CRIMINAL JUSTICE SYSTEM OF NEPAL

CRIMINAL JUSTICE SYSTEM OF NEPAL Yuba Raj Subedi Soorya Prasad Pokharel DEVELOPMENT OF NEPLEASE LEGAL SYSTEM The legal system of Nepal has been developed through two stages. The first stage is termed as the era of unmodified law and the second stage is called the era of codified law. The first stage or era of unmodified belongs to the Karat Era, Lichhavi Era, Malla Era and Shah Era prior to 1853A.D. Customs, traditions and social practices were regarded as law in this stage. The body of law was divided in two parts i.e. civil and criminal. To hear the different nature of cases, various kinds of courts were formed accordingly. The procedural law was very specific. The whole system of law was based on indigenous customary law which was largely influenced by Hindu Philosophy. The era of codified law began with the promulgation of National Code 1853 A.D. The Code was influenced by the Napoleon code of France. The Code is the initiation of the then Prime Minister Junga Bahadur Rana, who had been inspired by the Napoleon code of France during his Europe visit. This Code of Nepal first ever embodied the principle of equality before law and equal protection of Law in its Preamble. Nepalese legal system has no any division between public and private Law. It has two categories of laws viz. Constitutional law and statutory law. The Constitution has been regarded as the fundamental law of the land therefore any laws inconsistent with it no longer remains valid. CRIMINAL JUSTICE SYSTEM Criminal justice system is comprised of crime, criminal law, police, prosecutors, judges, criminals and victims and courts. The main aim of the criminal justice is to punish offenders and to provide justice for victims. It also prevents the potential offender from committing a crime. Violation of 1

criminal law affects the society at large. Therefore, it is a prime concern of the state to bring the offender to justice through fair and impartial investigation, prosecution and adjudication process. The Component of Criminal Justice System Criminal law and Penal policy Police and Prosecutor Suspect\Accused and Defense Lawyer Court Victim Civil Society Criminal Law and Penal Policy Criminal law deals with crime and punishment. There are two types of law viz. substantive and procedural law. Substantive criminal law proscribes and criminalizes certain acts of individuals thereby stipulating punishment. It also recognizes the rights of the victims. Procedural law is invoked in every stages of criminal justice system from investigation to the execution of the final decision. Principle of fair trial and natural justice are applied in every criminal case if a trial is to be conducted. Penal policy is related to different types of punishment. It can be pursued taking in to account different aspects and circumstances including the nature of crime, time, place and the condition of the criminals etc. Nepal was abolished death penalty by the constitutional provision of 1990 A.D. Maximum punishment under prevailing law is life imprisonment with confiscation of entire property. It has no any provision of probation and parole system. Provision of open jail and community service has been limited only in the Prison Act 1963. In fact, there is no any specific socialization program and also no any separate sentencing legislation. Realizing the need of such laws the Criminal Code, Criminal Procedure Code and the bill of Punishment Assessment and Execution Act have been drafted and they have been introduced in the parliament. Police and the Prosecutor Police is entrusted to carry out investigation of a crime. If the information of any criminal act is found by any means immediately police 2

comes in operation. It appoints crime investigating officer who has to remain in touch with public prosecutor. Investigation begins upon the reception of the information of a crime and generally ends when investigating official submits investigation report to the public prosecutor (District Government Attorney) for the decision whether to file the case or not. Power and duty of investigating officer To reach to the crime scene as soon as possible. 1 To record the statement of eyewitness and person who have known about the crime and prepare the legal document. 2 To carry out search and seizure on any suspected place or person. 3 To arrest the suspect of crime by giving the reason of arrest and to keep the suspects in the custody, if necessary. 4 To take permission of the court to detain more than twenty four hour to the suspect. 5 To take statement of a suspect in the presence of the prosecutor 6. To collect the material evidences of the crime. To release the person on the guarantee of attendance 7 To follow the legal direction of the prosecutor. To produce a case file along with final investigation report with his opinion to the public prosecutor. 8 To submit the materials or document of evidential value which are received after the filing a case in the court through the prosecutor. 9 To present witness in the court through the prosecutor on the stipulated time and date. 10 In criminal justice system the prosecutor plays a vital role in the pre trial, trial and post trail stage. She/he gives direction to the police for the investigation of crime from the very beginning. She/he can interrogate to the suspect about the crime. Police (investigating official) should take the 1 State Cases Act,1991, Section 7 2 State Cases Rule,1998, Rule 4 (6) 3 supra note 3, Section 10 4 ibid, Section 14 5 ibid, Section 15 6 ibid, Section 9 7 ibid, Section 21 8 ibid,section 17 9 Supra note 4, Rule 14 10 ibid,rule 15 3

