every person charged with an offence shall be presumed innocent until proved guilty. No person shall be tried or punished for the same offence in a court more than once. No person is charged with an offence shall be compelled to testify against himself or herself. Every person shall have the right to be informed of any proceedings taken against him or her, Every person shall have the right to fair trial by competent court or judicial body. Any incapable party shall have the right to free legal aid. 2 Ibid,Article.12(2) 3 Ibid, Article.12(1) 4 Ibid 5 Ibid, Article.26 6 Ibid, Article.25 7 Ibid, Article.26 2

3 Constitutional responsibility of the Attorney General The Attorney General is a chief legal adviser of the state. He/she has the duty to provide opinions and advices on constitutional and legal matters to the government and such other authorities as the government may specify. The Attorney General and Subordinate Attorneys represent the government in lawsuits wherein the rights, interests, or concerns of the government are involved. The Attorney General makes final decision as to whether to initiate any case on behalf of the government in any court or judicial body. 8 He/she monitors the implementation of any interpretation given to law or any legal principle lay down by the Supreme Court. He/she is also entrusted to inspect the custody to determine whether the persons under the detention have been humanely treated or not. Provision regarding the criminal justice in future constitution The committee, constituted to prepare the concept paper for new constitution on Judiciary and Fundamental Rights, has submitted its report to the Constituent Assembly. The report has been sent to the Constituent Committee for further proceeding. The committee has made recommendation of fundamental rights to be guaranteed by new constitution. It has suggested incorporating the rights such as the rights relating to justice, right against torture and right against the preventive dentition in the new constitution also. The Interim Constitution has no any provision about victim rights. The concept of victim is one of the important components of criminal justice system. The committee has acknowledged the concept and has made recommendation to accommodate victim's right as "The victim of the crime shall have the right to access of information about the investigation and the proceedings of such crime. Victim shall have the right to get social rehabilitation and compensation." 9 CRIMINAL JUSTICE SYSTEM Criminal Justice System comprises of the system of crime investigation, prosecution, adjudication process and execution of the decision of the competent court. Crime Investigation The investigation of crime is the sole responsibility of the Police. The first information of crime is registered in the police office. After getting information of a crime police immediately makes an arrangement to initiate investigation. While conducting investigation police should make necessary arrangement to secure evidences and should adopt necessary measures so that the accused could not escape or flee. They may seek help from any person or authority in this regard. Before initiating investigation of a crime Police sends the preliminary report relating to the crime to the concerned Public Prosecutor. The Public Prosecutor may provide necessary direction to the police in relation to the methods and measures to be applied in the investigation process. The police office appoints an investigation officer for investigation of a crime. The Investigation officer prepares the legal documents explaining the description of the place of offence and situation of the crime scene. In the course of investigation search and seizure of the place or person should be done in the prescribed manner. While conducting search and seizure dignity of the suspected person should be 8 Ibid, Article.135(2) 9 3

