Criminal Justice System (CJS) as an administrative vis-à-vis a legal mechanism for the enforcement of penal laws is characteristically entrusted for reducing crime rates, deterring the commission of crime, and their ramifications in a society either through punishment or rehabilitation of the offenders. This article aims to briefly assess the development of CJS in Nepal and its major challenges as of today. Studying the weaknesses of a legal system undoubtedly results in a more precise understanding of the system concerned, which to my view is more pertinent to the study of CJS. With that hope, I wish to present a succinct study of the Nepalese CJS and introduce this system to the readers through issues, deliberating on the major impediments towards being a victim-centered justice system.
The CJS of Nepal, in legislation or statutory arrangement, is more or less analogous to that of the other justice system, particularly of the common law countries. However, a mixed legal system, i.e. an amalgamation of common law, civil law, and Hindu law systems, is mostly followed here. Despite substantial development of the legal regime over the years, the crisis of delivering criminal justice to the victims on many levels are apparent, generally due to the lack of skills of law enforcement agencies and concerned stakeholders of the system.
The structure of CJS in Nepal is basically three-tiered – starting from the stage of investigation to an adjudication stage of the case by the judiciary, and finally ending up with the penal system. The rehabilitation of the offenders is the prime concern of the CJS of Nepal, owning to the fact that severe punishments like death penalty or even imprisonment for life is absent here. The harshest punishment is 20 years of imprisonment and confiscation of property for the most brutal crimes like homicide, may it be of one person or holocaust of a hundred.
In early 1854, the General Code (popularly known as the aka Muluki Ain of 1910 BS) was introduced in Nepal considering it to be a milestone in the history of criminal justice. This was the first written and codified law in Nepal for both civil and criminal law matters, which prescribed punishments for criminal cases on the basis of caste hierarchy; it also recognized crimes such as forgery, offence against the human body and life including homicide, abortion, theft, arson, sexual offences. Previously, punishment for the offenders was greatly influenced by religious and cultural practices, mainly by the doctrines of Hindu Law. For example, the Brahmins for their elite upper caste were exempted from facing death penalty, and killing a Brahmin was considered to be a sin. Similarly, women were given half the punishment given to men for the commission of the same crime. However, there were severe punishments like death penalty for lower castes Hindus.
An educationist Shanta Dixit citing Andras Hofer pointed out that although this code was inspired from the French systems and the Napoleonic Code was taken as an archetype, the General Code of Nepal was not drafted and designed to build a democratic and egalitarian society based on the ‘philosophical underpinnings’ of European political thoughts, as was the case with American constitution drafted around the same time; but rather the Muluki Ain confirmed what Nepal had come to be socially, culturally and economically. However, this Code during its time was relatively progressive for few reasons – firstly, it eliminated savagery and severity in punishments like death penalty, mutilation, and banishment; and secondly, it introduced the concept of proportionality in consideration to the severity of crimes while awarding punishment to the offenders.
The Code was amended 13 times, and the most important contribution in the criminal justice administration of Nepal was the amendment of 1963, now known as the Muluki Ain of 1963, which prevails till date to oversee all criminal proceedings. The Muluki Ain is divided into five parts, of which – Part IV deals with crime and punishment, which is again sub-divided into different chapters on looting, cheating, theft, arson, counterfeiting, illegal detention, kidnapping and hostage taking, and battery and homicide. This General Code of 1963 was secular in nature and for the first time in CJS history of Nepal, it adopted the principle of ‘equality before the law’. New forms of punishment such as determinate prison sentences instead of life imprisonment, confiscation of property etc. were introduced by this code, whereas punishments like death penalty and caste based punishment were completely eliminated.
