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COVER STORY |
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COVER STORY |
Crime And In the absence of
an alternative system, prisons are filled with people accused of having committed crime.
Once they are sent to jail, detainees who are under trial and convicts are treated alike.
Thanks to the conservative attitude of the judiciary, which seems to believe that jail is
a rule and bail is an exception, prisons are overcrowded with people whose guilt remains
to be proven. Reports show that some 60 percent of the 7,000 inmates in prisons across the
country are still under trial. Had the courts held a liberal attitude toward bail and the
government searched for alternatives, the country would not have had such a large number
of prisoners of legal flaws By KESHAB POUDEL In his classic "Crime and
Punishment", Fyodor Dostoevsky argues that the legal punishment for crime is less
frightening and operative than the psychological need to accept suffering and to expiate
his deed. The Russian novelist is right,
but the concept that severe legal punishment for crime frightens the criminal and prevents
the recurrence of such activities in society still holds sway. So the criminal justice
system is still influenced by punitive action, rather than psychological reform. Although
the judiciary exists to protect the fundamental rights of the individual, it, too, fails
to deliver speedy justice to those under trial. The Criminal
Procedures The prison
process begins with the arrest of a suspect. Police are authorized to take him or her into
custody for 24 hours without the approval of the competent court, generally the district
court. With the permission of the court, the custody period could extend up to a maximum
of 25 days, but the court generally remands custody for seven to 15 days at a time. During
police custody, a suspect is imprisoned in the police station. After After the
filing of the case and the production of accused before court, the statement of the
accused is recorded before the judge. The judge has to decide whether to conduct the trial
keeping the accused in judicial custody or setting him or her free on bail. If the judge
rejects bail, then the accused is sent to jail as an under-trial prisoner, forced to
prepare his or her defense behind bars. In Nepal, studies show that more than 60 percent
of jail inmates are under-trial detainees. The percentage
of under-trial prisoners in Nepal is very high compared to other parts of the world, since
judges seem to be very conservative on granting bail. The judges, too, have been
influenced by social values. In Nepalese society, people are happy once the suspect faces
prison terms. This affects
the very basic human and fundamental rights of the accused, because the right to defend
his or her case is affected owing to the imprisonment. "It is very difficult for
under-trial prisoners to prepare for the defense of their case. It goes against the very
basic concept of presumption of innocent until proven guilty," says a lawyer. In many
instances, under trials are found to be innocent. Since, there is no law to compensate for
this loss of liberty, authorities don't have to worry about it. The case under the
Commission of Investigation of Abuse of Authority (CIAA) is much worse, because it is
empowered to exercise both the power of police and the prosecution together. The chance of
abuse of power in both capacities is greater. The CIAA starts its investigation first
presuming everyone guilty and takes them into custody and then start investigation. Much
worse is its propaganda through the media. It can take people into custody for the maximum
period of six months subject to the approval of the special court. "It is a
violation of the constitution to put a person behind bars even before the completion of
investigation. In the name of control of corruption and abuse of authority, the CIAA is
misusing its vast powers, which goes completely against the constitutionally guaranteed
fundamental freedoms," says a constitutional lawyer. Unfortunately,
the judiciary is liberal in approving the custodial detention requested by the CIAA.
