Report proposes radical reforms in criminal justice system

By Rudra Sharma

KATHMANDU, Aug 28 – If the government implements the recommendations of a high level task force
charged with modernizing Nepal’s archaic laws, then Nepal could see wide-ranging changes on how it deals with crime and punishment.

The high level Criminal Justice Task Force, which was formed on August 17 last year, has already submitted its still secret report to the government two weeks ago.

According to highly reliable sources in the Ministry of Law, Justice and Parliamentary Affairs, the report prepared by the task force has ambitious plans. Several new offenses, which are yet to enter the nation’s criminal justice code has been defined, and punishments prescribed for it. The report even divides the task of proving guilt (or innocence) and accompanying punishment between two different courts.

However, the report has a long way to go before it becomes law. The government must first prepare a bill which incorporates the recommendations of the report, and parliament and His Majesty the King must all approve it before it can be enforced as law of the land.

But senior government officials say, they are determined to see the recommendations become law. Already, they say, a five member ‘Criminal Justice Procedure Code Enforcement Committee’ has been set by the government to recommend how to implement the new report’s recommendations..

"After the report takes the form of law as expected, most of the provisions of the National Code (Muluki Ain) regarding crime, homicide, rape, theft, and other offences will be repealed, which in turn will be replaced by other more scientific and comprehensive laws" said Narendra Prasad Pathak, the Joint Government Attorney who was a member of the Task Force.

The seven member Criminal Justice Study and Recommendation Task Force formed on 17 August 2000 under the convenorship of Attorney General Badri Bahadur Karki submitted the report to the government two weeks ago. Other members in the Task Force included, Secretary of Ministry of Law Udahay Nepali, Secretary of Judicial Council Kashi Raj Dahal, Joint Government Attorney Narendra Prasad Pathak, Chief of the Judicial Service Training Center Madhav Poudel, Advocate Harihar Dahal and Additional Inspector General of Police Govinda Thapa.

Legal experts and officials at the Ministry of Law say the existing legal provisions relating to crime are scattered around in several laws. The fresh report aims to "modernize and consolidate" all such laws.

The report proposes two kinds of courts— Penal Court and Criminal Procedure Court— to deal with crimes and criminals. While the Criminal Procedure Court is tasked with finding a defendants’ guilt or innocence, the Penal Court is charged with affixing a punishment that fits the crime.

A senior official at the Law Ministry said, "Our existing laws to address crime are archaic. Most of them were made in Rana regime but we are advancing towards modernity, and new social relations are emerging which evaded such archaic laws."

For instance, abduction, discrimination, damage to private and public property and harassment in the name of witchcraft (as happened in Mahottari recently) are all dealt as specific crimes with specific punishments. As of yet, there is no law to address such crimes.

The report also proposes ‘crime against natural and national resources’. If someone causes damage to national or natural heritage, it would also be deemed as crime. The report also proposes punishment to ‘crime against private life’. The incidents like unauthorized photograph, unauthorized access to somebody’s residence would be deemed as crime.

"Our chief objective is to make sure that no culprit could escape and no innocent would be punished. Therefore, the report intends to introduce a kind of ‘victim justice system’ while dispensing criminal justice," says the senior official.

The victim justice system, as stated by the official, finds expression in several ways. One is the proposed setting up of a ‘Victim Relief Fund’. Fifty percent of the money collected in fines from the criminal would go to the victim as a token of relief and the rest will go to consolidated fund or government treasury. Under the present laws, almost all the money received from criminals goes to the consolidated fund.

Pardon-seeking would be made a part of administration of justice. By this, not only the influential persons but also everyone would have a right to seek pardon.

It also proposes ‘open court’ for certain criminals who are to serve nominal sentence. According to this concept, a criminal need not go to jail. The system works like this: s/he can live at home even after punished by the court. But the authorities write a letter to the concerned police station nearest to the criminal’s residence. The police watch and scrutinize his activities within the specific time. If the police reports that s/he has improved his behavior within the time frame prescribed, then the person need not spend time in jail, otherwise action could taken against him/her.

600 Maoist cadres held, released

By Rishi Ram Poudel

CHAUTARA, Aug 28 – A revenue patrolling team of the Royal Nepal Army held more than 600 cadres of the underground Maoists in the Arniko Highway after discovering explosives in a bus on which the rebels were travelling for more than five hours before releasing them.

