CRIMINAL JUSTICE SYSTEM OF NEPAL
DEVELOPMENT OF NEPLEASE LEGAL SYSTEM
The legal system of Nepal
The era of codified law began with the promulgation of
National Code 1853 A.D. The Code was influenced by the Napoleon code of France
Nepalese legal system has no any division between
public and private Law. It has two categories of laws viz. Constitutional law
and statutory law. The Constitution has been regarded as the fundamental
law of the land therefore any laws inconsistent
with it no longer remains valid.
CRIMINAL JUSTICE SYSTEM
Criminal justice system is comprised of crime,
criminal law, police, prosecutors, judges, criminals and victims and courts.
The main aim of the criminal justice is to punish offenders and to provide justice
for victims. It also prevents the potential offender from committing a crime. Violation
of criminal law affects the society at large. Therefore, it is a prime concern of
the state to bring the offender to justice through fair and impartial
investigation, prosecution and adjudication process.
The Component of Criminal Justice System
·
Criminal law and
Penal policy
·
Police and Prosecutor
·
Suspect\Accused
and Defense Lawyer
·
Court
·
Victim
·
Civil Society
Criminal Law and Penal Policy
Criminal law
deals with crime and punishment. There are two types of law viz. substantive
and procedural law. Substantive criminal law proscribes and criminalizes
certain acts of individuals thereby stipulating punishment. It also recognizes
the rights of the victims. Procedural law is invoked in every stages of
criminal justice system from investigation to the execution of the final
decision. Principle of fair trial and natural justice are applied in every
criminal case if a trial is to be conducted.
Penal policy is
related to different types of punishment. It can be pursued taking in to
account different aspects and circumstances including the nature of crime,
time, place and the condition of the criminals etc. Nepal
Police and the Prosecutor
Police is entrusted to carry out investigation of a
crime. If the information of any criminal act is found by any means immediately
police comes in operation. It appoints crime investigating officer who has to
remain in touch with public prosecutor. Investigation begins upon the reception
of
the
information of a crime and generally ends when investigating official submits
investigation report to the public prosecutor (District Government Attorney)
for the decision whether to file the case or not.
Power and duty of investigating officer
·
To reach to the
crime scene as soon as possible.[1]
·
To record the
statement of eyewitness and person who have known about the crime and prepare
the legal document.[2]
·
To carry out
search and seizure on any suspected place or person.[3]
·
To arrest the
suspect of crime by giving the reason of arrest and to keep the suspects in the
custody, if necessary.[4]
·
To take
permission of the court to detain more than twenty four hour to the suspect.[5]
·
To take statement
of a suspect in the presence of the prosecutor[6].
·
To collect the
material evidences of the crime.
·
To release the
person on the guarantee of attendance [7]
·
To follow the legal
direction of the prosecutor.
·
To produce a case
file along with final investigation report with his opinion to the public
prosecutor. [8]
·
To submit the
materials or document of evidential value which are received after the filing a
case in the court through the prosecutor.[9]
·
To present
witness in the court through the prosecutor on the stipulated time and date.[10]
In criminal justice system the prosecutor
plays a vital role in the pre trial, trial and post trail stage. She/he gives
direction to the police for the investigation of crime from the very beginning.
She/he can interrogate to the suspect about the crime. Police (investigating
official) should take the statement of suspect in the presence of public
prosecutor[11]. She/he
may advice on the legal issues to the police at any time during the
investigation. She/he may provide permission to the police for releasing a
suspect from legal custody.[12]
Under the constitution and prevailing law prosecutor
has a sole authority to decide whether to prosecute or not.[13]
She/he frames a charge sheet and files a case in the court and also defends on
behalf of state by pleading, producing evidence, examining witnesses. In case
of failure of the case she/he appeals in the higher court.
