A case for a habeas corpus act

By Narendra Bikram Shah

Habeas Corpus is an ancient common law writ for the protection of a person illegally detained. It is universally recognised to be the greatest and most efficacious writ to correct violations of personal freedom, a fundamental human right that lies at the root of all democratic societies.

The origin of the writ is lost in the mist of time, but habeas corpus is so well established that it has become an essential part of both the customary and statute laws of all principal legal systems of the world today.

Habeas corpus is used to determine the legality of detention of a person. It is a writ issued by a judge or court directing one who holds another in detention to produce the body of the detainee before him or the court for the purpose of inquiring into the legality of detention. It is also a measuring rod of the good faith of the authorities ordering the charge-sheeting and detaining of people.

Although nowhere mentioned in Part 3 of our Constitution, entitled Fundamental Rights - habeas corpus appears as a part of the extraordinary powers of the Supreme Court - a simple reading of the document as a whole makes it crystal clear that the writ is not only a matter of prerogative and convenience of the Supreme Court but basically a matter of the fundamental right to freedom of a person. It is held to be so sacrosanct that it cannot be suspended, as we have just seen, even during times of emergency. It is a unique feature of our Constitution, Paragraph 2 of Section 9 of Article 1 of the United States Constitution provides that the writ of habeas corpus "shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Both the federal and state governments in the United States have suspended habeas corpus time and again. Several times in the past, the British government has suspended the writ through parliamentary resolutions.

Having said this, it must be admitted, however, that habeas corpus in Nepal has failed oftener than not as an effective instrument for the protection of the accused and the illegally detained. A few recent cases make the point. In the wake of the Palace massacre, the editor and some management executives of a major national daily, to wit, the Kantipur, were arrested and incarcerated in police cells for five days without having access to a judge or court because of long holidays. Even when they were produced before a court, the detaining authorities asked for a few days’ additional detention in order to prepare the case for the prosecution! During the Dashain and Tihar holidays, newspapers carried headlines telling the laughable story of writs of habeas corpus issued by the Supreme Court not having been served to proper authorities for lack of cooperation on the part of executive branch officials. It used to be a common practice in the past to get the detainee out of the jurisdiction of a particular detaining centre before the writ could be physically served. Ages ago, this used to be a common practice in Britain also - a mean executive gimmick known in British legal jargon as ‘jumping the gun,’ according to Lord Denning. During Dashain-Tihar holidays, there were also reports of an accused in a corruption case having employed habeas corpus proceedings to obtain release from detention prior to trial on the ground, inter alia, of excessive bail set by the judge in the preliminary hearing. His petition failed but not before rounds of bench-to-bench shifting of the case, which consumed not inconsiderable amounts of time.

Presumption of innocence until proven guilty and granting of reasonable bail in the absence of both clear and present danger of the accused absconding are the maxims of law in all democracies subscribing to human rights. In many legal systems, the doctrine of reasonable bail applies even to most serious criminal cases.

The normal terminology used in the granting of habeas corpus is: "Let the writ be issued immediately, answerable forthwith". The key here is the factor of time to which scant regard seems to have been paid when cases have actually been heard and adjudicated. In Hamlet, Shakespeare likens ‘the law's delay’ to ‘the oppressor's wrong’, to ‘the insolence of office’ and to the disgrace of a free person. Habeas corpus cases should be disposed of in the spirit of urgency in which the original writ had gone forth. Ideally, immediately should mean immediately and forthwith forthwith. Perhaps we need to have some test cases to determine the exact meaning of the ‘mental torture’ mentioned in our Constitution under Fundamental Rights. My own feeling in this regard is that detention beyond 24 hours, that is, beyond the extent allowed by the Constitution under Article 14, without the detainee having been produced before a judge, is illegal and should constitute mental torture.

Every person longs to remain free. That is the essence of democracy. That is the essence of human rights. In detention that freedom is violated and, therefore, a person must at least have the right to have an expeditious inquiry made in time to see if the detention is by due process of law. Habeas corpus is a person’s birthright.

