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Workshop on the Proposed Penal, Procedural and Sentencing Codes
Posted by admin on 20/10/11 5:24am
To orient the district level attorneys on the three draft bills (Penal, Procedural and Sentencing) tabled before the Legislative Committee of the Parliament, one day \"Orientation on the Proposed Bills Relating to Criminal Justice System\" was held on 17 Sep 2011 in Dhulikhel. 33 participants from Sindhupalchowk, Kavrepalanchowk, Dolakha, Dhading and Nuwakot attended the program.
Attorney General Muktinarayan Pradhan chaired the program and former AG Dr. Yubaraj Sangroula, former Law Secretary Madhav Psd. Poudel, Prof. Madhav Psd. Acharya, and Deputy Attorneys Pushpa Raj Koirala and Raj Narayan Pathak were the guests.
Giving the welcome remarks, Deputy AG Raj Narayan Pathak said that the feedbacks of four sectors of CJS including police, government attorney, Bar and court are important to bring into reforms in the system; hence, he urged all to suggest recommendations to finalize the drafts.
Adding to the objectives of the program, Mr. Sudeep Gautam, Director, CeLRRd said that only with the joint effort of all the actors, the already obsolete 158 year old laws, Muluki Ain (General Code) can be appropriately updated, and the program is conducted as a platform to induce ownership towards the draft bills. Mr. Mukunda Kattel, DanidaHUGOU representative expressed that these programs are a part of six months pilot project designed to help curb impunity and the implementation of Supreme Court decisions, and upon the success of this project, grand projects for the reform of CJS could be further designed.
Giving the closing remarks of the inauguration session, the newly appointed Attorney General Mukti Narayan Pradhan said, \"As our works reflect the performance of the state, we should scrutinize our deeds and pay due consideration to our responsibilities geared towards the national interests.\"
Then Dr. Sangroula presented paper entitled \"Expectations on the reform of Criminal Justice System and the need to pass the proposed Bills\". He discussed on the existing challenges faced by the societies regarding law and order, and how the available laws are inept to address the increasing and various intricate crimes, especially those happening in this transitional phase. The organized crimes are increasing and impunity is gaining ground. Furthermore, crimes are increasingly being linked with various economic sectors like, real estate, revenue, entertainment and other commercial ones and thus, black money is replacing white money.
Stressing on an American situation, he said that a recent report revealed that out of 1 million prisoners in America, 6% was found innocent; this showed how innocent people are becoming the victims to the justice system. Hence, there lies the necessity of a better functional coordination between all the sectors of the system in Nepal as well to tackle such situation.
Nepali laws are disparate, and several acts have made several provisions. Departmentalizing cases and justice (Jurisdiction of different agency in case hearing) is yet another setback. Immigration, forest, revenue related crimes are investigated and adjudicated by the respective department, and it is a matter of inquiry whether each department is appropriately looking into the crimes seriously.
Shedding light on the retributive form of our justice system, he discussed that there persists a weak coordination amongst the justice sector actors, and especially between Attorney General Office and police, and how the role of adjudicatory body like AG office is limited to the legal adviser of police. He advocated that investigation should be a part of adjudication, however the current situation is vice versa. This has led to mismanagement and failure of criminal justice system to a greater extent. He expressed hope that the proposed bills will modernize the system and make it more scientific and proof-oriented.
He discussed on the proposed strategies to be adopted towards the bills: to institutionalize democracy, rule of law and foster human rights, the desired modern CJS is a prerequisite; the development of CJS is not an unproductive sector, and only when law and order situation is good, there is a possibility of economic prosperity; the country cannot keep going with the traditional justice system; the development of CJS is not the only responsibility of the Executive and Judiciary, but the rigorous engagement and monitoring of legislative is required for the reform of the system; and also to combat the politicization of crime.
Then Mr. Madhav Psd. Poudel presented on the \"Reform of Criminal Justice System and its Modality\". Since 2012 BS, a dire need of reform into the system surfaced; however this very lately got materialized. He said that finally it has come as a kind of compromise draft as it needed to consider so many interest groups, but basically it has relied upon the Country Code and separate Acts; Draft Penal Code developed by the Law Reform Commission and other Study groups; Indian, Australian and few other countries\'s Penal Codes; Judicial Principles developed by the Supreme Court and feedbacks from experts and stakeholders.
