Individual Rights in a Democratic Nepal: Concerns with the Criminal Justice System

Ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and the corruption of governments.

– The Declaration of the Rights of Man and of the Citizen, 1789

I. Introduction

After ten years of internal conflict and two years of political stagnation, Nepal is beginning the early stages of the democratic process. As the years of conflict were characterized by dictatorship, fear, intimidation and human rights violations, the question is now whether state institutions can reform their previous practices and begin to promote democracy by protecting the rights of citizens. This paper highlights some of the factors that render the criminal justice system in its current form incompatible with the ideals of the democratic Naya Nepal promised to Nepali citizens after the signing of the Comprehensive Peace Agreement in 2006. It illustrates how individual rights are ignored and violated, and discusses the weaknesses of the current legal mechanisms intended to safeguard these rights.Democracy is inseparable from fundamental human rights and freedoms.[1] It is a system of government that requires the state to recognize and protect the rights of its citizens, since a democratic government receives its authority from and is accountable to its people. For citizens to participate effectively in the democratic process, they require the basic rights and freedoms of expression, association and assembly. These rights permit a free media to inform the public, and allow the people to form political parties and assemble for debate. These basic rights are further reliant upon the right of liberty and security of person, as well as the guarantee of due legal process, since active participation is severely compromised by fear of arbitrary arrest, imprisonment or punishment by the state. When the government does not protect these rights the inevitable effect is an environment of fear and ignorance – two factors that significantly undermine, or even negate, the democratic process.

The criminal justice system in Nepal inadequately protects the constitutional rights of citizens; in many cases the security forces knowingly violate these rights in the interst of convicting suspects. Rights violations come in many forms: torture in custody remains routine practice; thousands are detained illegally; defense lawyers are barred access to detainees after arrest; the indigent and uneducated stand trial without legal council; and families of victims of disappearances, murders, and rape are unable to seek justice against known perpetrators who are blanketed by a culture of impunity. In addition, there is a long history of Nepal’s ruling regimes using police forces and criminal justice as tools to protect their power and interests. Substantial systemic reform is necessary for the realization of meaningful democracy in Nepal.

II. A Short history

At the time of writing, a sixty-five-year-old Nepali will have lived through Nepal’s three attempts at democracy, two royal coup d’etats, and no less than six constitutions. Democracy was first established in Nepal in 1951, but after ten years of bickering between Nepal’s political parties, King Mahendra banished all parties and reestablished absolute monarchal rule. Corruption, nepotism, and rights violations were entrenched in state institutions and the justice system during this period, and the police in particular became instruments used by authorities to forcefully stifle opposition.[2]

A massive popular movement in 1990 persuaded King Birendra to reinstate multi-party democracy and promulgate a new constitution that condemned torture and recognized human rights. In 1991 Nepal ratified the core international human rights treaties including the International Covenant for Civil and Political Rights (ICCPR) and the Convention against Torture (CAT). In the same year the government instituted the Nepal Treaty Act, which stipulates that treaties to which Nepal is party are applicable as domestic law and prevail over pre-existing domestic laws in the event of an inconsistency. Unfortunately, the government, the police, and the courts have largely ignored this Act.

The civil insurgency begun by the Communist Party of Nepal (Maoist) in 1996 had serious consequences for individual rights.[3] Maoist cadres recruited fighters by persuasion or force, and violently controlled communities in rural areas in many districts of Nepal. In 2001, Prince Gyanendra assumed power and immediately declared a state of emergency, suspending many of the freedoms enjoyed by the press and the people and transferring greater power to the army and police. Security forces were granted license to arbitrarily arrest, detain, torture, threaten and even execute and disappear thousands of civilians, despite Nepal’s constitutional guarantees and commitment to Geneva conventions.

King Gyanendra demolished multi-party democracy in 2005 and ruled as an authoritarian monarch until Jana Andolan, a people’s movement, forced his abdication in 2006. The signing of the Comprehensive Peace Accord between the Seven Party Alliance and the CPN (Maoist) in November formally ended ten years of conflict and began the democratization process.

III. The Current State of Abuse

In 2007, the Interim Constitution was inaugurated, reaffirming the individual rights afforded by the 1990 constitution. However, in the two years following the democracy movement in 2006, few steps have been taken to promote and protect individual rights. This section describes how constitutional rights are commonly violated by Nepal’s security forces, and offers some explanation of why violations continue despite Nepal’s professed commitment to the democratic process.