statement of suspect in the presence of public prosecutor 11. She/he may advice on the legal issues to the police at any time during the investigation. She/he may provide permission to the police for releasing a suspect from legal custody. 12 Under the constitution and prevailing law prosecutor has a sole authority to decide whether to prosecute or not. 13 She/he frames a charge sheet and files a case in the court and also defends on behalf of state by pleading, producing evidence, examining witnesses. In case of failure of the case she/he appeals in the higher court. Relation between Police and Prosecution to combat impunity Investigation and prosecution are coordinated acts in the criminal justice system. Both acts require investigation skill as well as legal expertise. The State case Act 1992 and other prevailing laws have entrusted police as an investigating institution and Office of the Attorney General as a prosecuting authority. Therefore, a collective and coordinated effort of both police and Government Attorney is required for successful prosecution. In Nepalese criminal justice system the role and mandates of police and Government Attorney have been illogically separated. Police considers its job accomplish once it hands over the case file to Government Attorney and then after it does not want to own the further proceeding of the case. On the other hand, Government Attorney has very limited and minimal role in the investigation process. Usually police considers interference in their domain if any direction is given by Government Attorney to the investigating official. Similarly Government Attorneys always blame the investigation for the failure of cases. Owing to such situation a gulf has been made between police and Government Attorneys and it has eventually hampered the effective prosecution. Hence collective campaign has not been strong to combat impunity through the criminal justice system. The State case Act has envisioned effective coordination between police and prosecutors. Public prosecutors have been regarded as legal advisor to the police and the prosecutors have also been given the authority to provide direction to the police. They both have to be involved in the interrogation process. Police has to assist the prosecutor in making charge 11 supra note 8 12 Supra note 3, section 4 13 Interim constitution 2007,,Article 135(2) 4

sheet and producing evidences in the court of law. Similarly, the Rules regarding Government Attorneys (public prosecutors) 1998 has made a provision for the central level coordination committee which comprises the Attorney General as a chair person and Deputy Attorney General, Secretary of Home Ministry, Chief of the police as members. 14 Taking seriously the need of effective coordination, the following steps have been recently taken: The Attorney General has recently issued 33 points guidelines to the police and prosecutors to maintain the coordination to effectively conduct investigation and prosecution with the help of each other. Office of the Attorney General has proposed appellate and district level coordination committee through its Five Years Strategic Plan of Action. Joint training programmes have also been initiated. Police have become regular participants in the programmes launched by Office of the Attorney General. Organizational Structure of the Public Prosecutors office. Office of the Attorney General Office of the Attorney General is located in capital city of Kathmandu which is the head office of the public prosecutors. The Attorney General (AG) is a constitutional post appointed by the president of Nepal on the recommendation of the Prime Minister 15. The Attorney General is entrusted as a chief public prosecutor and chief legal advisor of the Government. The power and function of the Attorney General are as follows; 16 Chief legal advisor of Nepal government. Represents the Government in lawsuit wherein the rights, interests or concerns of the government are involved. He/she has the power to make final decision as to whether initiate any case on behalf of the Government in any court or judicial authority. 14 Supra note 4, Rule 22 15 Supra note 13, Article 134 16 Ibid, Article 135. 5

