Access to Security, Justice & Rule of Law in Nepal An assessment report

This assessment was carried out by six consultants engaged by GRM International Ltd., the managing agency of the Enabling State Programme on behalf of DFID. The consultants were selected jointly by the donors, i.e., DFID, DanidaHUGOU and UN Resident and Humanitarian Coordination Office on behalf of the United Nations Country Team (UNCT). GRM/ESP Team have also made contribution to the production of this Report. The views expressed in the report are those of the consultants and not of the funding partners. Table of Contents

ACRONYM------I

EXECUTIVE SUMMARY------VI-X

1. INTRODUCTION------1-2

2. SUMMARY OVERVIEW------3-18 Political Economy------3 Institutional Capacity------6 Inter- Sub-Sector Relations------10 Social, Economic and Gender Dimensions------11 National Reform Efforts and International Support------12 International Support------15

3. CHALLENGES & PRIORITIES------19-22 Criminal Justice Challenges and Priorities------19 Civil Justice Challenges and Priorities------19 Informal Justice and Community Security Challenges and Priorities------20 Legislative Framework, Oversight and Accountability Challenges and Priorities------20 SWOT Summary------21

4. OPTIONS and RECOMMENDATIONS------23- Overview------23 Joint Aid and Coordination------24 Strategic Foundation Recommendations------27 Short, Medium, Long Term Impacts and Recommendations------28 Sequencing & Priorities: Criminal Justice------33 Sequencing & Priorities: Civil Justice------34 Sequencing & Priorities: Non-State/Informal Justice and Community Security------35 Sequencing & Priorities: Legislative Framework, Oversight & Accountability------37 Sequencing & Priorities: Summary and Recommendations------39

5. RISKS and MITIGATION STRATEGIES------41-42 Annexes:

Annex A – Summary Overview Supplementary Political Economy Assessment------43-62 Annex B – Qualitative Data ------63-76 Annex C – Summary of Sector Strategic Plans------77-90 Annex D – Selected References ------91-94 Annex E – Terms of Reference ------95-98 Annex F – List of People Consulted------99-112 Acronym

ADR Alternative Dispute Resolution AG/OAG Attorney General (Office of the Attorney General) CA Constituent Assembly CDO Chief District Officer CIAA Commission for the Investigation of Abuse of Authority CPA Comprehensive Peace Agreement CSO Civil Society Organisation DANIDA Danish International Development Agency DIG Deputy Inspector General of Police GBV Gender Based Violence LPC Local Peace Committee NGO Non-governmental Organisation NHRC National Human Rights Commission NKP Nepal Kanoon Patrika (Nepal Law Reporter) NP Nepal Police OECD Organisation for Economic Cooperation and Development OHCHR Office of the High Commissioner for Human Rights SC Supreme Court SWOT Strengths, Weaknesses, Opportunities and Threats UNDP United Nations Development Programme USAID United States Agency for International Development

An assessment report I

EXECUTIVE SUMMARY

he overriding objective of this review The Summary Overview, which addresses was: to develop an assessment of the political economy, institutional capacity, Tchallenges and opportunities cross-sub-sector relations, social, economic faced in citizens’ access to security and and gender issues, provides the contextual justice and the strength of the rule of law in background for consideration of options Nepal, and options for improving the impact and presentation of recommendations. This of international support over the coming Summary arrives at several challenging three-to-five years; in particular for poor conclusions. and excluded groups. It identifies the criminality that is being Within the context of citizens’ access fuelled by political parties and the impunity to security, justice, and rule of law that accompanies political actors’ leverage consideration was given to four Sub-Sectors: over the law enforcement and justice institutions as being undermining, not ƒƒ Criminal Justice System just of these institutions, but also of the ƒ ƒ Non-Criminal Justice System democratic foundations of the State and ƒƒ Non-State/Informal Justice and ultimately depriving it of legitimacy in the Community Security eyes of many citizens. While acknowledging ƒƒ Legislative Framework, Oversight and that the concept of nexus between Accountability criminality, police and politics is by no means applicable to every political actor The approach to this review was modelled or all political interests, it concludes that substantially on Rapid Appraisal principles political party sponsorship of criminally USAID 1996). Given the constraints of inclined elements in their own ranks and time and resource, this was seen as an their failure or inability to rein them in does appropriate means in seeking answers to create an air of general lawlessness, with the significant questions associated with consequent impact on citizens’ sense of the key elements in this assignment. security.

The data gathering process drew on In its critique of the Sector’s institutional published and unpublished documentation, capacity, the Summary Overview reiterates individual and group interviews with key an earlier introductory comment to the informants drawn from across the spectrum effect that the sub-sectors are inexorably of stakeholder interests. Interviews were linked one to the other and are best conducted with a total of 299 informants: understood in the context of the interactive individual citizens, civil society groups, complexities of the entire Sector. The junior, mid-ranking and senior officials at Sector institutions are burdened with the central and district level, representatives consequences of patronage, corruption and of statutory bodies, parliamentarians, political interference. All are to a greater representatives of international or lesser degree under-resourced, lacking organisations and NGOs. in professional capacity and are facing an

An assessment report III uncertain future with respect to pending Beyond the bilateral arrangements constitutional reforms. that donors might have with Government counterparts, efforts should be made to Poverty, unemployment, rapidly rising engage as a representative group with inter- inflation, corruption and discrimination ministerial coordinating arrangements have fuelled the divisions among citizens in the form of the Government of Nepal’s and undermined their confidence in the Security and Justice Committees. Since Security, Justice and Rule of Law Sector. the donors already have a donor-to-donor mechanism in the Utstein Group the formation of a Sector sub-group for donor While there are numerous national reform coordination and dialogue with Government efforts in respect of the Sector, many should be relatively straightforward. supported by donors, there is no overarching Sector strategy. This lack of direction and the implications of the constitutional transition With regard to securing short-, medium- towards a federal form of government and long-term impact, this report firstly in Nepal add to the already abundant recommends that donors enter into a uncertainties confronting the Sector. strategic partnership that provides a jointly funded, jointly managed “umbrella” programme which systematically addresses Although the current scenario is overall all priorities within a single programme bleak, there are undoubtedly committed framework. and honourable officials at all levels through whose efforts and tenacity progress, albeit limited and halting, is being made in some This initiative, alongside measures towards key areas. While the Supreme Court is at more effective international community the forefront in driving change, there are coordination and a greater sense of other positive dynamics at play in the Nepal partnership with government, will provide Police and within the legal profession. a platform for planning, implementation, monitoring and evaluation of donor supported interventions in the Sector. Given the contextual scenario as presented above, realistically, donor support to the Sector needs to be considered in terms of There is a recommendation for the not less than a five-year planning frame; establishment of a multi-donor trust fund and for that to be seen as a beginning step, as a medium for making a systematic not an end point. contribution to Sector reform. Within clearly defined parameters, this would support activities that are substantially demand The current coordination arrangements within driven as opposed to supply driven, ensure the international community are insufficiently targeting of resources as well as providing robust for the purpose of framing and a Sector- wide oversight and evaluative implementing an intervention strategy for framework for such undertakings. It could this Sector. An important beginning point, be drawn on by government institutions therefore, is the creation of a coordination seeking to develop capacity or explore mechanism that provides a foundation on innovative solutions, national and which to construct interventions in support international NGOs and community-level of Sector development and reform. The citizens’ groups. arrangements for international community coordination need not be elaborated. Bringing more structure and a greater Across the Sector sixteen priorities have clarity of purpose to the Security and Justice been identified as being amenable to Coordination Group would represent a major donor supported interventions. These advance in this direction. are Drawing on the political, social and institutional backdrop as presented in this report and contained in the annexed The level of partnership with Government documentary and qualitative evidence; counterparts that is possible will vary. and in acknowledgement of the systemic

IV Access to Security & Justice and Rule of Law in Nepal complexities of the Security, Justice and Rule of Law Sector; it is recommended that, within the proposed umbrella framework, donors have as a first priority the establishment of two major strands of activity: ƒƒ Nepal Police Reform Programme ƒƒ Courts Reform Programme

NEPAL POLICE REFORM PROGRAMME COURTS REFORM PROGRAMME

Improving confidence in Criminal Justice Institutions Developing Gender Justice Strategy Crimes against women and children to be dealt with by statutory authorities More realistic expectations about legal aid and compensation Adherence to Convention on the Rights of the Child Care of victims and witnesses Implementation of anti-discriminatory laws and procedures Develop pro-citizen laws, procedures and institutional reform Improve access to and effectiveness of the courts Reduce the costs of litigation Improve arbitration and mediation services Improve and expand JSCC Early commencement of the Mediation Act Transforming informal justice mechanisms to community based Mediation Organisation Effective supervision and oversight of informal justice mechanisms Challenge inappropriate mind-sets through education and anti-discriminatory

COLOUR CODE

HIGH PROBABLE IMPACT

MEDIUM PROBABLE IMPACT

LOW or NO PROBABLE IMPACT

The table below illustrates how these, in ƒƒ More than any other aspects of the parallel, can address the sixteen identified Sector, improving policing and the key priorities and their anticipated probable operation of the courts would have a impact on each. major positive effect on citizens’ security and wellbeing. ƒƒ From a systemic perspective, both can There are four major reasons for this potentially influence aspects of the proposal: Security, Justice and Rule of Law Sector ƒƒ Both institutions are reasonably well- well beyond their specific mandates. disposed to receiving external assistance ƒƒ Both institutions have reform processes In the area of Legislative Framework, already underway; albeit the Supreme Oversight and Accountability, the report Court is more advanced in its thinking, identifies six priorities; all of which are it has made more progress and is less essential elements in progressing reform encumbered by political agendas; but in the Security, Justice and Rule of Law there are also progressive drivers of Sector. The dilemma for donors is that they change within the Nepal Police also represent essential laments across

An assessment report V the spectrum of governance and public OVERVIEW OF DONOR SUPPORT TO administration. There is a question as to SECURITY, JUSTICE & RULE OF LAW whether donor support in this area should be provided under the auspices of support to the Security, Justice and Rule of Law Sector, or be considered in the context of a wider support agenda to state building civil and good governance. On balance, the recommendation is that they should be Criminal pursued as an element of donor engagement MDTF with the wider governance environment. oversight Bringing together the themes of coordination and impact: the following informal figure provides an illustration of how an integrated umbrella framework, that encompasses the operation of the MDTF, would hypothetically operate. It should be noted that the distribution of emphasis across the sub-sectors is for illustrative across the governance, social and economic purposes only and should not be seen as environments will call for a continuous indicative of how donor interventions might monitoring of the risks that these will pose ultimately be distributed. to donor interventions and a preparedness to adopt a flexible approach to the realities, (MDTF = Multi-Donor Trust Fund) without being deflected from or losing sight of the long-term goals. More so than would be the case in some other development environments, The following is a short overview of the supporting the Nepal Security, Justice and current risk environment: of course as Rule of Law Sector is very much an exercise donor planning progresses this would in managing uncertainty. The months and be developed to a much higher degree of years ahead that will see major upheavals sophistication.

RISK MATRIX Risk Impact Probability Mitigation Political discussions break Focus on activities, down leading to widespread High Medium counterparts and locations disorder where impact is least Some counterparts do not Initial focus on the institutions Medium High engage with donors that do engage Engage with champions for Change resistance from Medium High change to secure leverage for within institutions reform initiatives Provide support to change Reform is stalled awaiting processes that can proceed new Constitution and High High regardless of constitutional and transition to federalism federal outcomes Reputational risk arising Provide more effective review from excesses of donor High Low and oversight of funded supported informal informal mechanisms mechanisms Build in oversight measures Fiduciary risk in respect of Medium Medium that mitigate against trust fund initiative inappropriate use of Fiduciary risk in respect of Ensure that interventions are Low Low technical assistance feasible and well monitored

VI Access to Security & Justice and Rule of Law in Nepal SUMMARY OF RECOMMENDATIONS It is recommended that the international community:

ƒƒ Continues supporting the Security, Justice and Rule of Law Sector, but does so with caution and with the expectation that progress might be slow and subject to setbacks. ƒƒ Establishes a more effective mechanism for International Community Coordination, including development of an information strategy which incorporates a continuously updated database of donor-supported activities ƒƒ Establishes a formal and regular point of dialogue, negotiation and partnership with the relevant stakeholders in the Government of Nepal ƒƒ Establishes a multi-donor “umbrella” programme for the delivery of support to the Security, Justice and Rule of Law Sector ƒƒ While retaining an aspiration for a Sector-wide strategy in the longer term, adopt a pragmatic approach to the support of Sector reform, engaging with those settings where success is more likely to be found. ƒƒ Should establish a multi-donor trust fund that will provide demand-driven support to the Sector’s institutional and civil society stakeholders. ƒƒ It is recommended that, within the proposed umbrella framework, donors have as a first priority the establishment of two major strands of activity: • Nepal Police Reform Programme • Courts Reform Programme ƒƒ Address the priorities relating to Legislative Framework, Oversight and Accountability within the context of a wider governance programme.

An assessment report VII

INTRODUCTION

1he field work for this review took While the four Sub-Sectors and the place during June and July 2011. associated cross-cutting issues have TThe overriding objective was: to distinctive characteristics, they are develop an assessment of the challenges inexorably linked one with the other. A full and opportunities faced in citizen access understanding of this complex weave is to security and justice and the strength therefore best secured through a systemic of the rule of law in Nepal, and options rather than any linear or compartmentalised for improving the impact of international analysis. A systems approach views support over the coming three-to-five years; challenges and opportunities in the context in particular for poor and excluded groups. of an overall system, rather than relating to a specific part and assists in identifying points of leverage, where intervention can Within the context of citizens’ access have greatest effect (Walker 2001). The to security, justice, and rule of law conclusions and recommendations arising consideration was given to four Sub- from this review therefore seek to reflect, Sectors: in so far as practicable, the systemic • Criminal Justice System complexities and dynamics within the • Non-Criminal Justice System security and justice milieu in Nepal. • Non-State/Informal Justice and Community Security The recommendations made in this report • Legislative Framework, Oversight and are rooted in the distilled analysis of Accountability stakeholder provided information and opinion and the relevant available policy Interwoven with these were six cross- and research documentation. Conclusions cutting issues: are expressed in the context of sustainable ƒƒ Gender inferences based on the available evidence. ƒƒ Social and Economic Dimension ƒƒ Human Rights ƒƒ Peace-building ƒƒ Transitional Justice Approach ƒƒ Federalism The approach to this review was modelled substantially on Rapid Appraisal principles Throughout the review, responding to (USAID 1996). Given the constraints of the security and access to justice needs, time and resource, this was seen as an aspirations and priorities of citizens, appropriate means in seeking answers to particularly those who are poor or socially the significant questions associated with excluded, was the central consideration in the key elements in this assignment. investigative processes, data analysis and recommendations. Key priorities within this Rapid appraisal methods fall on a were issues of gender, marginalised peoples continuum between very informal methods, and human rights. such as casual conversations or short site

An assessment report 1 visits, and highly formal methods, such as of 15. A total of 12 interviews were held censuses, surveys, or experiments. Rapid with central government officials and Appraisal is an effective compromise with 24 with representatives of international more elaborate methods of enquiry and organisations and NGOs. has proven benefit in enabling decision making at policy and programme levels. In keeping with the citizen as the central As well as facilitating institutional review focus, the first round of interviews and it offers context and interpretation of the group discussions were held with citizens. available data and can provide accessible The questions, opinions and hypotheses understanding of complex environments, generated in this process were incorporated illustrating people’s experiences, attitudes into the agendas for the next stage and aspirations. interviews with civil society organisations and institutional actors: and so on through In-built into the Rapid Appraisal approach each stakeholder group, with each step is the flexibility to explore emerging generating further lines of data exploration issues and trends. Within the context of and each respondent being asked to share this review, it can facilitate the analysis their reactions to citizens’ perspectives. of current institutional structures, dynamics, processes and activities and The accumulated evidence, from which their impact: these combining to assist in this report identifies the challenges and the identification of effective ways forward priorities for the Security, Justice and for improving the impact of international Rule of Law Sector and in which are based support. the conclusions and recommendations in respect of the International Community’s The data gathering process drew on support; is set out in detail in the attached published and unpublished documentation, Annex A to this document. individual and group interviews with key informants drawn from across the spectrum The report that follows is presented in five of stakeholder interests. A list of the sections. documentary material consulted is attached in Annex B of this report. 1. Introduction 2. Summary Overview ƒƒ Political Economy Interviews were conducted with a total ƒƒ Institutional Capacity Assessment of 299 informants: individual citizens, ƒƒ Inter-Sub-Sector Relations civil society groups, junior, mid-ranking ƒƒ Social, Economic and Gender and senior officials at central and district Dimensions level, representatives of statutory bodies, ƒƒ National Reform Efforts and parliamentarians, representatives of International Support international organisations and NGOs. 3. Challenges and Priorities: Including With citizens there were 160 individual and SWOT overview seven group interviews conducted; with 4. Options & Recommendations group interviewee attendance totalling ƒƒ Joint Aid & Coordination 51. In respect of officials there were 37 ƒƒ Short, Medium & Long Term Impacts participants in two groups. There were ƒƒ Priorities & Sequencing three focus group discussions held with 5. Risks and Mitigation Strategies parliamentarians, with a total attendance

2 Access to Security & Justice and Rule of Law in Nepal SUMMARY OVERVIEW

2he OECD (2007) urges donors to their state through the writing of a new take context as their starting point constitution. These processes have also Tfor any intervention. It is essential offered possibilities for major reforms in for international actors to understand the the governing structures including in the specific context in each country, and develop security, justice and the rule of law sectors. a shared view of the strategic response that is required. It is particularly important While completing the peace process, to recognise the different constraints of writing of a new constitution and managing capacity, political will and legitimacy. a transition have taken priority over all the important national issues improvement in The following paragraphs follow this the state of security, justice and rule of law principle, providing an overall political continue to remain primary challenges in perspective and a more detailed focus on Nepal. the political and institutional factors at play in respect of the Security, Justice and Rule The following features of political economy of Law Sector. context are presented to indicate the prevailing challenges and constraints for reforms in the security, justice and rule of Political Economy law sectors. Nepal is currently recovering from a decade In respect of the historical context: of conflict and experiencing profound modern frameworks of governance were changes in all areas of its social, economic introduced only in the 1950s after a major and political life. A fragile peace process political change with provisions of an is underway but far from complete. The interim constitution, judiciary, Auditor conflict that was rooted in the social, political General, Election Commission and Advisory and economic exclusion of marginalised Assembly as the oversight, accountability groups notably the ethnic minorities, Dalits, and representative mechanisms. The Caste groups, Madhesis and women took Constitution of 1959 provided continuity to the lives of about 13,000 people and nearly these institutions and further consolidated 200,000 were internally displaced. During principles of fundamental rights including the conflict much of the state’s reach was the right to criminal justice. limited to Kathmandu and selected district headquarters and it had lost much of its Similarly the Panchayat Constitution of legitimacy and capability to govern. 1962 revised the national code of 1854 with provisions of civil and criminal The Comprehensive Peace Agreement (CPA) court procedures. A more progressive signed in 2006 to end the conflict and the constitution with some basic features of election to a Constituent Assembly (CA) in universal rights was introduced in 1990. 2008 have provided new opportunities and However, due to multiple governance crises, aspirations for the Nepalese to transform a violent conflict and incessant political