"You start the investigation placing the person behind bars. How can detainees defend
themselves?" asks a lawyer. Although
Article 14(6) of the Constitution of the Kingdom of Nepal 1990 provides for the production
of the arrested person before the judicial authority within 24 hours, the provision is
ineffective. Those in custody are often denied the right to consult a lawyer or judicial
authority. The district courts and special court hardly bother to scrutinize the evidence
and related documents while granting remand for detention. Today's modern
state does not exist to insult its own citizens and deny their fundamental rights. But the
present system has created many social as well as other problems in the life of suspects
and detainees. In legal terms,
no person is considered guilty unless his or her crime is proved. But there is a belief in
Nepalese society that anyone who returns from prison or custody is a criminal. Family
members of such detainees have to face discrimination, humiliation and hatred. Although Nepal
has been passing through a critical phase of modernization, general perceptions about
prisons and prisoners remain conservative. Society does not seem to care about the plight
of suspects and want harsh punishment. This mentality
also overwhelmingly prevails in the policy-making level. Despite the autocratic nature of
his government, Rana prime minister Juddha Sumsher's directives to his district
administrator regarding the right of prisoners was more transparent than what exists
today. He issued orders to his administrator to regularly visit the prisons and deliver
speedy justice so that nobody had to serve time unless proved guilty. Unfortunately,
today's civilized and modernized system does not have such an effective monitoring system
to deliver speedy justice to prisoners and detainees. Plight of
Detainees Saili Tamang
(not real name), 26, who visits the Central Prison twice a month to meet her husband,
provides an example of the difficulties the family of detainees face. Tamang's husband,
who was sent to prison three years ago under a decision of Kathmandu District Court for
trial under detention in a murder case, is still awaiting a final verdict. Tamang, who has
two small daughters, has moved from her village to escape the hatred and rage of her
neighbors. Tamang is now
living in a rented house in urban Kathmandu, washing the dishes and clothes of neighbors
for survival. "I have never mentioned the whereabouts of my husband. If people know
that my husband is in prison, they will kick me out." She claims her
husband is spending prison time for a crime he never committed. "If I had the money
to challenge the verdict at the appellate court, my husband would have been a free man
today. Unfortunately, we don't have money for bail. Unless the court gives him a clean
chit, he will have to remain in prison." The premises of
the Central Prison, which includes the Bhadra Goal Prison Unit, Women's Prison Unit and
Central Prison Unit at Jagnath Deval, are hectic from Monday to Friday when relatives of
prisoners like Tamang come to see their loved ones. Although all the institutions are
conservative in the process, the prison authorities are relatively liberal when it comes
to allowing in families of detainees and convicts. Most of the
visitors do not want to disclose their identity and purpose of visit. It seems that
visiting the prison is itself an offense in society. The prison employees, too, avoid
discussing their work, as everyone seems to gripped by fear. In the midst of
such social beliefs, detaining someone in prison means a punishment worse than sending him
or her to hell. "Going to prison is like a hell. After my release, I am considering
to move very far away from my birthplace so that nobody recognizes me and hates me knowing
my past," said a Chaukidar at the Central Prison on condition of anonymity.
"Till we are inside the prison, our worry is about roaming freely outside. As the
date of release comes closer, we have to worry about where to go and where to
settle." Those under
trial have similar stories to tell. "In urban areas like Kathmandu, people understand
the difference between convicts and detainees. In rural society, people do not make any
distinction between them. Once a person is locked up, he loses social prestige and status
even if he is later acquitted by court," one says. Poor and
Powerless Most of the
prisoners are poor and powerless, since they cannot hire a lawyer to challenge the verdict
given by the lower court. In the course of investigation and delivering the verdict,
nobody tries to understand what motive impelled them to the crime. The prisoners'
condition clearly shows that that the causes were their miserable economic condition,
unemployment and helplessness. In the prison and outside, they have to face similar
hardships. A large number
of inmates understand the difference between detainees and convicts once they are sent to
prison. Although the Central Prison is in the heart of the city, over 60 percent of the
prison population are detainees under trial. According to the Central Prison, among 1,538
prisons in the three units, more than 800 are under trial detainees. The situation
in other districts and remote areas might be worse. In the Central Prison,
non-governmental organizations and other bodies visit the premises and listen to the
inmates' problems. Congested and
Overcrowded The prisons are
over-crowded and congested. The rooms are small, since the buildings of most of the jails
are a century old. The buildings added after the 1950s, too, are still congested and
small. So, there is little space for recreational activities. A high-level Prison Reform
Committee formed by the State Affairs Committee of the House of Representatives
recommended the improvement in infrastructure and pointed out lacunas. The studies by more
than half a dozen committees formed after the restoration of democracy presented a similar
picture, but no report has been implemented. All committees
made similar recommendations, such as improvement of the room conditions, more space for
recreational activities, separate rooms for the patients with deadly diseases, no
government has provided adequate budget to implement them. Some committees have
recommended reforming the penal system to deliver speedy judgment and to create an
alternative system for petty crimes. According to
the prison administration in Central Jail, they are compelled to place all kinds of
detainees and prisoners, including those infected with Hepatitis B, HIV/AIDS, cholera and
typhoid, in same units. "There must be separate units for such inmates," says a
senior official. The average age of prisoners at the Central Prison is 30 years, and most
of the prisoners are illiterate as well as poor. Under pressure
from human rights organizations, parliament and donors, the government is taking steps to
improve the physical conditions in many prison units, adding schools and other vocational
training components. But they are too little. The prisoners get few opportunities to
reform themselves. According to
police, most of the prisoners released in petty theft cases, girl trafficking, drugs and
other social offenses tend to return to jail. This shows that prisoners do not get the
opportunity to reform themselves and that punitive action alone is not enough to deter
crime. State of
Prison Management The prison
system in Nepal began in 1914, when the present Central Jail was established in Kathmandu.