Habeas corpus exists in Nepal in the book. But it is not easily accessible and it is not enforceable for lack of appropriate procedures. What we urgently need is enabling legislation and follow-up procedural rules, so that habeas corpus not merely remains a sacred cow of the Constitution but is made easily available to those whose personal liberty has been violated. Habeas corpus is the most basic of all Universal Human Rights, and must be made both easily accessible and effectively enforceable.

A Habeas Corpus Act is needed in Nepal in the line of a British law enacted more than three centuries ago. The Habeas Corpus Act of 1679 did not create any new rights of personal freedom, but laid down significant practical rules for the effective assertion of the existing right of habeas corpus. The most important feature of the law is that it authorised the judges to issue habeas corpus when the courts are closed and provided penalties for any judge who refused to entertain the writ without good cause and for any officer refusing to comply with it.

In Nepal, district courts or judges are not allowed to issue habeas corpus. This is a serious limitation to personal freedom. Not all our people can have easy access to the limited number of appellate courts in the country and Supreme Court in the capital. This constriction on human rights must be relaxed. For the purpose of habeas corpus, persons must have easy access to all categories of judges even at their homes when the courts are closed. To overcome the practice of ‘jumping the gun’, the writ should be addressed to the minister concerned, chief of police, regional head of police, district police heads, station and substation chiefs in the region. The writ need not be carried by court bailiffs or couriers who may not be available during off-office hours or because of manpower shortage; it may properly be carried and served by the law practitioner or his/her associates or agents on behalf of the habeas corpus petitioner. A bill to these effects could be initiated in either House of Parliament. It could originate at the National Assembly as a private member’s bill. By no stretch of the imagination could a habeas corpus bill be determined to be a monetary bill.

On the wild side

By Nitya Nanda Timsina

If you ask me where godlessness has so much of place, I would say it is in Nepal’s night streets. And with imported vehicles speeding in the street at night from the money funnelled in by donors, it turns into hell.

It came speeding past half dozen of vehicles defying the speed limit set on the stretch of road to over 80 kmph and banged straight into a Maruti car deliberately and intending to escape the night surveillance police.

It made a loud "bang!" like an explosion and left one of the parked cars being investigated by police looking like a battered tiled-roofed house in Afghanistan hit by an American cruise missile. My
friend next to me shook his head in disbelief.

Occupants inside the car were chilled and stood frozen stiff at their narrow escape from the Toyota Land Cruiser that deliberately hit and ran. The night was cold and freezing and those inside the Land Cruiser were scarcely visible to the naked eye. Police looked in dismay as it speeded away in a fraction of a second. None of a dozen of armed police squads down the road caught sight of him in the act.

The occupants in the absconding vehicle could have come straight from a hip-hop restaurant drunk or might have been carrying arms. No body could guess, including the police.

The vehicle undoubtedly donated by donor agencies through fund-raising in the name of the poor in Nepal nearly turned into a death trap for half a dozen innocent men and women stranded on the road and headed home late in the night. It did escape a major mishap but left a clear inkling as to how foreign aid vehicles are misused in this country. The man at the wheel driving at instantaneous speed would have taken utmost care if the vehicle was his personal property, but because it belonged to government or some non-governmental organisation, it did not matter to him even if it somersaulted as long as it left him safe.

It is these people today who amassed huge fortunes from the imported money and vehicles that donor agencies provide in the name of poor. Today, they have become the dangerous elements of progress that has kept Nepal poor and its people hungry.

With lofty language and speeches, the officials employed by NGOs and the government set out for development on white papers with the imported money. But driven by the merciless logic that everything comes from money donated by agencies abroad, they virtually ignored their mission. If only these vehicles had a head, they would nod when asked how they are misused. Down the road, all I could see were police officers - facing us with their guns. The conduct of the Land Cruiser reminded me eerily of horrific spasms of death that occur in traffic accidents in our capital city.

And with the lack of any speed trap, a system traffic police in most countries use to catch people driving vehicle more than the speed limit and the capacity of road, I believed it escaped unpunished after it took a link-road and disappeared in the hazy night road across Old Baneshwor.