He then elaborated on its nature: the bills have come with broad idea of criminalization, attempts, accomplice, conspiracy, imprisonment, fine and compensation; the bills are proposed to be implemented as General Law and crimes segregated as ordinary, serious and grave; extra-territoriality to be applicable in severe crimes against Nepal and its citizens; the bills have not incorporated crimes that need special treatment and provisions (corruption, human trafficking, drugs, abduction, etc). Some of the important provisions made by the Penal Code are: it has tried to increase or decrease the gravity of crime in some cases; forfeiture of property is cancelled as it violates the spirit of human rights; life imprisonment is extended to 30 years and in some grave cases, it is to be applicable till a criminal\'s death; the criminal liability starts after 18 years; to introduce the concept of plea bargaining to control organized crime; and so on. With regards to procedural management, some important provisions introduced are: before arresting, police should take prior approval from court; if any accused confesses doing crime, the case should be immediately decided; two separate hearings should be done for convicting and sentencing; there is also a provision of compensation and victim relief fund. For the effective implementation of these new provisions, Mr. Poudel outlined some reforms to be made in terms of capacity enhancement both regarding infrastructure and human resources, better coordination amongst the judicial actors, using scientific innovations and others.
Commenting on the papers, Prof. Madav Psd. Acharya highlighted that a dire need for the reform in the present Nepalese criminal justice system was long felt as there prevails a tendency to deliver justice on the basis of proofs but not on the basis of evaluation of the presented proofs.
33 attendees including district attorneys, court officials, bar representatives and police officials attended the program.
Furthermore, the participants were divided into three groups to provide feedbacks on the Penal, Procedural and Sentencing Codes separately:
For the Penal Code, their major recommendations included to adopt the provision of compensating the victims from the state treasury, compensating the victims of attempt to murder treatment cost, also incorporating the property destroyed during theft in the fine.
To the Procedural Code, recommendations made were, double FIR registration should be limited to the district level, the police should take prior approval from the court while arresting (seeking approval should be managed looking into the gravity of the case), using detail background of people while verifying, making provision of cross-examining a witness that becomes hostile, and also provisioning for the withdrawal of cases of political prisoners being based on insufficient proofs. Some the participants, considering Nepalese context, were seemed hesitant on separate hearing for the determination of punishment.
The Sentencing group recommended clearly defining terminologies like court probation, parole, plea bargaining. Victim relief fund should be established at the district level, secretary to the Punishment Recommendation Committee should also be decided. Who is responsible to pay the fee of the rehabilitation center in case any drug addict is sentenced for taking drugs should also be mentioned in the Act.
Orientation for Government Attorneys
Posted by admin on 12/09/11 2:15am
On 26th Aug, 2011, similar program was held with Appellate level Government Attorneys to orient them on the Penal, Procedural and Sentencing Codes. Deputy AG Pushpa Raj Koirala chaired the inauguration session. Criminal justice expert, Madhav Psd. Acharya, and other professionals including Madhav Psd. Poudel, former Law Secretary; Dr. Yubaraj Sangroula, the-then AG; Raj Narayan Pathak, Deputy AG were seated in the dais.
Mr. Raj Narayan Pathak, in his welcome remarks highlighted broadly on the need of the Bills to fill the gaps in the existing CJS of Nepal. Mr. Sudeep Gautam provided the rationale behind CeLRRd to jointly execute the project of capacity building of Attorney General Office, of which this orientation for the Government Attorneys on the draft bills
is a component to be replicated to a wider extent across Nepal. On behalf of donor communities including SDC and DanidaHUGOU, Mr. Mukunda Kattel highlighted on the tumultuous context wherein this specific project, Capacity Development of the Office of the AG to Tackle Impunity through Advocacy on Legal Reform and Monitoring of HR and Judgment Enforcement is designed and being implemented initially as a six-months pilot project, and also hinted at the possibility of going together further. Padam Psd. Poudel, Joint-Government Attorney furnished additional clarifications on the objectives of the project: the first is to make the stakeholders (justice sector representatives, including Constituent Assembly members, select political party representatives, civil society organizations and private attorneys) aware of the need for law reform, and mobilize their support in the passage of the bills pending at the Bill Committee of the Legislature-Parliament; the second need is to lay the groundwork necessary for the bills to be implemented once they are passed - this later need requires building, at the minimum, a common understanding amongst all justice sector stakeholders; the third need is to enable the OAG to expand its reach and frequency of unannounced prison monitoring, human rights monitoring in areas where violence has been systematic and unabated and court judgment enforcement monitoring, and the fourth is to have OAG and its sub-national officers (five regional offices and select district officers) networked in order for the OAG to integrate, systematize and harmonize the workings of its offices at various levels.
These bills have also proposed separate codes dealing respectively with civil and criminal matters, as in many countries and introduced as per the modern system.
