20 April, 2006

The State of Justice in Nepal

Sushma Joshi
Eureka Street journal, Melbourne, Australia (2006); Hands in Outreach newsletter, 2006

On March 23, 2005, the Kathmandu Post, one of Nepal’s leading daily English newspapers, ran a front-page story titled ‘Red Pole’ reduces crime, misconduct, written by Shankar Kharel. According to the story, the Area Reformation Committee in Ward 2 of Itahari Municipality had devised a novel way to reduce “misconduct” and crimes. They tied up people who had committed a crime to a red pole in a public place, publicly humiliated them in front of the community, and got them to renounce their behavior.

This story could be filed among the dozens of other quirky, odd, or downright laughable stories found in the Nepali media. While some readers might have caught echoes of the public humiliations practiced in medieval Europe, or more recently in Mao’s China, most of the middle class in Kathmandu probably gave the news item a quick glance and moved on briskly to sports or entertainment news. But the story deserves more than a disbelieving laugh. What moves this story from the realm of the comic to the tragic is the way it reflects the erosion of the justice system in the current state of conflict in Nepal.

Following the royal takeover on 1 February, I spent six months traveling in Southern Nepal with a team of four other researchers, interviewing formal and informal justice providers, including judges, public prosecutors, lawyers, legal aid professionals, policemen and users of the justice system. This research was conducted under the auspices of the UN1, which gave us easy access. One overwhelming fact emerged: in the current conflict, the justice system of Nepal had come to a halt.

Referring to the “red pole” method, the chairman of a municipal committee declared that “such punishment has really proved to be effective compared to the ones practiced by the police and other authorities.” Humiliation as a strategy has replaced international legal standards of justice. This has been made easier since most rural police posts have withdrawn to the city, leaving an almost complete void of state presence.

All state civil servants, from the Chief District Officer (CDO) to the judges, from the public prosecutors to the policemen, fear to go outside their district headquarter boundaries. If a murder is committed in a village and people brave it out to the city to report it, the police will ask the villagers to bring the body to the city themselves, along with any supporting evidence. The police, poorly armed and at the risk of Maoist attacks, are afraid to be abducted or killed during the course of duty. They sometimes make joint patrols with the Unified Command (a joint team of the army and the armed police), but rarely venture out these days to investigate civil crimes. The media, preoccupied with reporting the emergencies of the conflict, have also drastically reduced coverage of civil crimes. Crimes, therefore, now take place unchecked by either police or judiciary.

Because involved parties remove evidence from a crime scene tobring to the police, the evidence becomes impossible to verify. The public prosecutors, despite having the authority to request more evidence, are also hampered by fear of the police, and concerns for their own safety. The police then act according to the evidence brought before them, often torturing suspects during interrogation without adequate background investigation.

Torture in police custody is commonplace, and innocent people often get caught in legal traps. For instance, the anti-trafficking law, which was designed to prosecute traffickers, regularly sends innocent men and women to jail because an individual can be imprisoned on the basis of a single accusation. Since the burden of proof is on the accused, it is often difficult for people to defend themselves due to lack of evidence. In one case, a young Dalit woman, married to an abusive husband whom she had left for a Tharu man, was accused by her 16-year-old daughter of plotting to sell her to India. A women’s group then beat her up simply on the basis of the husband’s uncorroborated testimony. For her part, the woman claims her daughter had been coerced by her estranged husband, who had a history of drunken domestic violence and abuse. The judge had clearly taken into account her “moral” character – i.e., the fact that she was living with another man -- when giving his verdict.

Because there have been no elections, there are no elected officials in the village and district committees to sign birth and death certificates or other documents people need in order to obtain their citizenship certificates—essentially, their identification papers. The void left by elected officials, who had often adjudicated petty disputes involving irrigation, crops, fencing, etc., has been filled quickly by the Maoists, who have stepped in with their own People’s Court (Jana Adalat.)

Disputes around property, marriage, inheritance, loans, domestic violence and other civil matters remain the most pressing disagreements in need of adjudication at the local level. Even when the case reaches a Court, the Court officials may not be able to follow up because the tamildars (Court officials who deliver summons) have received death threats from Maoists and refuse to go outside the district headquarters.

