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NEPALI PRISON |
Going To Hell Over half of the 5,500 prisoners in the country are still under trial. Because of traditional court procedures, some accused are forced to spend more time in prison than their crime would carry. As the number of case backlogs continues to rise in the courts, more and more people find themselves behind bars without actually having been proved guilty. By KESHAB POUDEL Maila Gharti Chhetri (GC), (not his real name), a resident of Pyuthan district, was released after spending 10 years in Kathmandu's Central Prison. Pyuthan District Court had sentenced GC to life imprisonment and ordered the forfeiture of his property after finding he was involved in a murder case. GC's sentence was upheld by the appellate court. But the Supreme Court set him free a few months ago, overturning the verdicts of the two lower courts. There are 1,419 inmates in Kathmandu's Central and Bhadragoal prisons, held on different charges. Half of them are still under trial.
Many prisoners are challenging the rulings of the lower and appellate courts in the Supreme Court. Studies conducted by many non-government organizations (NGOs) show that higher courts have turned down more than 50 percent of the convictions made by lower courts. Fateless Detainees For a person like GC, who was detained for 10 years without proof that he committed a crime, the question is: Who will pay compensation for the suffering endured over such a long time? For GC, the Supreme Court's decision to set him free cannot regain his prestige in society. The community still sees him as a criminal and treats him as an outcast. In most such cases, the individual moves away from his or her original residence to more crowded urban areas and lives under a new name and identity. Even in the eyes of the police, former prisoners are always an object of suspicion. Whenever a crime occurs, ex-convicts in and around the neighborhood are the usual suspects. In Nepal, the practice of holding a suspect in police custody for the investigation is normal. According to a study, only nine percent of those arrested are produced in court at the time of their first remand. As most of the convicted criminals are poor, they cannot not hire lawyers to defend their case. Even in prison, most of the convicts are either financially weak to hire a lawyer or are unfamiliar with the legal procedure. It is the tendency of convicted criminals to change the statements given to the police and the court. A large number of prisoners appeal against the verdict given by the lower courts. Prison officials are supportive of the inmates and help them get legal advice. "Prisoners are allowed to consult their lawyer, prepare writ for appeal and meet the people," according to the report on Penal Reform in Nepal, 2000. The trial and investigation system have several loopholes. One cannot rule out the possibility of an innocent person being trapped in a crime situation. This would make it difficult to prove that the individual is not guilty. As there are no laws in Nepal to compensate individuals spending time in the court, innocent people are more vulnerable to such traps. In more than 50 percent of cases, the accused are imprisoned for a longer period than he or she is liable to be sentenced under the existing acts and legislation. After serving their sentence in prison, there is no easy way for former inmates to regain their status in society. "I won't have a place to go because my neighbors will still see me as a convicted murderer. It doesn't matter to them that I have served my jail term," says Sharmila Dewan, a women facing 15-year imprisonment for murder. According to the report of the Attorney-General's Office for 1999\2000, the government prosecutor filed 25,850 cases in different courts. Among those, 10,102 -- or 39.07 percent -- were settled in which the court endorsed 5,271 charges filed by the government. In district courts, the government won 60.43 per cent of the cases compared to 35.71 percent in the Supreme Court. "There is great injustice for prisoners as many are still under trial. In one case, a person was jailed for 12 years for a crime that carried a term of no more than three years," a report of the State Affairs Committee of the House of Representatives said this year. "Initiatives need to be taken to settle the cases to give justice to the prisoners." Interestingly, no studies have been conducted on post-imprisonment life of a prisoner. After being released, the majority of the former prisoners are a totally forgotten entity -- until the next crime occurs in their neighborhood. They become the first prey of the police. "The behavior of former prisoners should be monitored and recorded, but there is no such scientific system to do so," said the State Affairs Committee report. Even in prison centers, no individual records are maintained. "No full records, containing photographs of prisoners, are maintained by the prison officials," said a report presented by a team on Penal Reforms in Nepal organized by Penal Reform International and CVICT. Rehabilitation and Reform A system to rehabilitate prisoners after the