Khem Raj Gyawali, Sub-Attorney General moderated the first session. In the presentation session that followed, Dr. Yubaraj Sangroula presented on "Expectations on the Reform of Criminal Justice System" where he focused more on the significant roles to be played by the AG office and AGs for reforming the system. "Since AG Office is the bottleneck, it should play more proactive and leading role in all, ranging from directing the police to guiding the courts. We are a sector that exercises special power and therefore, we should perfectly fulfil our responsibilities towards people at large, and the state. Our small mistake can give immunity to a criminal and also persecute an innocent, and therefore we should be sensitive to our duties," he said. His thrust was, as crime has developed links with corruption and infiltrated every economic sector, the already obsolete and confusing Country Code cannot address the present situation. Hence, it has created a dire need of reform especially into the CJS of Nepal. He also dug into more facts and figures related to crimes happening both on the surface and underneath the carpet, individual and organized.
Mr. Madhav Psd. Poudel presented on "Reform of Criminal Justice System and its Modality" where he argued that the state mechanism has realized reform into the CJS as the foremost important step towards state reform. He said that hitherto, the civil and criminal laws and procedures were mingled, however, the three bills pending before the Legislature-parliament have codified them separately, and thus eased in dispensing justice. Delving into some of the important provisions, he discussed that long-arm jurisdiction is adopted; limits to self-defense is defined; judges can use their discretion to some extent to define the sentencing looking into contexts of the crime; provision of plea bargaining and compensation to victims introduced; separate hearing for convicting and sentencing introduced; the provision of never ending court's jurisdiction is mentioned and the age of criminal liability is increased from 16 to 18 and others.
In the plenary discussion, the Government Attorneys put forward their queries in relation to either supporting or defying the updated provisions or for clarifying the new procedural provisions. Shankar Baral, JA, Hetauda said that due to the transitional phase, we are very backward, however the Sentencing Code is very forward moving, and it would be better if the minimum and maximum compensation limit to victims is defined. Yubaraj Subedi, JA inquired about how to manage the situation of cancellation of polygamy. Adding to it, Sharad Kumar Khadka, Sub-Attorney further inquired that in case a woman is unaware about her husband's previous marriage, there a separate treatment might be required. Mahesh Sharma Poudel, JA opined that in many cases, regulations might be required and our CJS must have broad jurisdiction in the context of rapid globalization. Durga Bandhu Pokhrel, JA, Pokhara argued that crimes with moral disgrace should be defined. Saroj Psd. Gautam, JA opined to make the provision of compensation more managed and should also consider what to be done in case the perpetrator doesnot have property. Satish Raj Mainali, HR Officer, OHCHR shared that the limit of self-defense is widened.
Dr. Sangroula responded the queries related to confusions about the duties of Government Attorney. He said that there can be no excuse for the Government Attorney for being ignorant about what law to apply in a specific circumstance. Mr. Poudel responded to the procedural confusions. To most of the queries, he said that as they are context specific, they cannot be exclusively mentioned in the Codes. They demand discretion of prosecutors. Answering to the need of provisioning for accidental homicide when there is already homicide through recklessness, carelessness and negligence, he responded that as it is a specific condition of CJS of Nepal, carrying on the provision was deemed necessary. Many provisions of the Country Code had to be continued and it has come as a kind of compromise draft. Regarding whom to do plea bargaining, he said that it is the duty of the prosecutor.
Prof. Madhav Psd. Acharya commented that the draft bills are 70% correct, and 30% of the provisions need to be revised. Regarding plea bargaining, he shared that if the accused helps in investigation, it can be claimed upto 25% and in case of organized crime, it can be upto 50%. He said that though lately plea bargaining is incorporated, it is provisioned only in the mentioned condition; however it is not yet considered from rights perspective. Therefore, appropriate Sentencing Policy should be developed so that when any accused confesses crime in front of the lawyer, he then will not manipulate it in the court, but will try to reduce the punishment and thus, he can maintain his professional integrity. He also supported the provision of separate hearings for convicting and sentencing which he said will do justice to the accused. The context which can reduce the punishment might be relevant and important in sentence hearing but not in conviction hearing.
He furthermore added that the concept of sentencing is yet to be broadly understood; it is not to torture the perpetrator as commonly assumed. The provision of open prison, community service and suspended sentence in the custody of judge is commendable, and they are applicable for the perpetrator of crimes with three or less than three years imprisonment. Hence, the draft has envisioned Parole board to look into such situation.
Giving the concluding remark, Deputy AG Pushpa Raj Koirala contended, "once they are passed and come into implementation, initially there we might feel some awkwardness, but gradually, when we get used to the reformed provisions, they seem rationale to us".