He/she has the duty to monitor implementations of any interpretation given to the law or any legal principle lay down by the supreme court of Nepal. He/she has the power to monitor the custody to ascertain whether the detainee has been treated humanely or not. He/she has the power to appear and express his/her opinion on any legal question in any meeting of the legislature-parliament or any of their committees. The subordinate prosecutors of the Attorney General are Government employees. Their service comes under prosecutor group of the judicial service. They are recruited by the nationwide examination of taken by the Public service commission. The Attorney General is the highest post and he/she regarded as a chief public prosecutor. Other posts of the public prosecutor are Deputy Attorney General, Joint Attorney, Deputy Attorney and District Attorney and Assistant District Attorney in the descending ranking order. Appellate Attorney General Office The organizations of office of the Attorney General are similar to the courts structure. There are sixteen Appellate Attorney General Offices all over the country corresponding to the sixteen Appellate courts. The Appellate Attorney General Office is headed by the Joint Attorney who is the senior post of the public prosecutor. She/he has the responsibility to monitor and inspect all the subordinate Attorneys and supporting staff within the region. She/he represents the government in lawsuit in Appellate Court, wherein rights, interests or concerns of the State are involved. The Attorney General of Nepal has delegated his power to monitor and inspect the custody to the joint Attorneys of Appellate Attorney General Offices. District Attorney General Office District Attorney General Office is headed by the District Government Attorney working as a public prosecutor at district level. In the criminal justice system District Government Attorneys are the key personnel to gear up the system. They directly contact with the investigating officer, provide direction and give legal advice to the police. District Government Attorney decides whether to initiate a case or not under the authority provided by the 6

Attorney General. She/he files charge sheet independently, produces evidence, examines the witness and plead in the court. In case of failure of the case she/he sends the draft of appeal to the Appellate Attorney General Office for appeal. Accused and Defense Lawyer An accused is a person who has been charged of committing a crime. She/he has the right of fair trial in every stage of investigation proceedings. In pre trial stage, she/he has a right to know the reason of arrest and get the information of detention; not detained in custody more than twenty four hour except on the order of the court; has the right to legal counseling of her/ his choice at the time of arrest; has the right to silence; presumed innocent until proved guilty of the offense; right to be informed of any proceedings taken against him. 17 In the trial stage an accused person has the right to fair trial by a competent court in the every step of court proceedings. If accused is unable to hire a lawyer then the court provides a lawyer for him. Court There are three tiers of courts 18 in Nepalese Justice System. The Supreme Court is the apex Court. It has power to declare ultravires the law which is inconsistent with the constitution. It is regarded as a court of record. It supervises and controls all the subordinate courts. There are sixteen Appellate Courts in various regions to hear appeal and writs. There are seventy-five District Courts in each district established as a trial court or court of first instance. The judicial power of state is applied by the courts through the established national and international principles of justice and the law. The chief justice of Supreme Court is appointed by the president on the recommendation of the Constitution Council. Other judges of Supreme Court, and the Judges of Appeal court and District court are appointed by the Chief Justice on the recommendation of Judicial Council. The courts are regarded independence and impartial judicial bodies. They have no role in the investigation and prosecution process except in some exceptional situations. Therefore, the judge has to discharge his/her 17 Ibid, Article 24 18 Ibid, Article1o1 7

duty as an umpire. Generally, Criminal and civil cases are heard by the same District Court as there are no different courts to hear civil and criminal cases separately. In some pilot courts there are separate bench for criminal and civil cases. District Courts are courts of first instance however they have been empowered to hear the habeas corpus and injunction writs 19. Single judge hears and decides the cases in District Court. Most of the criminal cases are filed in the district court. In the district court, after taking the statement from the accused the case is opened for preliminary hearing to decide whether to keep the accused in the custody, or seek bail, or free him/her on the condition to present the court on the stipulated date. Secondly, the hearing begins for the purpose of producing evidence. The court examines the evidences by several methods. The focus of the court will be on those issues on which the parties of the case have diverse claims. Final hearing relates to the disposal of a case. In the final hearing the judge decides conviction or acquittal of the accused on the basis of admissible fact and evidences. Defeated party may appeal in the higher court. The court executes the decision after the final approval of apex court. Victim Generally, sufferer from an offence is a crime victim. Criminal justice system provides relief to the victim by punishing the offender and providing compensation and reparation to the victim. In most of the cases victim is the primary evidence of the crime. She/he may be the crime informer as an eye witness or may have suffered physical, mental or psychological harm because of the crime. At present victim's approach of justice has been introduced in the criminal justice system of Nepal. Civil society and general people In civilized society, the members of the society are the agents of peace and prosperity. Social harmony is necessary in the society. In this regard, less dispute and effective dispute handling mechanisms are necessary. Therefore, every member of a society has the duty to cooperate to the police, prosecutor and the court for the purpose of dispensing justice. 19 Justice Administration Act,1991 Section 7 8