The Maoists were going to Sindhupalchowk to take part in a mass meet on Thursday, after the declaration of the people’s government in Ramechhap. The army patrol took control of the five people after discovering that they possessed grenades and explosives, and when they tried to arrest a dozen more rebels, hundreds of supporters had shouted slogans against them.

The army was ordered by the Headquarters to arrest the person(s) with explosives and hand it over to the police. After holding all the 600 people the army reached an agreement with the Maoist team and started to release all the people holding only a single person named Muktinath Gautam, the local Area Secretary of the Maoists.

According to an eyewitness there had been light scuffle between the army personnel and the rebels immediately after the explosives were seized.

‘Nepal managed a diplomatic coup against Bhutan’

By Damakant Jayshi

KATHMANDU, Aug 28 – The Nepal-Bhutan 11th Ministerial Joint Committee (MJC) meeting in Thimphu was a mixed bag for Nepal as far as resolving the festering Bhutanese refugee imbroglio is concerned.

A high-level Nepalese Foreign Ministry official claimed that "Nepal had managed a diplomatic coup by focussing the attention on categorization" while the actual purpose of Nepal had all along been to expedite the verification process, which has been achieved.

The two objectives that Nepal set out to achieve during the visit was speeding up the verification process currently underway in the Khudunabari camp in Jhapa and reducing the categories to two – bonafide Bhutanese and non-Bhutanese. The other two categories are Bhutanese who "emigrated willingly" and Bhutanese with alleged criminal records, which has been the main stumbling block in the lasting solution to the decade-old Bhutanese refugee impasse.

Nepal succeeded in making Bhutan agree to the necessity of expediting the verification process but there was no "gain" on the categorization front, the Foreign Ministry source said.

However, Foreign Ministry officials do not agree with the contention that Nepal failed in its goal of convincing the Druk Kingdom on the need to reduce the categories. "Even on the question of categories, Bhutan has, for the first time, shown flexibility that was not seen before," said one of the officials at the Shital Niwas.

An official points out that even with the existing categories, Nepal can always impress upon Bhutan that the Bhutanese who willingly left Bhutan and those nationals with criminal records are after all Bhutanese citizens. "Deep down, I feel that Bhutan might agree to take even these refugees back. I am optimistic," said the official, who was part of the team that went to Bhutan on August 20 for the four-day MJC meet.

He pointed out that there would be "harmonization" between the two countries in solving the problem of the categorization. Since the countries have agreed in principle to harmonize their differences on categorisation, there is a room for optimism as far as the repatriation of these refugees is concerned.

He also contended that in such negotiations, it is not wise to expect major changes in the countries’ position. "Progress will be slow and everyone needs to understand this."

The official also added that the few refugees who might be non-Bhutanese would either go to India if they had come from India or remain in Nepal if they are Nepalese citizens. He acknowledged that Bhutan has legal hurdles to negotiate in the case of repatriating those Bhutanese "who willingly emigrated" and those "who have criminal records".

The slow pace of verification in the Khudunabari camp that began on March 26 this year had been highly criticised by the refugees and their leaders. Even, the European Community had expressed concern on the development. Lars Horman, the Danish envoy, who had visited the camp, had said there was need to expedite the process.

In the Thimphu meet, the two countries agreed to bifurcate the 10-member Joint Verification Team into smaller units, doing several works simultaneously. Both the countries are also adding an official each to the Team. Besides this, a support staff has been envisaged which will do works like filling up the forms. More importantly, the JVT has been given more power to settle minor disputes themselves instead of referring them to the ministerial level. Another member of the team, who took part in the 11th MJC, said that the main goal of speeding up the verification process has been achieved.

The member also said that since Bhutan had adopted an intractable posture on the issue, it was not wise to expect major changes overnight. "They do have the difficulty in taking back the refugees, so their position throughout the past decade has been one of intransigence," he said. "But we must not leave the hope."

NC-UML differences hamper Bill presentation

Post Report

KATHMANDU, Aug 28 – Differences over the ceiling on land ownership between the governing Nepali Congress (NC) and the main opposition CPN-UML has further delayed presentation of the Bill proposing land reforms.

During the meeting between the committee under Ram Chandra Poudel constituted by NC and members of CPN-UML at the Prime Minister’s residence that extended late in the evening, the two sides could not agree on one figure.

"We are going to meet again at 9 a.m. Wednesday with the NC committee and discuss the matter further," said CPN-UML’s Keshav Badal, who had once prepared a report on land reforms.

Badal’s report prepared nearly a decade ago has been one of the base for the proposed land reforms.