4 respected. Sensitivity should be maintained in the case of women. Hence women police are deployed to examine and search the body of women. If any object, related to the crime, is found in course of the search, the police officer should prepare two copies of documents mentioning therein the description of the object, its location and condition. Search and Seizure is conducted giving the receipt of it to the concerned person. The proceeding of search and seizure should be conducted from the time of sunrise to the sun set. In the case of homicide or suicide police examines the corpse and prepare a legal document mentioning the description of the corpse, place and any other remarkable facts. If there is reasonable ground to believe that examination of blood, semen, or any organ of body or any other thing of the suspect may produce evidence relating to the crime, the police may examine such thing through forensic laboratory. While preparing legal documents of search and seizure, examination of corpse, and examination of the nature of the description of the place of the offences, the police should conclude the job in the presence of the following person: 10 at least two local people presented in the place a member of the local body or if not available then any civil servant of Nepal government accused (if available) and the informer of the crime(if available) The police arrest a suspect person if he/she seems involved in the crime. The notice explaining the cause of arrest should be given to the person so arrested. No person shall be detained for more than twenty four hour for investigation purpose. If investigation is not completed within twenty four hour and the investigation is to keep continue putting the suspect in the detention, then the police should seek the permission of the court producing him/her before the court. The detainee may make an application to the court for his physical examination. If the court satisfies with the reasons as mentioned by the police it may grant permission to keep him/her under the custody up to twenty five days. 11 The police take the statement of the suspect in the presence of Public Prosecutor. If the police satisfy that a suspect should not be kept in the custody any more, he/she may release the suspect by taking the approval of the Public Prosecutor. 12 If the police deems necessary he/she may take the opinion of expert relating to any aspect of the crime and may ask for legal advice from Public Prosecutor at any time. After completion of the investigation the police produce the original and copy of the file with opinion about the investigation along with the physical evidence to the Public Prosecutor. 13 Proposed Investigation Procedure The Proposed Criminal procedure code Bill, 2011 has introduced some new provisions regarding investigation: If the police office denied registering the information of crime, informer can complain to the Public Prosecutor Office with the disclosure of such deny. Public Prosecutor Office shall keep the record of such complaints and sends to the concerned police office for necessary proceedings. 14 Police arrest the suspect with the approval from the court State cases Act1992,Sec.8 11 Ibid,Sec Ibid,Sec Ibid,Sec Criminal procedural Code Bill 2011,Sec.5 15 Ibid,Sec.9(2) 4

5 Prosecution Police shall send the preliminary investigation report to the Public Prosecutor office within three days from the starting date of such investigation. Police keeps illusive, false or fictitious information in pending with the approval from the Public Prosecutor. 16 The police office maintains a record of custody with description of his identity. 17 Investigation authority may produce an offender to the court through the Public Prosecutor for taking the custody for more than twenty four hour. 18 The court shall maintain the record of crime information. 19 The investigation officer maintains the investigation diary and such diary can be monitored by the Public Prosecutor and the court at any time. 20 The Attorney General may provide necessary direction to the investigating authority or concerned department regarding the investigation 21 Police can forward the investigation proceedings without taking the custody in such case of seven month pregnant woman, elder more than seventy years and minor. 22 Police can take statement or inquiry through the video conference in case of any person is unable to present due to the reason of physical conditions or security. 23 The Interim Constitution has provided the authority to the Attorney General to decide whether to prosecute or not in any criminal cases and can delegate power of prosecution to his/her subordinate prosecutors. The organization hierarchy of Prosecutor Office is in three tiers; Office of the Attorney General at the central level. Sixteen Appellate Attorney Offices at the regional level. Seventy-five District Attorney Offices at the district level. The District Prosecutor decides whether to initiate case or not. If he/she decides to initiate a case then he/she will prepare charge sheet against the suspect with following information; 24 Full name, surname and address of the accused, Crime information Description of crime Charge on the accused and evidence thereof Concerned law Punishment to be inflicted to the accused Amount of compensation Name of the case Punishment history of accused if any. 16 Ibid,Sec Ibid, Sec. 13(3) 18 Ibid,Sec.14(3) 19 Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec.14(10) 23 Ibid,Sec.16(6) 24 State Cases Act 1992, Sec.18 5

6 The charge sheet is submitted to the court or concerned authority along with the suspect, collected evidence and objects relating to the crime within the prescribed time by the law. Proposed prosecution system The Criminal Procedural Code Bill, 2011 has proposed some new provisions to reform prosecution system: Provision of plea bargaining 25 Power to close petty offences 26 Power of Additional prosecution 27 Power to amend charge sheet 28 Provide a copy of charge sheet in case of prosecution and copy of decision in case of not prosecution to the investigation authority. 29 Adjudication process There are three tier court systems in Nepalese judicial system: 30 Supreme Court as an apex court in Kathmandu, Sixteen Appellate Court in various regions, and Seventy five districts have District Court in their head quarters. Generally, District Court is the court of first instance. The court proceeding starts after a charge sheet is filed by the district prosecutor. If the accused is produced with the charge sheet, the court registers the case and takes his/her statement. The preliminary hearing is held to determine whether the accused is to kept in judicial custody or release him/her on Bail or release him/her on the commitment to present in the court on the date as stipulated by the court. If all the accused are not produced along with the charge sheet then court issues summon and warrant in the name of absconded accused. The court evaluates the demand of the charge sheet and the statement of the accused in the second hearing. If the charge of the accused is accepted by the accused then judge can decide the case immediately. If he/she is not accepting the charge of the prosecution then court will give order to both the parties to produce the evidence on such disagreed points. The Public Prosecutor takes testimony of the witnesses and submits the evidence in the courts. The court gives an order to the police to produce the witnesses mentioned in the charge sheet. The police produce the witnesses and evidence through the Public Prosecutor at the expense of Government on date fixed by court. 31 The Public Prosecutor examines the witnesses of the accused through cross questions. Similarly defense counsel takes testimony of the witnesses of his/her client and examines the witnesses of the Government through cross questions. 25 Criminal procedural Code Bill 2011,Sec Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec The Interim Constitution 2007, Article State Cases Rule 1998,Rule15(1) 6