Progress Report of the Prosecution Generally, criminal cases are filed in the District Court however some criminal cases are filed in the quasi judicial body like District Administration Office, District Forest Office and so on. Recently published annual report of Attorney General has mentioned the total number of registered cases, settled cases and convicted cases, non convicted cases and remaining number in the year 2009\10 A.D. DESCRIPTION OF THE CASES (2009\10) 20 Hearing Institutions Total cases Settled cases Convicted cases No convicted cases Remaining cases Conviction Percentage District Court 12,411 6.255 4,454 1,801 6,156 71.21 District 8,585 4,080 3,939 141 4,505 96.54 Administration Office Other Entity 482 211 201 10 271 95.26 Total 21,478 10,546 8,594 1,952 10,932 81.49 The Causes for lower conviction The causes for lower conviction are as follows; Investigation is based on the oral evidence rather than the material evidence. Political, social, economic, psychological or physical pressure to the police, prosecutor, judge and court personal Witnesses of the government are not willing to present at the court for the testimony due to lack of witness support programme. Witnesses of the government often go hostile in the courts due to lack of perjury law. Lengthy procedure of the court. 20 Annual report of Attorney General office 2009/2010,p,office of the Attorney General of Nepal Government, Kathmandu,2011 9

Police, prosecutor and judge are not familiar to the modern technique and principle of investigation and the crime. Lack of coordination among the police, prosecutor, the judge and court personnel. The prosecutors lack effective case framing and presentation skills. POSSIBILITY TO REFORM IN CRIMINAL JUSTICE SYSTEM Nepal has been facing prolong transitional period. The Constituent Assembly is working hard to bring new constitution of Nepal. Officially, insurgency was ended by the Comprehensive Peace Accord reached upon between the Government of Nepal and Nepal communist Party Maoist in 2006 A.D. The Maoist party became the largest party through the election of Constituent Assembly held in 2008A.D. Nepal was declared federal republic by the first meeting of the Constituent Assembly. There are so many conflicting issues and interest among the different political parties, gender, racial and regional groups. The Interim constitution has taken the objective of respecting the peoples mandate in favors of democracy, peace and security with full commitment of democratic value and norms. It has guaranteed the fundamental right, right to life liberty, right against torture, right against preventive detention and right relating to justice etc. Prevailing criminal laws are very old and scattered into different legal provisions and statutes. The provision of punishment is not appropriate. Similarly, the process of investigation, prosecution and adjudication process are rigid. At this juncture, Nepal needs to reform the entire Criminal Justice System and hence the proposed three Bills have been introduced to the Parliament. The bills are: Criminal Code Bill, 2011 Criminal Procedural Code Bill, 2011 Criminal Offences (Assessment and Execution of Punishment) Bill 2011 Criminal code Bill, 2011 10

The proposed Bill aims to amend and unify existing criminal laws making them in tune with the need of the present time. Under the code many criminal offences are redefined and the punishments for such offences are prescribed accordingly. Major characteristics of the bill are as follows; Defines different types of crime and punishment in a single code. Separate provisions of conspiracy, accomplice and attempt of the offence. 21 Extends the limitation in sexual offences. 22 Removes the punishment of confiscation of entire property 23. Additional punishment for atrocious and habitual criminal. 24 Extends life imprisonment (Thirty years). 25 Juvenile under the age of 10 years is exempted from criminal liability. 26 Revised the punishment for different offence with compatible to the recent word ( i.e. tenure of imprisonment and amount of fine in proportion to the ratio of the offences ) Introduces the plea bargain. 27 Introduces the interim compensation. 28 Principles of criminal justice are incorporated in the code 29. Criminal Procedural Code Bill, 2011 It aims to amend and unify the existing laws relating to investigation, prosecution, registration, trial, hearing and other procedure to meet need of the present context. Major characteristics of Bill are as follows; Police can record the statement of any person through the video conference who cannot present before the authority due to physical or mental condition. 30 Provision of additional and amendment of charge sheet 31 21 Criminal code Bill 2011, Chapter 3 22 Ibid, Sec.229 23 Ibid, Sec.39(2) 24 Ibid, Sec.43 25 Ibid,Sec.41 26 Ibid, Sec.13 27 Ibid,Sec.47 28 Ibid, Sec.48 29 Ibid, Chapter 2 30 Criminal procedural code Bill 2011,Sec.16(6) 31 Ibid, Sec.35-36. 11

