Criminal Justice System of Nepal
The legal system of Nepal has
been developed through two stages. The first stage is termed as the era
of unmodified law and the second stage is called the era of codified
law. The first stage or era of unmodified belongs to the Karat Era, Lichhavi Era, Malla Era and Shah Era prior
to 1853A.D. Customs, traditions and social practices were regarded as
law in this stage. The body of law was divided in two parts i.e. civil
and criminal. To hear the different nature of cases, various kinds of
courts were formed accordingly. The procedural law was very specific. The whole system of law was based on indigenous customary law which was largely influenced by Hindu Philosophy.
The
era of codified law began with the promulgation of National Code 1853
A.D. The Code was influenced by the Napoleon code ofFrance. The Code is
the initiation of the then Prime Minister Junga Bahadur Rana, who had
been inspired by the Napoleon code of France during his Europe visit.
This Code of Nepal first ever embodied the principle of equality before
law and equal protection of Law in its Preamble.
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 fundamentallaw 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.
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 was
abolished death penalty by the constitutional provision of 1990 A.D.
Maximum punishment under prevailing law is life imprisonment with
confiscation of entire property. It has no any provision of probation
and parole system. Provision of open jail and community service has been
limited only in the Prison Act 1963. In fact, there is no any specific
socialization program and also no any separate sentencing legislation. Realizing
the need of such laws the Criminal Code, Criminal Procedure Code and
the bill of Punishment Assessment and Execution Act have been drafted
and they have been introduced in the parliament.
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.[
· To record the statement of eyewitness and person who have known about the crime and prepare the legal document.
· To carry out search and seizure on any suspected place or person.[
· To arrest the suspect of crime by giving the reason of arrest and to keep the suspects in the custody, if necessary.
· To take permission of the court to detain more than twenty four hour to the suspect.[
· To take statement of a suspect in the presence of the prosecutor
· To collect the material evidences of the crime.
· 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.
· To
submit the materials or document of evidential value which are received
after the filing a case in the court through the prosecutor.
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.
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.
Under the constitution and prevailing law prosecutor has a sole authority to decide whether to prosecute or not. 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.
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 ofKathmandu which
is the head office of the public prosecutors. The Attorney General (AG)
is a constitutional post appointed by the president of Nepal on the recommendation of the Prime Minister.
The Attorney General is entrusted as a chief public prosecutor and
chief legal advisor of the Government. The power and function of the
Attorney General are as follows;
· Chief legal advisor of Nepal government.
· 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.
High Attorney General Office
The organizations of office of the Attorney General are similar to the courts structure. There
are seven High Attorney General Offices all over the country
corresponding to the seven High courts. The High 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 High 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.
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 isunable to hire a lawyer then the court provides a lawyer for him.
Court
There are three tiers of courts 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. 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 offense 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)
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
Nepal has been facing prolong transitional period. The Constituent Assembly is working hard to bring new constitution of Nepal. Officially, insurgency was ended by the Comprehensive Peace Accord reached upon between the Government of Nepal and Nepal communist Party Maoist in 2006 A.D. The
Maoist party became the largest party through the election of
Constituent Assembly held in 2008A.D. Nepal was declared federal
republic by the first meeting of the Constituent Assembly. There are so
many conflicting issues and interest among the different political
parties, gender, racial and regional groups.
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 needs
to reform the entire Criminal Justice System and hence the proposed
three Bills have been introduced to the Parliament. The bills are:
· Criminal Code Bill, 2011
· Criminal Procedural Code Bill, 2011
· Criminal Offenses (Assessment and Execution of Punishment) Bill 2011
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;
People are not aware to cooperate in investigation, prosecution and adjudication process.
Lack of conceptual and technical knowledge of recent trend of crime and
technique of investigation, prosecution and adjudication with police,
prosecutor and judges.
Lack of cordial professional relation among the police, prosecutor, defense counsel and court personnel.
Prosecution is based on subjective evidence rather than material evidence.
Lack of team work between the police and prosecutor.
Insecure terms and condition of the service of the investigation authority and prosecutions.
No any separate and specialized wing of police for investigation of a crime.
Investigator and Prosecutor works under the pressure of the various corner of the society.
Lack of favorable working environment including infrastructure like building, laboratory, library etc.
Lack of effective witness protection program and perjury laws.