7 Final hearing begins after the completion of the stage of evidence producing and examining them. The Judge evaluates the claim of the prosecution, evidence, statement of the accused, opinion of both council and decides at first whether the crime has been occurred or not. On the basis of the evidence presented before him/her logic presented by the lawyers of both parties he/she decides whether the offence has occurred or not if occurred the accused is involved or not and if the accused is found guilty what would be the amount of the punishment. Any party who is not satisfied by the judgment has the right to file an appeal within the seventy days from the date of summon received for the appeal or decision hearing date. 32 Proposed adjudication process The Criminal Procedural Code Bill, 2011 has proposed some new provisions to reform adjudication process: Summon and warrant can be issued by the notification of national daily newspaper or electronic media for the person who is in the foreign country 33 Special provision for the absconded person in warrant are: 34 Suspend public post, To stop transfer of ownership of property, Stop any benefit received from the Intellectual Property, etc. Introduces the guaranty system as a bail for the trial 35 Co-accused can cross the accused 36 Prosecution has a priority to produce witnesses at first. 37 Witness examination by the Video conference and record is admissible. 38 Necessary arrangement for the security of prosecutor's witnesses 39. The court can issue an order for the protection of witness on the basis of his/her application. 40 Provision for the witness examination who are outside the territory of Nepal 41 Other lawyer may plead on the recommendation of Public Prosecutor in criminal case from the prosecution side 42. Thirty days time for appeal. 43 Information of decision deemed to be received after expiry of one year from the date of final decisions State Cases Act 1992, Sec26(1) 33 Criminal Procedural Code Bill 2011,Sec.64(3) 34 Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec Ibid,Sec.181(5) 43 Ibid,Sec.134(1) 44 Ibid,Sec.134(4) 7

8 Execution of Judgments The District Court has the duty to execute the decisions of all the courts. The Court separately maintains the record in the name of offender, including the duration of imprisonment, the date of the release, amount of fine, claimant amount, and the amount of compensation. Provision of Punishment According to our prevailing laws the court may punish the accused with different way in different type of offences. They are as follows: Life imprisonment with Entire property Life Imprisonment (Twenty years) Imprisonment and Fine Imprisonment Fine Written commitment of defendant not to repeat the same crime in future. 45 Compensate claimant amount to the victim Provide reasonable compensation to the victim Twenty percent of the period of imprisonment and fine amount may be waived when the convicts are ready to pay the amount of fine or ready to imprisonment within sixty days from the date of final decision. 46 If the judge deems reasonable not to execute imprisonment of the first time offender by taking the amount of twenty five rupees for per day imprisonment, in the cases where punishment is only three years or less than three years imprisonment. 47 In this situation written commitment of not to commit crime again by the offender is necessary. If there is punishment of both fine and imprisonment, in such situation nonpayment of fine results in imprisonment of not more than four years 48. If there is only fine for any offence and the convict is unable to pay the amount of fine in such a situation not more than two years imprisonment is fixed. 49 Penal law in future The proposed Criminal Offences (Assessment and Execution) Bill, 2011 and Criminal Code Bill, 2011 have made major provisions which are as follows; Punishment for the commencement of the offences; 50 Life imprisonment (Thirty Year ) Fine Imprisonment with fine Compensation 45 Some Public(Offences and punishment) Act 1970,Sec.6(2) 46 Muluki Ain,Danda Sanjayako Mahal, No.41A 47 Ibid,No.11A(2) 48 Ibid,No.38(1) 49 Ibid,No.38(3) 50 Criminal code Bill 2011,Sec.39(1) 8