Torture in custody continues to be one of the most pressing concerns.[4] According to the UN Special Rapporteur on Torture, while “systematic torture in unacknowledged detention (especially in Nepalese Army barracks) of those suspected of having links with the CPN (Maoist) had largely ceased prior to April 2006, the torture and arbitrary detention of criminal suspects by police have persisted.”[5]

Torture by the Nepal Police Force (NPF) varies in severity, but the most common complaints involve beatings with plastic pipes or bamboo sticks. Victims are also threatened, punched, kicked, sat upon, and beaten on the soles of their feet for extended periods of time. These violent acts occur while police assert the suspect’s guilt, offering a release from torture if a suspect confesses to the accusations. [6]

There are many factors why torture remains a common practice, but one of the most significant is current reliance on confession-based investigations. The NPF lacks the investigative resources, technical expertise and scientific tools required to collect sufficient evidence to charge suspects.[7] Witness testimony can also provide crucial evidence, but since the police force is mistrusted and feared, witnesses are reluctant to come forward voluntarily.[8] Consequently, confession is the main evidence on which most criminal convictions depend. In his 2008 recommendations report, the Special Rapporteur on Torture explains:

Police have openly told OHCHR [UN Office of the High Commissioner for Human Rights] that they rely heavily on confessions for criminal investigations, and that they constitute the main and sometimes almost exclusive part of an investigation. Some have even implied that if they did not use force they would not be able to obtain a confession.[9]

As confession is notoriously unreliable, this further undermines the effectiveness and accountability of the criminal justice system. The presence of a defense lawyer can deter coerced confessions, but police frequently deny detainees their constitutional right to consult a lawyer.[10]

Nepal’s Interim Constitution guarantees detainees immediate private council with an attorney, yet many lawyers are barred access to detainees until after a confession has been extracted.[11] Police have openly admitted denying individuals’ access to a lawyer for fear that this will make the investigation more difficult.[12]

Many suspects go through the entire criminal justice process without legal representation. Two major factors contribute this phenomenon. The first is that the police are not required to inform detainees of their constitutional right to legal council, as is the norm in Canada, the United States, and other developed democracies. Consequently, suspects are often ignorant of their legal rights and are thus vulnerable to abuse.[13] The second factor is that suspects are often unable to afford legal fees and, despite a constitutional provision which decrees that “the indigent person shall have the right to free legal aid in accordance with the law,” It has been reported that 90% of detainees did not have a lawyer.[14]

Enshrined in the constitution is an individual’s right to appear before a judicial court within twenty-four hours of arrest, but illegal detention is extremely common in Nepal. If police have failed to find sufficient evidence against a suspect, they frequently hold him while they continue investigations or attempt to extract a confession. Simple negligence is often relevant as well. Detention and arrest registries are poorly maintained and records are often forged; for example, in some police stations arrests are only registered retrospectively, when a case is going to court.[15] As police frequently arrest and detain a suspect before beginning investigations, this leaves little time to build a convincing case by legitimate means of investigation, resulting in dependency on torture and prolonged detention.

The right to a fair trial is the foundation of an accountable criminal justice system; Nepal’s Interim Constitution protects fair trial as a fundamental right. However, each of the violations of constitutional rights discussed above – torture, denial of legal council, and illegal detention – severely undermines a detainee’s right to a fair trial. With systematic and entrenched state abuse of individual rights, citizens lose the assurance of liberty and security and become wary of engagement in the political process. If Nepal is to be genuinely committed to democratization, the tolerance of such abuses must be brought to an end.

IV. The Failure of Legal Mechanisms to Protect Rights and Provide Justice

Holding perpetrators criminally accountable for violating human rights is an effective method of deterring security personnel from such mal-practice. However, Nepal’s traditional culture of impunity protects violators from judicial authority. The government’s primary mechanism for addressing human rights violations is fiscal compensation for victims. The next few paragraphs explore some of the complications encountered by victims of state abuses in their attempts to seek justice by either of these mechanisms.

To ensure the protection of citizens’ rights, Nepal must foster a culture of accountability among all servants of the state – particularly security forces, the judiciary, and members of government. Criminalizing human rights violations is a key step to begin this process. The CAT identifies torture as a grave criminal offense, one that must be severely prosecuted by state parties to the Convention.[16] The Nepal Treaty Act of 1991 clearly expresses that the CAT is law and supercedes all other domestic laws with which it conflicts.[17] Therefore, in theory, torture has been a criminal offense for seventeen years. Despite this, the question of the legality of torture in custody in Nepal remains contested and to this day no state or Maoist perpetrator of torture has been tried before a criminal court.