An assessment report 3 instability access to security, justice and eroding their legitimacy and credibility. the rule of law remained far from the reach There is a deep crisis of confidence amongst of general public. Since 1948 Nepal has had the major political forces. A handful of six constitutions and a popularly elected political elites continue to have control and CA is in the process of drafting yet another total monopoly over the politics and almost constitution for a “New Nepal”. all the key negotiations and decisions are made outside of the CA process. The CA As for the reach and legitimacy of state: reflects representation of a diverse outlook since the beginning of its unification in of Nepal and has the mandate for reform but 1768-69 Nepal has always been a unitary increasing resistance from some elites and and highly centralised state. State reach interest groups is becoming apparent. All was extended to the district headquarters of these developments indicate that Nepal's mainly to collect revenue and to restore transition is likely last several years if not order. State services and administration decades. have always been concentrated in the capital. As the key institutions such as The Home Ministry which is responsible police, local government, health and for public security and order operates with postal services were merely beginning to its 5 Regional Administration, 75 District extend beyond the district headquarters Administration and 75 District Police offices they became primary targets of Maoists with a police force of 60,000 personnel (July attack during the conflict and forced their 2010) is the principal body responsible for withdrawal from the rural community. providing public security and maintain law Very little progress has been made to re- and order. The prevalent legal framework establish these services back. Since 2002 seems to be adequate to ensure access to Village Development Committees, the lowest security. However, due to lack of adequate strata of government structure are run by resources, institutional weaknesses and centrally appointed civil servants with the political interferences these laws are rarely help of political party arranged all party enforced effectively. The existing force mechanisms which have been effectively of Nepal Police to provide security to a preventing accountability, promoting patron- population of approximately thirty million clientelistic system and extending the reach is challenging in view of poor infrastructure of party sister organisations at all level of and equipment. formal and informal institutions primarily to share the spoils. Capacity of the state to The Nepal Police was mobilised at the deliver services to its public is extremely frontline to fight against the Maoist weak and its key institutions command very insurgency even though they lack resource little legitimacy. The state is seen as distant and means of defence. As a result they and unresponsive by most of the Nepalese suffered losses of highest number of outside the capital. government manpower and was reduced to a defeated force. By the time of CPA in 2006 With regard to transition: in early 2006- only about 550 out of approximately 2000 07, there appeared a loose “national police posts nationally were functional. consensus” to take the country forward from Since then the government has made little a centralized unitary system of governance progress to re-enforce police presence to and initiate major reforms to address issues the rural areas. of exclusion and under-representation. Since then, Nepal's power elites are trying Increasing political interference, to simultaneously manage three principal widespread impunity, and a lack of tasks -negotiate a peace settlement, draft a resources are blamed for the inability new constitution and share power during the of police and administration officials to transition. As they moved from a consensual guarantee public security. The Nepal police arrangement to a majoritarian system for is one of the most politicized institutions power sharing they have miserably failed and it has been used extensively by the to provide a stable government hampering party in power to protect their vested progress on the first two areas as well as interest. The institution has no autonomy

4 Access to Security & Justice and Rule of Law in Nepal and independent leadership to lead any Incidents of domestic violence are treated reform. There are credible reports of links as a personal criminal case. There is no between the police, political parties and specific institution to handle cases of armed groups to protect organised crimes. domestic violence and the state generally The Ministry of Home to which the police is unable to provide adequate protection force is accountable indicates no incentive for those who need it the most. The existing or interest to reduce its control and legal, procedural and informal barriers interference in the police affairs. benefit the male dominated elite groups that have strong hold on judicial and quasi- judicial institutions. Despite the political uncertainty and the above weaknesses of security environment according to a recent Carter Center With regard to the Rule of Law: the judiciary observation finding (August 2011) political is generally perceived to be relatively space is improving in the country. Similarly, independent. The Supreme Court and according to a recent poll (Himalmedia, May its leadership have often shown courage 2011) about 52 percent population feels that to reassert its constitutional role and compared to previous year overall security independence. At the moment it is the and law and order situation in the country only institutional check on the powers has improved. of the executive. Impunity, inefficiency, case backlogs, and enforcement of court decisions, however, remain critical issues. Access to justice is a major issue for There are no political or civil society the poorest and marginalised groups. allies outside of the judiciary to defend its Patriarchal family values and caste based independence and promote respect for the social orders are deeply entrenched in the rule of law. Though political leadership Nepali society and represent formidable would often turn to the courts to seek informal barriers to accessing justice. protection to their rights from state or Poverty, discriminatory legal provisions, executive authority, there seems very little under-representation of women and interest to promote the judicial integrity and marginalised caste and social groups in respect to judicial orders. judicial service, physical distance of court houses and poor legal education represent a few of the numerous other barriers. Though Supreme Court and its lower courts are functioning and the legal framework seems adequate, the term “rule of law” There are still a number of discriminatory has become almost meaningless for the provisions in the existing legal system governing elites and a distant dream for that inhibit women, Dalit and marginalised the vast majority of citizens. The judiciary groups from approaching legal recourse. has been a low priority for state funding, Recent initiatives to revise the Civil Code considered it as non productive sector and and its procedures offer some opportunities many of its court houses destroyed during for reform. Legal information and the conflict are yet to be re-built. enforcement of existing legal provisions continue to face challenges. A mediation bill There exist a limited number of civil society to promote alternative dispute resolution organisations (CSO) active in the security, has been enacted recently but yet is to justice and rule of law sectors. Nepal come into effect. Bar Association and its network and few other CSOs are providing legal education, Caste based discrimination has been information and legal aid to the poor and outlawed for years and a new Act has been women. However, they remain mostly urban- passed to deal with caste based offences. based, donor dependent and partisan to However, it does not cover offenses one or the other political organisations and prevalent in the private sphere. Without unable make strong alliance for reform. As strong state policies and legal education a result civil society organisations including individual discriminatory behaviour is media continue face difficulties and lack unlikely to change easily for decades. credibility. Though there exists adequate

An assessment report 5 legal framework, regulations and statutory sponsorship of criminally inclined elements guarantee for freedom of movement and in their own ranks and their failure or expression due to government inability to act inability to rein them in does create an air against the perpetrators and enforce law and of general lawlessness, with consequent order media operates under a strict self- impact on citizens' sense of security. censorship in reporting violence and security related issues. According to the Federation of Nepali Journalists one journalist was killed, 20 were physically assaulted, 42 received Institutional Capacity threats from various gangs and criminal The key statutory institutions associated groups and 33 were manhandled in 2010. with the Security, Justice and Rule of Law Sector are: The aftermath of conflict in Nepal, as is ƒƒ Nepal Police the case in many countries which have ƒƒ Attorney General & Prosecutors experienced similar turmoil, has witnessed ƒƒ Chief District Officer a residual continuation of a general ƒƒ Judiciary, Courts Quasi-Judicial disregard for law and order on the part Institutions of some elements of society, politically ƒƒ Lawyers in Criminal and Civil motivated criminality, ineffectiveness of Proceedings state institutions, the impunity of powerful ƒƒ Parliamentary, Constitutional Oversight actors and insecurity for large sections & Accountability Institutions of the citizenry. Regardless of how well- intentioned the political parties might As identified in the notes on Political be, responses to the final draft of the Economy, the Nepal Police are under- Constitution, federal elections and the strength for a population of the size and establishment of federal institutions will all demographic distribution of Nepal. They put further pressure on the Security, Justice lack professional capacity; as well as and Rule of Law Sector. physical infrastructure, IT, communications and equipment. While the establishment of In Summary: these paragraphs have been specialist units has brought a concentration crafted to provide a political economy of resources in respect of some crime overview of recent social and political categories, these have yet to have a turmoil that the country has come through; significant impact on the number of offences and the implications of this for international in these areas or of increased levels of support to the Security, Justice and Rule of detection. Some community policing Law Sector. While it is clear that the Sector initiatives are underway, but a community has not been immune to the repercussions focus is not in any way embedded within the of years of conflict, the evidence points to policing ethos of the Nepal Police. an in-built resilience that has ensured its survival, more or less intact. Along with every other public institution, the police are concerned about the The criminality that is being fuelled by operational and institutional implications of political parties and the impunity that the move to a federal form of government. accompanies political actors' leverage While citizens express ambivalent attitudes over the law enforcement and justice toward the police, they nonetheless believe institutions is undermining, not just of these that their presence does, in the main, institutions, but also of the democratic contribute to a sense of community security. foundations of the State and ultimately Perhaps more than any other institution depriving it of legitimacy in the eyes of in the Sector, the police are the most many citizens. susceptible to political interference and most likely to be undermined by criminal While the concept of nexus between elements; either coercively or collusively. criminality, police and politics is by no means applicable to every political actor The Attorney General of Nepal is the or all political interests; political party chief legal advisor to the government.

6 Access to Security & Justice and Rule of Law in Nepal Since the position is political appointed, Chief District Officers (CDO). The CDO is occupancy of the Office of Attorney General accountable to the Ministry of Home Affairs is currently highly transitory, because and has a wide range of responsibilities and Prime Ministers have become highly powers. One of the major responsibilities transitory: there has consequently been of the CDO is to maintain peace, order and little consistency in practice or policy in security in the district, for which they have relation to prosecutions. While subordinate authority to direct and mobilize the security Prosecutors are routinely involved in forces, initiate the preventive detention of criminal prosecutions, the Attorney has individuals, issue curfew orders and order the right to make the final decision to security forces to open fire on crowds. The initiate proceedings in any case on behalf District Police Office is under the direct of the government in any court or judicial supervision and direction of the CDO. In authority: and just as proceedings can their quasi-judicial role CDOs, mediate be initiated, the Attorney can likewise or adjudicate disputes and under twenty decide that they not be initiated at all. A separate statutes can, without due process, joint legal opinion by NHRC and OHCHR summarily sentence individuals to terms of (2011), commenting on the consequence of imprisonment for such offences as making the practice of politically motivated case a public nuisance (up to two years) and withdrawals concluded that they have unlawful possession of fire arms (up to five effectively served to protect politically years). While some of these powers are the connected individuals from criminal subject of applications by district courts accountability, promoting a policy of de under the Bill on Criminal Procedure Code facto impunity for the perpetrators of pending in the Legislature-Parliament, for hundreds of serious crimes. This trend has the time being they remain in place. undermined the rights of alleged victims to an effective remedy in those cases, and has Recently, through an amendment in impeded efforts to transit for the existing the statute court of appeals have been culture of impunity to a stronger judicial empowered with jurisdiction of writs system based on impartiality and the rule similar to the Supreme Court. District of law (p2). There are no figures available courts have also been given jurisdiction on the number of police reports that are to issue habeas corpus writs which is not referred to prosecutors or the cases expected to have a big impact on human prosecutors receive that are not proceeded rights situation. with. However, it is clear from what evidence is available that the vast majority of criminal complaints are settled privately It is certain that one of the consequences or in police stations and go no further. It of the introduction of a federal form of is also evident that normally high volumes government will be major changes in of small criminal cases, such as traffic the roles and authority of Chief District infringements, are not prosecuted at all in Officers. either the courts or the district offices. Since there is no systematic evaluation While the Attorney General's Office of the capacity of Chief District Officers has started on a strategic planning available, and, in any event, given the wide process and there are clearly expressed variations in influencing factors across standards that prosecutors must adhere districts; it is not possible at this juncture to, the preponderance of confession based to provide a critique of the capacity of this convictions and generally poor quality of group. police investigations; make it difficult to establish an accurate assessment of the With regard to the Courts’ System: there is specifics of institutional capacity within the no separate operational system for civil and prosecutorial service. criminal cases, although experimentally there are separate benches in pilot district For such powerful individuals, there has courts. Even in these settings, judges been surprisingly little research or other are not assigned according to their civil documentary material on the role of or criminal expertise but according to

An assessment report 7 seniority in their career. Seniors occupy the but is keen to collaborate with the Law criminal bench and the more junior serve Commission, Ministry of Law and Justice on the civil bench. and other related ministries or stakeholders in the transition to federalism. The shortcomings of the courts' system were readily admitted in the Supreme The judiciary is a low priority for funding; Court’s second Strategic Plan (2009), which but in recent years the government has stated that “Justice is not only slow and allocated money for the construction cumbersome, it is also expensive. The of court buildings and has supported court has failed to earn public trust and programmes such as electronic case easy access to justice by the general public management. However, institutions such has not been maintained. Public cannot as the Judicial Council, National Judicial experience reform through the reforms Academy, Judicial Service Commission and being made on the physical aspect of the Judicial Service Training Centre are not courts. It is imperative that reforms should well funded. immediately be made from the initial stage of registration of case to the execution of According to the Annual Report of the judgments” (p 64). Supreme Court 2010, the court has made progress on implementation of strategic Given that the nature of the phenomenon interventions with reforms in case is such that it eludes systematic review management, execution of judgments or measurement there is nonetheless through the establishment of the Execution evidence to support the view that elements Directorate, providing training to its staff, in the Judiciary are subject to influences of developing the infrastructure of the courts, coercion or corruption to produce perverse applying information technology and media verdicts in cases involving the powerful or strategy, strengthening inspection and well-connected. There is also a widespread supervision systems, reforming the security belief that judges have little enthusiasm to management of the courts, institutional settle cases of common citizens that have research, institutionalising relations been awaiting settlement for a long time, with other stakeholders through JSCC, in some instances for several years, thus increasing access to justice and public trust contributing to court backlogs. and strengthening the institutional capacity of courts and tribunals. However, even against this background, the judiciary has earned a reputation for While it still lacks capacity and there are acknowledging international human rights undoubtedly issues of integrity in respect law in its judgments and has declared many of some of the judiciary, the Supreme Court laws ultra vires to bring them into line with is evidently committed to a continuous the principles of human rights. As was improvement in the performance of the noted in the Political Economy review, with courts system. all their lack of capacity and shortcomings, represent the only substantial defence Quasi-judicial bodies, such as land of the citizen against criminality and the revenue office, land reform office and land excesses of state power. measurement office function under various ministries, but render services as part The Judges Society however, in its report of the civil justice system. In its second to the Constituent Assembly, 2008 made Strategic Plan, the Supreme Court states recommendations for an integrated that it is not their jurisdiction to help such judiciary in the new constitution. They stakeholders to initiate reform. In this believe that federalism could provide context, the government has not initiated momentum for fresh reforms in the any substantial initiatives such as reform of civil justice system by reforming land/ the law, procedure, management, capacity property related laws and family related development of the human resources nor disputes. The Supreme Court does not has it upgraded services. Some discussions have jurisdiction to start the initiatives, on data management are underway, but

8 Access to Security & Justice and Rule of Law in Nepal without systematic reform. The general change in the government, increase in the perception of these bodies is that they are number of legislators, and the number slow and inefficient and display an absence of parliamentary parties. On top of this of any sense of commitment to service the Legislative Parliament Secretariat is quality. without any long term plans for the future. This has affected all institutions, legislative framework, oversight and accountability With regard to the role of Lawyers who institutions and procedures based in the represent citizens in Criminal and parliament. This is the situation of the Civil proceedings: their oversight is the committee system as well. responsibility of the Bar Council which is established under statute to license, regulate and promote the legal profession. Not only do they have to meet the The Judicial Mapping and Judicial challenges of constitutional reform, Assessment, March 2010, conducted by parliamentarians and officials are the World Bank, recommends that the legal confronted by limited budgets and profession introduce greater transparency resources, lack of education and training and regulation with annual licensing opportunities, low salaries and resulting renewal, mandatory continuing legal poor motivation; all contributing to poor education and legal services complaint institutional performance. What limited offices. Being a rule of law institution, training there is by way of overseas study the members of the legal profession are visits or in-country training opportunities criticized for failure to register their offices, tend to focus on current technical problems keep accounting systems and pay taxes and past perspectives, rather than to the government. The National Judicial providing higher level capacity building. Academy and Bar Council are statutorily One consequence of the institutional mandated to provide training to lawyers, but shortcomings is that the more able officials due to low priority accorded to the training have a tendency to move to more lucrative of lawyers, the Nepal Bar Association has institutions and others had a limited proposed its own Lawyers Academy. commitment to their employers.