42 participants including especially appellate level government attorneys, Sub-attorneys, Joint-attorneys attended the orientation.
Orientation with CA Members on Reforming Criminal Justice System of Nepal
Posted by admin on 12/09/11 2:02am
On 23rd Aug, 2011, Attorney General Office of Nepal and CeLRRd jointly held an \"Orientation on the Bills Related to Regulating Criminal Law\" for the Constituent Assembly members of Legislature Parliament. The draft bills (Penal, Procedural and Sentencing Codes) currently at the Legislative Committee of the Parliament have been adopted by the Government to carry out historic reform in Nepal’s criminal justice system. The-then Prime Minister Jhalanath Khanal was the chief guest and the-then Attorney General Dr. Yubaraj Sangroula was the chair of the program. Besides, distinguished guests like the Speaker of Constituent Assembly Hon\'ble Subhas Nemwang, former Law Secretary Madhav Psd. Poudel and SC Judge Hon\'ble Kalyan Shrestha also had their presence.
Giving the welcome speech, Mr. Surya Psd. Koirala, Deputy AG said that whatever reforms are made in the Criminal Justice System, they are not satisfactory, and therefore, it is hoped that once the bills are passed, it would kick-start a great leap in the system.
Adding to the objectives of the program, the-then PM Khanal and Speaker Nemwang said that the 158 year old, Muluki Ain (General Code) is already obsolete, and therefore it is unable to address the present day need of the country to curb crimes. \"Such program, I believe will help the process of laws\' formation more systematic and scientific\", said Khanal \"The Codes are under discussion in the House and until the session of the Committee begins, we need to wait, and I hope this being the landmark in the field of law and justice, the House will definitely endorse it\", said Nemwang.
Dr. Yubaraj Sangroula, concluding the inauguration session said, \" If there are new laws, only then the new Constitution works. We have succeeded in only 50% of the crimes. The situation is such that only the affluent and literate can have access to justice, whereas poor have little access\".
Mr. Prem Bahadur Singh, former Law Minister said, \"We have changed Constitution for a number of times, however we have not updated the basic laws and therefore, this has doomed every Constitution\". Now the Country Code should stop to govern the country. He expressed pride in being able to register the bills before the Parliament in his tenure.
Then Dr. Sangroula presented paper entitled \"Expectations on the reform of Criminal Justice System and the need to pass the proposed Bills\". Firstly, he discussed on the existing challenges faced by the societies regarding law and order, and how the available laws are inept to address the increasing and various intricate crimes, especially those happening in this transitional phase. The organized crimes are increasing and impunity is gaining ground. Furthermore, crimes are increasingly being linked with various economic sectors like, real estate, revenue, entertainment and other commercial ones and thus, black money is replacing white money. \"When crimes and economy are inter-related, they are hard to trace and persecute which is exactly happening now\", he said.
Justice mechanism is weak and therefore, peoples\' faith is eroded, and this has moreover made the traditional period more torturous. Nepali laws are disparate, and several acts have made several provisions. Departmentalizing cases and justice (Jurisdiction of different agency in case hearing) is yet another setback. Immigration, forest, revenue related crimes are investigated and adjudicated by the respective department, and it is a matter of inquiry whether each department is appropriately looking into the crimes seriously. In around 35% crimes, the departments act as justice delivery agencies whose authenticity is therefore, questionable.
Shedding light on the retributive form of our justice system, he discussed that there persists a weak coordination amongst the justice sector actors, and especially between Attorney General Office and police, and how the role of adjudicatory body like AG office is limited to the legal adviser of police. He advocated that investigation should be a part of adjudication, however the current situation is vice versa. This has led to mismanagement and failure of criminal justice system to a greater extent. Other factors relate to the inability to adopt modern principles like, exclusionary principle, plea bargaining, principle of burden of proof, and access to justice. He expressed hope that the proposed bills will modernize the system and make it more scientific and proof-oriented.
Focusing on the specialties and the need to pass the bills, he said, as Nepal is a signatory to several international instruments related to child rights, civil and political rights and rights against torture, there is a need that our national laws adopt the international standards and also because the context and popular demand pinpoint to such modernization. It should also then make some arrangement for crime victims, and sentencing should be individualized.
Hence he discussed on the proposed strategies to be adopted towards the bills: to institutionalize democracy, rule of law and foster human rights, the desired modern CJS is a prerequisite; the development of CJS is not an unproductive sector, and only when law and order situation is good, there is a possibility of economic prosperity; the country cannot keep going with the traditional justice system; the development of CJS is not the only responsibility of the Executive and Judiciary, but the rigorous engagement and monitoring of legislative is required for the reform of the system; and also to combat the politicization of crime.