The prevailing culture of impunity poses a major challenge to victims seeking recompense under the law. Impunity is usually associated with the freedom from accountability enjoyed by both warring sides for the atrocities committed during the years of conflict; yet it is also applicable to state officials’ immunity for more recent violations. For example, police have recently used excessive force during political rallies and have not been held accountable.[18] Impunity segregates those who are above the law from those who are controlled by it, effectively providing state officials license to disregard individual rights without concern for repercussions.

Impunity is compounded by the fact that the police are the sole criminal investigative authority in Nepal. Criminal prosecution is possible only when police submit a charge sheet to the courts after a formal investigation. For an investigation to begin a First Information Report (FIR) must be filed with the police. Because the NPF is the only institution in the country with the jurisdiction to file these reports, the police administration has complete control over whether or not any criminal case in Nepal is prosecuted. Consequently, those who come forward with a complaint frequently find that the police delay or deny filing their FIR.[19]

Police solidarity is a factor which frustrates attempts to initiate investigations into crimes committed by security officers. The police, like the army, tend to see themselves as a distinct culture and community. The police culture promotes the principles of brotherhood and solidarity, instilling these values in junior officers during training and reinforcing them with rhetoric.[20] This solidarity was strengthened during the conflict when the police force was mobilized against civilian insurgents, contributing to an attitude of us versus them.[21] The lingering effect of this solidarity means that police are reluctant to file reports of misconduct against their fellow officers. In rare cases, after years of legal battle, the Supreme Court has issued a court order demanding that police register an FIR. However, in such cases – which have been the most evidentially incontestable – the resulting police investigations have never yielded criminal charges.[22]

According to the Police Act, charges against police officers are not tried before a judge in court, but are held in a closed Police Tribunal before a panel of judges, one of whom is a senior officer.[23] Investigation, prosecution and adjudication of offenses committed by police are entirely internal affairs and impartiality is susceptible to compromise. Typically, in cases of misconduct, a senior officer will decide “departmental action” against an offending officer by suspending, demoting or dismissing him. Article 4 (2) of the CAT requires much more severe measures. In addressing the concerns of the Committee Against Torture on issues such as these, the Government of Nepal frequently refers to the Torture Compensation Act of 1996. The Act is meant to legally provide means for victims to seek reparation from the government for pain and suffering. In over a decade since its inception, however, this act has proved insufficient for preventing torture in custody and satisfying victim’s demands for justice.

Although the Torture Compensation Act (TCA) expressly prohibits torture in detention and provides a means for victims to file for compensation, a number of strict stipulations make this process extremely difficult. For example, a victim applying for compensation under the TCA must file a complaint within thirty-five days of being released from custody. In many instances victims of torture are intimidated and rearrested during this period and do not file a torture complaint within the specified time. Compounding this problem is the fact that compensation relies heavily upon the findings of a medical checkup, which many detainees are denied. It is the duty of police to ensure detainees receive a medical checkup and that a copy of the report is available, but this is not always the case, especially in instances of torture.[24] The professed intention of the TCA is compromised by the fact that if a certified medical practitioner is deemed unavailable, the detaining officer is authorized to perform the medical exam. As recognition and reparation are contingent on these two factors – that the case is brought forward within the stipulated time and with a supporting medical exam –victims are frequently unrecognized and uncompensated by the state. The TCA was passed in 1996, the same year that is generally recognized as the beginning of the Maoist conflict. In over a decade since its inception, approximately 150 cases have been filed under the TCA.[25] To put this in context, non-government organization Advocacy Forum has documented approximately 4000 cases of torture occurring between 2001 and 2007; and Advocacy Forum is only able to document a fraction of the violations that are likely taking place. Fewer than one hundred victims have been awarded compensation by the courts, and many of them have been awaiting actual payment for years.[26] The Nepal government frequently cites the TCA while defending its human rights policies to the UN Committee Against Torture, but this mechanism has done very little to deter torture or award compensation to victims.