Issues relating to legal representation are As far as strengthening legislative inexorably linked with citizens' access to framework is concerned, the parliament Legal Aid services. The Bar Association secretariat does not have a modern and maintains that the international support functional capacity building division to various legal aid initiatives has derailed that could focus on consolidating and progress toward a one door system modernizing oversight and accountability of international support through the functions. There is a committee on capacity Central Legal Aid Committee. However, development at CA which has virtually no the Committee itself suffers from a lack programme calendar. After the election of capacity to deliver and supervise any of 2008, the members of the constituent national service. assembly (or legislative parliament) have been given the opportunity to take part in different orientation programmes abroad With regard to the capacity of Parliamentary, Constitutional Oversight and are taken on overseas field visits. Many & Accountability Institutions: the job of them were able to further focus on the of constitution making has put stress technical aspects of constitution making. everywhere in the parliamentary However, these trainings were sporadic, institutions. There have been problems decided in most of the cases by donors with of manpower and resources, and many little or no consultation with the constituent of the routine works that used to be assembly secretariat. Some prominent done efficiently in the past (for example, members had more opportunities in this policy debates in the House, or clause- regard than others. wise discussion of the bills before the parliament) cannot be done now because What has been observed is that the of the poor political leadership, frequent capacity development under this type

An assessment report 9 of intervention no longer focuses on all Whether this is due to work overload, the areas where capacity is needed. The poor case management, incompetence or constituent assembly secretariat, or the subversive motivation, or any mixture of parliament secretariat of the past, has these, is an unknown at this stage. its own bureaucracy which includes not just administrators, but also thematic In so far as it is known, a small percentage experts like lawyers, reporters, marshals, of criminal offences are actually and parliamentary committee level staffs. prosecuted: of those that are, the success Some of them are pulled from government (conviction) rates in the cases prosecuted services. Newly elected legislators need by district attorneys before the Courts is such support more than others. Focus of 72 percent (3696 in 5119 cases) whereas legislatures means improved capacity at it is 95.25 percent (2926 in 3072) in cases one level, but focus on the capacity of the brought directly before the Chief District members of bureaucracy means improved Officer (CDO) by the police (OAG Annual capacity at all levels. This reality has not Report 2009). This implies that when there been well recognized. are options for overlapping of jurisdiction, the incentive for the police is to take cases In summary: as was stated in the to the CDO rather than to the Courts. Introduction to this report; the Security, Justice and Rule of Law sub-sectors As has already been mentioned, within the are inexorably linked one to the other courts system, outside of the pilot districts, and are best understood in the context there is no degree of specialisation across of the interactive complexities of the the benches, with individual judges hearing entire Sector: and as was noted in the both criminal and legal cases. There are Political Economy review, the institutions arguments for and against judges specialising within the Sector are burdened with the in one aspect of judicial practice, but one of consequences of patronage, corruption and the strengths of the current arrangements political interference. All are to a greater is that the judiciary, in engaging with both, or lesser degree under-resourced, lacking are well placed to influence professional in professional capacity and are facing an practice and courts' administration in both. uncertain future in respect of the pending In addition to the judiciary and the courts' constitutional reforms. administration, lawyers in private practice represent the other major link across the criminal and civil justice systems. Beyond Inter- Sub-Sector these, at time tenuous and tangential, associations there is little interaction Relations between the criminal and civil systems. There is a complex web of relationships within each sub-sector and across While it is a speculative assumption, it is sub- sectors: some are cooperative and nonetheless reasonable to infer that the role collaborative and some display the tensions that Chief District Officers play in respect of differing or conflicting agendas. of adjudicating on both criminal and civil cases is perceived by at least some of the other Sector stakeholders as infringing on Within the criminal justice system there and undermining of their professional and should be a cooperative, but not collusive, institutional territory. relationship between investigating police officers and prosecutors. However, the evidence points to the reality as being one In a similar vein, the absence of a formal where often poorly prepared crime files are bridging mechanism between the statutory submitted to prosecutors by the police at, and informal systems represents an inter- or close to, the twenty-five day deadline for sub-sector challenge, particularly in respect completing investigations; thus removing of the role played by the informal justice the possibility of prosecutors referring mechanisms in adjudicating on rather than cases back for further investigation. mediating both civil and criminal cases.

10 Access to Security & Justice and Rule of Law in Nepal The various parliamentary, accountability specified them as beneficiaries of special and oversight bodies have multi-layered treatment by the state. A few of these new interactions with each of the other sub- provisions enshrined in the constitution sectors; ranging from policy and legislative include: right against untouchability and level consultations to detailed case level racial discrimination (Article 14), the investigations. provision of positive discrimination for Dalit, women, indigenous/ethnic groups, With regard to the formal arrangements for Madhesis, farmers, and other socially and managing inter-sub-sector relations, there economically marginalised communities are two bodies established by the Council (Article 13(3)), women's reproductive and of Ministers: committees for Security and ancestral property rights (Article 20), right Justice which exist at district, regional to social justice on the basis of proportional and central levels. There has been no representation of women, Dalits, Madhesis, systematic evaluation of the effectiveness indigenous/ethnic communities and other of either of these mechanisms in the oppressed groups in the state structures development and planning, coordination or (Article 21). problem solving across the Security, Justice and Rule of Law Sector. With regard to Gender issues; the Asia Foundation's Preliminary Mapping of Gender Based Violence (2010) reported that a considerable body of Nepal-based Social, Economic and research on the subject points to gender Gender Dimensions based violence, particularly domestic violence, goes unreported in many cases as With regard to socio-economic factors: it is considered to be a ‘family affair’. the 2011 USIP study concludes that: while violence and illegal activities appear to be increasing, socioeconomic challenges For victims this is compounded by many continue to affect security and the rule of women's financial dependency, lack of law across the country. Women, children education and fear of social exclusion: many and marginalised groups continue to suffer women preferred social pressure to stop from discrimination and rights abuses. violence and improve marital relationships Many of these abuses are rooted in societal rather than taking any legal recourse. norms, with individuals from nearly every The Asia Foundation report continues to section of society committing various levels map the institutional response to gender of abuse or discrimination (p44). based violence as follows. Most of the cases reported to the police are settled through reconciliation and negotiation Poverty, unemployment, rapidly rising and only a negligible number of cases are inflation, corruption and discrimination referred for prosecution. Thus, the role of have fuelled the divisions among citizens. the law enforcement agency in cases of According to Saferworld and IDA (2009), gender based violence is more like that of a core areas for improvements are re-defining mediating body (p14). crimes and addressing their causes, fighting corruptions in justice and security agencies, putting an end to political interference in With regard to the prosecution of gender justice and security agencies, promoting based violence; beyond it being seen as a transparency and disciplines, promoting "family affair", even if the case is reported community security and policing, specifying to the police, priority is given for settling the clear mandates of agencies and ensuring it within the family or community before equal access in justice. taking it further. According to the Asia Foundation report: this contributes to the chances of compromise by the victim/ The Interim Constitution for first time in survivor and in most cases, women fear the history of Nepal explicitly recognized to go to courts due to social pressure and Dalits, Adivasi Janajatis and Madhesis agree for such mediation (p14). Added to as historically marginalised groups and all the other challenges are the financial

An assessment report 11 costs, potentiality of social isolation and of laws based on human rights, improved vulnerability to future violence that any legal aid, enactment and enforcement of victim of gender based violence must take Mediation Law are highlighted. into consideration if they are to pursue formal justice remedies. Other significant issues associated with the Criminal Justice system include In respect of issues associated with arrangements for speedy and effective gender and marginalised groups being child-friendly justice delivery, and represented within the Sector professions, protection of human rights in terms according to the Supreme Court they have of maintaining law and order and law recruited more women and members of enforcement. The plans include improving marginalised groups, but progress is yet detention centres, review of laws related to be made on recruitment from the Dalit to prisoners, medical and legal counselling community. It is considering running a service to prisoners, introduction of capacity building programme for its women community service orders, open prisons staff and establishing a special scheme and reintegration of the prisoners in targeting fresh recruitments. According community, legislation on re-integration, to court officials, it will take ten years to skill development training, capacity building see the results. It is understood that the of the child correction home in Kathmandu general mood of the judiciary on inclusion, and establishment of correction homes in is to start entrants from the beginning of four other regions. Additional measures their careers: on the basis that bringing include capacity building of police in crime women, Dalit and marginalised community investigation and zero tolerance of human into the institution at the higher level rights violations in the administration of may have negative impacts on the views justice. others have of them and their future career development. The Government has submitted bills to the Legislature-Parliament on the Criminal A survey of the licensed lawyers conducted Code, Criminal Procedure Code, and by the Nepal Bar Council reveals that there Sentencing. The draft bills, though they are approximately 1000 women, 100 Dalit, have many weaknesses, have at least 700 Janajati and 200 indigenous lawyers attempted to address such issues as (from Terai like Tharu, Rajbamsi, Ganagai greater use of fines as opposed to custody, etc.) out of 12000 lawyers practising across clarifying the distinction between the the country. The judiciary considers these categorisations of serious and non-serious lawyers as being ‘not being at par on the crimes and provision for ordinary offences merit list’, but accepts that it is the State’s to be resolved by mediation. Within the responsibility to make them ‘qualified’ by adopting an inclusive approach. draft bills also, victims may receive interim relief, there shall be separate hearings for conviction and sentencing, and defendants may opt for instalment based payment National Reform of fines and may alternatively receive community service orders in place of Efforts and imprisonment for ordinary cases. If this initiative crosses the political thresholds in International Support the legislature, the withdrawal of criminal cases and the giving amnesties to the National Reform criminals by political nexus would be, to some degree, curtailed. The human rights plan of action, adopted by the government in 2010, has attempted to cover most of the issues in relation The Office of the Attorney General adopted to access to justice within the agencies and began implementing a Strategic Plan under the Executive. Under law reform, in 2006. However, the Strategic Plan of the administration of justice and management OAG (2006 - 11) has had implementation issues such as legislation and amendment problems and the envisaged annual rolling

12 Access to Security & Justice and Rule of Law in Nepal out has not been achieved. Poorly conducted Children Bill and they are in process of investigations, scattered and fragmented finalizing the bill for submission to the criminal legislation, insufficient support legislature. This legislative reform initiative from other agencies, unstable leadership, addresses some of the issues surrounding overwhelming caseloads, and the presence the juvenile justice system and represents of numerous de-motivating factors have all an improvement in the existing system, contributed to the strategy's undermining. embodying as it does some of the best practice juvenile justice principles. However, some initiatives are underway: government attorneys will be monitoring The Central Child Welfare Board and the human rights situation of the detainee Juvenile Justice Coordination Committees in detention centres and will ensure access are implementing some projects funded by to legal counsel. The Office of the Attorney the Government and other agencies to build General collaborating with an NGO and with the capacity of officials involved in justice financial support from DANIDA is engaged delivery for children in conflict with law. in developing investigation and prosecution standard operation procedures, stemming Initiatives taken by the National Human from which it is anticipated that the quality of Rights Commission in respect of the investigation and prosecution will improve. investigation of allegations of human rights violations and abuses by members of political Induction programmes for prosecutors parties or the holders of public appointments and others in relation to the new Criminal have created a degree of pressure on the Code and Criminal Procedure Code are Executive to pursue solutions to address at the planning stage. There is a proposal the issue of wholesale impunity. In addition to outsource some public prosecution to this the Commission's regular prison work to increase the effectiveness of the inspections and operation of Juvenile Desk prosecutorial service. to oversee juvenile justice are in place, promoting a sense of accountability within the Criminal Justice System. Although the National Plan of Action on Human Rights has sought the support of NGOs as implementing partners, a With regard to victims and witnesses, the paradoxical situation has arisen whereby only concrete initiative is an instruction from the Ministry of Home Affairs has decided the Office of the Attorney General to the not to collaborate with NGOs and has effect that witnesses should be provided with banned its officials from participating in any transport to enable them to attend court. programmes organized by NGOs. On a policy level, the Law Commission has prepared a paper outlining a “model” witness protection scheme, but to date there has The taskforce that drafted the Criminal been no move toward its implementation. Codes and Sentencing Bill has recommended that the prisons should be put under the jurisdiction of Ministry of Law and Using regulatory powers, the government Justice instead of Ministry of Home Affairs. has taken steps to restructure the Nepal In principle, this proposal is appropriate: Police and with support from the government prisons considered to be a part of the of India it is receiving buildings and jurisdiction of the department relating to the equipment support along with vehicles and court worldwide. It is evident that prisons weapons. Through regulatory changes the will not be reformed unless they are put Metropolitan City Police has been brought under the jurisdiction of Ministry of Law and into being and a new Criminal Investigation Justice. However, changing responsibilities Bureau has also been established to combat alone cannot be a measure of reform unless organised and complex crimes. there is specific programming and allocation of the resources. Taken together, and if fully implemented, the above initiatives could have a potentially The Ministry of Women, Children and positive and far reaching impact on the Social Welfare are sponsoring a new Criminal Justice system.

An assessment report 13 With regard to Civil Justice: the government Strategic Plan, the Supreme Court has given has tabled a bill on the Civil Code and its significance to mediation and includes Procedures to the parliament and if this bill establishment of mediation centres within is passed, it will significantly change the each court premises. landscape of the civil litigation. However, despite the Supreme Court’s order to A government initiative that might have an promulgate compensation and tort law (NKP, impact on informal justice mechanisms is 1972, p240) not a single step has been taken the Mediation Act, 2011 that has recently to introduce these laws into the legal system. been passed by the Legislature Parliament. The Act contains provisions of pre- The consecutive strategic plans of the court mediation, court annexed/referred Supreme Court have consolidated the mediation and community based mediation. reform in the courts system and case The Act, however, has not yet been enforced. management. With regard to Community Security: the The Ministry of Women, Children and Social Ministry of Home Affairs has introduced Welfare, in the support of Access to Justice some two dozen new initiatives related Project of the UNDP, has formed a Task to security sector reforms in order to Force to expedite the establishment of Fast strengthen people-oriented services. Track Court as ordered by the Supreme Among them, it has formed a Security Court on women related cases. This Task Sector Reform Task-Force at national Force has conducted research, which is yet level: this task force is under the to be made public. However, a domestic leadership of a former DIG along with violence Act has been promulgated, but representatives from Nepal Police, Ministry due to the constraints in the Act itself, of Home Affairs, Nepal Army, Armed implementation is yet to be seen. Police Force and National Investigation Department. It has two broader mandates: a) Policy recommendation for long- Although it cites the administrative nature term security sector reform and b) of such mechanisms and lack of judicial provide recommendations for immediate expertise in such bodies, resulting in unjust intervention in order to address the infringements on individual liberty; the immediate security issues in the country report of the Judicial System Committee including border security. of the Constituent Assembly recognised quasi-judicial bodies as specialised courts permitted to hear cases with penalties The Ministry of Home Affairs has recently of less than six months of imprisonment. decided to establish help desks in District The draft Civil Code proposes to bring the Administration Offices in all 75 districts. jurisdiction of such bodies under the regular The major objective of the desk is to courts. In the meantime, research conducted facilitate the poor and marginalised groups, by the National Judicial Academy identifies that is, women, Dalits and disadvantaged a number of problems, including the lack groups; to increase their access to justice of procedure, denial of natural justice and and security. Additionally, the Ministry is other problems caused by such bodies. In drafting a manual on community policing. response, the Ministry of Law and Justice has prepared a draft bill to consolidate the The situation with regard to Legislative procedures for the quasi-judicial bodies, but Framework, Oversight and Accountability this has neither been made public nor been is that some organisations such as the tabled before the parliament. CIAA, National Human Rights Commission, Supreme Court, Judicial Council, the In addition to enacting District Court Rules, Office of Auditor General, National Dalit Appellate Court Rules and Supreme Court Commission, National Women Commission, Rules to support mediation process the etc have their strategic plan on the basis of First Strategic Plan of the Supreme Court which they are developing their services. indicated need of mediation as ADR in court Many of these strategic plans are scant cases.(P.55 Nepali Version). In the second and superficial. As an example, the recent

14 Access to Security & Justice and Rule of Law in Nepal Three Year Strategic Plan (2011 -2013) Alert which is slightly out-of-date, the of CIAA, which has been introduced report Preliminary Mapping: Rule of Law, without SWOT analysis, and assessment Security and Access to Justice in Nepal of the present performance including the (2010) and the Action Plan for the Nepal institution in relation to the conviction Peace and Development Strategy (2011). rate of prosecutions it initiated under the Prevention of Corruption Act. The content of each of these differs substantially, one from the other. Although the Peace and Development Strategy action International Support plan is the most recent and, having been prepared by the donors themselves, likely The Nepal Peace and Development to be the most accurate, there are details to Strategy (2011) emphasises that; the role of be found in the other documents that also development partners in the peace process, shed light on donor support to the Sector. therefore, is to help sustain the process by supporting the government to deliver development benefits in ways that reflect With regard to donors' financial commitment the new aspirations of the Nepali people to the Sector, because this is expressed in (p3). However, it also acknowledges that: different timeline terms; (and in the case harmonization and mutual accountability of the Peace and Development Strategy not between government and development mentioned at all) it is difficult to estimate partners are the Paris principles that were what the expenditure is year by year. most weakly observed and implemented at the macro level (pxvi). The table below sets out Ministry of Finance's estimate of support for 2010 The Preface to the Strategy states that it: -2011, but conspicuously leaves out some has been developed by a wide cross- section key government actors, such as the courts. of local and international organisations and local and international subject experts, Min. of Finance: Donor Support to Sector 2010 -2011 from UN agencies, bilateral aid agencies, Ministry/Agency $ international financial institutions, non- National Human Rights Commission 2,560,000 governmental organisations, think tanks Min. Peace & Reconstruction 1,152,000 and others. It has benefited greatly from inputs from, and discussions with, different Min. Women, Children & Social Welfare 2,505,000 parts of government during its formulation. Min of Home Affairs (excluding buildings) 900,000 What is not immediately apparent is the Total 7,117,000 degree to which it is formally and jointly owned by the donors and the Government of Nepal, as partners in development. The June 2010 International Alert tables document forty six donor funded Unless there is a well-documented record programmes and projects; but only sixteen of donor activity in the Sector that has of these provide any financial details. not been accessed in the course of this Because the programme and project assignment; the available evidence points budgets are expressed in terms of amounts to our knowledge of the nature and extent committed, but not broken down further, it of support by the international community, is not possible to determine what the annual including financial commitment, being spend rate is. Converting the financial fragmented and incomplete. commitment recorded by International Alert in three currencies to US Dollars, the total In the preparation of this report, four comes to US $ 25,787,000 (at the exchange sources of information on the current rate on 16th July 2011). contributions of the International Community to the Sector were consulted: Twenty two of the one hundred and seventy lists prepared by the Ministry of Finance, eight priority actions listed in the Peace a tabulated list prepared by International- and Development Plan relate directly to

An assessment report 15 the Security, Access to Justice and Rule of to formal justice mechanisms or to Law Sector, but no budgetary or timeline alternative dispute mechanisms information is provided. ƒƒ Measures to ensure that all security and judicial services are more inclusive ƒ In the absence of any more complete ƒ LPCs and other local mediation or up-to-date information, the Peace mechanisms to strengthen their and Development Plan has been used administration , financing and technical throughout this report as the reference capacity and make them more gender- point for donor activity. responsive and socially inclusive ƒƒ The traditional justice system of indigenous communities within a broader According to the Action Plan for the Nepal human rights framework Peace and Development Strategy, the ƒƒ Conducting an assessment of GBV cases following internationally funded initiatives and the development and implementation relating to the Security, Justice and Rule of of the Domestic Violence Law, and the Law Sector are either underway, or are at National Plan of Action. the planning stage, providing support to: ƒƒ Support for understanding the role of the ƒƒ the establishment of an independent informal sector in providing security and Police Service Commission justice. ƒƒ the establishment of an independent ƒƒ Enabling the development of evidence- police complaints-handling mechanism based policies and programmes ƒƒ training on gender, children, human on security and justice through the rights and social inclusion for police, provision of detailed analysis reports of prosecutors, paralegals, courts and people's perceptions of security, justice community mediation centres and justice and security sector reform ƒƒ the elimination of discriminatory laws issues in Nepal. and the strengthening of the criminal ƒƒ Developing consensus through dialogue: justice system to address caste-based a high-level dialogue process on national offences security policy in Nepal ƒƒ the revision and implementation of a new ƒƒ Supporting a more effective private Penal Code sector role in advocating for and ƒƒ the Attorney General's Office to supporting better public security (pilot). prosecute cases, including white collar ƒƒ Completing the drafting of the and politically motivated crimes constitution ƒƒ Nepal Police initiatives designed to ƒƒ Relevant existing and proposed strengthen aspects of police performance commissions and other bodies in Nepal and improves sensitivity to ƒƒ Addressing critical implementation gender, children and human rights and challenges social inclusion issues (for example, ƒƒ Establishing a strong regulatory community policing) framework ƒƒ Measures to reduce political interference ƒƒ Institutions designed to protect the in the police and judiciary public from inappropriate party political ƒƒ Training on gender, children, human interference, and the strengthening of rights and social inclusion for police, oversight functions prosecutors, paralegals, courts and community mediation centres It should be noted that there are some ƒƒ The upgrade facilities in courts significant donors that notably do not ƒƒ The revision and implementation of the contribute to, or contribute fully to, new Civil Code efforts to map current and planned ƒƒ The establishment and capacity programmes. This can be because of enhancement mechanisms to enforce procurement protocols around such issues court judgements as commercial confidentiality or because ƒƒ Measures to ensure the independence of the political sensitivities associated with and capacity of the judiciary the nature and source of donor support: ƒƒ Increased public access, especially for China and India's contributions to policing women and socially exclude groups, serve as illustrative examples of the later.