Relation between Police and
Prosecution to combat impunity
Investigation and prosecution are
coordinated acts in the criminal justice system. Both acts require
investigation skill as well as legal expertise. The State case Act 1992 and
other prevailing laws have entrusted police as an investigating institution and
Office of the Attorney General as a prosecuting authority. Therefore, a
collective and coordinated effort of both police and Government Attorney is
required for successful prosecution. In Nepalese criminal justice system the
role and mandates of police and Government Attorney have been illogically
separated. Police considers its job accomplish once it hands over the case file
to Government Attorney and then after it does not want to own the further
proceeding of the case. On the other hand, Government Attorney has very limited
and minimal role in the investigation process. Usually police considers
interference in their domain if any direction is given by Government Attorney
to the investigating official. Similarly Government Attorneys always blame the investigation for the
failure of cases. Owing to such situation a gulf has been made between police
and Government Attorneys and it has eventually hampered the effective
prosecution. Hence collective campaign has not been strong to combat impunity
through the criminal justice system.
The State case Act has envisioned effective
coordination between police and prosecutors. Public prosecutors have been
regarded as legal advisor to the police and the prosecutors have also been
given the authority to provide direction to the police. They both have to be
involved in the interrogation process. Police has to assist the prosecutor in
making charge sheet and producing evidences in the court of law. Similarly, the
Rules regarding Government Attorneys (public prosecutors) 1998 has made a
provision for the central level coordination committee which comprises the
Attorney General as a chair person and Deputy Attorney General, Secretary of
Home Ministry, Chief of the police as members.[14]
Taking seriously the need of effective
coordination, the following steps have been recently taken:
·
The Attorney
General has recently issued 33 points guidelines to the police and prosecutors
to maintain the coordination to effectively conduct investigation and
prosecution with the help of each other.
·
Office of the
Attorney General has proposed appellate and district level coordination
committee through its Five Years Strategic Plan of Action.
·
Joint training
programmes have also been initiated.
·
Police have
become regular participants in the programmes launched by Office of the
Attorney General.
Organizational Structure of the Public Prosecutors office.
Office
of the Attorney General
Office of the Attorney General is located
in capital city of Kathmandu Nepal
·
Chief legal
advisor of Nepal
·
Represents the
Government in lawsuit wherein the rights, interests or concerns of the
government are involved.
·
He/she has the
power to make final decision as to whether initiate any case on behalf of the Government
in any court or judicial authority.
·
He/she has the
duty to monitor implementations of any interpretation given to the law or any
legal principle lay down by the supreme court of Nepal
·
He/she has the
power to monitor the custody to ascertain whether the detainee has been treated
humanely or not.
·
He/she has the power
to appear and express his/her opinion on any legal question in any meeting of
the legislature-parliament or any of their committees.
The subordinate prosecutors of the Attorney
General are Government employees. Their service comes under prosecutor group of
the judicial service. They are recruited by the nationwide examination of taken
by the Public service commission. The
Attorney General is the highest post and he/she regarded as a chief public
prosecutor. Other posts of the public prosecutor are Deputy Attorney General,
Joint Attorney, Deputy Attorney and District Attorney and Assistant District
Attorney in the descending ranking order.
Appellate
Attorney General Office
The
organizations of office of the Attorney General are similar to the courts structure. There are sixteen Appellate Attorney General
Offices all over the country corresponding to the sixteen Appellate courts. The
Appellate Attorney General Office is headed by the Joint Attorney who is the
senior post of the public prosecutor. She/he has the responsibility to monitor
and inspect all the subordinate Attorneys and supporting staff within the
region. She/he represents the government in lawsuit in Appellate Court, wherein rights,
interests or concerns of the State are involved. The Attorney General of Nepal
has delegated his power to monitor and inspect the custody to the joint
Attorneys of Appellate Attorney General Offices.
District
Attorney General Office
District
Attorney General Office is headed by the District Government Attorney working
as a public prosecutor at district level. In the criminal justice system District
Government Attorneys are the key personnel to gear up the system. They directly
contact with the investigating officer, provide direction and give legal advice
to the police. District Government Attorney decides whether to initiate a case
or not under the authority provided by the Attorney General. She/he files
charge sheet independently, produces evidence, examines the witness and plead
in the court. In case of failure of the
case she/he sends the draft of appeal to the Appellate Attorney General Office
for appeal.
