CeLRRd Intervention in Reforms of Criminal Justice System

CeLRRd has established itself as a recognized leader in legal and judicial reform in Nepal . The cooperation between the government and non-governmental institutions is the primary foundation CeLRRd is based upon. It works in close cooperation with the government, including the judiciary, office of the Attorney General, Nepal Police, and concerned ministries. Outcome of this cooperation include: "Criminal Procedural Guidelines; Manuals for Investigation, Prosecution, and Adjudication of Trafficking Cases; Trial Handbook; and Manual for Juvenile Justice". CeLRRd has contributed significantly to development and drafting of the Criminal Procedure Code, and has conducted training programs for judges and prosecutors throughout the country. The intensification of research activities in the field of law and justice is a significant contribution made by CeLRRd. Implementation of the “Prisoners' Legal Aid Program” introduced a concept of “institutionalized free legal aid” in Nepal ...

... Nepal continued with its traditional Criminal Justice System till 1951. Prior to this, Nepal practiced an indigenous inquisitorial system of administration of criminal justice. The history reveals that the Nepalese society, like others, largely practiced the “ordeal” of various kinds to dispense justice. The “ordeal” to dispense justice, as in other society, was founded on the belief that the “unseen force” intervenes in the process of justice. This belief gradually faded away with passage of time, and changes in the society. The litigation system constantly evolved in the form of “inquisitorial practice”. The Muluki Ain, which as tremendously influenced by the Napoleon Code, introduced a number of provisions that helped to frame the Criminal Justice System of Nepal in the line of inquisitorial practice.

From this year onwards, the Criminal Justice System of Nepal was given diversion to adversarial practice. Assumption of the leadership of fledgling judiciary by late C.J. Hari Prasad Pradhan was crucial for diversion of the traditional Criminal justice System of Nepal to adversarial practice. In 1964, Nepal enacted the “State Cases Act (Sarkari Muddha Sambandhi Ain), which overtly framed the system of investigation and prosecution in the line of adversarial system. The Act distinguished the role of courts as impartial umpire, and thus the frame work of the courts was grounded on the concept of an independent institution. The Evidence Act was enacted in 1978, which obliged the State to prosecute person with burden of proof without reasonable doubt. These two Acts almost completed molding the Criminal Justice System of Nepal in the line of adversarial system. The Law Practitioners' Act 1968 was also instrumental in shaping the adversarial system of justice in Nepal . In 1990, the movement for restoration of Democracy ended with promulgation of the new constitution of the Kingdom of Nepal . The article 14 of the Constitution enshrined all important procedural safeguards of suspects and accused as fundamental right of persons.

Moreover, the preamble of the Constitution enshrined the independent and competent justice as one of the basic structures. For the purpose of giving effect to procedural safeguards enshrined into the article 14 of the Constitution, the new State Cases Act had been enacted in 1991. This Act separated the roles the Police and Government Attorneys as investigators and prosecutors respectively. This Act also did away with the vestige of inquisitorial system - repealed State Cases Act had incorporated- Trial Court Judge under the repealed State Cases Act had empowered the trial court judge to give order to the police for conducting fresh investigation of the crime if he/she found that the one submitted to him/her was not found adequate or erroneous. Nepal thus became a member of the community practicing the adversarial system of Justice.

However, the quality of the Justice was not significantly improved even after 1990. The following problems are still found phenomenal:

• The lack of sensitivity to allow representation of persons by lawyers from the moment of arrest has been widely acknowledged. This problem has been recognized as one of the most significant problems facing the Criminal Justice System of Nepal . The right to fair trial in a condition where the right to Legal counseling during police detention is denied is meaningless. This situation is apparent from the following practices:

• Detainees are effectively and deliberately denied the access to advice with lawyers, at least before they are submitted before the Judicial authority the first time
• No documents prepared during the investigation are accessible legally to lawyers before the charge sheet is submitted before the Trial Court.
• No remand is made through prosecutors- the police can obtain the remand for detention without knowledge of the prosecutors (government attorney). The situation deprives lawyers from complaining illegality of investigation to prosecutors.
  

  One of the major reasons for consistent denial of legal defense during investigation is that lawyers are suspected of educating their clients for denying confession of the crime. Although, Nepal practices, as described above, the adversarial system, it does not have provision in law for the “plea bargaining”. So the suspects have no choice but to change the confession in the court. The lack of the “concept of plea bargaining” is the major hurdle in this respect. The lack of “plea bargaining” is fostering a number of problems as follows:

• In lack of plea bargaining option available for suspects, the defense lawyers representing them are compelled to advice the clients to refrain from making confession during interrogation, or to necessarily change it when the suspect is produced before the court.
• Since there is vulnerability of lawyers suggesting their clients to refrain from making confession, the police are reluctant to allow the suspects to contact the lawyers from the very moment of the arrest. This eventually leads to blurring the right granted by the article 14 of the constitution.
• Clever offenders volunteer readily to confess crimes and change their statements at courts. They often make such confession that the facts and evidence available obviously are contradictory. However, innocent and ignorant suspects are vulnerable of being subjected to injustice.

Therefore, the lack of plea bargaining concept is widely hampering the smooth operation of the criminal Justice System. The State however has consistently been ignorant of this fact. The institutional changes are often effected to address the weaknesses of the system, which are bound to be a failure. The strict separation of the roles of police and prosecutors by the State Cases Act 1991 is now widely acknowledged to have been giving rise to number of problems leading high rate of failure in the prosecution.

CeLRRd has made in-depth study of the Criminal Justice System in Nepal , and has made consistent efforts to strengthen it through interactions, seminars, professional orientations and training activities. CeLRRd has proved its pioneer position in the field of Strengthening Criminal Justice System in Nepal .