16 Access to Security & Justice and Rule of Law in Nepal With regard to specific programmes, capacity to carry out transitional justice the major donors active in the Security, processes, support awareness-raising Justice and Rule of Law Sector in Nepal on legal recourse to domestic violence include DFID, DANIDA, USAID including US and issues of gender base violence. At Embassy, UNDP, JICA and EU. The following the local level the programme supports a paragraphs provide brief descriptions of comprehensive set of services for access some of these interventions. to justice to the most vulnerable population including women and socially excluded DFID through ESP has been supporting communities. It also assists local and community mediation programmes in six grassroots level free legal aid in seven eastern terai region districts to successfully districts and mediation services in 36 establish community mediation forum VDCs of four districts, strengthening local for easy access to justice by the poor and paralegal capacities in seven districts excluded groups. DFID is also supporting and engaging with traditional justice UNICEF for Women's Empowerment and mechanisms. the Promotion of Rights through capacity building of Paralegal committees. The JICA is supporting the community programme will provide capacity building mediation in two districts and supporting support to 1,300 VDC-level paralegal civil code and civil procedures. JICA is also committees and 75 District Resource assisting in writing the explanatory note Groups. of the civil code and supports NP officers to participate in policing related training A pipeline joint DFID-DANIDA support programme in Japan. The EU is planning to Nepal Police Reform Programme aims a multi-year programme to support in the to improve public trust in Nepal Police, rule of law sector but support areas are not especially among the poor and excluded. determined yet. DFID through ESP and Saferworld are supporting interim activities with Nepal With regard to donor coordination: there Police which will eventually be incorporated is an informal Security and Justice into the larger project. Coordination Group for international actors engaged in this area that meets informally. DANIDA has an ongoing programme on There are two distinct elements within community mediation in 11 districts this grouping: donors who fund activities implemented by national partner and those of the 197 International NGOs organisation. operating in Nepal who have programmes and projects in this area, or who are aspiring to do so. While there is no formal USAID through its Anti-trafficking membership register, there is a mailing programme plans to support the Office of list of some seventy individuals from forty Attorney General, Judicial Academy and organisations who are regularly invited to Judiciary to improve prosecution of people the periodic meetings. While these meetings trafficking cases through training and provide a forum for discussion and the technical assistance. The US Department of sharing of information, there is no evidence State has an ongoing programme to support that the group, of itself, actually facilitates Nepal Police on building capacity in Human coordination of efforts. Rights, democratic policing, infrastructure, communication, surveillance and disaster preparedness with an average annual It would, in fact, be unrealistic to expect budget of US $850,000. it to do so: it cannot be assumed that the participants have a unanimity of purpose or priority; there is not an equal relationship UNDP's US$ 2.8 million existing programme between the funder and funded and the on enhancing access to justice supports extent and informality of the membership transitional justice, gender justice and lacks the cohesion and structures access to justice at the local level areas. necessary for it to be an effective medium The programme aims to build national for international coordination in the Sector.

An assessment report 17 It has not been feasible to conduct a are grounds for a fundamental rethink systematic evaluation of the impact of donor of donor support to informal justice funded programmes and projects in the mechanisms. course of this assignment: nonetheless, some reasonable inferences can be drawn from Beyond the operational performance of the documentary review and interview data these mechanisms, there were concerns secured in the course of the team's fieldwork. expressed by some key institutional stakeholders and international organisation Firstly, there appears to be a large number representatives to the effect that support to of small-to-micro projects supported by informal mechanisms was undermining of donors, which by virtue of their very limited the statutory sector, contributed to a further budgets and short duration, are unlikely to erosion of confidence in the courts and at have any significant or sustainable impact: times challenged the whole concept of the in fact, if citizens' expectations are raised rule of law; that, regardless of perceived and not realised, the impact might prove to benefits, in the longer term this would be be negative. detrimental to citizens' interests overall.

Secondly, the International Community Thirdly, Legal Aid represents another has an evident high investment in the example of how a more strategic approach support of informal justice mechanisms. on the part of donors would serve citizens Two evaluations of programmes in this area better than the support currently provided in have been reviewed in the course of this this area. At present there are three systems assignment. One of these was thorough and of Legal Aid in operation: one which is run by expressed serious reservations in respect the Government, one by the Bar Association of the appropriateness of the conduct of and a third composed of several donor many of the community based initiatives; funded NGO initiatives: all of these suffer particularly in respect of groups exceeding from uncertainties in respect of funding and their mandates and concerns relating to sustainability. The point at issue here is that, human rights violations. The other review if the principle that every accused person was superficial and concluded that the who is in danger of loosing their liberty is programme in question was performing to entitled to legal representation, then there a high standard, although no evidence was needs to be a single, permanent, country- presented for this finding. wide Legal Aid service. The evidence is that donors' piecemeal support of time-bound, As can be seen in the reports of the often geographically focused initiatives are fieldwork for this assignment, and in the not contributing to the development of such reviews of relevant documentation, there a provision.

18 Access to Security & Justice and Rule of Law in Nepal CHALLENGES & PRIORITIES

3ased on the documentary and qualitative interview data collected in the course of this assignment, as set out in detail in Annex A, the following challenges and priorities have Bbeen identified in respect of each sub-sector. Criminal Justice Challenges Criminal Justice Priorities 1. Citizens' serious lack of confidence in the 1. To improve citizens' confidence in the integrity, capacity and commitment on the Criminal Justice institutions, particularly the part of Criminal Justice officials, especially police through their becoming more capable, the police; they also being the officials with accountable and responsive whom citizens have the most contact. This 2. To develop and implement a comprehensive lack of confidence is evidently more acute for gender justice strategy, embracing the entire victims and defendants. Criminal Justice process 2. A general disregard for gender justice 3. To reinforce the fact that crimes of violence 3. A high prevalence of violent crimes against women against women and children are to be dealt and children and how these are dealt with. with by the statutory authorities 4. Uneven availability and quality of legal 4. To promote a more realistic set of legal aid and aid services and also high expectations in compensation expectations on the part of citizens respect of entitlement to compensation 5. To promote full adherence to the Convention 5. Institutional and community failure to on the Rights of the Child in respect of address juvenile justice shortcomings. juvenile justice 6. Lack of support and protection for victims of 6. To develop and expend current initiatives crime and witnesses. in respect of the care of victims and the 7. Active discrimination against Dalits across protection of witnesses. the Criminal Justice system, in spite of formal 7. To ensure effective implementation of anti- legal protections being in place discriminatory laws and procedures. Civil Justice Challenges Civil Justice Priorities 1. Absence of a pro-public service ethos within 1. Design and orient pro-citizen law, procedures justice institutions; leading to a lack of pro- and institutional reform initiatives to serve citizen attitudes, procedures and laws in the people justice administration 2. Improving access to and effectiveness of civil 2. Courts, particularly through delays, and courts, including enforcement of judgements, failure to enforce judgements have failed to so that they instil greater confidence on the provide satisfactory results, especially for part of citizens, particularly women and women and marginalised groups marginalised groups 3. Inconvenience, cost (including payments to 3. Improving access while reducing cost of officials) and risk to personal safety for those litigation, improving compliance with the code of involved in litigation conduct, strengthening complaints' mechanisms 4. Lack of effective and affordable representation and improving security for litigants. 5. Quasi-judicial institutions have low capacity 4. Improving the accessibility, affordability and and are lacking in fairness, promptness and quality of arbitration and mediation services procedural compliance as alternatives to the informal mechanisms 6. Lack of legislative base for compensation in that citizens might otherwise resort to civil law and tort liability 5. Strengthen the legal aid system and quality of 7. Poor coordination between justice sector legal representation institutions 6. Improving the quality and integrity of service 8. Substantial lack of awareness of legal rights provided by quasi-legal institutions on the part of citizens 7. Develop and implement an effective and affordable civil legal regime on compensation and tort liability

An assessment report 19 8. Improve capacity and expand the membership of JSCC to enhance its effectiveness in justice sector coordination 9. Developing a communication strategy in respect of citizen's legal rights. Informal Justice and Community Security Informal Justice and Community Security Challenges Priorities 1. Mediation Act, 2011 is not commenced yet. 1. Earliest commencement of Mediation Act and Despite of enactment of Mediation Act it is incremental roll out in districts. not a priority for government to roll out the 2. Creating new and transforming traditional Act in districts. mechanism as permanent Community Based 2. Capable, community based mediation Mediation Organisation organisations are not emerging in communities. 3. Effective supervision and oversight of the 3. Much of the operation of informal justice operation of informal justice mechanisms mechanisms undermines or interferes with 4. Establishment of a bridging mechanism the formal justice system between the informal and formal justice 4. Citizens' have limited confidence and systems trust on Police and its institution basically 5. Improvement in citizens' confidence in the functioning style of police which lead to lack statutory institutions, particularly the police of pro-citizen attitude along with lack of becoming more capable, accountable and accountability and lack of presence of police/ responsive. security units in the community 6. Challenge inappropriate mindsets through 5. In prospective constitution lowest level of formal education and anti- discriminatory measures justice providing organisation in State/Province and build equality mechanisms into donor level judicial structure is local/ Mediation Court. support to community security initiatives There is not any clear vision of jurisdiction and 7. Civil society, political party representatives functioning of such mediation Court. and district level justice coordination 6. A traditional mindset on the part of both committee members coordinate to promote men and women along with the personnel non-violent political alternatives of security institutions that hinders gender 8. Improvement in citizens' confidence in the justice and security in the community statutory institutions, particularly the police 7. Citizens' have grave concerns about the becoming more capable, accountable and current vacuum in local government, as well responsive as concerning the next stages in the political 9. Improved and coordinated policing to reduce process and its impact on local level security small arms smuggling and commission of and peace. crimes. 8. Lack of comprehensive national strategy, 10. Improved interaction of police with local adequate legislation, and policy guidelines on community. strengthen community security 11. Transformation of wings of political parties to 9. Limited investment made for developing limit their work within the law. community infrastructure technical knowledge & skill, weak communication mechanism and resources by state 10. Citizens fear the proliferation of small arms, increasing number of criminal groups active in kidnapping for ransom, looting and killing people for monetary benefits, and increasing tendency of political parties' and their sister organisations to interfere in security institutions both formal and informal. Legislative Framework, Oversight and Legislative Framework, Oversight and Accountability Challenges Accountability Priorities 1. Prospect of unplanned constitutional 1. Development of a national transition plan implementation and federalization following based on the new constitutional requirements the promulgation of the new constitution 2. Consensus on the of security and justice 2. Inconclusiveness of parliamentarian political power structures at federal and province forces on the proposal of constitutional levels provisions in security and justice sector at 3. Strengthening of parliament and its thematic federal and provincial levels committees with security, justice and RoL 3. Limited effectiveness of parliamentary responsibilities oversight 4. Emphasis on improvement of public 4. Low public confidence in parliamentary confidence in parliamentary oversight. oversight 5. Increase independence, professional 5. Ineffective constitutional oversight bodies. competence and integrity of relevant constitutional oversight bodies

20 Access to Security & Justice and Rule of Law in Nepal The following SWOT analysis provides a tabulated synopsis of aspects of institutional capacity, political economy, challenges and priorities across the Security, Justice and Rule of Law Sector.

SWOT SUMMARY SECURITY, JUSTICE and RULE of LAW SECTOR Strengths Weaknesses ƒƒ Reformers working in the system ƒƒ Attorney General highly transitory ƒƒ Supreme court leading on important court ƒƒ Ineffective and weak policing reforms ƒƒ Poor investigative skills ƒƒ Greater awareness of citizens rights ƒƒ Poor legal representation and verification of ƒƒ Presence of police generally welcomed in evidence communities ƒƒ Prison regime solely punitive ƒƒ Specialist commissions having a positive ƒƒ Political interference impact ƒƒ Poor oversight mechanisms ƒƒ Pipeline Reforms ƒƒ Criminal justice institutions poorly resourced ƒƒ Civil court verdicts generally seen to be fair ƒƒ Delays in Civil proceedings ƒƒ Speedy delivery of informal decisions ƒƒ Problems with enforcements of judgements ƒƒ Many have a high degree of faith and ƒƒ Legal aid provision uneven in distribution and acceptance in informal mechanisms quality ƒƒ Effective implementation of decisions ƒƒ Lack of public confidence in Civil process even ƒƒ Community organisations instil sense of if they have faith in the judgements security ƒƒ Quasi-judicial bodies perform poorly and lack ƒƒ Communities generally more secure than in accountability the past ƒƒ Evidence of disregard for human rights and natural justice ƒƒ Domination of traditional values that are discriminatory ƒƒ State institutions pay insufficient regard to community security ƒƒ Informal mechanisms undermining of formal system ƒƒ Many donor supported initiatives are unsustainable ƒƒ Politically motivated criminality is widespread ƒƒ Some community justice and security groups have been “high jacked” by political parties ƒƒ Structural violence, based on domination of traditional values that are discriminatory, prejudiced and reinforced inequality and exclusion, is rampant. Opportunities Threats ƒƒ Delegation of writ jurisdiction to lower courts ƒƒ Political discussions breakdown, leading to leading to more protection civil disorder ƒƒ Donor interest in supporting system's reform ƒƒ Badly managed transition to federalism could ƒƒ Putting pipeline reforms into action compound rather than relieve problems ƒƒ Provisions of alternatives to custodial ƒƒ Poor penal regime will prompt greater measures in draft bills recidivism ƒƒ Civil society can be useful ally for reformers ƒƒ Political interference will increase ƒƒ Federalism represents an opportunity for new ƒƒ Public confidence will deteriorate even further beginning ƒƒ Police reforms are thwarted ƒƒ Moves toward building links between formal ƒƒ New constitution writing process may and informal mechanisms be delayed through be delayed through community policing community policing Police reform will bring Police reform will bring greater security to greater security to communities communities ƒƒ Delays and poor enforcement of judgements prompt recourse to informal mechanisms and citizens taking matters into their own hands

An assessment report 21

OPTIONS & RECOMMENDATIONS

4fundamental challenge that the challenge the denial of justice to vulnerable international community needs to groups and still others have been subject to A address, in advance of any other, “capture” by party political interests. concerns the advisability of any engagement on their part with the Security, Justice and The above circumstances and dynamics, Rule of Law Sector in Nepal. and the prospect that there is little likelihood of them changing for the better The analysis provided by the Political in the foreseeable future, constitute a Economy review and the critiques of the strong argument for donor disengagement sub- sectors that appear throughout this from supporting the Security, Justice and report point to a profoundly weak state Rule of Law Sector and directing future that is at present incapable or unwilling, to contributions toward less bleak and more embrace the change processes necessary to fruitful environments. ensure the Sector's viability, credibility and independence from corrupt interference. A general lack of institutional and There are four major counterbalancing professional capacity, the apparent absence arguments to the above scenario and of any Sector-wide strategic direction and conclusions. the perceptions as well as the realities of officials' susceptibility to corruption and Firstly, if one of the primary reasons for coercion; combine to fuel citizens' lack of donor support to the Sector is to improve confidence in the Rule of Law institutions. the wellbeing and protect the rights of ordinary people, particularly the poor Regardless of the “new dawn” aspirations and marginalised, engagement with the that are held for the introduction of the institutional environment, either directly new Constitution and the transition to or indirectly by means of supporting civil a federal form of government, there are society, is an essential element in this. powerful vested interests within the political-criminal-police nexus that will Secondly, although the current scenario seek to retain their toxic influence on the is overall bleak, there are undoubtedly Sector. The current “dysfunctional enough” committed and honourable officials at all social-political- security equilibrium is levels through whose efforts and tenacity essential for their continuing influence and progress, albeit limited and halting, is prosperity: if the situation in the country being made in some key areas. While the either improves or deteriorates significantly Supreme Court is to the forefront in driving such equilibrium would be disturbed. change, there are other positive dynamics at play in the Nepal Police and within the Outside of the institutional milieu, many of legal profession. It would be ethically the civil society organisations associated and pragmatically inappropriate for the with the Sector, which are often in receipt international community to fail to support of donor support, reinforce rather than these positive endeavours.