completion of their term needs to be developed. As the government does not have appropriate policies, ex-prisoners themselves have to find a place to stay after they are released. "A traditional society like Nepal, which is based on old values, always suspects a convicted prisoner even after he or she returns after serving out the sentence for the crime," says Dr. Rishikeshab Raj Regmi, an anthropologist. "One has to take the initiative to increase society's acceptance of former captives." Under such constant social suspicion, and even police surveillance, the life of former prisoners is always uncertain. In many cases, a former captive has to go underground and change his or her name to survive as a normal citizen. Although many organizations have been working in the field of prison reforms, no ex-prisoner has been interviewed on life after jail. According to a study by Nepal Police, fewer than 20 percent of former prisoners commit another crime after they leave jail. Inside the prison, the inmates do not get proper opportunity to change their behavior. "We have been making every effort to provide a sound and healthy atmosphere for the prisoners," said Dharma Raj Dhungana, acting director of the Department of Prison Management. Physical Facilities At the relatively well-managed Central Prison, four prisoners have to share a 10x14 room. They would be counted as lucky by inmates in other Nepali prisons. Studies conducted by different institutions, including the parliamentary committee, show that the situation outside the valley is very bad. Prisoners are even expected to have their own umbrellas during the monsoon. "Most of Nepal's prison centers are deplorable," said Gopal Guragain, in a report on the condition of women in prison, conducted by INSEC. All criminals -- murderers, pickpockets and women trafficker, economic offenders, drug smugglers and drug addicts -- hauled in the same place. According to a study, a large number of prisoners are illiterate and backward. This is in sharp contrast to the 1980s, when a large number of inmates were educated political prisoners. As the Central Prison has many facilities, including a library, health facilities, playground and school, the prisoners have a different lifestyle. "No prisoners wants to be removed from here," said Bashyal, chief of Central Prison. Although it is said to be comparatively crowded, it is still better than the other ones. Not all prisons have the same inmate pressure. Arghakahchi Prison does not have any prisoner. Central Prison and those in Birgunj and Biratnagar are known to be the most congested ones. "The prisoners must be classified on the basis of the nature of their crime. Prisoners serving time for violent crime and those sentenced for petty offenses must be separated," said Dr. Bhogendra Sharma, president of CVICT. Demands to reform criminal justice procedures for petty criminals and hardcore criminals are growing. A separate system to incarcerate hardcore criminals like murders would also reduce prison congestion. At the Central Prison, murderers, women traffickers and rapists represent only half of the population. The remainder are serving time for other crimes. "We have been doing our best to manage the prison within the limited annual budget," said Dhungana, the acting director of Department of Prison Management. Prison Management Department The story of the Prison Management Department itself is interesting. Among employees of the Ministry of Home Affairs, a transfer to the department is considered a punishment. The annual budget of the department is about Rs. 130 million. Some NGOs working in the area of prison reform have a budget that is ten times larger. According to the department, there are about 5,500 prisoners in 71 prisons across the country. In the last five years, more than half a dozen directors-general were transferred from the department. The state is not giving basic facilities to the prisoners. As more foreign aid is coming in the prison-reform sector, only NGOs are getting the benefits. Reforming and strengthening the department seems to be nobody's concern. As there are no opportunities for training, transfer to the Prison Management Department is like going to prison. Last year, Rs 3.5 million was sanctioned for maintenance purposes. All prison centers were built during the Rana regime so they need a larger budget for maintenance. The roof of all jails have leaks. Nepal's first jail, built in 1912 AD, is Sadar Jail of Jagnath Deval, where the Central Prison is located today. There are 73 prisons in 71 districts of the country. Almost all district prisons are congested and dilapidated. According to the book, "Prison Within Prison" (Karagar Bhitra Karagar) written by Gopal Guragain, women prisons are in a worse situation in terms of physical structures. As a large portion of the budget goes to feed prisoners and to pay salaries for the employees, the prison centers receive a nominal amount for maintenance. "As we don't have adequate budget, we normally spend a very nominal amount to repair the buildings," said Dhungana. From jail reform commissions to the State Affairs Committee of the House of Representatives, all