Accused and Defense Lawyer
An
accused is a person who has been charged of committing a crime. She/he has the right of fair trial in
every stage of investigation proceedings. In pre trial stage, she/he has a right to know the reason of arrest
and get the information of detention; not detained in custody more than twenty
four hour except on the order of the court; has the right to legal counseling
of her/ his choice at the time
of arrest; has the right to silence; presumed innocent until proved guilty of
the offense; right to be informed of any proceedings taken against him.[17]
In the trial stage an accused person has the
right to fair trial by a competent court in the every step of court proceedings. If accused is unable to hire a lawyer
then the court provides a lawyer for him.
Court
There are three tiers of courts[18]
in Nepalese Justice System. The Supreme Court is the apex Court. It has power
to declare ultravires the law which is inconsistent with the constitution. It
is regarded as a court of record. It supervises and controls all the
subordinate courts. There are sixteen Appellate Courts in various regions to
hear appeal and writs. There are seventy-five District Courts in each district
established as a trial court or court of first instance. The judicial power of
state is applied by the courts through the established national and
international principles of justice and the law. The chief justice of Supreme
Court is appointed by the president on the recommendation of the Constitution
Council. Other judges of Supreme Court, and the Judges of Appeal court and District
court are appointed by the Chief Justice on the recommendation of Judicial
Council.
The courts are regarded
independence and impartial judicial bodies. They have no role in the
investigation and prosecution process except in some exceptional situations.
Therefore, the judge has to discharge his/her duty as an umpire. Generally, Criminal and civil cases are heard by the
same District Court as there are no different courts to hear civil and criminal
cases separately. In some pilot courts there are separate bench for criminal
and civil cases. District Courts are courts of first instance however they have
been empowered to hear the habeas corpus and injunction writs[19].
Single judge hears and decides the cases in District Court. Most
of the criminal cases are filed in the district court. In the district court, after
taking the statement from the accused the case is opened for preliminary
hearing to decide whether to keep the accused in the custody, or seek bail, or
free him/her on the condition to present the court on the stipulated date. Secondly,
the hearing begins for the purpose of producing evidence. The court examines
the evidences by several methods. The focus of the court will be on those
issues on which the parties of the case have diverse claims. Final hearing
relates to the disposal of a case. In
the final hearing the judge decides conviction or acquittal of the accused on
the basis of admissible fact and evidences. Defeated party may appeal in the
higher court. The court executes the decision after the final approval of apex
court.
Victim
Generally, sufferer from an offence is a
crime victim. Criminal justice system provides relief to the victim by
punishing the offender and providing compensation and reparation to the victim. In most of the cases victim is the primary
evidence of the crime. She/he may be the crime informer as an eye witness or
may have suffered physical, mental or psychological harm because of the crime.
At present victim's approach of justice has been introduced in the criminal
justice system of Nepal
Civil society and general people
In civilized society, the members of the
society are the agents of peace and prosperity. Social harmony is necessary in
the society. In this regard, less dispute and effective dispute handling
mechanisms are necessary. Therefore, every member of a society has the duty to
cooperate to the police, prosecutor and the court for the purpose of dispensing
justice.
Progress Report of the Prosecution
Generally, criminal
cases are filed in the District Court however some criminal cases are filed in
the quasi judicial body like District Administration Office, District Forest
Office and so on. Recently published annual report of Attorney General has
mentioned the total number of registered cases, settled cases and convicted
cases, non convicted cases and remaining number in the year 2009\10 A.D.
DESCRIPTION OF THE CASES (2009\10)[20]
Hearing Institutions
|
Total
cases
|
Settled cases
|
Convicted cases
|
No convicted cases
|
Remaining cases
|
Conviction Percentage
|
District Court
|
12,411
|
6.255
|
4,454
|
1,801
|
6,156
|
71.21
|
District Administration Office
|
8,585
|
4,080
|
3,939
|
141
|
4,505
|
96.54
|
Other Entity
|
482
|
211
|
201
|
10
|
271
|
95.26
|
Total
|
21,478
|
10,546
|
8,594
|
1,952
|
10,932
|
81.49
|
The Causes for lower conviction
The causes for lower
conviction are as follows;
·
Investigation is
based on the oral evidence rather than the material evidence.