An assessment report 23 Thirdly, while present circumstances year planning frame; and for that to be seen appear inauspicious, it would be wrong to as a beginning step, not an end point. underestimate the influence that is brought to bear by the international community's engagement with the Security, Justice and Rule of Law Sector. It is not being overly Joint Aid and speculative to suggest that without donor support in key areas, the situation would Coordination be measurably more pessimistic than is Assuming acceptance of the currently the case. recommendation to continue international community support for the Sector, there are Finally, although there is a danger of over- three key strategic challenges confronting investing in the promises offered by the the international community in their efforts transition to a federal form of government, to do so: it does nonetheless hold out the potential for positive, if not profound, change 1. The first of these, the challenge of within the Sector; and the international securing effective partnerships with community should be engaged to assist Government actors, has been well reform champions take advantage of the documented throughout this report. The possibilities offered. response to this has to include incentives that secure the commitment of the RECOMMENDATION current actors and which will also endure It is therefore recommended that the their predicable replacement by others international community continues supporting in an almost continuous cycle of political the Security, Justice and Rule of Law Sector: and public administrative change. but does so with caution and with the 2. The second significant challenge for expectation that progress might be slow and subject to setbacks. donors working is how exactly to balance short-term needs to provide services quickly and efficiently to poor and The time that countries need to recover marginalised groups, with longer-tem aims from conflict generally far exceeds the time to reform local public institutions so that horizons of donor agency plans. According they are capable of effectively delivering to the World Bank's review of post-conflict basic services (OECD 2006). Within the countries, it took the 20 fastest-moving short-term, long-term continuum there countries an average of 20 years to achieve needs to be space for the experimental, functioning bureaucratic quality, and 27 the prompt response to sudden need, years to bring corruption under reasonable the time- bound research and evaluation control. This did not mean perfection, but and the provision of seed-corn funds for rather adequacy (P108). Assistance to start-up initiatives. Therefore, there have fragile states must be flexible enough to to be mechanisms that respond to these take advantage of windows of opportunity circumstances, but which simultaneously and respond to changing conditions on the adhere to a sense of shared direction ground. At the same time, given low capacity toward a common strategic goal. and the extent of the challenges facing 3. The third strategic challenge for donors fragile states, international engagement is to establish mechanisms that facilitate may need to be of longer-duration than effective collaboration among them, that, in other low-income countries. Capacity in the absence of a sector- wide strategy, development in core institutions will nurture a more strategic approach on normally require an engagement of at least the part of key Government actors; and ten years (OECD 2007). that are targeted in a manner that has systemic impact. It therefore follows that, if the above recommendation is accepted, realistically, An important beginning point is the donor support to the Sector needs to be creation of a coordination mechanism considered in terms of not less than a five that provides a foundation on which to

24 Access to Security & Justice and Rule of Law in Nepal construct interventions in support of Sector example, the Supreme Court prioritises development and reform. assistance with its strategic plan over any donor initiated proposals and the other As has already been noted in this report, the end of the spectrum the Secretary to the current coordination arrangements within CIAA has made it abundantly clear that, the international community are clearly in his opinion, donor assistance to his insufficiently robust for the purpose of organisation is neither needed nor wanted. framing and implementing an intervention strategy for this Sector. This being the In terms of how donor support to the Sector case, donors and NGOs need to enter can be effectively delivered there are three into a dialogue to come to coordination distinct options. arrangements that are concrete, structured, have a specific mandate and effectively achieve their purpose. There needs to A straightforward way for donors to divide up be a set of arrangements that reflect the the responsibilities, based on their strengths diversity of interests and responsibilities, and interests in a particular area. From this that make available a platform for they would develop new programmes, or discussion, debate and lesson learning and re-focus existing ones: and perhaps share which provide a representational voice in monitoring and evaluation reports with the dealings with the Government of Nepal. International Community, by way of making lessons learned contributions to the work of others. This option is not a proposal for The arrangements for international “business as before”: rather, it is a call for a community coordination need not be more consciously planned and coordinated elaborate. Bringing more structure and a approach to individually funded and managed greater clarity of purpose to the Security initiatives than has been the case to date. and Justice Coordination Group would represent a major advance in this direction. Without being in any way “exclusive” there The major downside of this approach is that should be a greater sense of criteria for it effectively leaves aside the inexorable membership, clarity concerning what that interlinking of the sub-sectors and as a represents, the development and operation consequence the impacts of the various of an information sharing strategy and an interventions are unlikely to meet their full element of secretariat support to service potential. It is also rather loosely structured the membership and facilitate their and as a consequence there is a substantial coordinating activities. The information risk of drift toward ad hoc decisions and strategy should include the development arrangements. and maintenance of a data base of donor supported activities and publication of A second option goes one step further: in reports and programme evaluations. this approach individual donors, or donor partnerships, agree on which area or areas Beyond the bilateral arrangements that they will take responsibility for supporting donors might have with Government and, in the spirit of cooperation, identify counterparts, efforts should be made to points of synergy across the portfolio. On the engage as a representative group with inter- basis of this they would seek out and act on ministerial coordinating arrangements opportunities for common outputs and shared in the form of the Government of Nepal's activities. Such an approach would aim to Security and Justice Committees. Since render results consistent with the interlinked the donors already have a donor to donor nature of the priorities and minimise the mechanism in the Utstein Group the administrative burdens inherent in multi- formation of a Sector sub-group for donor donor programme management. coordination and dialogue with Government should be relatively straightforward. The down side of this approach would be the challenges of sequencing and timing The level of partnership with Government of collaboration: the reality that cross- counterparts that is possible will vary. For programme outputs and activities can

An assessment report 25 be difficult to synchronise can become a flexible use of resources than would be the disincentive, particularly if programmes are case in other, more compartmentalised, targeted in different geographical areas or approaches. For example if there was different central institutions. unexpected progress toward a Government strategy for the Sector, it would be relatively A third option would be for donors to enter straightforward to respond to this within into a strategic partnership that provided a the framework. On the other hand, if an jointly funded, jointly managed “umbrella” aspect of the programme was falling short programme which systematically addressed of its objectives, the option would exist all priorities within a single programme for either bolstering resources for its framework. This might entail making an improvement or diverting resources away entirely new beginning, but it would also be toward more productive interventions. feasible to bring existing activities within the umbrella framework. Taking into account the need to address all of the Sector's priority elements, the While an immediate impression might be that benefits for citizens in having a wide this represents an elaborate construction, spectrum of needs addressed within the complexities could potentially be far a single initiative and the programme outweighed by the benefits. An umbrella management flexibilities and economies programme would ensure that all priorities that are available, an umbrella programme were given due consideration, and, if well approach is the one most likely to meet managed, prove to be not only effective, these aspirations. but also better value for money than the operation of separately focused projects. The work plan outlined below sets out the key tasks and sequencing for the One of the strengths of an umbrella implementation of the strategic foundation framework is that it allows for a more recommendations.

STRATEGIC FOUNDATION RECOMMENDATIONS 1. Establish a more effective mechanism for International Community coordination; including the development of an information strategy which incorporates a continuously updated database of donor supported activities 2. Establish a formal and regular point of dialogue, negotiation and partnership with the relevant stakeholders in the Government of Nepal 3. Establish a multi-donor “umbrella” programme for the delivery of support to the Security, Justice and Rule of Law Sector

Activities Months 1 2 3 4 5 6 7 8 9 10 11 12 Agreement within international community on improved coordination arrangements and putting these into place Agreement on, and establishment of, umbrella framework for delivery of donors' support to the Sector Establishment of a framework for working partnership with Government counterparts Audit of existing programmes and the identification of baselines for future interventions Preparation of business case for short, medium and long term interventions within the umbrella framework

26 Access to Security & Justice and Rule of Law in Nepal Short, Medium & Long Term Impacts

Given that the ultimate objective is to usually be an argument for on budget benefit citizens throughout the country, the direct transfers, with the Government of international community's interventions Nepal deciding by itself on how best to need to focus on enabling the Government put these resources to work; however, it of Nepal to deliver sustainable, effective and is improbable that this is appropriate at affordable improvements in service delivery this stage. The reasons for this are that nationwide, either through direct assistance there is currently an issue of absorptive to statutory institutions or through the capacity and as mentioned earlier the lack, support of citizens' advocacy, self-help and for the immediate and medium-term future, service delivery organisations. of an integrated strategy for the Sector: taken in combination these would probably This will require partnership arrangements substantially undermine the effectiveness of with civil society and Government at both any such transfers, or see them diverted to policy and operational levels and support other areas of government budgets. to reform initiatives at central and sub- national levels. If there is not a strong link Added to this is the fact that on budget between the policy and operational levels, support has a tendency to be used by then any initiative that confines itself to governments conservatively rather than either sphere will predictably fail to have innovatively: and finally, it is worth noting significant or enduring impact. This being that the members of the Parliamentary the case, in planning any intervention Women's Caucus whom we met in the donors need to ensure that there is a bridge course of this assignment were vociferously between the central policy level institutions opposed to any suggestion of on budget and the provision of services in the field. support from donors; this stemming from a belief that it would be either wasted or In an ideal situation, the Government of embezzled. Nepal would have a well prepared Security, Justice and Rule of Law Sector strategy that Finally, from the perspective of donor donor agencies could support with resources nations, on budget support prompts: an and technical assistance. A Sector-wide strategy would represent recognition of acute sensitivity to the risks of domestic the complex symbiotic relationships within criticism of waste, abuse, corruption, and and between sub-sectors and facilitate a lack of results in donor programmes. engagement with all the interwoven cross- International actors need to be accountable Sector priorities simultaneously, from a to their citizens and taxpayers as well systemic rather than linear perspective. as to partner country needs, and these While this is evidently not currently the case, expectations can be at odds (OECD 2006). and unlikely to come about in the immediate future, a Sector- wide programme in support A more feasible option for donors is of a national strategy for Security, Justice directing resources for the Sector through and Rule of Law should nonetheless be the establishment of a multi-donor pursued as a long term aspiration. trust fund. It is widely accepted that such initiatives: as post-crisis funding Given that the challenges and uncertainties mechanisms, represent “best practice,” facing the Government of Nepal are unlikely in line with the Paris Agenda for Aid to abate anytime soon, donors need to Effectiveness and have served as important adopt a pragmatic approach to interaction instruments for resource mobilization, with the key ministries and other statutory policy dialogue, and risk and information institutions: thus support to some elements management (Scanteam 2007). of the Sector will inevitably be more intensive than that provided to others. A multi-donor trust fund would make a systematic and useful contribution to In a more ideal setting, and in the spirit the furtherance of Sector reform. Within of donor aid effectiveness, there would clearly defined parameters it would support

An assessment report 27 activities that are substantially demand as of incentive for statutory institutions to opposed to supply driven, ensure targeting engage with donors more enthusiastically of resources as well as providing a Sector- than they might have done in the past; thus wide oversight and evaluative framework enhancing donor influence on policy and for such undertakings. It could be drawn strategy. on by government institutions seeking to develop capacity or explore innovative A multi-donor fund for the Security, Justice solutions, national and international NGOs and Rule of Law Sector would address all and community level citizens' groups. With three of the strategic challenges identified the active participation of Government earlier in this section of the report and actors in the design and management of a would provide short (quick win), medium multi-donor fund would come some degree and long term support.

SHORT, MEDIUM & LONG TERM IMPACT RECOMMENDATIONS 1. While retaining an aspiration for a Sector-wide strategy in the longer term, donors should adopt a pragmatic approach to the support of Sector reform, engaging with those settings where success is more likely to be found. 2. Donors should establish a multi-donor trust fund that will provide demand driven support to the Sector's institutional and civil society stakeholders.

Activities Months 1 2 3 4 5 6 7 8 9 10 11 12 Agreement in principle between international, government and civil society stakeholders on the goal and scope of the MDTF's activities Formal establishment of the Fund and commitment of donor funds Promotion of the Fund with stakeholder interests and potential applicants Commencement of allocation of funds to successful applicants Fund fully operational

Bringing together the OVERVIEW OF DONOR SUPPORT TO themes of coordination and SECURITY, JUSTICE & RULE OF LAW impact: the following figure provides an illustration of how an integrated umbrella framework, that encompasses the operation civil of the MDTF, would hypothetically operate. It Criminal Priorities & Sequencing: should be noted that the MDTF distribution of emphasis Criminal Justice across the sub-sectors is oversight for illustrative purposes only and should not be seen as indicative of how informal donor interventions might ultimately be distributed.

28 Access to Security & Justice and Rule of Law in Nepal As is the case in other countries in a “won over” or marginalised or removed comparable position, during the conflict from positions of influence. years in Nepal, extreme armed violence dominated the political environment and Without a fundamental change in the criminality became almost the norm in the occupational culture of the police, all the many places where the rule of law could planning, community policing initiatives, not adequately be enforced. Although anti-discriminatory and other reform the country is now in recovery from the measures will have minimal impact on conflict, some of the criminal habits of the delivery of policing services to the the past still linger on, as do some of the community. By its nature, the culture in conflict generated activities and attitudes any organisation, particularly policing, is of state actors. The fundamental challenge deep seated and difficult to change; but for the Criminal Justice system, therefore, change drivers can influence or manage an is to erode steadily the causes and organisation's culture: it is not easy, and it consequences of both, rather than aspire to cannot be done rapidly, but it can be done. their rapid elimination.

The necessary changes will only come The evidence secured in the course of this about when the Nepal Police reframe: assignment points to the entire Criminal Justice system being besieged with multiple ƒƒ The role that the organisation plays, problems, but nonetheless it manages away from serving the interests of the to operate, albeit in what is generally State toward a public service ethos perceived to be a dysfunctional manner. ƒƒ The goals of their organisation, toward Notwithstanding the fact that to achieve meeting citizens' needs through any degree of sustainable reform, the providing a capable, accountable and system needs to be viewed and engaged responsive service with as a systemic whole, rather than as a ƒƒ How people in the organisation will work collection of disparate institutional roles together to achieve these goals, including and functions; there are points of potential having a workforce that is representative systemic leverage within key institutional of the community that it serves and that environments. Without implying that other is appointed and promoted on merit. aspects of the Criminal Justice system should in any way be ignored: two of the pivotal institutional leverage points are The drivers of change who will ultimately within the Nepal Police; and lawyers as bring about the necessary cultural shift in prosecutors and defence attorneys. policing are to be found in the institutional leadership, within the ranks of the organisation itself and through leverage Any effort to reform the Nepal Police exerted by civil society. Between them needs to take account of the historic and they need to create the means and the contemporary dynamics that drive its opportunities to infuse the organisational occupational culture. The NP has gone actors with new ways of looking at in one move from being an agent of the themselves and their capabilities. Public Monarch to being an agent of the State and, service values need to be communicated especially in the light of the inheritance effectively, internalised by police personnel, from its situation in many locations of and then translated into productive virtual siege during the conflict; there has methods of thinking and working. Only been little evidence of a “peace dividend” when these circumstances prevail will that would propel its transformation toward reform and innovation be guaranteed a public service ethos. A key element in the enduring success. evident shortcomings of the Nepal Police, as in any dysfunctional setting, is the fact that there are powerful actors who benefit from The Basic Principles on the Role of the current arrangements, both inside and Lawyers establish universal standards outside the organisation. Positive change of conduct and are a good place to will only come about when these are either start in considering the role of defence

An assessment report 29 lawyers. These principles include the within the police service, civil society and provision that “all persons are entitled judges. to call upon the assistance of a lawyer of their choice to protect and establish While the relationship between prosecutors their rights and to defend them in all and police should never be collusive it should stages of criminal proceedings.” As has always be co-operative: such professional been identified in the documentary and cooperation should be characterised by respondent evidence, there are concerns sharing information and advice as a crime about both the availability and quality of investigation progresses, so that prosecutors legal services provided for defendants, are not “landed” with poor quality crime especially those reliant on legal aid. Given files at the last possible moment. Indications the preponderance of confession-based are that defence lawyers need to be more convictions, concerns about the ill- assertive in their representation of their treatment of persons held in custody and clients. The Bar Association at national and the alleged denial of due process in some local levels has an obligation to assert their judicial proceedings, there is a pressing authority in terms of setting and maintaining need, not only for legal representation, but standards of professional practice. Judges for higher calibre legal representation. have a key role to play in expecting and enforcing minimal standards of professional Beyond this, the seemingly widespread, performance in their courts. They should be but objectively unnecessary, practice of more sceptical of prosecutions that are based victims of crime feeling the need to have solely on the confession made by an arrested professional legal assistance to register person, without the presence of a legal a crime report with the police acts as a representative: they should demand that further disincentive to using the formal cases brought before them are adequately criminal justice system. Legal assistance prepared, presented and defended. should not be necessary in order to report a crime and where advice or support is There is also an important role for a lay required, this should generally be the role element in respect of support to victims and of civil society advice or advocacy groups. protection of the rights of arrested persons. While paralegal groups, when they act in this With regard to the role of prosecutors: in capacity, already provide advice and support Nepal, unlike in many other jurisdictions, to victims in reporting crime; the procedure they have the dual role of prosecuting cases of itself should be neither complicated nor and protecting the rights of persons held arduous and only rarely should the services in custody. In respect of the first of these of a lawyer be considered necessary. With responsibilities, they are often hampered regard to persons held in custody, either by poor police investigation; a circumstance by statute or voluntary agreement, suitably frequently compounded by the, contrived trained citizens should have the right to visit or neglectful, delivery of police crime files the locations where people are detained to right up on the statutory time limit, and ensure that their rights are being protected. their own lack of capacity and motivation. Such an arrangement exists by law in There is a degree of ambiguity about several countries, including Britain and their powers should they detect the ill- Ireland. treatment of detained persons and, at a purely speculative level, their degree To emphasise the point made earlier in of commitment to the discharge of this respect of policing in general; modest as responsibility might be open to doubt. these improvements appear, there would undoubtedly be a considerable degree of The drivers for change who need to change resistance from vested interests, coalesce in order to improve the quality of which is why a coalition of committed and service and the confidence of the population tenacious professionals and citizens would in the role of lawyers and their interaction be necessary to drive them through: and as with the policing service are: champions with policing progress would be predictably of change within the legal profession and slow, but it would be possible.

30 Access to Security & Justice and Rule of Law in Nepal Sequencing and Priorities – Criminal Justice The road to fundamental reform in the Criminal Justice system will be lengthy and challenging. Against the above backdrop it is therefore important to consider where the potential points of initial intervention might be found. To this end the following paragraphs will explore the operational processes of the Criminal Justice system alongside the higher level sub-sector priorities as outlined earlier in this report.

CRIMINAL JUSTICE PROCES S

CRIME

Victim Fails to Report Pressurized not to Victim Uses Informal Report Mechanism

Pays Lawyer for Victim Reports to Police Support From Support in Reporting Paralegal/CSO

Complain not Registered

Victim Pays Police Police Investigate Case Passed to CDO for Judgement Suspect Arrested Ill-treated and Criminal Pays "confesses" Police/Political No Action Pressure Crime File Passed to Prosecutor Last Minute Transfer and No Time for Further Investigation

Poor Quality Court Hearing Representation Bribery or Threat to Judge

Witness/Victim Intimidation

Prison as Punishment Verdict Political Pressure: Criminal not Rehabilitation Goes Free

CRIMINAL JUSTICE PRIORITIES

To improve citizens’ confidence in the Criminal Justice institutions, particularly the police through their becoming more capable, accountable and responsive.

Regardless of the Nepal Police's shortcomings, there are internal and external drivers for change that predispose progress toward reform: and there is similar potential within the judiciary and prosecutorial service. Donors should give these their wholehearted support. To develop and implement a comprehensive gender justice strategy, embracing the entire Criminal Justice process.