Adopted in 2007, the Interim Constitution of Nepal has guaranteed the right to fair trial, and the freedom from torture and preventive detention as the fundamental rights for the citizens. The proposed Draft Constitution has also included sets of rights aiming to protecting the victims in the list of fundamental rights. Further, the court system is proposed to be reshaped with a new High Court and the Jury Trial system. Nepal is a signatory member and/or party to many international human rights treaties and international humanitarian conventions, and is prospective to ratification of the Rome Statute of the International Criminal Court. A distinguishing feature of Nepalese legal system is the existence of Section 9 in the Nepal Treaty Act of 1991, which specifically states that any treaty or international convention signed by the Government of Nepal, when accepted and approved by the Parliament, is to be incorporated in national laws, and that will be applicable “as good as” the laws of Nepal. It implies that international conventions can also be taken as a standard of laws in the legal system of Himalayan Nepal.
Despite being a state party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984,which prohibits the use of any forms of torture, physical or mental, for the purpose of obtaining information or confession from the person held in detention, the use of force is a common phenomenon to extract confessions from the accused persons in Nepal. We should not forget that the practice of fair trial and ensuring freedom from torture under criminal laws are important determinants to examine the efficiency of any CJS. In Nepal, there is substantial statutory arrangement for ensuring right to fair trial and justice ranging from constitutional law to delegated legislation, but neither of them has unfortunately attained proficiency of appreciable implementation till now.
Article 25 of the Interim Constitution focuses on freedom from preventive detention, which states that holding of a suspect under detention for more than 24 hours is illegal. In reality, however, the suspect is arbitrarily and capriciously held as long as police and investigating officer so desire. It usually takes place until confessions are ‘extorted’ or enough evidence is mustered to incriminate the person. Such an extended period of detention occurs without any legal mandate. Common Article 9 both to the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1966, to which Nepal is a state party, has put a prohibition on arbitrary arrest and detention emphasizing that such an arrest hinders the right to liberty of an individual. But arrest without a warrant is a common practice in criminal proceedings in Nepal. A major setback for the practice of fair trial in Nepal is the deliberate and complete disregard of the right to legal counsel of an accused person’s own choice. Again in many cases, the prosecutors are barred from meeting their clients immediately after the arrest.
Not being apparently a victim-centered justice system, the CJS of Nepal is far from meeting the minimum standard of criminal justice jurisprudence today. People are often unwilling to assist in a criminal investigation, and on the part of police, no specific wing has yet been formed for the purpose of investigation. Perhaps it is right to comment that there is a purposeful lack of coordination among police, public prosecutors, court personnel, and judges in the overall justice system. Thus, such hindrances affect the pretrial stage which has its direct upshot to the trial stage of the case and also in the appeal proceedings. Nevertheless, to uplift the standard of Nepalese legal system and to bring it in harmony with the legal systems of the rest of the world, several new bills have been presented in 2011 in the Nepalese Parliament. These bills include the Criminal Code Bill, the Criminal Procedural Code Bill, and the Criminal Offences (Assessment and Execution of Punishment) Bill. These bills incorporate the concepts of modern criminal jurisprudence with a special focus to reformative theory of punishment, which is entirely different from what has been practiced in Nepal so far. Such reformative measures include community service, reform homes, rehabilitation centers, witness protection program, laboring in public work, establishment of parole and probation board, and socialization of the offenders. These bills show signs of promise of a modern CJS, and are expected to genuinely address the problems of criminal law and to be more sensitive towards the victims as well as the offenders than before.
To conclude, it remains a concern that the hinge-pin of this entire scenario working effectively depends on an assiduous or an indefatigable implementation; otherwise, the whole legal system and in particular the CJS will become dire, and will remain a work of fiction on paper. The reform and strategies as required are manifest and are conventional and what is required in addition is for the general public to be not only exercising a number of rights, but also to be educated about these rights. Public remaining ignorant about their own rights is the major factor why a legal system fails in its objectives. However, it only requires us to be engaged in activism to spread the knowledge and thereby escalate our stride both at national and international judicial levels.
Citations:
Komal Baral, “On the Criminal Justice System of Nepal and Its Challenges” (DHLR Blog, 28 August 2015) http://dhakalawreview.org/blog/2015/08/criminal-justi…ystem-in-nepal-922
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