CPN-UML are demanding the ceiling be set at 4.5 bighas while the government side is trying to limit it between eight-to-12 bigas of land in the Terai region. The issue of ceiling is the major factor of controversy and debate.

The much-hyped Bill, to enforce the government’s proposed land reforms, was expected to be presented in the House of Representatives on Wednesday. However, the differences would now further push presentation of the Bill.

Usually it takes, at least five days from the date of filing the Bill at the Parliament secretariat before it can be presented in the House for debate, said an official. Draft copy has to be made available to each of the lawmakers and given at least two days to study.

Besides hearing the opposition, the committee is also including suggestions on the matter given by NC members during the Central Working Committee (CWC) and Parliamentary Party meetings held last week.

The team also met with representatives of the Nepal Sadbhawana Party (NSP) and Rastriya Prajatantra Party (RPP), who have been protesting the proposed land reforms and stalling parliamentary proceeding since the announcements.

Other parties like CPN-ML, National People’s Front and United People’s Front were also consulted by the committee.

Nepal Workers and Peasant’s Party (NWPP) is yet to meet the committee members.

Since the government made the announcement few days ago freezing all land transaction and proposed ceiling on land ownership, lawmakers from these two parties have been surrounding the Speaker shouting anti-government slogans in the House.

According to the members, the committee also emphasized on distribution of citizenship certificates without which land cannot be distributed to the actual poor, many of them who are deprived of such certificates.

‘CIAA should be able to prosecute judges’

Post Report

KATHMANDU, Aug 28 – Lawmakers, anti-corruption and government officials today said that the judiciary is not immune to prosecution in corruption cases and even the Chief Justice of the Supreme Court should not be spared of prosecution if found involved.

"No one should be protected under the immunity provision if involved in corruption cases including the Chief Justice. This is an important issue that needs to be addressed to bring equality in the judiciary system," said Subash Nemwang, a CPN-UML lawmaker.

Nemwang was speaking at the parliamentary State Affairs Committee (SAC) today on the first day of debate on the Bill proposing second amendment to the Commission of Investigation of Abuse of Authority (CIAA).

The Bill proposed by the government has defined that judges of the Supreme Court, appellate courts and district courts as persons holding the public office who can be charged and prosecuted by CIAA.

The government’s proposal has sparked a debate on whether the judges should be left out of CIAA’s jurisdiction to protect the independence of judiciary or be defined under the same umbrella and open to prosecution if involved in corruption cases.

"The ground reality is that no officials should be immune to actions and investigation in cases of corruption and the government has presented the Bill on this basis," said Secretary at the Home Ministry Shreekant Regmi.

The Constitution enforced in 1990 after the restoration of democracy says that the Chief Justice or any judge of the Supreme Court shall be removed from office if for reasons of incompetence, misbehavior or failure to discharge the duties of this office in good faith, the House of Representatives by a two-thirds majority of the total number of its members passes a resolution for his removal and the resolution is approved by His Majesty the King.

The provision no where mentions the charges of corruption or financial irregularities and the lawmakers are vowing to change all that.

"First we need to draft the Bill that says judges can be investigated in corruption cases and then we will see if anyone of them will dare to challenge this provision claiming judges are above the law," said NC lawmaker Purna Bahadur Khadka.

CIAA has long been demanding this amendment in the CIAA act so it can be empowered enough to investigate and file cases of corruption against anyone in the government.

Now if the judiciary too were to be brought under the jurisdiction of CIAA, it would have a long arm to do the work it has been assigned to do.

"There is no way anyone should limit the rights of CIAA. It if quite unfair when a junior official of the court can be charged, jailed and fined if found taking a bribe but a judge would have to be impeached," said CIAA commissioner Madhav Bhatta.

The Chief Justice and judges can only be removed by bringing in a proposal of impeachment against him or her. The proposal needs a two-thirds majority in the House of Representatives that is closely divided between the ruling and the opposition parties. "Even if impeached, the judge would be only removed from the position but there is no criminal or any other charges that can be taken under the present provision," said Uday Nepali Shrestha, Secretary at the Ministry of Law, Justice and Parliamentary Affairs.

SAC is also considering an amendment proposal that says these judges be prosecuted right after they retire from the job but during their tenure left without taking any actions or investigation. Most of the SAC members appeared to disagree with this proposal. SAC Chairman Hom Nath Dahal said the committee would continue to discuss and amend the Bill along with the Corruption Control Bill that has been passed on to SAC by the House.