·
Political, social,
economic, psychological or physical pressure to the police, prosecutor, judge and
court personal
·
Witnesses of the
government are not willing to present at the court for the testimony due to lack
of witness support programme.
·
Witnesses of the
government often go hostile in the courts due to lack of perjury law.
·
Lengthy procedure
of the court.
·
Police,
prosecutor and judge are not familiar to the modern technique and principle of
investigation and the crime.
·
Lack of
coordination among the police, prosecutor, the judge and court personnel.
·
The prosecutors
lack effective case framing and presentation skills.
POSSIBILITY TO REFORM IN CRIMINAL JUSTICE SYSTEM
The Interim constitution has taken the objective
of respecting the peoples mandate in favors of democracy, peace and security
with full commitment of democratic value and norms. It has guaranteed the fundamental
right, right to life liberty, right against torture, right against preventive
detention and right relating to justice etc. Prevailing criminal laws are very
old and scattered into different legal provisions and statutes. The provision
of punishment is not appropriate. Similarly, the process of investigation,
prosecution and adjudication process are rigid.
At this juncture, Nepal
·
Criminal Code
Bill, 2011
·
Criminal
Procedural Code Bill, 2011
·
Criminal Offences
(Assessment and Execution of Punishment) Bill 2011
Criminal code Bill, 2011
The
proposed Bill aims to amend and unify existing criminal laws making them in
tune with the need of the present time. Under the code many criminal offences are
redefined and the punishments for such offences are prescribed accordingly.
Major characteristics of the bill are as follows;
l Defines different types of crime and punishment in a single
code.
l Separate provisions of conspiracy, accomplice and
attempt of the offence.[21]
l Extends the limitation in sexual offences.[22]
l Removes the punishment of confiscation of entire
property[23].
l Additional punishment for atrocious and habitual
criminal.[24]
l Extends life imprisonment (Thirty years).[25]
l Juvenile under the age of 10 years is exempted from
criminal liability.[26]
l Revised the punishment for different offence with
compatible to the recent word ( i.e. tenure of imprisonment and amount of fine in
proportion to the ratio of the offences )
l Introduces the plea bargain.[27]
l Introduces the interim compensation.[28]
l Principles of criminal justice are incorporated in the
code[29].
Criminal Procedural Code Bill, 2011
It aims
to amend and unify the existing laws relating to investigation, prosecution,
registration, trial, hearing and other procedure to meet need of the present
context. Major characteristics of Bill are as follows;
l Police can record the statement of any person through
the video conference who cannot present before the authority due to physical or
mental condition.[30]
l Provision of additional and amendment of charge sheet[31]
l Provision for pending the prosecution in petty
offences.[32]
l Court may examine the witness through the video
conference.[33]
l Introduces the cross examination of co-accused.[34]
l Special provision for the absconded person.[35]
l Prosecution has a priority to produce his/her own
witness first.[36]
l Introduces camera hearing in the special cases such as
human trafficking, sexual offences etc.[37]
l Provision of keeping the identity of victims and
witness confidential as per the need.[38]
l Provision of taking testimony of the witnesses
residing in the foreign country through the video conference.[39]
l The court can issue an order for the protection of
witness.[40]
Criminal offences (Assessment and Execution of Punishment) Bill 2011
The Criminal Offences Bill aims to determine the
reasonable punishment to the wrongdoer of criminal offences and execution of
such punishment. The following are the salient features of the proposed
Bill;
l Provision of pre assessment report of punishment.[41]
l Separate hearing for assessment of punishment.[42]
l Basis of punishment.[43]
l The amount of fine shall not affect the payment of
compensation.[44]
l Establishment of victim relief /compensation fund.[45]
l Basis of assessment of the amount of compensation.[46]
l Probation and parole board.[47]
l Punishment recommendation
committee.[48]
l Progressive treatmeent towards the offender.