It was called Sadar Jail and was under the control the military general. After the popular
movement of 1951, the prison's administration was shifted to the Ministry of Home Affairs.
The prison centers are now under the control of district administrative office. They are
still regarded as places for inflicting punitive treatment. Nepal's prison
units are governed under the Prison Act and Prison Regulations 1962 AD and 1963 AD. The
act has been amended twice and the regulations seven times, to keep them in tune with the
times. With the
restoration of democracy, the Prison Section of the Ministry of Home Affairs was upgraded
to the status of department, but one cannot see substantial changes in prison management.
Instead of creating an efficient system, the department has created more complications and
increased bureaucratic layers. According the present system, the department has no
authority over the prison units, whose management comes under the district administration
office. For the welfare of the prisoners and reform in the units, the department has
little to do. There is a
clear conflict among the prison units and the Department of Prison Management. The
officials of the department, too, do not care too much about the plight of prisons. They
are keener to get a posting to a better government agency. The department seems to have
been created to dump senior employees and to offer foreign junkets. Those in charge of
prison units, who are supposed to work under the chief district officer, do not get any
facilities and training opportunities. There are
frequent transfers in the department. In the last 10 years, it has seen the turnover of
dozens of director-generals and other senior officials. Many officials see the department
as a prison for the employees and regard a tenure there as punishment. The present
Director-General, Gopal Man Shrestha, who is on the last leg of his bureaucratic career,
seems to be counting his days to retirement. "This is a department where civil
servants are sent when he or she needs punishment," says an official. Interestingly,
the post of chief of Central Prison Unit has been vacant for several months. "Since
there are neither incentives nor facilities, no employee wants to continue in the prison
units," says a senior official at the Home Ministry. Managed by
untrained personnel, the prison units are ill equipped with basic facilities. There are 73
prisons established in 72 districts. Kathmandu and Dang each have two prisons. The
prisoners are placed into four categories. Similarly, prisoners are divided into two
groups under the basis of food allowances of category A and category B. The convicted
persons and those under trial are distinguished as prisoners and detainees respectively. The prisoners
and detainees receive similar facilities without distinction. They are provided with dress
two times a year. Daily necessary commodities are supplied based on the category of the
prisoners or detainees placed in. Those placed in category A are entitled to 700 grams of
rice and Rs.20 (25 cents) a day. With the Rs.20, a prisoner has to purchase vegetables,
cooking oil, species, salt, milk and many other daily commodities. With the 700 grams of
rice, the prisoner has to support his or her subsistence three times a day. Those falling
into the category B obtain 700 grams of rice and Rs. 15 (20 cents). Other facilities like
schools and sports exist at the Central Prison, which is known as the equivalent of a
five-star hotel among the prisoners. Flood of Cases The question of
how to reduce the number of prisoners remains. "We have to develop a new penal system
so that the prisoners get speedy justice. As a prison management department, we cannot do
anything other than to take care of prisoners," says Director-General Shrestha. As the courts
are filled with an overload of petitions, it takes a long time to settle pending trials.