bodies have recommended reforming the prison centers. In reality, nothing is happening. With an aim to encourage prisoners to change their behavior, the department also sets free some prisoners who have maintained excellent records. Annually, about 100 prisoners are released on such occasions as Democracy Day and Constitution Day. The Prison Management Department also recommends the release of more than 300 prisoners on the occasion of the King's birthday. The prisoners who are set free on such occasions need to have completed half of their terms. More than half a dozen NGOs have been working in the area of prison reform. Instead of making infrastructure and other changes, these organizations have been spending their budget on seminars and other programs. The office and the employees of the NGOs are better equipped than the Department of Prison Management, as donors and international non-governmental organization seem to be more interested to work through NGOs. Although concerned officials are talking about the need to transform the prison center into a reform house, no jail employee is trained for that purposes. In the last three years, no single employee at the department has participated in any kind of training. Lack Of Policies During the Panchayat days, there was no policy on prison reform. But even today the government does not have concrete programs and plans. Although prison reforms fall under the broader umbrella of human rights, policy makers are yet to accept them as such. As long as the government does not have clear concept on what a prison should be and what prison management is, it is impossible to start the reform process. "I don't see any long-term or short-term policies on the part of the government. I am very happy to say that the Department of Prison Management wants to bring some positive changes in the Prison," said Dr Sharma. In the last couple of years, Penal Reform International -- an organization based in the Netherlands -- has made efforts to bring changes in prison and criminal law. With support from the British Embassy, Penal Reform International and CVICT organized a seminar in Kathmandu and visited some prisons in the country. Most of today's political leaders have spent years in prison. They have not shown real interest in bringing substantial changes in the prison system. Strangely, no political leader visited a prison center during their tenure as prime minister and minister. Commissions and Committees In the name of prison reform, various committees, commissions and task forces were formed by the government in 2004 B.S. (1947 AD), 2008 B.S. (1951 A.D), 2016 B.S. (1960 A.D.), 2029 B.S. (1973 A.D.) and 2044 B.S. (1987 A.D.). On the basis of their suggestions and recommendations, gradual reform in the physical conditions of the prisons and basic increase in the facilities given to the prisoners have been made. With the restoration of democracy in 2047 B.S. (1990 A.D.), several steps were taken toward reforming prisons by releasing all political prisoners, enforcing the legal provisions for granting pardons for one fourth of the confinement, upgrading standard of personnel, and 100 percent increasing the cash ration of prisoners. Under the chairmanship of Badriram Bhandari, a Prison Reform Committee was formed in 2047 B.S. (1990 A.D.), 1996 and 1999 to start improving conditions in jails. "Because of the recommendation of the committee, one can see many changes in the prison centers," said Bhandari. "The prison is getting much better day by day." The jail management is left in clerical-level routine work, although most of the present-day leaders, including the prime minister, were witness to and victims of the poor prison management system. For the gradual implementation of the suggestions and recommendations, the government needs to increase the annual budget for prisons. Despite the formation of so many reform committees, the fate of the prison is yet to change. As the nature and variety of crime has increased, so has the number of criminals. Strangely, the prison center remains caught in a time warp. Although Nepal has entered the modern stage of the world, the pattern of working in prison is like that of the Rana days. The time has come to change the old mentality and turn prisons into reform centers. Badri Bahadur Karki, Attorney-General, is one of the prominent young lawyers of the country. He has been working to bring changes in the criminal justice system. Karki spoke to SPOTLIGHT on various issues. Excerpts:
How do you see the present prison and criminal justice system? First of all, we must know what our goal is. If there is no definition of that, how do you measure success and failure in the prison system. Imprisonment simply means sentence by the court for a specified period of time for a crime. This definition distinguishes the people living in society. What are your views on reform? Once again, we must see who is the reformer and what is reform. What reform do we want in society? Do we intend to reform the prisoner, society or offender? We must make up our mind about our goals. What type of reform do you need? Is it procedural reform or infrastructural? Can you explain how reform can be done? If your policy and reform is directed toward the offender, every effort should be made to do that. We have to develop a mechanism to reform the behavior of the prisoner when he or she comes out of prison. The person should be a fully reformed, acceptable and useful person in society and for himself. As attorney-general, how do you see Nepal's criminal laws? As far as our laws, regulations and policy goals are concerned, they seem to be confusing. No law is clear about what the ultimate goals of prisoning and prisons. Therefore, there is a need to redefine the crime and then reclassify the crime in view of the modern concept and practice of the criminal justice system. What do you mean by classification of crime? There is a need for reclassifying the crime - serious crime like terrorism, murder and some other traditional crimes. Also, crime related to economic regulations where compensation to the victims could be better in terms of pecuniary satisfaction rather than putting the offender into the jail. Correctional crimes like juvenile delinquency, drug addicts need to have separate procedure. Such offenders need behavioral reform as their treatment should or would be the goal. Based on these classification of the crimes, you should or would redefine the function and goals of prisons. What is the current task force on criminal justice system doing? The task force intends to look into basic questions and issues concerning our criminal justice system. Our criminal justice system remain entirely traditional. No attempts have been made in the recent past to make a wholesale review and to make necessary changes. In the absence of this, our criminal justice system will remain insensitive to the needs of society and ineffective in operation. How are the number of prisoners increasing? Although no studies have been made, the assumption on the growing number of the prisoners could be the conservative outlook on the part of judiciary on matters of bail. Society is also not liberal as the general people want the accused behind bars before they are actually convicted. This is evidence from the frequent public demonstrations demanding for immediate arrest and jail for the accused. Punishment cannot be seen as an end itself which seems to be a ruling principle today. 'Petty Criminals Should Not Be Put In Jail' — Dr. BHOGENDRA SHARMA Dr. Bhogendra Sharma is president of CIVICT, which has been working against torture and for prison reform. Sharma spoke to SPOTLIGHT on various issues related to the task of reforming Nepal's prisons. Excerpts:
How do you see the physical condition of Nepal's jails? Frankly speaking, more than 60 percent of our prisoners have not been proven guilty by law. Physically, the prisons are in a very terrible situation. There is a need to improve the management. If we change the management, the jails can be improved. How do you see the process of prison reform? One of the important aspects is to reduce the crime rate. To do that, we need effective social justice. If we are able to distribute the country's resources based on the principles of social justice, there is a possibility of reducing the crime rate. There are two kinds of destructive violence -- murder and serial killing -- but other petty crimes are not dangerous. We could put violent criminals in jails and find an alternative system to punish other petty criminals. Could you elaborate? We have to introduce alternative dispute-resolution mechanisms to end small and petty crimes. If we do so, the number of criminals will automatically decrease. How can one justify placing a pickpocket in jail? How do you view the condition of prisoners? Over 90 percent of the prisoners are people who come from below the poverty line. Most of the convicted criminals are poor people who cannot afford to pay for lawyers. Are all inmates convicted criminals? More than 80 percent of the prisoners deny that they actually are criminals. If we believe them, less than 20 percent actually deserve to be punished. The cases of more than 60 percent of prisoners are yet to be proven by the court. Facilities provided to prisoners Prisoners are divided into two categories: Class A and Class B. Class A prisoners are given 700 grams of fine rice and Rs. 12 in cash daily. Class B prisoners are given 700 grams of thick rice and Rs. 10 in cash daily. Male prisoners are given shirts, trousers, cloth for a cap in winter, and shirts, trousers, cloth for a cap and half pants for summer. Female prisoners are given a sari, blouse and shawl, according to the season, twice a year. A blanket and mattress is given every two years, according to local conditions. The clothing of prisoners of Class A costs 25 percent more than those of prisoners of Class B. Additional facilities are provided every three years. Woman prisoners who have just given birth and minor prisoners are given some additional facilities depending on their age and other circumstances. Number of Jails Class A 1. Central Jail Section, Kathmandu Class B 1. Sadar Khor Branch, Dillibazar There are 11 prisons in Group C and 52 in Group D |
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