9 Imprisonment instead of nonpayment of fine or compensation Community service instead of imprisonment Punishment of entire property is removed 51 Define atrocious and serious offences 52 Separate treat for the juvenile 53 No criminal liability under the age of ten years 54 Provision of up to fifty percent concession in punishment 55 Provision for interim compensation 56 Separate hearing for; 57 Assessment of more than three years of imprisonment, or Assessment of fine more than thirty thousand rupees Provision of pre punishment report 58 Basis is necessary for the assessment of punishment 59 Provision of community service for offender 60 Provision for suspend of punishment. 61 Provision of reform Home 62 Provision of rehabilitation center. 63 Imprisonment can be utilized differently as; 64 take prison only in the last day of a week take prison only in the night Provision of open Jail 65 Provision of parole 66 Offender in labor of public work 67 Provision of socialization of offender 68 Jail is compelled to conduct a reformative program 69 Provision of probation and parole Board 70 Provision for the compensation to the victim Ibid,Sec.39(2) 52 Ibid,Sec Ibid,Sec Ibid,Sec.13 and Sec.44(1) 55 Ibid,Sec Ibid,Sec Criminal offences (Assessment and execution) bill 2011, Sec.9 58 Ibid,Sec Ibid,Sec Ibid,sec.2 61 Ibid, Sec Ibid, Sec Ibid, Sec Ibid, Sec Ibid, Sec Ibid, sec Ibid,Sec Ibid,Sec Ibid, Sec Ibid,sec.38 9

10 CONCLUSION Provision for the punishment recommend committee 72 Provision for the victim relief and compensation committee 73 etc. Nepal has been transferred from the Monarchical state to the Federal Democratic Republic State. In the course of making new constitution diverse interests have been surfaced. The people of different class, region, gender, political parties and ethnic groups are exerting pressure to have their interest accommodated in the upcoming constitution. In this transitional period criminal activities in the country have been significantly increased. Some armed groups have been active in the various parts of the country. As a result, the situation has been tough for police and public prosecutors. At this juncture they have to bring the offenders into justice through impartial and fair investigation and prosecution. At present, constitution making has been central focus of our country. It needs consensus among interest groups such as political parties, civil society, tribal groups, and intellectuals and so on. A consensus has been built to strengthen criminal justice system of the country accommodating newly emerged concepts in the field of criminal jurisprudence, fair trial and victim justice. To make the laws in line with these concepts and to make criminal justice system effective, the Government of Nepal has introduced three Bills to legislative parliament viz. The Criminal Code 2011, the Criminal Procedural Code 2011and the Criminal Offences (Assessment and Execution of Punishment) Bill These proposed laws incorporate the principle of criminal justice, define various nature of crime, also specify criminal procedure and introduce the progressive punishment and reformative theory of punishment. Similarly, the proposed codes envision the proactive role of the public prosecutor in course of the investigation as well as in the execution of the decision. For effective prosecution the codes empower the prosecutors providing them the authority to direct, guide and supervise the police in the course of investigation. Under these proposed codes the prosecutors have the power of discretionary prosecution and power to amend the charge-sheet filed in the courts. In course of adjudication process the prosecutors can direct to the police to produce any relevant evidence and witness in the court. In court hearing process public prosecutor has active role to examine and cross examine the witnesses. The Criminal Offences (Assessment and Execution of Punishment) law will be new practice for Nepal once the bill passed by the parliament. The Attorney General will be the head of Central Parole and Probation Board. In each district of the country District Prosecutor will be the head of the district Probation and Parole Board. These new provisions and measures are essential to make the criminal justice system of the country update, strong and efficient. 71 Ibid, Sec Ibid, Sec Ibid, Sec.48 10