In many cases, the verdict appear when the person concerned has already spent more time
than the sentence. According to a Supreme Court report, more than 65,000 cases are pending
in three levels of courts. Even if speedy justice is given, it will take many more years
to settle the cases of more than 4,000 under-trial detainees. According to
the Annual Report of Attorney-General 2001/2002, among the 29,445 petitions filed in the
court in 2001, only 15,550, or 52.48 percent, were settled. In the settled case, they are
successful to win 8,279, or 53.24 percent of the cases. In the district courts, where most
of the preliminary hearings begin, the success rate is 43.17 percent or 2,007 cases among
the 8,131 petitions. In the appellate court, the success rate is higher in defending the
petitions. In total, the success was 43.17 percent. Despite the
change in the political and other systems, only a few persons care about human rights and
human dignity. The old Civil Code Act is still guiding the law in the criminal justice
system. There are possibilities to reform the old act through the interpretation of the
court, but the country is now heading to acquiring another penal system. It is a
well-accepted tendency here that the greater the number of people sent to prison, the more
satisfactory the role of the officials. In such a situation, many prisoners of lower
economic and educational levels of society are vulnerable to the trap. In 41 different
offences, the highest number of police cases are related to murder. According to the
police report, there were 938 murder cases filed in the courts. The second related to
pubic offense which were 2,169. Some 185 cases related to rape and 125 cases related to
girl trafficking were recorded in 2001. The police records show that the criminal
activities continue to increase in a modest way. In 1997, there were 10,562 criminal cases
against the 10,504 in 1998/99 and 10,640 in 1999/2000. "If you
want to socially isolate someone, you must send him to prison for some time on any charge.
Nowadays, everyone can be sent to prison on the suspicion of corruption and malpractice,
but nobody seems to be serious about improving the facilities," says a sociologist. Although most
of the politicians who were at the helm of state affairs in the country for the last 12
years spent their lifetime in prison, they forgot the trauma they suffered as soon as they
were in positions of authority. Prisons are better now than in the past but they are still
unfit by human standards. As all other
state's authority fail, the judiciary is there to check the flaws in the laws and to
deliver justice. As long as society and state officials see prisons as a place for
punishment rather than for reform and the judiciary, too, prefers to send people to prison
rather than grant bail, the prisons will be filled by more under trial detainees. The time
has come to develop a system for prisoners to accept suffering and to expiate their deed. 'Prisons Have Become
Dumping Sites' — Dr. BHOGENDRA SHARMA Chairman of the
Center for Victims of Torture (CIVICT) Dr. BHOGENDRA SHARMA is a well-known human rights
activist working to improve the physical and other conditions of prison cells. His
organization has conducted a number of programs aimed at preventing torture. Dr. Sharma,
professionally a medical doctor, spoke to SPOTLIGHT on various issues relating to Nepal's
prison system. Excerpts: You
have been working to reform Nepal's prison centers for many years. How do you describe the
physical and other conditions there? It has not
improved as expected. There have been improvements in the physical and other facilities of
prison cells, as everyone wants to see change. Governmental and non-governmental agencies
agree on the need to transform the prison cells. I have seen a change of attitude among
the people in policy-making circles. In terms of transformation of infrastructure, we
still have to do a lot. Resources allocated to the Department of Prisons are still meager.
Resources are required not to build new infrastructure but to make existing ones fit for
humans. Water shouldn't be leaking all over the place on rainy days and toilet facilities
must be improved. Our aim should be to transform the inmates who come out after completing
their sentence. What is
your general opinion on the state of prison cells? There are
basically two places where we need to make changes: the place of police custody and prison
cells. Frankly speaking, the physical conditions of both places are very bad. Such places
are not under the government's priority programs. As long as the government ignores the
importance of prison cells and custody rooms of police stations, I cannot foresee major
changes in the existing infrastructure. A few
years ago, a high-level parliamentary committee made recommendations to the government on
ways of improving the physical conditions of the prison cells. Your organization, too,
prepared a report along with Penal Reform International. How do you see the response of
the authorities? Over the years,
many reports have been prepared and a number of initiatives have been taken. The real
question is one of implementation. Who is responsible for it? Once again, it's a question
of prioritization and resources. We prepare and present many reports with good intentions,
but nobody seems very serious in the area of implementation. There is a tendency to find
loopholes so that one can shift responsibility. We seem to need another study to find out
how to implement the reports. We need now to produce a report that can be implemented. Till a
few years ago, CIVICT was the sole organization dedicated to prison reform. Now there are
a number of non-governmental organizations working in the area. How do you see
coordination between government and non-governmental organizations and among the
non-governmental organizations? The Department
of Prison Management has been playing the role of facilitator and coordinator, since it is