While the possibility of the relevant legislation, policies and procedures being put into place is relatively good; the reality is that institutional inertia and deep seated social prejudices will provide considerable resistance. Donors should support initiatives in this area, from policy development through to implementation, but their expectations for success should be limited by the social realities and the expectation that reform will come slowly.

An assessment report 31 To reinforce the fact that crimes of violence against women and children are to be dealt with by the statutory authorities.

Supporting this should be a high priority for donors, but as with a gender based justice strategy, resistance to reform will be formidable and long lasting.

To promote a more realistic set of legal aid and compensation expectations on the part of citizens.

Given the various government pledges and constitutional provisions in respect of these, it will be very difficult to persuade citizens to have a more realistic attitude to the above. However, there is considerable potential for the rationalisation of legal aid services and donors can make a significant contribution to this process. To promote a more realistic set of legal aid and compensation expectations on the part of citizens. Given the various government pledges and constitutional provisions in respect of these, it will be very difficult to persuade citizens to have a more realistic attitude to the above. However, there is considerable potential for the rationalisation of legal aid services and donors can make a significant contribution to this process. To promote full adherence to the Convention on the Rights of the Child in respect of juvenile justice.

There are various statutory, national and international stakeholders involved in promoting the implementation of the Convention, but traditional conservative attitudes to children will have to be confronted if they are to secure tangible success. Donors should support these efforts. To develop and expand current initiatives in respect of the care of victims and the protection of witnesses.

This covers a wide spectrum of need from victims of domestic violence to informants in respect of organised crime, and current provision is patchwork. Donors should provide targeted support to efforts to support women, children, marginalised and vulnerable groups, but there is no perceptible benefit from supporting high tariff witness protection schemes in the foreseeable future. To develop and expand current initiatives in respect of the care of victims and the protection of witnesses.

This covers a wide spectrum of need from victims of domestic violence to informants in respect of organised crime, and current provision is patchwork. Donors should provide targeted support to efforts to support women, children, marginalised and vulnerable groups, but there is no perceptible benefit from supporting high tariff witness protection schemes in the foreseeable future. To ensure effective implementation of anti-discriminatory laws and procedures.

For these to be effectively implemented will require considerable changes of behaviour and attitude on the part of Nepali society in general and on those responsible for their enforcement. Donors should support this because it is the right thing to do, but should not expect early results.

With regard to the sequencing of donor It entails engagement with three key support to the Criminal Justice system, the institutions, police, judiciary and Attorney evidence points to early pursuit of the first General's Office that within which there are priority: To improve citizens’ confidence substantial drivers for reform in the Criminal Justice institutions, ƒƒ As capacity builds within these particularly the police through their organisations they can become catalysts becoming more capable, accountable and for change in respect of other reform responsive. Apart from the fact that the agendas; for example in respect of documentary and qualitative date point to improving juvenile justice or access this as a high priority for citizens, there to justice on the part of women and are two other factors that predispose this marginalised groups. option:

32 Access to Security & Justice and Rule of Law in Nepal Sequencing and Priorities: Civil Justice While there are undoubtedly corrupt the alliances for change that have been practices across the Civil Justice sector, described in the commentary on Criminal and the low level graft on the part of Justice, and the strategies that need to be court and quasi-judicial institutions adopted; are substantially the same. administrators are particularly irritating for service users, the impression provided Quasi-Judicial bodies, acting in this role by the documentary review and by or as administrative authorities, are the respondents is that, once a case goes subject of much criticism from service up before a judge, the ruling is generally users, the Supreme Court and members of accepted to be fair. the Constituent Assembly: this criticism stemming from their highhandedness, The problems arise before; in respect corruption and inefficiency. Yet, despite of access, adequate representation this, they continue to appear to be a “law and delays: and after in respect of the unto themselves”. enforcement of judgements. It is against this backdrop that citizens understandably Although citizen pressure at the local resort to the speedier and more enforceable level is an essential element in the informal sector, even if the results are often change process to making these bodies questionable in respect of human rights and more service oriented and accountable, natural justice. fundamental improvements will only come about when the government rises to the The leadership already being provided by challenge to reform the quasi-judicial the Supreme Court is a major strength in institutions, introduce service delivery the reform process. However, progress on standards, confront the pervasive low-level the ground will also require an alliance of corruption and implement an effective citizens, officials and judges committed oversight mechanism that has service user involvement. to improving the service, is the case with the Criminal Justice sector, with which Civil Justice has much in common by The following paragraphs will explore the virtue of shared challenges and shared operational processes of the Civil Justice institutional and community actors. In fact, system alongside the higher level sub-sector the overlapping contexts are such that priorities as outlined earlier in this report.

CIVIL JUSTICE PROCES S

Civil Dispute

Officials, CDO, Police Arbitration Mediation

Informal Mechanism Community Difficulty Getting Documents from Filing of Case to Court Quasi-Judicial Institutions Long Delays

Poor Quality Representation Payments to Officials

Court Hearing Adjournments

Difficulties with Ruling Enforcement

An assessment report 33 CIVIL JUSTICE PRIORITIES

Design and orient pro-citizen law, procedures and institutional reform initiatives to serve the people.

This would require a lengthy process and would fall victim to the assertion that existing provision is there to serve the people. At the heart of this priority is a desire to see a greater sense of public service ethos within the Civil Justice system.

However, the same could be said for many other aspects of the public sector. While the aspiration is laudable, the capacity of the donor community to make a substantial contribution to achieving it over a five year period is very limited. Improving access to and effectiveness of civil courts, including enforcement of judgements, so that they instil greater confidence on the part of citizens, particularly women and marginalised groups.

This is in keeping with the Supreme Court strategic plan, has a good chance of making a substantial contribution to access to justice and as such should be supported by the donor community. Improving access while reducing cost of litigation, improving compliance with the code of conduct, strengthening complaints' mechanisms and improving security for litigants.

Again, this is in keeping with the Supreme Court strategy and should be supported. Improving the accessibility, affordability and quality of arbitration and mediation services as alternatives to the informal mechanisms that citizens might otherwise resort to.

This is an important measure that is currently the subject of reform initiatives. While enticing citizens away from less appropriate informal measures will take considerable time, donors should nonetheless provide support to this initiative. Strengthen the legal aid system and quality of legal representation

This is also on the agenda for the Criminal Justice system and should likewise be supported by the donors, in expectation of positive results.

Improving the quality and integrity of service provided by quasi-legal institutions.

The poor quality service provided by these institutions is a source of considerable irritation to citizens. Donors should support efforts in this direction, but they should not expect quick results.

Develop and implement an effective and affordable civil legal regime on compensation and tort liability.

This is a complex and possibly contentious initiative which has previously met with little success. Donors should leave the resolution of this to the political, professional and judicial stakeholders.

Improve capacity and expand the membership of JSCC to enhance its effectiveness in justice sector coordination.

This is an important initiative that is likely to have positive impacts and as such should be supported by the donors. Developing a communication strategy in respect of citizen's legal rights.

While the aspiration is laudable the impact at this stage is likely to be negligible. Also, in respect of access to civil justice, given that the system is already labouring under the burden of current workloads, so increasing demand is at this stage is unlikely to be helpful. Public information initiatives as a component part of a measured increase in capacity are to be preferred. In this context, donors should not support a free-standing communication strategy.

34 Access to Security & Justice and Rule of Law in Nepal With regard to the sequencing of donor and build capacity in respect of the courts engagement with the Civil Justice system, and the judiciary; which in turn has an the evidence points to prioritising support influence on and a knock-on impact on the Supreme Court in its efforts to reform other aspects of the system.

Sequencing & Priorities: Non-State/Informal Justice and Community Security The 2008 Geneva Declaration on Armed following paragraphs provide some critique Violence and Development states that living of the informal justice mechanisms. free from the threat of armed violence is a basic human need. A more encompassing The International community has an definition of security is provided by the evident high investment in the support of World Bank Development Report (2011) informal justice mechanisms. This needs which embraces the term Citizen Security to be tailored in the light of the evidence meaning: both freedom from physical that the groups involved in these activities violence and freedom from fear of violence. often go beyond their agreed boundaries Applied to the lives of all members of a and become involved in “resolving” society (whether nationals of the country or serious crimes outside of the Criminal otherwise), it encompasses security at home, Justice system, impose degrading corporal in the workplace, and in political, social, and punishment on those found “guilty” and economic interactions with the state and fail generally to adhere to the principles of other members of society. Citizen Security human rights and natural justice. places people at the centre of efforts to prevent and recover from violence (p xvi). Another factor to take into account is the fact that in the informal justice Respondents in the USIP 2011 study environment, as is the case elsewhere indicated that the five factors that in civil society, political interests have would do most to improve security were “captured” these groups and use them for providing skill development, prohibiting their own political ends. the production and consumption of alcohol, ensuring access to secondary education, strengthening the laws and legal The informal justice should not be thought framework, and declaring bandhs illegal as alternative to the formal system (p.49). rather they should be considered as complementary to each other. However, a large segment of the population still relies The World Development Report on Conflict, somehow on informal system to resolve Security, and Development has pointed out their disputes. There is therefore, a case for the key security issues in Nepal as being: the donor community to support informal mistrust of security forces, cultures of justice sector initiatives: but care should impunity, legacy of violence and trauma, be taken that such support be only for and lack of legitimate security presence mediation and conciliation processes and (The World Bank, 2011) not for adjudication on guilt or liability. Moreover, support should enable such Citizens rely for their security and sense informal mechanisms to be operated by of well being on formal and informal capable mediators with knowledge of the mechanisms. While the content in this limitations of their role. Creating a clearly report on the role of the police and the defined route map leading these initiatives judiciary addresses many of the issues to at least the formal system's effective surrounding formal mechanisms, the oversight is also important.

An assessment report 35 I NFORMAL JUSTICE PROCES S

Dispute or Criminal Allegation

Complainant/Victim Vexatious Allegations are Approaches Informal Advised to go to easily made Justice Group Police or the Courts

Insensitive toward No Legal Support Public Hearing Human Rights

Decision/Verdict/ Sometimes not based Hearing Held Speedily Compromise on the Evidence

Enforcement Often Enforcement/Penalty Penalty can be Accomplished No Appeal Inhuman/Degrading

No Accountability or Oversight

COMMUNITY SECURITY PROCES S

Insecure Environment in Community

Community is less empowered

Process hijacked by political interests Community articulate needs

Community engaged with state institutions State response is inadequate

Response of state institutions includes improved policing Community oversight with security services

Improved criminal and civil process

Deteriorating political environment that triggers renewed insecurity Improved security

36 Access to Security & Justice and Rule of Law in Nepal NON-STATE/INFORMAL JUSTICE & COMMUNITY SECURITY PRIORITIES

Earliest commencement of Mediation Act and incremental roll out in districts.

Donor support could make a useful contribution to this process, especially as it interfaces with informal justice mechanisms.

Creating new and transforming traditional mechanism as permanent Community Based Mediation Organisation.

This is fraught with difficulties and will take time, but it is worthy of donor support.

Effective supervision and oversight of the operation of informal justice mechanisms.

This is a highly important measure to protect human rights and promote natural justice. Although it will take time to fully implement donors should give it full support.

Establishment of a bridging mechanism between the informal and formal justice systems.

Regardless of the challenges, this is a high priority that should be fully supported by the donor community.

Challenge inappropriate mindsets through education and anti-discriminatory measures.

This is a high level aspiration that will take considerable time to have any measurable impact, but it is nonetheless worthy of donor support.

Civil society, political party representatives and district level justice coordination committee members coordinate to promote non-violent political alternatives.

Donor engagement with this effort is unlikely to be successful.

Transformation of wings of political parties to limit their work within the law.

Donor engagement with this effort is unlikely to be successful.

With regard to the sequencing of donor Informal Justice an important beginning engagement with Non-State/Informal point for donors is to provide support to the Justice and Community Security it should Supreme Court and others as they attempt be noted that community security needs to establish oversight arrangements and as provided by the state are dealt with bridging mechanisms linking the informal elsewhere in this report. With regard to with the formal justice system.

Sequencing and Priorities: Legislative Framework, Oversight & Accountability Because roles and responsibilities of the legal framework, pending legislative institutions involved differ significantly drafting works, existence of oversight and from those in the other three sub-sectors, accountability mechanisms, which have not discussion of priorities and sequencing is worked to their fullest potential, need for also somewhat different. legal reform, and lacklustre ministry level preparedness to deal with the situation are The existing scenario of legislative clearly visible. There is huge possibility framework, oversight and accountability, of improving existing institutional their political economy and the perception of arrangements including CIAA, Judicial key informants lead us to the major finding Council and human rights commissions (issues taken up in the other sub-sectors are and organisations, building civil society not repeated here) in this section. linkages, and consolidating relations between key oversight institutions. As They include un-preparedness in general institutions responsible for the legislative for transition to federalism, inadequate framework, oversight and accountability

An assessment report 37 revolve around the parliament, which is of the sub- sector initiatives, provision of the place where all institutions converge, consultation with affected interests when or should converge in a democratic and making laws and policies, and consolidation accountability system; building such of efforts minimizing fragmentation and linkages is extremely important. over departmentalized approach. As these problems are at the heart of any democracy Citizens' insights and opinions also and accountability system in the context of a emphasize development of institutional developing country, the system which works capacity of the relevant institutions, is finally the system which can manage the need of making effective legislative, prioritised intervention in time space- oversight and accountability mechanisms, context, keeping a long term perspective. A building awareness of the citizens on these long term perspective allows the feed- back institutions, and providing opportunity to system to operate and deal with the issues them to know the process and outcome that emerge continuously in a living system.

LEGISLATIVE FRAMEWORK, OVERSIGHT AND ACCOUNTABILITY PRIORITIES

Development of a national transition plan toward implementation of the new constitution and federalization encompassing new legislation, legal reform and institution building in the area of oversight and accountability based on the new constitutional requirements.

This is the key building bloc, and should be done as soon as possible, paving the way for other priorities in this sequence.

Consensus on the security and justice power structures at federal and provincial levels is crucial for the environment enabling of the security, justice and the rule of law.

Once the transition roadmap is clear, the process of implementation of the constitution and federalization will also be clear, giving, among other things, leverage to reform, redesign or maintain security and justice power structures in the changed context. This priority deals with the urgency of development of legal regime in the given area.

Strengthening of parliament and its thematic committees with security, justice and rule of law responsibilities.

This is also a priority for provincial legislatures, and the autonomous regions and local bodies as the third level in a federal set up.

Emphasize improvement of public confidence in parliamentary/legislative oversight.

This should also be the priority for the provincial and third level deliberative bodies.

Increase independence, professional competence and integrity of relevant constitutional/ statutory oversight bodies.

Improve coordination between parliamentary/legislative bodies and relevant oversight institutions.

All of the above are essential elements in support across all the priorities listed progressing reform in the Security, Justice above, there is a question as to whether this and Rule of Law Sector. The dilemma should be provided under the auspices of for donors is that they also represent support to the Security, Justice and Rule of essential elements across the spectrum Law Sector, or be considered in the context of governance and public administration. of a wider support agenda to state building While there is a pressing need for donor and good governance.

RECOMMENDATION It is recommended that donors address the above priorities within the context of a wider governance programme.

38 Access to Security & Justice and Rule of Law in Nepal Sequencing and Priorities: Summary and Recommendations Drawing on the political, social and ƒƒ Both institutions have reform processes institutional backdrop as presented in already underway; albeit the Supreme this report and contained in the annexed Court is more advanced in its thinking, documentary and qualitative evidence; has made more progress and is less and in acknowledgement of the systemic encumbered by political agendas: but complexities of the Security, Justice there are also progressive drivers of and Rule of Law Sector: the following is change within the Nepal Police. recommended for consideration by donors. ƒƒ More than any other aspects of the Sector, improving policing and the operation of RECOMMENDATION the courts would have a major positive It is recommended that, within the proposed effect on citizens' security and wellbeing. umbrella framework, donors have as a first ƒƒ From a systemic perspective, both can priority the establishment of two major strands potentially influence aspects of the of activity: Security, Justice and Rule of Law Sector ƒƒ Nepal Police Reform Programme well beyond their specific mandates. ƒƒ Courts Reform Programme In the table below, those priorities from across the sub-sectors that are considered There are four major reasons for this to be amenable to donor supported proposal: initiatives are reviewed in the context of the ƒƒ Both institutions are reasonably well- potential impact of police reform and court disposed to receiving external reform programmes.

NEPAL POLICE REFORM PROGRAMME COURTS REFORM PROGRAMME

Improving confidence in Criminal Justice Institutions Developing Gender Justice Strategy Crimes against women and children to be dealt with by statutory More realistic expectations about legal aid and compensation Adherence to Convention on the Rights of the Child Care of victims and witnesses Implementation of anti-discriminatory laws and procedures Develop pro-citizen laws, procedures and institutional reform Improve access to and effectiveness of the courts Reduce the costs of litigation Improve arbitration and mediation services Improve and expand JSCC Early enactment of the Mediation Act Transforming informal justice mechanisms to community based Mediation Organisation Effective supervision and oversight of informal justice mechanisms Challenge inappropriate mind-sets through education and anti-discriminatory measures

SECURITY, JUSTICE and RULE of LAW: IMPACT on PRIORITIES

COLOUR CODE

HIGH PROBABLE IMPACT MEDIUM PROBABLE IMPACT LOW or NO PROBABLE IMPACT

An assessment report 39

RISKS & MITIGATION STRATEGIES

5ore so than would be the case to donor interventions and a preparedness in some other development to adopt a flexible approach to the realities, Menvironments, supporting the Nepal without being deflected from or loosing Security, Justice and Rule of Law Sector sight of the long-term goals. is very much an exercise in managing uncertainty. The months and years ahead The following is a short overview of the that will see major upheavals across current risk environment: of course as the governance, social and economic donor planning progresses this would environments will call for a continuous be developed to a much higher degree of monitoring of the risks that these will pose sophistication.