V. Individual Rights in a Democratic Nepal

There are severe consequences in a society where the criminal justice system oppresses suspects through violence and intimidation. Torture not only inflicts severe trauma on victims, who often suffer from symptoms ranging from extreme withdrawal and mistrust to outright violence, but by extension torture also causes long-term damage to family and community relationships.[27] In some cases, this can create a kind of “collective rage” that manifests itself through acts of violence – from domestic abuse to violent crime.[28] Communities suffering from real or perceived state-oppression provide a boon for the recruitment of anti-state armed groups.[29] Harsh police measures therefore do not inherently deter offenders, but can actually produce an environment that degrades the rule of law. This theory is supported by the belief held by many critics that the failure of state institutions to implement changes effectively after the reinstatement of democracy in 1990 was a significant factor in the rise of the Maoist insurgency.[30] The current anti-state violence in the Terai region of Nepal further attests to prevalence and immediacy of this problem. Isolating and harming communities by violating human rights is counterproductive to peace, stability, and the rule of law – all of which are essential to Nepal’s democratic process.

Civil organizations currently fulfill many of the roles neglected by state institutions and the government. For example, victims report violations of their fundamental rights to NGOs more often than to servants of the state because they receive less ambivalence or aggression and greater aid and support.[31] Civil organizations have contributed to the process of democratization in many ways – from advocating for the needs of unrepresented communities and individuals to providing indigent detainees with free legal aid. As previous Secretary General of the United Nations, Kofi Annan, has stated, “a vibrant civil society is the key to a successful democratization process.”[32] However, while it is certain that these organizations and their international backers are beneficial to the democratization initiative, they cannot enact legislation or implement the programs required for appropriate recognition of civil rights. The state should not continue to depend on civil society and the international community to serve as the guardian of citizens’ rights. Collaboration between civil society and the government in reforming the criminal justice system and ensuring victims justice is necessary for Nepal to make state institutions accountable to the public and compatible with the basic rights required in an active democracy.

VI. Conclusion

Currently, Nepal’s criminal justice system inadequately protects the fundamental rights and freedoms of individuals – a considerable obstacle for Nepal to overcome if hopes of democracy are to be realized. This paper has highlighted where constitutional rights are most frequently compromised within the criminal justice system, citing torture, illegal detention and denial of access to a lawyer, but there are numerous other examples where rights continue to be ignored and violated. The faults with the primary justice mechanisms that should be protecting human rights in Nepal have also been discussed, specifically how the police often fail to file or adequately investigate allegations against security personnel, and the problems with current legislation in relation to the Torture Compensation Act, which contains provisions that prevent victims from accessing justice. These factors are only a fraction of the challenges facing the criminal justice system, all of which contribute to the prevailing culture of impunity.

These issues are not new; the Committee Against Torture identified many of these problems as early as 1994, yet few tangible results have been seen in policy or practice. The government’s failure to adequately reform state institutions from the tools of the powerful to the protectors of individual’s rights was a factor that led to the Maoist insurgency. Future failings may reinforce similar anti-state sentiments. To ensure a peaceful transition into democracy, where fundamental human rights need to be protected in order for citizens to actively participate, it is imperative for Nepal to address the problems in the criminal justice system.