Informal justice providers, including community heads, tribal leaders, and others who formerly would have presided over local disputes, are also afraid to perform their traditional functions for fear of either the Army or the Maoists. Politically active individuals affiliated with the various political parties, have fled rural areas after repeated Maoist threats.

Even disputes that have already made it to Court have been halted. In Nepalgunj, a Court officer pulled out a thick stack of files and showed me letter after handwritten letter, requesting the Court to halt the case because the individual was afraid for his safety, or had been pressured by the Maoists to withdraw the case.

Justice providers, including both police and Court officials, struggle under the psychological impact of working in a paralyzed system. The lack of both trust and co-ordination between the judiciary and the police further aggravate the problem.. The CDO, almost completely controlled by the Army, often detains people without adequate evidence. The court sometimes orders a habeas corpus review, and then releases the detainee for lack of evidence. The police rearrest the released man or woman on the Appellate Court premises, citing the difficulty of gathering evidence in the conflict situation. This merry-go-round in which one state official undoes the work of another is deeply resented by all sides, who feel the other institution does not respect them or take their function seriously in the current conflict.

Nepal’s current political stalemate is in some ways due to this resistance to working together on a common national vision. Institutions are deeply divided about how to proceed. That is perhaps why local initiatives like “the red pole” take on such alarming popularity within a short span of time. The pole, seeming to promise action and justice, unites people in a way the police or the Courts never could.

The 10-foot-long red wooden pole bears the words: “I am a criminal, and I am tied up here today because I committed an unlawful act”. The pole, which is chillingly reminiscent of the Chinese Red Army, has made its appearance not courtesy of the Maoists, who run their own elaborate Jana Adalat (People’s Court) procedure which includes taking statements from both sides, but because of the absence of the lawful state institutions.

The miscreants are asked publicly to announce they will not drink alcohol or beat their wives, and must forswear other public offenses. “No one dares to be tied to the pole in front of hundreds of locals,” said one man who would get drunk and become disorderly in the old days, and who presumably changed his ways for fear of the new punishment.

“The measure we have taken to maintain law and order in the society has been effective so far, as the accused feels humiliated when he is asked to admit his crime in front of the entire public, including children and elderly,” the chairman added (KTM Post quote). Nepal, being a shame-based culture, often falls back on shaming and humiliation to make people behave according to social norms.

Nepal was closed off to the outside world till the 1950s. Medieval forms of punishment and torture persisted till the seventies and eighties in the jail system. But modern legal reforms slowly filtered into the country. The Nepal Law Campus was started by founder Ram Raj Panta, using a borrowed room and a signboard. The institution was established to allow students to study law in Nepal without having to go to India. Since that day, hundreds of students have received their law degree from the campus.

A three tiered Court system - District, Appellate and Supreme -operated for decades before coming to a slow halt during these last few years of the conflict. Norway provided funding to enable the Nepal Bar Association to give free legal aid, briefly leading to a surge of cases from women filing pro bono cases. But even this rise in the number of cases dropped when the Norwegian government cut its funding. Advocates now argue that legal aid, instead of being dependent on such funding, should be mainstreamed into the Constitution as part of a citizen’s right to a free trial. Through this rights-based approach, the state would be responsible for providing a lawyer or legal aid to every individual faced with a trial.

The Maoists and state security forces, acting with impunity, equally terrorize ordinary villagers. The Maoists use children as soldiers, force people to provide labor, execute suspected spies and enemies, extort money and food, and practice torture. The state security forces “disappear” suspects, conduct investigations under torture, extort money and food from hapless villagers, and rape and kill suspected Maoists. Both sides practice extrajudicial execution.

The population recognizes that these two competing and embattled sectors, Maoists and the state, have dismantled and debased the justice system. Justice cannot be arbitrated with a gun. Soldiers and insurgents are neither impartial nor trained as legal professionals, contributing to the void of law and order. The government of Nepal remains reluctant to acknowledge that a strong judiciary and independent legal system could reduce the impact of the conflict. The fact that Nepal’s modern justice system has been rendered functionally useless, replaced by a medieval system of public humiliation, speaks volumes about the state of justice in Nepal today.

1 (Please note that this article is entirely my personal analysis, and does not in any way represent the UN’s policies, programs, goals, analyses or public release on access to justice).