RISK MATRIX Risk Impact Probability Mitigation Political discus sions Focus on activities, break down leading to High Medium counterparts and locations widespread disorder where impact is least Some counterparts do not Initial focus on the Medium High engage with donors institutions that do engage Engage with champions for Change resistance from Medium High change to secure leverage within institutions for reform initiatives Reform is stalled awaiting Provide support to change new Constitution and High High processes that can proceed transition to federalism regardless of constitutional Provide more effective Reputational risk arising review and oversight from excesses of donor High Low of funded informal supported mechanisms Build in oversight measures Fiduciary risk in respect Medium Medium that mitigate against of trust fund initiative inappropriate use of Ensure that interventions Fiduciary risk in respect Low Low are feasible and well of technical assistance monitored

An assessment report 41

ANNEX SUMMARY OVERVIEW SUPPLEMENTARY POLITICAL ECONOMY ASSESSMENT

Ahe OECD (2007) urges donors to political life. Since its establishment as a take context as their starting point Hindu kingdom in 1768, Nepal has had six Tfor any intervention. It is essential constitutions: 1948, 1951, 1959, 1962, and for international actors to understand the 1990 and the current Interim Constitution specific context in each country, and develop of Nepal. During this period, Nepal a shared view of the strategic response has gone through periods of hereditary that is required. It is particularly important prime ministers, absolute monarchy, to recognise the different constraints of constitutional monarchy, democracy and capacity, political will and legitimacy. political instability.

This Annex provides additional political While there is a consensus belief that a economy commentary as a supplement to return to widespread violence and political Summary Overview section of the report. It disorder is highly improbable, the fact elaborates on elements of overall political remains that many of the drivers of conflict perspective that are of particular relevance remain unaddressed and unresolved. As to the Security, Justice and Rule of law the World Development Report (2011) and Sector and contains, for each sub-sector, many other commentaries remind us: one of a review of key relevant themes that are the key predictors of conflict in a country is discussed in already published research a history of previous conflict; especially in and other documentation. circumstances where internal and external stresses are not countered by capable, legitimate institutions. Situated between two leading Asian countries, India and China, both of which have interests in the country; Nepal is The following table, which is taken from recovering from ten years of conflict and in the 2011 World Development Report, sets the process experiencing profound changes out the continuing interplay between in all areas of its social, economic and interlinked stresses in Nepal.

INTERLINKED STRESSES IN NEPAL STRESSES INTERNAL EXTERNAL Mistrust of Security ForcesCulture of Security ImpunityLegacy of violence & traumaLack Cross-border criminalityRefugees of legitimate security presence Flood & natural disasterPrice Low income & joblessnessElectricity, food Economic shocksIllegal trade in natural & fuel shortagesCorruption & extortion resources Ethnic, gender, caste-based, regional exclusionDiscrimination in access to Regional involvement in internal Political opportunity & in representation in affairs. institutionsHuman rights abuses (Source: World Development Report 2011)

An assessment report 43 The aftermath of conflict in Nepal, as is constitutionality or otherwise of the current the case in many countries which have situation, it is indicative of Government experienced similar turmoil, has witnessed neglect at best and contrived undermining a residual continuation of a general at worst. Nonetheless, the Commission disregard for law and order on the part has had some notable successes in the of some elements of society, politically prosecution of corruption and criminality in motivated criminality, ineffectiveness of the public sector. state institutions, the impunity of powerful actors and insecurity for large sections of Since the Peace Agreement there has the citizenry. been an increasing tendency on the part of political parties and their sister Many of the respondents interviewed in organisations to impose strikes and carry the course of this review used identical out other types of protest for political and language in describing what they termed factional interest purposes all of which have the nexus between criminality, corruption profoundly negative impacts on community and politics, with impunity on the part security. of powerful actors and their associates being seen as one of the most disturbing Some respondents in this review were of manifestations of this. the opinion that the political party leaders have full control of their youth wings and According to the Transparency could “call them off” at will: others were International 2011 report, in terms of less certain and speculated that “the corruption Nepal ranked 146th out of 178 genie is out of the bottle” and could not be countries surveyed; a position that it shares easily restrained. A study of youth wings with Liberia, Iran and Yemen. An Economist conducted by the Carter Center (2011) article in May 2011 noted that: the past observed that they engaged in interference year marked scores of killings, threats with tender processes, taxation and other and beatings, linked to control of state activities that undermine political space, resources and carried out by armed groups development and public security. There was and political parties of all stripes. To many evidence that the parties are increasingly observers these problems seem to share a using them as what the Carter Centre common cause: politicians enjoy freedom to describes as “muscle power”. plunder with impunity. Rampant corruption, at all levels of government, is becoming the Regardless of how well-intentioned the definitive characteristic of the country’s political parties might be, responses to rocky transition to peace, after a decade- the final draft of the Constitution, federal long civil war between Maoist rebels and elections and the establishment of federal the state. institutions will all put further pressure on the Security, Justice and Rule of Law Sector. The Commission for the Investigation of Abuse of Authority (CIAA): has the role of an For the most part, respondents in this ombudsman, investigator and prosecutor. It review, who were not directly involved in carries out inquiries and investigations into the process, either ignored federalism in corrupt and improper conduct committed their narratives, or, when prompted on the by persons holding a public office. It has subject, gave it cursory acknowledgement. the authority to investigate all officials from There was little evidence that they had the Prime Minister to low-ranking public any substantial understanding of the servants. However, the position of Chief significance of the move toward federalism, Commissioner has remained unfilled for the seismic political shift that it represents over four years; and through membership or the complexity of the public financial departures over time, the Commission now management and public administration has no members left and operates under the challenges it will present. While there is leadership of the civil servant Secretary: a Ministry for Federal Affairs in existence, a set of circumstances that some consider they informed us that they are substantially to be unconstitutional. Regardless of the

44 Access to Security & Justice and Rule of Law in Nepal inactive: awaiting the final outcome of the crucial agency that might influence criminal Constitutional Assembly. justice system, it plays no role in the day to day operation of criminal justice system. The consequences of federalism, in whatever formulation it finally emerges, are Nepal Police are under the supervision potentially profound and far reaching for and guidance of Ministry of Home Affairs the Security, Justice and Rule of Law Sector. and are responsible for crime control and This being the case, it is slightly perplexing investigation. While they maintain central that there is not a more energetic debate criminal records, they have no facility for on the subject, even among the officials the analysis of patterns of crime, let alone most likely to be impacted by it. Much of any more sophisticated criminological the comment by respondents in the course assessments. The police have specialist of this assignment was along the lines that units focusing on criminal investigation many of the key stakeholders were opposed and information, organized and economic to the idea throughout and those who crimes, narcotic drugs, and crimes championed it, primarily the Maoists, were against women and children. Despite the now thinking the better of it. However, the existence of these departments and unit, problem is that a commitment to federalism the police lack specialist skills in criminal is a pivotal component of the peace investigation and the secure management commitments and it would be politically of relevant evidence. Police investigation impossible to attempt to change that at this processes have been described as being stage. “largely confession-centric”. (CeLRRd, 1999; CVICT 2001). The sense that federalism is the key to a greater democratic accountability to the According to the United States Institute for people on the part of the Security, Justice Peace (USIP) study Citizens Perspectives and Rule of Law institutions is countered on the Rule of Law and Role of the Nepal by a belief that it represents greater Police (2011) respondents' experiences of opportunity for nepotism, corruption and their dealings with the Nepal Police were impunity. Among those public officials predictably mixed. Poor people, Dalits, and whose role and function will be profoundly women were identified as the groups most affected, if their positions survive the likely to receive a poor response from the institutional reforms are Chief District police. Officers who currently possess a wide range of responsibilities and powers, Almost one third of those respondents who including quasi-judicial functions that could had been a victim of crime did not report well disappear with the advent of federal the matter to the police, believing that the arrangements. police would not, or could not help them. Of those who did report a crime, their level Whatever the final outcome of the federal of satisfaction depended heavily on their debate might be, the fact is that there is no perception of the impartiality, or otherwise, evidence that, at this juncture, the Sector is of the police investigation. The degree to in any way preparing for it. which victims had trust in the credibility of the criminal investigative process seems to

have a significant influence on citizens' Criminal Justice confidence in the police, regardless of Criminal justice operates through whether or not the investigation resulted in engagement of the police, the government charges or convictions. attorney, the court, the defence and the prison. These all are regulated by separate Victims and witnesses to crime cited legislations and most of them rely heavily political pressure and political interference on vertical command hierarchies of lines of as one of the most important reasons for authority. Though the Ministry of Law is a poor performance on the part of the police.

An assessment report 45 This view was somewhat echoed by police of the government in any court or judicial officer respondents, who cited lack of authority. All government attorneys, accountability, political interference and including prosecutors, are either in the corruption as key impediments to effective Office of the Attorney General or are on rule of law. Crozier and Candan (2010) long or short term attachment to other conclude that: the perceived politicisation state ministries, agencies and special of security and justice providers means that commissions. While Attorney General is a there is limited trust in local police (and political appointee of the Prime Minister, judiciary) particularly among women and formalized by the President, other attorneys marginalised groups. As a result, gender- are judicial cadres of the government. based violence is widespread and occurs The continuity of prosecution policies has with impunity (p7). been affected in recent years because the occupant of the Office of Attorney General is highly transitory, because Prime Ministers Regardless of the numerous perceived have become transitory. shortcomings of the Nepal Police, the USIP study reveals an interaction between the public and the police that is generally It is clear from the figures available that positive, but insufficient. The presence the vast majority of criminal complaints of the police in a village was seen as are settled privately or in police stations generally positive and there is a clear and go no further. It is also evident that demand for a continuous police presence normally high volumes of small criminal in the community. More than any other cases, such as traffic infringements, are consideration, citizens attitude to the police not prosecuted at all in either the courts or was shaped by the behaviour or attitude the district offices. These results validate of police officers toward them: the degree the widespread view that the contribution to which police officers showed politeness of courts of justice in either deterring and respect toward the citizen was a key or punishing crime in Nepal is almost influencing factor in citizens' perception of imperceptible in statistical terms. policing generally. The effect of interference in prosecutorial Citizens expressed the view that decision making, said to be very common improvements in police performance in Nepal, is likely in most cases to result can be brought about by providing more in cases being dropped or not even resources and training, as well as increasing begun. There are no figures available engagement with communities. This is on the number of police reports that are consistent with the view of Crozier and not referred to prosecutors or the cases Candan (2010) who hold that the Nepal prosecutors receive that they decline to Police lack the personnel, infrastructure and prosecute. equipment needed to be effective (p7). While in agreement with the need for enhanced On those cases prosecuted, the success capacity within the police, the 2010 Districts (conviction) rates in the criminal cases Survey underlined the need for greater prosecuted by district attorneys before representation of women and marginalised Courts is 72 percent (3696 in 5119 cases) groups with the Nepal Police as both a where it is 95.25 percent (2926 in 3072) practical and confidence building measure. cases before Chief District Officer (CDO) (OAG Annual Report 2010). This implies that Attorney General of Nepal is the chief legal when there are options for overlapping of the advisor to the government. The Attorney jurisdiction, the temptation would be made to General or attorneys subordinate to him take the case to CDO rather than to Courts. (known as government attorneys) also represent the government in suits in A joint legal opinion by NHRC and OHCHR which the rights, interests or concerns (2011), commenting on the consequence of of the government are involved. He has the practice of politically motivated case the right to make the final decision to withdrawals concluded that they have initiate proceedings in any case on behalf

46 Access to Security & Justice and Rule of Law in Nepal effectively served to protect politically Defence lawyers are usually independent connected individuals from criminal practitioners. The professional governing accountability, promoting a policy of de facto body is the Nepal Bar Association which impunity for the perpetrators of hundreds of was established in 1956 and currently has serious crimes. This trend has undermined 9000 plus members and 84 units all over the rights of alleged victims to an effective the country. The Bar is a non-profit making remedy in those cases, and has impeded organisation registered under the National efforts to transit for the existing culture of Guidance Act and it generates its own impunity to a stronger judicial system based resources through membership or with the on impartiality and the rule of law (p2). support of the international community. The Bar Council is established under a statute to license, regulate and promote Three additional challenges confronting the legal profession. The Judicial Mapping government attorneys are: and Judicial Assessment, March 2010, ƒƒ Most of the 25 day period specified for conducted by the World Bank, recommends the completion of investigations is, in that the legal profession introduce greater general, consumed by the police for transparency and regulation with annual investigation; with them presenting files licensing renewal, mandatory continuing to prosecutors in the final days. This has legal education and legal services complaint weakened the quality of the prosecution. offices. Being a rule of law institution, ƒƒ Though they have right to supervise the members of the legal profession are custodial situations and protect the criticized for failure to register rights of the accused, including ensuring the right of the accused to counsel; in their offices, keep accounting system and the absence of procedural rules and pay taxes to the government. The National standards they are not in position to Judicial Academy and Bar Council are perform this duty. statutorily mandated to provide training to ƒƒ Most of the attorneys are of a general lawyers, but due to inaction, the NBA has law background and in a context of proposed its own Lawyers Academy and increasing legal complexity, they often also taking initiatives to be a part of the lack technical expertise. judicial budgeting.

The Courts of Nepal are organised in Wit regard to Legal Aid services, the four three tiers: initial or trial, first appeal and models in operation are: the Court, Legal second appeal jurisdictions. District courts Aid Committee, Bar and NGOs. The courts have jurisdictions to initiate trial in many have staff lawyers, one for each court; criminal cases; however trial jurisdictions District Legal Aid Committees operate for some types of cases are assigned by the in thirty three districts and pay low fees law to administrative authorities. Appeal to lawyers in private practice. The Bar Courts exercise first appeal jurisdiction and Association legal aid scheme has a Unit in Supreme Court exercises second appeal, the Supreme Court and each Unit in all of review and writ jurisdictions largely. There the Appellate Courts. It has District Units is no separate operational system for civil in most of the District Courts as well. It and criminal cases, though separation of also has a Women's Cell in each of the the benches as criminal and civil in pilot Unit that provides legal aid to women only. district courts. Even in such settings, But one of the most acute weaknesses of judges are not assigned according to their the Bar is that it does not have its own civil or criminal expertise but according to funding for the legal aid. It depends on seniority in the career. Seniors occupy the various donors for the fund. The various criminal bench and the more junior serve legal aid initiatives provided through the on the civil bench. NGO sector are considered to be the most effective, but being time limited with regard The chapter in this report that deals with to funding from international donors, Civil Justice addresses the Courts' issues at these programmes lack any sense of greater length. sustainability.

An assessment report 47 Although it was conducted back in 2005, the system, overcrowding in prisons and many of the conclusions of the USAID lack of alternatives to custody dominate, “Study of the Legal Aid System in Nepal” reinforced by outdated Prison Act and still have currency, especially its comments Rules, deficiencies in Children Act and to the effect that: in short, the existing other related legislation. There is minimal legal aid in Nepal has not yet been widely access to justice and legal aid especially for used by the targeted groups, especially by the vulnerable and poor group of prisoners the poor, marginalized, disenfranchised, including women, children and the mentally minors and women. In most of the cases, ill, a lack of adequate detention facilities for the targeted groups are not aware or women prisoners and juveniles and very informed about the legal aid in place. On the poor physical conditions within prisons. other hand, who are informed and aware There is no major rehabilitation programme about the legal aid in place have no high for prisoners in any prison that could set confidence to it and therefore do not resort standards for other prisons. to it. One of the reasons of this is that legal aid in Nepal is not effective. Therefore, in At the latest count there were 11374 most of the cases, legal aid is not a best prisoners incarcerated while the official choice for justice seekers. Similarly, there capacity of prison buildings across Nepal is is no coordination and mutual support for 6416 (DoPM Data of Mid May 2011). between the legal aid providers. The legal aid providers neither share experiences with each other nor enter into coordinated The Juvenile Justice system suffers from efforts to make the legal aid more effective numerous shortcomings, not least of them rather they consider each other as being a lack of clarity with regard to the unhelpful actors. This sense of latent rivalry age of criminal responsibility. The system is especially among the NGOs (P10). also suffers from poorly drafted legislation and procedures, an absence of diversion schemes and provision for community The Bar Association maintains that the sentences (CAPCRON 2010). There is also international support to various legal aid a lack of provision for reintegration and initiatives has derailed progress toward a aftercare of children released after serving one door system of international support sentences in correctional home (PPR 2007). through the Central Legal Aid Committee. Cases being heard in their absence, Justice However, the Committee itself suffers from Sector actors who are insensitive to their a lack of capacity to deliver and supervise need and concerns, correction home serving any national service. as mini-prison, with few opportunities for educational and vocational programmes Prisons are managed under Ministry of and lack of frequent contact with guardians Home Affairs by civil administrative staffs all add up to major problems for children in circumscribed by police security. Prison is conflict with law (AJAR 2009). not recognized as a part of criminal justice by other agency and it is considered the The baseline survey on juvenile justice in most subordinated entity for just execution Nepal that was conducted by the Centre for of court judgement. Legal Research and Resource Development in 2010 provides a useful overview of the Under National Human Rights Plan some of the issues with regard to juveniles of Action 2004, the Ministry of Home being held in custody. At the time the review Affairs and the Department of Prison took place there were twenty juveniles in Management undertook to develop a police detention in thirteen districts, eighty Prison Management Reform Strategic Plan six in two reform homes and fifty nine in 2004- 2009. The document was developed, district prisons. recognising all the challenges surrounding resources, personnel change resistance, The table below, drawn from another part of poor management etc. However, little the baseline survey provides an indication has improved as a result. A punitive of how juveniles come to be incarcerated. focus remains the main driver within

48 Access to Security & Justice and Rule of Law in Nepal Category Juveniles in jails Juveniles in one reform home Total

Total 59 % 40 % 99 CDO 10 16 - - Court 42 71.2 38 98 Police 4 6.8 1 2.5 Others such as forest office 1 1.7 1 2.5 Don't know 2 3.4 - -

With regard to Gender issues; the Asia According to research reported by Onslow Foundation's Preliminary Mapping of (2010), female respondents overwhelmingly Gender Based Violence (2010) reported cited gender based violence as the number- that a considerable body of Nepal-based one cause of insecurity for women. In her research on the subject points to gender report, Breaking Patterns of Sexual and based violence, particularly domestic Gender-based Violence, Onslow records violence, goes unreported in many cases that men and women experience the as it is considered to be a 'family affair'. formal provision of security and justice For victims this is compounded by many in markedly different ways in Nepal. She women's financial dependency, lack of cites: the pervasive lack of understanding education and fear of social exclusion: many of gendered insecurities and the acute women preferred social pressure to stop shortage of female police and judicial violence and improve marital relationships staff as major obstacles for women rather than taking any legal recourse. approaching and using these services. Men are perceived to be better networked and connected and therefore to have more The Asia Foundation report continues to access and influence when approaching the map the institutional response to gender police or courts (p13). based violence as follows. Most of the cases reported to the police are settled through reconciliation and negotiation Although Marginalised Groups are and only a negligible number of cases are invariably cited alongside women in papers referred for prosecution. Thus, the role of dealing with issues of access to justice, it the law enforcement agency in cases of cannot be assumed that they share identical gender based violence is more like that of a challenges. Beyond this, there is a dearth of mediating body (p14). material specifically dealing with the access to justice experiences of marginalised groups. With regard to the prosecution of gender based violence; beyond it being seen as a 'family affair', even if the case is reported to the police, priority is given for settling it within the family or community before USIP Study: Respondents Perceptions of Most Discriminated Against (p 51) taking it further. According to the Asia Foundation report: this contributes to the Group N0. chances of compromise by the victim/ Dalits 6072 survivor and in most cases, women fear Women 4415 to go to courts due to social pressure and Disabled 1727 agree for such mediation (p14). Lesbian, Gay, Bisexual & Transgendered 932 Ethnic Groups 998 Added to the above are the financial Religious Groups 590 costs, potentiality of social isolation and Other 19 vulnerability to future violence that any victim of gender based violence must take No Discrimination 4730 into consideration if they are to pursue Total 11909 formal justice remedies.