Madhav Psd. Poudel then presented the second paper on the \"Reform of Criminal Justice System and its Modality\". In 2065 Mangsir 18, a 12-member task force was formed to outline reforms to be made. It then presented six bills with regards to reforming criminal and civil laws; two are related to civil laws, three to criminal laws and one to manage the transitional phase. The previous laws are corrected or fused or new laws incorporated or some laws repealed. Since 2012 BS, a dire need of reform into the system started surfacing, however this very lately got materialized. He said finally it has come as a kind of compromise draft as it needed to consider so many interest groups, but basically it has relied upon the Country Code and separate Acts; Draft Penal Code developed by the Law Reform Commission and other Study groups; Indian, Australian and few other countries\' Penal Codes; Judicial Principles developed by the Supreme Court and feedbacks from experts and stakeholders.
He then elaborated on its nature: the bills have come with broad idea of criminalization, attempts, accomplice, conspiracy, imprisonment, fine and compensation; the bills are proposed to be implemented as General Law and crimes segregated as ordinary, serious and grave; extra-territoriality to be applicable in severe crimes against Nepal and its citizens; the bills have not incorporated crimes that need special treatment and provisions (corruption, human trafficking, drugs, abduction, etc). Some of the important provisions made by the Penal Code are: it has tried to increase or decrease the gravity of crime in some cases; forfeiture of property is cancelled as it violates the spirit of human rights; life imprisonment is extended to 30 years and in some grave cases, it is to be applicable till a criminal\'s death; the criminal liability starts after 18 years; to introduce the concept of plea bargaining to control organized crime; and so on. With regards to procedural management, some important provisions introduced are: before arresting, police should take prior approval from court; if any accused confesses doing crime, the case should be immediately decided; two separate hearings should be done for convicting and sentencing; there is also a provision of compensation and victim relief fund. For the effective implementation of these new provisions, Mr. Poudel outlined some reforms to be made in terms of capacity enhancement both regarding infrastructure and human resources, better coordination amongst the judicial actors, using scientific innovations and others.
In the plenary discussion Hon\'ble Yashoda Subedi, President of Legislative Committee gave due commitment to making efforts to finalize the bills from all levels be it procedural, political or personal. Hon\'ble Lucky Sherpa and Buddha Ratna Manandhar opined that the draft Code had better remained silent regarding the provisions related to slaughtering of cows in the context when Nepal is already a secular country.
Answering the queries, Mr. Madhav Poudel said that it has come as a compromise draft where some of the old spirits of law have been carried on. Adding to it, Hon\'ble Kalyan Shrestha, Justice SC and commentator for both the papers said that no constitution or even law can be best; it can only be better. Hence, whatever bills have come, their gestation period is long and we should be happy to be a part of finalizing such a long awaited reformatory changes envisioned by the bills. If these bills do not carry the spirit of secularism, the CA members of the committee can use their discretion and rectify them. However, he said laws have impersonal nature, and therefore they do not belong to a specific community. As this is also the foundation to implement the Constitution, it should be respected in this line and urged the attendees, especially the CA members to take it to a logical end.
29 attendees including the CA members of legislature-parliament, government attorneys, and bureaucrats of Ministries of Law and Parliamentary Affairs attended the program.
Workshop on the promotion of Juvenile Justice System of Nepal
Posted by admin on 10/05/11 3:13am
Center for Legal Research and Resource Development, CeLRRd and the Attorney General Office are jointly organizing a workshop on the "Promotion of Juvenile Justice (JJ) System of Nepal" on 14 May 2011. A dire need is felt to bring into reformatory changes in the JJ system: extension of juvenile reform home, adoption of diversion mechanism, establishment and functioning of juvenile court. Hence, this workshop, with Honorable Chief Justice Khil Raj Regmi as the Chief Guest, will focus on the discussions on the afore-mentioned issues. NGOs, INGOs and government stakeholders working for the promotion of juvenile justice system and child rights are expected to participate in the workshop.
District level interaction in Bardiya held
Posted by admin on 5/04/11 1:46am
In the chairmanship of an old-age mediator, Itawari Tharu, also the coordinator of Badalpur mediation center, a district level interaction was held to promote community mediation program being implemented in the 15 locations of Bardiya district. It was organized within the District Development Committee's premise and LDO Bhuwan Hari Aryal was the chief guest. In the gathering of around 50 political party representatives, police and other government stakeholders, and mediators, the rationale, scope, processes and achievements of mediation program were shared. The attended people expressed that they have been providing supports both at the individual and institutional levels, and in the upcoming days, they would work with the organization to find more ways to help the program.