Provision for pending the prosecution in petty offences. 32 Court may examine the witness through the video conference. 33 Introduces the cross examination of co-accused. 34 Special provision for the absconded person. 35 Prosecution has a priority to produce his/her own witness first. 36 Introduces camera hearing in the special cases such as human trafficking, sexual offences etc. 37 Provision of keeping the identity of victims and witness confidential as per the need. 38 Provision of taking testimony of the witnesses residing in the foreign country through the video conference. 39 The court can issue an order for the protection of witness. 40 Criminal offences (Assessment and Execution of Punishment) Bill 2011 The Criminal Offences Bill aims to determine the reasonable punishment to the wrongdoer of criminal offences and execution of such punishment. The following are the salient features of the proposed Bill; Provision of pre assessment report of punishment. 41 Separate hearing for assessment of punishment. 42 Basis of punishment. 43 The amount of fine shall not affect the payment of compensation. 44 Establishment of victim relief /compensation fund. 45 Basis of assessment of the amount of compensation. 46 32 Ibid, Sec.34 33 Ibid, Sec 109 34 Ibid, Sec.103 35 Ibid, Sec 65 36 Ibid, Sec.127 37 Ibid, Sec. 129 proviso 38 Ibid,Sec.184 39 Ibid,Sec.186 40 Ibid, Sec.114 41 Criminal Offences (Assessment and Execution of punishment) Bill 2011, Sec.12 42 Ibid,Sec.9 43 Ibid,Sec.15 44 Ibid,Sec.19 45 Ibid, Sec.48 46 Ibid,Sec.41 12

Probation and parole board. 47 Punishment recommendation committee. 48 Progressive treatmeent towards the offender. Community service instead of imprisonment. 49 Suspension of punishment of imprisonment for three year. 50 Send to the offender in reform home. 51 Send to the rehabilitation center instead of prison 52. Keep in Jail only in the night or only in the last day of the weekend. 53 Keep in open Jail on the recommendation of Jailer after the fulfillment of two third imprisonments. 54 Keep in parole. 55 Labor in public work instead of punishment. 56 Reformative program in Jail for the improvement of habit of convict. 57 Socialization of offender. 58 CONCLUSION In fact, effective investigation, strong prosecution and reasonable adjudication are the need of any civilized society. But, the transitional phase of the society is unable to establish the reasonable system to overcome by this stage. The urgent need of the Nepalese society is to defeat the following substantial constraints as follows; People are not aware to cooperate in investigation, prosecution and adjudication process. 47 Ibid,Sec.38 48 Ibid, Sec.46 49 Ibid,Sec22 50 Ibid,Sec.24 51 Ibid,Sec.25 52 Ibid,Sec.26 53 Ibid, Sec.27 54 Ibid,Sec.28 55 Ibid,Sec.29 56 Ibid,Sec.31 57 Ibid,Sec.33 58 Ibid,Sec.30 13

Lack of conceptual and technical knowledge of recent trend of crime and technique of investigation, prosecution and adjudication with police, prosecutor and judges. Lack of cordial professional relation among the police, prosecutor, defense counsel and court personnel. Prosecution is based on subjective evidence rather than material evidence. Lack of team work between the police and prosecutor. Insecure terms and condition of the service of the investigation authority and prosecutions. No any separate and specialized wing of police for investigation of a crime. Investigator and Prosecutor works under the pressure of the various corner of the society. Lack of favorable working environment including infrastructure like building, laboratory, library etc. Lack of effective witness protection program and perjury laws. 14