Local governance for good governance

By Prem Raj Gautam

In the last six years Nepalese in the rural areas, especially in the hills and the mountains are bleeding in a series of killings and violence. Over two-third of the total 75 districts are under the grip of Maoist violence. The fabric of community and social life is torn apart and the political and economic structure is all shattered. The local leaders are losing their faith in democracy and local government agencies are all frozen. Presently, their morale is all time low. It is time to ponder and think what went wrong with local governance. Is the Local Self-Governance Act (LSGA) which was enacted with so much fanfare really in operation? The commitment demonstrated by the House of Representatives during its debate is seen nowhere today. In all these years after the restoration of democracy, merely lip-service was paid to local government.

LSGA, which replaces the three earlier Acts, VDC Act, DDC Act, and the Nagarpalika Act, in many respect proved to be a very bold step to redress the shortcomings in the earlier Acts. This could have been a great opportunity to break away from the inertia of the past and tune the local government system to the democratic spirit of the constitution giving an entirely new direction to the concept of local self-governance in the country.

It cannot be denied that the Act has conceptualized certain new features. Unlike the three separate documents for the three types of units of local government of the past, the current Act is an integrated document for the district, village and the municipality. It is a composite Act with a recognition that all levels of local government bodies are spatially local and functionally they are more or less similar. Apart from these few new ideas, the present LSGA is not markedly different in its content from the earlier three Acts.

Decentralization in the local government system is not a vertically downward flow of power from the centre to the functionaries at the lower level. It is not the ‘power of the centre’ which the local government is supposed to receive. It is the local government’s own power and, therefore, need not be decentralised and delegated. The Act in the future should specify the power and authority of the centre alone. The rest of the power and authority should remain with the local government. In a genuine local governance system the power and functions of the parties are defined and delineated, not decentralised and delegated.

Decentralisation and local government is very often confused with the decentralisation of central authorities. For example, the recent amendment of the Local Administration Act 2028 (Fourth Amendment) is to strengthen the hands of the central government at the local level rather than those of the local government organisations. The amendment is tantamount to the ‘decentralisation of civil servants’.

The local government has been given authority to levy taxes, service fees, and tolls. However, barring some large Nargarpalikas, and some VDCs and DDCs in the terai areas, the local government has not benefited from these powers. As an example, even a small portion of the ‘big tourism fee’ could not reach the village, though every year 60,000 tourists trek from Beshishahar to Pokhara.

The sectoral resources reaching the VDCs, Municipalities and DDCs are enormously large if we consider all the resources directed by the sectoral ministry and departments but these resources including woman power are directly under the control of the sectoral agencies at the local level. Although, all the sectoral programmes/activities at the local level are reflected in the District Development Plan, they are simply ritualistic. The local government has the least say in the formulation and identification of such programmes. There are instances when the programmes are revised and changed by the functionaries of the line ministries even if they had already been approved by the local government agencies.

It is rather ironic that the central ministries and departments expect that the local government should undertake sectoral activities but they do not want to part with the resources. It is anticipated that the local government should function with their own resources. It is an ideal situation. Given the prevailing narrow resource base of the local governments, provisions for a Local Government Service Commission turn out to be a mere sambles. If the intention is to allow the local governments to own their bureaucratic outfits, the central ministries and the departments should transfer everything- manpower, resources and authority. A time-frame can be worked out for the final takeover of these outfits. Until then, an interim arrangement of support by the central ministries and departments can be worked out. Otherwise, the present scenario of absenteeism of staff from the districts and from the VDCs, as has been reported continuously in the press, will continue to reign in the scenario of local government. Who can solve the problems?

It is only the democratic process which can restore the confidence of the people. The only aspect of democracy is its ability to establish communication links between and among most antagonising elements in society. Therefore, a system of governance at the local level, which respects the dignity of individual citizens needs to be established. The citizens should be assured institutionally that they are equal members of society and have the capacity to contribute equally to the development of their communities, society and ultimately the nation. This will happen only in a democratic environment where diatribes of any kind are tolerated and listened to. Thus, the pertinent question is, is the local governance system designed in the present LSGA capable of fulfilling this task?