VII. References

  1. See David Beetham “Democracy and Human Rights: Contrast and Convergence” for an extensive analysis of this topic. Seminar on the Interdependence of Democracy and Human Rights, United Nations Office of the High Commissioner for Human Rights, 2002.
  2. See Chandra D. Bhatta’s “Peacebuilding and Policing in the Context of Nepal” in Saferworld’s Policing in Nepal: A Collection of Essays, September 2007.
  3. Ibid.
  4. For the most part, state sponsored extra-judicial executions and incommunicado disappearances ceased after the peace agreement. Torture, however, is systematically ongoing. See Advocacy Forum’s Torture Still Continues, 2007, available at: www.advocacyforum.org.
  5. See paragraph 456 of the United Nations Special Rapporteur on Torture’s Follow-up Recommendations Report. A/HRC/7/3/Add.2, February 18 2008.
  6. See Advocacy Forum’s Torture Still Continues, 2007, available at: www.advocacyforum.org.
  7. See the Asia Human Rights Commission’s report, “Policing Norms and Necessary Reforms: The Role of Police in Nepal’s Changing Political Context.”
  8. Witnesses and victims are frequently subjected to abusive interrogation when they come forward with statements about crimes. For instance, many women attempting to report complaints of sexual or domestic violence have found the experience of confronting insensitive police to be more traumatic than the assault itself. See Bandana Rana’s “Policing in Nepal: Gender Concerns” in Saferworld’s Policing in Nepal: A Collection of Essays, September 2007.
  9. From paragraph 449 of the United Nations Special Rapporteur on Torture’s “Follow-up Recommendations Report.” A/HRC/7/3/Add.2, February 18 2008.
  10. Ibid. Paragraph 448.
  11. In a 2007 survey, 79% of defense lawyers reported that they were frequently barred access to detainees. See the Asia Human Rights Commission’s report, “Policing Norms and Necessary Reforms: The Role of Police in Nepal’s Changing Political Context.”
  12. Ibid.
  13. In a 2003 study, 69% of detainees surveyed were not aware of their right to consult a defense lawyer while in custody. See Center for Legal Research and Resource Development, Baseline Survey of the Criminal Justice System in Nepal, 2003.
  14. 90% of detainees did not have a lawyer. Ibid.
  15. One such case in September 2007 involved the illegal detention of 4 detainees who were held and abused for 11 days incommunicado without trial. Police subsequently recorded their arrest day as the day they were presented to the judge – along with signed confessions they had not read. See paragraph 441 of the United Nations Special Rapporteur on Torture’s “Follow-up Recommendations Report.” A/HRC/7/3/Add.2, February 18 2008.
  16. See Article 4(2) of the CAT, “Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.”
  17. See Nepal’s second periodic report to the Committee Against Torture. CAT/C/33/Add.6, 2005.
  18. According to the Office for the High Commissioner of Human Rights – Nepal, 27 people have been killed through excessive use of force by police deployed for crowd control since 2006. Stated by the spokesman for the High Commissioner for Human Rights – Nepal at a conference, “The Role and Response of the Media on Human Rights Issues” organized by Advocacy Forum and RISE in Kathmandu on March 16 2008.
  19. It is worth noting that most victims do not come forward with complaints and allegations. More than half of victims surveyed in 2007, didn’t report the crime, expressing a lack of faith in police investigations. See the Asia Human Rights Commission’s report, “Policing Norms and Necessary Reforms: The Role of Police in Nepal’s Changing Political Context.”
  20. An example of this rhetoric is found in Pitambar Adhikari’s essay, “Police Career and Organizational Structure” in the National Police Acadamy’s Prerana, 2008: “Value the organization. Only because of the organization [do] you have your identity… The organization is like a family and members are brothers and sisters. So respect each other, not only during police service but those [who] formally served in the organization.”
  21. See Shiva K. Dhungana’s “Addressing Corruption in Police Reform” in Saferworld’s Policing in Nepal: A Collection of Essays, September 2007.
  22. See the Legal Aid section of Advocacy Forum’s Annual Report, 2007.
  23. See Penal Reform In Nepal: Round Table Meeting, Plan of Action and Report by Penal Reform International and the Centre for Victims of Torture, March 2000.
  24. A 2007 survey found that detainees with the most visible injuries from torture were the least likely to receive a medical examination. See the Asia Human Rights Commission’s report, “Policing Norms and Necessary Reforms: The Role of Police in Nepal’s Changing Political Context.”
  25. See The Centre for Victims of Torture, Nepal website: www.cvict.org.np
  26. See Advocacy Forum’s publication, “Torture Still Continues”, June 2007.
  27. See Sumner B. Twiss, “Torture, Justification and Human Rights: Towards an Absolute Proscription,” Human Rights Quarterly, 2007.
  28. Ibid.
  29. Kenneth Roth, executive director of Human Rights Watch, made this argument in a public lecture entitled “Human Rights in the 21st Century: Problems and Prospects” given at the London School of Economics on December 6, 2007.
  30. See Chandra D. Bhatta, “Peacebuilding and Policing in the Context of Nepal” in Saferworld’s Policing in Nepal: A Collection of Essays, September 2007.
  31. See “Nepali Voices: Perceptions of Truth, Justice, Reconciliation, Reparations and the Transition in Nepal,” by the International Centre for Transitional Justice and Advocacy Forum, March 2008.
  32. See UN document A/53/554:25

About Article:

About Authors: Emily Maw and Ryan Nelson went to Nepal for a Law internship from University of Ottawa and gained invaluable insights on Nepal’s Criminal Justice System
Submission Date: April 01,2008.

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