giving access to the NGOs. This is a positive step. As far as services of NGOs are
concerned, they are confined to areas accessible by transportation. In the prisons of
Kathmandu, a number of NGOs are active, but the situation is not true in all the
districts. We have initiated steps to promote coordination, but the pace has been slow. You
have observed the behavior and character of prisoners. What impression do you have about
them and what are their problems? One of the
important aspects is that the majority of the inmates are under trial and many are
innocent. The conditions of women inmates are deplorable. There are a large number of
juveniles. It seems the prisons cells are like dumping sites. Once an accused is sent to
prison, the state authorities consider that the completion of their duty. Nobody cares
about transforming the behavior of prisoners. Many of today's political leaders have spent
several years in prison. But they have never shown interest in reforming the prisons. They
should be developed as a reform or correction house and speedy trial should be held. A few
years ago, your organization talked about an alternative system. Are you making any
progress? We are talking
about community-based prison centers where people can decide petty and small offences. The
punishment should be given in the community. Instead of sending the accused to district
courts, the right of mediation should be given to the community to avert the lengthy
process. It is still in a pilot phase. If we implement this system, many prisons will
avoid overcrowding. What is
the capacity of prison centers? Almost all the
prison centers are congested. Many are running out of capacity. As you
say, so many politicians have served long prison terms. Why don't they talk about prison
reform? Society is
tilted toward conservatism. This does not mean that all constituents of society are like
that. I don't want to pretend that I have an answer. The political leadership could have
changed many acts to improve prison conditions, but nobody seemed interested. 'Our Focus Is On Correcting
The Behavior Of The Inmates' — GOPAL MAN SHRESTHA Director-General
of the Department of Prison Management GOPAL MAN SHRESTHA, who has had a long innings in
the civil service, leads an agency that has seen dozens of chiefs in the last eight years.
Excerpts from an interview: How do
you see the state of prison management in the country? Prison
management is not a new concept in Nepal and the state of prisoners and prison houses is
not bad. Convicts and detainees are living in the best conditions the state can afford to
create. We regard the inmates as citizens of this country and are serving them to the best
of our capacity. How
many inmates does the Nepalese prison system have? We have two
categories of the prisoners: detainees and convicts. Although the numbers fluctuate day by
day, we have about 7,000 prisoners all over the country. Figures
show that over 60 percent of the prisoners are under-trial detainees. How do you look at
this situation? The cases of
most of the prisoners are yet to be decided. It is up to the courts to decide the cases.
We lock up the prisoners and release them under the order of courts. The role of the
department is on the management side. We cannot compel the judiciary to settle matters
quickly. Civil society and legal authorities can do something about this. What
steps has your department been taking to improve prison conditions? Most of the
prison centers are located in the terai region, while some are in the hills. We are taking
care of prisoners and prison cells and providing necessary funds to run them. We have
taken a number of steps to improve and renovate old buildings. We have added school
complex, cottage industries and medical centers. What
kinds of facilities are prisoners getting? We provide them
with clothing, food and medical care. To make them self-reliant, we offer them training in
various fields. Our aim is to offer them the opportunity to correct themselves so that
they can be assimilated in society. How to
do you rate the prison infrastructure? We have
allocated substantial amounts of money to improve the physical shape of the prison
centers. We are doing renovation, repair and reconstruction works in many prison centers. Do you
see changes in the concept regarding prisoners? Definitely, the
old concepts are gradually vanishing. Unlike early days, today's prison centers aim at the
correction of prisoners. The civil society and donor communities are supporting the
government's efforts to make prison centers more humane. Our focus is now more on
correcting the behavior of the inmates. So the very concept now is changing. In the
process, the government is working to change the penal system, which is centuries old. The
first prison centers were established following the promulgation of the Civil Code by Jung
Bahadur Rana, who brought the concept after his visit to the United Kingdom. The first
jail was built in Jagnath Temple. The role of the government has changed from a police
state of Jung Bahadur's era to a welfare state. The very idea Jung Bahadur brought to
Nepal has changed. With the support from the British government's Department for
International Development, work is under way to reform the penal system. Once the penal
code is reformed, you can expect to see many changes in the prison system. What
percentage of the population are prisoners? Although we are
a least developed country, we have a very low crime rate and fewer prisoners compared to
other countries. How
frequently do you allow prisoners to meet family members and relatives? The prisoners
can meet their relatives and family members as per their wish. We have made certain
restrictions in larger prison centers the Central Jail. Otherwise, there are no
restrictions on visits. What
categories of prisoners do you have? There are all
kinds of prisoners, including those involved in homicide, girl trafficking, drug
smuggling, rape and others. (K.P.) |
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