v Community service instead of imprisonment.[49]
v Suspension of punishment of imprisonment for three
year.[50]
v Send to the offender in reform home. [51]
v Send to the rehabilitation center instead of prison[52].
v Keep in Jail only in the night or only in the last day
of the weekend.[53]
v Keep in open Jail on the recommendation of Jailer
after the fulfillment of two third imprisonments.[54]
v Keep in parole. [55]
v Labor in public work instead of punishment.[56]
v Reformative program in Jail for the improvement of
habit of convict.[57]
l
Socialization of
offender.[58]
CONCLUSION
In fact, effective investigation, strong prosecution and reasonable
adjudication are the need of any civilized society. But, the
transitional phase of the society is unable to establish the reasonable system
to overcome by this stage. The urgent need of the Nepalese society is to defeat
the following substantial constraints as follows;
l People are not aware to cooperate in investigation,
prosecution and adjudication process.
l Lack of conceptual
and technical knowledge of recent trend of crime and technique of investigation,
prosecution and adjudication with police, prosecutor and judges.
l Lack of cordial professional relation among the
police, prosecutor, defense counsel and court personnel.
l Prosecution is based on subjective evidence rather
than material evidence.
l Lack of team work between the police and prosecutor.
l Insecure terms and condition of the service of the
investigation authority and prosecutions.
l No any separate and specialized wing of police for
investigation of a crime.
l Investigator and Prosecutor works under the pressure
of the various corner of the society.
l Lack of favorable working environment including
infrastructure like building, laboratory, library etc.
l Lack of effective witness protection program and
perjury laws.
[1]
State Cases Act ,1991, Section 7
[2]
State Cases Rule ,1998, Rule 4 (6)
[3]
supra note 3, Section 10
[4]
ibid, Section 14
[5]
ibid, Section 15
[6]
ibid, Section 9
[7]
ibid, Section 21
[8]
ibid ,Section 17
[9]
Supra note 4, Rule 14
[10]
ibid ,Rule 15
[11]
supra note 8
[13]
Interim constitution 2007,,Article 135(2)
[14]
Supra note 4, Rule 22
[15]
Supra note 13, Article 134
[16]
Ibid, Article 135.
[17]
Ibid, Article 24
[18]
Ibid , Article1o1
[19]
Justice Administration Act,1991 Section 7
[20]
Annual report of Attorney General office 2009/2010,p ,office of the Attorney General of Nepal
Government, Kathmandu ,2011
[21]
Criminal code Bill 2011, Chapter 3
[22]
Ibid, Sec.229
[23]
Ibid, Sec.39(2)
[24]
Ibid, Sec.43
[25]
Ibid,Sec.41
[27]
Ibid,Sec.47
[28]
Ibid, Sec.48
[29]
Ibid, Chapter 2
[30]
Criminal procedural code Bill 2011,Sec.16(6)
[31]
Ibid, Sec.35-36.
[32]
Ibid, Sec.34
[33]
Ibid, Sec 109
[34]
Ibid, Sec .103
[35]
Ibid, Sec 65
[36]
Ibid, Sec.127
[37]
Ibid, Sec. 129 proviso
[38]
Ibid,Sec.184
[39]
Ibid,Sec.186
[40] Ibid,
Sec.114
[41]
Criminal Offences (Assessment and Execution of punishment) Bill 2011, Sec.12
[42]
Ibid,Sec.9
[43]
Ibid,Sec.15
[44]
Ibid,Sec.19
[45]
Ibid, Sec.48
[46]
Ibid,Sec.41
[47]
Ibid,Sec.38
[48]
Ibid, Sec.46
[49]
Ibid,Sec22
[50]
Ibid,Sec.24
[51]
Ibid,Sec.25
[52]
Ibid,Sec.26
[53]
Ibid, Sec.27
[54]
Ibid,Sec.28
[55]
Ibid,Sec.29
[56]
Ibid,Sec.31
[57]
Ibid,Sec.33
[58]
Ibid,Sec.30
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