CIAA Chief Commissioner Suryanath Upadhaya said that since the Chief District Officers have been given the authority to file and investigate corruption cases in 72 districts, not even a single case has been moved. "Even those cases investigated and handed over by the Special Police are collecting dust," Upadhaya said.

Shangri-la Air plane narrowly escapes mishap

Post Report

KATHMANDU, Aug 28 – Shangri-la Air’s mountain flight today narrowly escaped a major mishap during its emergency landing after one of its engines developed a snag.

The aircraft with 16 passengers on board had to make the emergency landing after the pilot suspected fire in the engines, said officials in the Air Traffic Control. However, they said there was no fire. All the passengers are safe but the flight did not resume.

"There was no fire; just a minor engine problem," said an official from the operations department of the Shangri-la Air. He also said that Civil Aviation Authority of Nepal (CAAN) and the airlines officials were inspecting the aircraft, and the exact nature of the problem will be known later.

Thakur’s dream turns haywire as manpower agency misleads him

By Ranjana Pradhan

KATHMANDU, Aug 28 – Ram Surat Thakur, of a Terai district, had a dream of going to the Gulf and earn enough money for his family. And last year, he also managed to land in Daman, one of the favourite places in the United Arab Emirates (UAE) for the Nepali labourers.

But barely an hour after he landed at the airport, Thakur got a rude shock from the airport officials. They told him that the visa he was holding was a fake one. "The policemen questioned me and told me that I was carrying a fake tourist visa permitted only for 9-day stay," recalls Thakur, now a barber in Kirtipur.

Despite the problem, Thakur could not come back immediately, as he had no ticket, and even no money, to return. He decided to work for 8 days to earn some money to buy the return ticket. He was earlier told that he has been employed to work as a barber in Daman. But, instead of regular working hours, he had to cut and trim others’ hair for 17 to 18 hours a day. He somehow managed to survive for 8-9 days by working for 17-18 hours a day and finally collected enough money to get back home safely.

Thakur still regrets his decision to go abroad for working. "I only realised later that I had committed the biggest blunder of my life," says this Kathmandu-based barber.

Today, Thakur is not the only person who has been misled, if not duped, by these illegal manpower agencies. There are hundreds of others who have been facing this problem from hundreds of illegal manpower companies, mushrooming in the country for the last couple of years.

Despite the government action against the unregistered manpower agencies, the innocent Nepali labourers, seeking jobs abroad, continue to face many problems.

Even those presently working in various Gulf nations are facing hardships due to the misleading promises made by these manpower agencies.

According to Deep Basnyat, Director General of the Department of Labor, the government has an agreement with all the manpower agencies who can charge up to 80,000 rupees only for the services they provide to the people going abroad. "Any agency which charges more than the fixed amount is punished," says Basnyat.

He said that when he visited Malaysia recently he came across many Nepalese who had been charged different amount of money for the same work.

For instance, Thakur had paid 65,000 rupees to the Aasma Services, a manpower company in Kathmandu, to bag this "lucrative job" in the Gulf. Thakur says a Muslim guy called Ishu Pirian, the owner of this agency, misled him and even the agency itself does not exist any more. "He framed me into all this but now I realise that I can earn enough here and live a pretty decent life," says Thakur. "Now, I’ll settle here instead of hunting for fortunes outside."

He came back to Kathmandu about a year ago. And the problems he faced in the foreign destination forced him to look out for the guy who misled him. After running to the agency and the Department of Labour for eleven months, he managed to get his money back.

But he still recalls the trauma he went through. "Those were the worst days of my life," says Thakur.

It is said that actions have been taken against a number of these agencies but there still exists the victims. And there still are some people in the Middle East facing all the problems. One such person is Gyan Kumar Shah who has been working in Bahrain for the last two years. According to his experience, those who go out to work do not want to come back as they have no good logic to explain to their family members.

"We go out of the country to earn money so that our family can lead a comfortable life but see where it has got me in to," Shah said.

Shah has his own problem. He recently came back home from Bahrain, only to find his wife run away with another man. "I could not give her what all the wives expect from their husbands, " he added.

According to Shah, the Nepalese working in the Middle East countries are not as happy as they seem. The maximum that a Nepali officer there earns is about 60,000 rupees.

Altogether 1,37,166 men went to work in the various countries in the last ten years, according to the Department of Labor estimates. A majority of these people go to Saudi Arabia, Qatar, United Arab Emirates, South Korea, Kuwait and Malaysia, while others seek their fortunes in Japan, Europe and the America.