An assessment report 49 As untouchability is a major social unavailability of proper paralegal services discrimination problem faced by to the prisoners are held to be the dominant Dalit communities and caste-based characteristics of the Criminal Justice discrimination is criminalised by the system (CAP 2007). law since 1992, there has been negligible legal action in respect of caste-based The documentary evidence points to: discrimination. There were only 36 cases support to victims and witness protection, lodged in this regard during 1992 to 2008 ensuring legal aid and social support before Courts where Human Rights Year to victims of crime and to suspects and Book 2006 reported 31 cases in 22 districts accused at time of arrest and detention, in a year alone (INSEC 2006). Though the the reform of corrective measures by caste discrimination and untouchability is developing and ensuring sentencing options clearly criminalised by a recent Act 2011, alternative to imprisonment, arrangements there is doubt in its effective implementation as there is lack of sensitivity in this matter of serving women prisoners by women staff among the law enforcers. and effective reintegration programmes for prisoners are essential to restore public confidence in the Criminal Justice system With regard to Socio-Economic factors: (AJAR 2011). the 2011 USIP study concludes that: while violence and illegal activities appear to be increasing, socioeconomic challenges continue to affect security and the rule of Civil Justice law across the country. Women, children and marginalised groups continue to suffer The justice system reform initiative from discrimination and rights abuses. started with the formation of the Royal Many of these abuses are rooted in societal Commission on Judicial Reform, 1971. norms, with individuals from nearly every This made a number of recommendations, section of society committing various levels including in relation to substantive and of abuse or discrimination (p44). procedural reforms in the courts, some of which were implemented in the course of time. After the 1990 political change, the Poverty, unemployment, rapidly rising Court Management Committee produced inflation, corruption and discrimination a report with number of recommendations have fuelled the divisions among citizens. to change the court management. The first According to Saferworld and IDA (2009), Strategic Plan of the Supreme Court, 2004, core areas for improvements are re-defining was a leap forward for the judicial reform crimes and addressing their causes, fighting and paved the way for many important corruptions in justice and security agencies, studies such as the Study on Organization putting an end to political interference in and Management, Research on the Scope justice and security agencies, promoting of Differentiated Case Management and transparency and disciplines, promoting Research on Court Security. The National community security and policing, specifying Judicial Academy conducted studies on the the clear mandates of agencies and ensuring Execution of Judgments, Case Flow Study equal access in justice. in the Supreme Court and Effectiveness of the Quasi-Judicial System of Justice. In In Summary: the above exists against a the meantime, Transparency International, backdrop where there is predominance of 2007 reported widespread corruption in the socially and economically deprived citizens judiciary of Nepal and a Committee formed as defendants in criminal cases and in the by the Supreme Court Bar Association prison population; there are few challenges in 2008 to assess the corruption in the to violations of procedural safeguards; trial judiciary and which corroborated the judges' are often reluctant to ensure legal recommendations of the Transparency representation; prisoners lack knowledge International. Subsequently, the Supreme of rights to legal representation; there Court formed a Committee to study is an insufficient and inefficient legal Bikritbihin Judiciary (judiciary without service; unsatisfactory sentencing; and irregularity and corruption), 2009 and this

50 Access to Security & Justice and Rule of Law in Nepal also arrived at similar conclusions and case backlog. Enforcement of judgments, made a number of recommendations. problems of access and translation are other major challenges as Nepal is in the process of constitution making. Furthermore, the According to the Supreme Court first Constituent Assembly, the judiciary, lawyers Strategic Plan (2004): the vision of the and other stakeholders are currently locked Nepali judiciary is "to establish a system of in debate about the structure of the Nepalese justice which is independent, competent, judiciary (p9). inexpensive, speedy, accessible and worthy of public trust and thereby to transform the concept of the rule of law and human rights International Alert (2010) describe the into a living reality, and thus, ensure justice situation overall as being one where: many to all" and the mission is "to impart fair and members of the public – in particular impartial justice in accordance with the the poor and those belonging to excluded provisions of the Constitution, the laws and socio-economic groups – do not use the the recognized principles of justice. formal justice sector due to the time, cost and perception that justice can be bought or influenced if the defendant is someone In the preamble to the second Strategic richer or more powerful. In many areas, the Plan (2009) the Supreme Court sought to lack of female personnel within the judiciary place issues of access to the institutions and lack of female lawyers prevents women of justice in a wider, development context. from approaching the justice services (p 19). It has been presumed that the judiciary did not have any direct contribution to the national productivity and overall The shortcomings of the courts system economic development and as such it were readily admitted in the Supreme has been deemed that investment in the Court's Strategic Plan (2009). Justice is judiciary pursuant to economic and national not only slow and cumbersome, it is also development would not be fruitful. The expensive. The court has failed to earn economic activities, investment and overall public trust and easy access to justice by economic development in countries having the general public has not been maintained. independent, competent and effective justice Public cannot experience reform through system is far better than countries where the reforms being made on the physical judicial independence is not guaranteed and aspect of the courts. It is imperative that therefore there is a positive co-existence reforms should immediately be made from between an independent, competent the initial stage of registration of case to the and effective justice system and overall execution of judgments (p 64). economic development of a country but such development and co-existence cannot be The Judicial Mapping and Judicial observed in developing countries (pD). Assessment, March 2010, conducted by the World Bank and submitted to the The review of the UNDP Access to Justice Supreme Court, in the context of reforming and Human Rights (2010) emphasised the commercial benches, evaluated judicial fact that the administration of justice cannot reform and made recommendations for avoid being impacted on by post-conflict improved court operation, case management, uncertainties and challenges: nor can it avoid conduct of the judiciary, ADR, trust to the judiciary and trainings. It made sixty nine it peace building responsibilities. Rule of Law recommendations, many of which are still to and Access to Justice—particularly initiatives be addressed. These recommendations were that empower the poor, women, minorities broke down into eight categories covering and most disadvantaged individuals to obtain Strategic Planning, Court Transparency and access justice—are inextricably linked to the Accountability Improvement, Court System peace process in Nepal and its transition to a Reform, Court Judgment Enforcement, stable, peaceful democracy (p6). Court Fees and Legal Aid Reform, Case Processing Improvement, Judicial Integrity The UNDP Review also recognises that: the Improvement and Human Resources Nepalese judiciary also struggles with a huge Management.

An assessment report 51 The Nepal Rule of Law Assessment, including the Special Court and tribunals, September 2010, by the USAID recommends is bound to prepare annual plans, which international support to challenge impunity are subject to evaluation by the Supreme and achieve the effective application of Court. The Supreme Court has used ICT the law; expanding inclusive access to and internet in its management and which justice, equal protection of the law and helped to network the judges, staff and strengthening the independence and courts. Anyone can access the cause list, professionalism of the justice sector. This order or important decision of the courts. report does not expressly distinguished However, the Supreme Court has not been between the criminal and non-criminal able to publish its all judgements (printed system, but raises the issues of delay, or electronic) and as a result inconsistency backlog of cases chaotic and poor in judgments, especially in civil cases in management of the land offices and need of widespread. On the coordination part, after legal awareness among citizens. an internal study on the effectiveness of the Justice Sector Coordination Committee, According to the Annual Report of more emphasis has been given to its the Supreme Court 2011, it has made institutionalization and coordination. progress on implementation of strategic interventions with reforms in case After the adoption of the second Strategic management, execution of judgments Plan, the Supreme Court established a through the establishment of the Execution Decision Execution Directorate and has Directorate, providing training to its staff, provided training to the staff responsible developing the infrastructure of the courts, for the implementation of judgments, it has applying information technology and media develop software, improved co-ordination strategy, strengthening inspection and with the police and expanded monitoring supervision systems, reforming the security activities. management of the courts, institutional research, institutionalising relations with other stakeholders through JSCC, On the performance of the quasi-judicial increasing access to justice and public bodies, inspection and monitoring has trust and strengthening the institutional increased, but reforming the relevant capacity of courts and tribunals. The legislation, procedures and management is report highlights the work of the different not under the jurisdiction of the Supreme committees and internal researches carried Court. out by them, such as strengthening the JSCC, differentiated case management, law The Supreme Court has conducted some reform and calendar system. internal studies in areas like case flow management, effectiveness of the Code The Supreme Court Annual Report of Conduct of the court staff and human 2011, reports on a study to implement resource management. While implementing differentiated case management that its second Strategic Plan the Supreme Court indicated that it may consume more time in its Annual Report highlights several and resources than was originally expected. achievements, but sources in the Court They have written to the government report that they do not have resources and seeking more resources in this area. technical expertise to make the progress Further, there is a current study on the that they aspire to. Further, sources confirm development of a calendar system on that so far the Supreme Court has not given each case. The Supreme Court has also priority to the reform of the civil justice conducted a study on law and procedural system, except for the specialization of reform which it presented to the Ministry of Law and Justice with the request that it be hearing in pilot courts and commercial tabled in the parliament. benches: both initiatives have been reported as either having failed or are not Because of the Supreme Court's increased functioning as well as hoped. The important emphasis on monitoring, each court, components of the civil justice system like

52 Access to Security & Justice and Rule of Law in Nepal compensation law and tort law are not from the threat of armed violence is a consolidated and promulgated yet. basic human need. A more encompassing definition of security is provided by the World Bank Development Report (2011) The Supreme Court wants international which embraces the term Citizen Security community support in the areas specified meaning: both freedom from physical by its Strategic Plan, especially in the violence and freedom from fear of violence. court and case management, through the Applied to the lives of all members of a support in providing IT resources, technical society (whether nationals of the country assistance, study tours and trainings. or otherwise), it encompasses security at home, in the workplace, and in political, In respect of issues associated with gender social, and economic interactions with the and marginalised groups, according to the state and other members of society. Citizen Supreme Court they have recruited more Security places people at the centre of women and members of marginalized efforts to prevent and recover from violence groups, but progress is yet to be made (p xvi). on recruitment from Dalit community. It may consider to run a capacity building Perhaps surprisingly, despite the increase programme for its women staff and to in disruptive political activities, political establish a special scheme targeting fresh violence, and crime throughout the country, recruitments. According to court officials, it about half of respondents in the United will take ten years to see the results. States Institute for Peace (USIP) study Citizens Perspectives on the Rule of Law The Supreme Court initially established and Role of the Nepal Police (2011) (p38) a Committee to study judiciary in the reported that, (of the 12,607 respondents) federal context, but due to some reason it about 50% felt safe always or most of the abandoned its work, but the Judges Society time, 36.1% felt safe sometimes and 14.5% it in its report to the Constituent Assembly, felt safe rarely or never. While respondents 2008 made recommendation for an residing in the hill region feel the safest; integrated judiciary in the new constitution. respondents in the Terai feel the least safe: But the judiciary has not made any internal although at a 5% difference, this is a modest study or plan to transit the judiciary in variation in perception. a federal system. However, they are to respond to any fresh initiatives through research and planning on issues arising From a more localised perspective the as a result of new federal arrangements. six-district study conducted by the They think that federalism could provide Enabling Civil Society to Contribute to momentum to begin fresh reforms in the the Democratic Reform of the Justice civil justice system by reforming land/ and Security Sector in Nepal (2010) [for property related laws and family related referencing convenience this study is disputes. The Supreme Court does not referred to here as the 2010 Districts have jurisdiction to start the initiatives, Survey] held that: in some areas, profound but is keen to collaborate with the Law and sometimes chronic insecurity for Commission, Ministry of Law and Justice ordinary citizens makes it difficult to and other related ministries or stakeholders. plan, or even imagine, broader Justice and Security Sector Reform (p39).

International-Alert (2010) reports a Non-State/Informal worsening public security situation in many parts of Nepal that: threatens the faltering Justice and peace process that began in 2006. Many Community Security people do not perceive themselves as being safe, particularly women, business people With regard to Community Security: the and communities in the eastern and central 2008 Geneva Declaration on Armed Violence Terai (p7). It further comments that: in the and Development states that living free Terai, more than a hundred armed groups

An assessment report 53 are active, seeking control over the region, interference is rife, even at this level in its resources and associated political and Kathmandu. Pressure comes from political economic power. The activities of these parties, who justify everything in the name groups are largely funded by extortion of transition (p37). (kidnapping for ransom) and power is maintained by spreading fear through With regard to Informal Justice: the indiscriminate killings and bombings. There Saferworld publication: Snapshots of are allegations that most armed groups are informal justice provision in Kaski, backed by political parties (p13). Panchthar and Dhanusha Districts, Nepal (2011) provides a useful definition of According to the USIP study the factor most the term “informal justice mechanisms” likely to engender a sense of safety within describing it thus: Informal justice one’s own community is a low level of mechanisms (IJMs) are any non-state criminal activity. The presence of the police controlled process through which people also contributes significantly to a sense of provide justice, resolve grievances and security, as does protection afforded by civil disputes and in some cases promote peace. society. In areas in which criminal activity is They include community-based informal more frequent, or more obvious; the sense systems of justice which have their roots in of security among the public decreases. the cultural traditions of Nepal, as well as The perception of a present but ineffective internationally supported dispute resolution police, as well as the absence of the police mechanisms that derive their structure and in one’s area, plays a significant role in operation from international standards for promoting a sense of lack of safety (p39). the provision of informal justice (p iv) .

Respondents in the USIP study indicated What is omitted from this definition is the that the five factors that would do most informal role frequently played by formal to improve security were providing skills actors including the police, political parties development, prohibiting the production and and local authorities in resolving disputes consumption of alcohol, ensuring access to through an approach that falls outside state secondary education, strengthening the laws laws, policies and frameworks. According and legal framework, and declaring bandhs to Saferworld (2011): political parties and illegal (p49). associated youth wings are also playing a significant and semi-structured role as This substantially echoes the World Bank's independent justice providers, particularly Human Development Report (2011) that for youth and political party members in places providing jobs as integral to progress urban areas (p45) toward achieving security and justice in post-conflict environments. The UNDP study, Local Traditional Justice Systems in Nepal (2010) (p32) specifies the According to the USIP study, citizens advantages of such systems as being: view the greatest threat to their security ƒƒ Accessibility as resting with the political parties who ƒƒ Affordability encourage, orchestrate or tolerate bandhs, ƒƒ Speedy chakkajams, corruption, theft, robberies, ƒƒ High level of legitimacy at local level vigilantism and threats of violence: and who ƒƒ Familiarity with the context of disputes parade their impunity from legal sanction ƒƒ Often favours reconciliation over with regard to the criminal behaviours punishment of their party members, youth wings and ƒƒ Simpler procedures associates. ƒƒ No language or cultural barriers ƒƒ Amicable settlement The USIP results confirm conclusions ƒƒ Less nepotism/corruption from the earlier 2010 Districts Survey This study cited a key informant who described In addition to the long-established the situation as being one where: political traditional informal justice systems, there

54 Access to Security & Justice and Rule of Law in Nepal are a number of donor funded initiatives their operation. Saferworld (2011) reported in this area that either serve as justice that in some cases the process bordered mechanisms or as bridges to the formal on arbitration, where users felt that the system; or fulfil both functions. To some mediators "convinced" disputants to arrive degree these form an additional strand of at a particular outcome….. employing justice provisions, alongside the formal, approaches that bordered on arbitration, political party, public official and traditional where disputants were "pressured" and mechanisms. "convinced" or shamed socially (p51).

At the forefront of these internationally The UNDP review of Local Traditional supported initiatives is the DFID/UNICEF Justice Systems (2010) found that within paralegals programme, which supports these systems there is domination by elite 1,300 village level paralegal committees and groups little awareness or regard for law or 75 district resource groups. human rights: favouritism is an influencing factor in the settlement process, inhuman This programme sets out to: ensure and degrading punishment is found to exist that women, children and marginalised in some dispute settlement processes (p33). groups have increased access to and utilise improved protection systems in The Saferworld (2011) study observed that: order to protect themselves from violence, most traditional justice mechanisms in all exploitation, abuse and discrimination, and three districts were found to consistently prevent its occurrence (p4, UNICEF Funding breach international and national human Proposal 2009). rights norms and standards for justice, particularly the right to a fair trial and the Although not a central element of the presumption of innocence. Although not paralegal committees' mandate; the widespread within the donor supported Proposal concludes that the paralegal projects: Traditional justice mechanisms approach has been found to be particularly were found to use physical punishments successful in mediating a wide range of (p49). cases on domestic violence. That being said, as Saferworld pointed out: It is however important to recognise that mediation is only a small component of the Paralegal Legislative Committees, which focus more broadly Framework, Oversight on raising awareness on women’s and children’s rights (p46). and Accountability Nepal is in the process of drafting a new Several reports and reviews have democratic constitution through a sovereign found much to commend the various Constituent Assembly. The new constitution informal justice mechanisms (with the is intended to progressively restructure the exception of those operated by political state in order to resolve existing problems parties, particularly their youth wings). relating to class, caste region and gender. As Saferworld (2011) put it they have: This not only means federalization and enabled women to voice their opinions and devolution of power to the grassroots, empowered marginalised ethnic groups to but also empowerment of the women, discuss issues that affect them with people indigenous people, the Dalits, Madhesis, and who enjoy social power. This is a significant other marginalized groups and communities. achievement given the complexity of the Rights of minorities and indigenous people context and the relatively short timeframe (social, religious, cultural, lingual), the Dalits during which these programmes have been and women are at the forefront. This means implemented (p 47). a guarantee of basic rights to all without discrimination, and protective coverage to Nonetheless, there is also a considerable others who were discriminated and deprived degree of concern expressed in respect of in the past for a number of reasons.

An assessment report 55 The term of the House, originally for two of Authority (CIAA), National Human Rights years, was extended for the third year, Commission (NHRC) and Judicial Council. and then again for three months, which is expiring on 31 August, 2011.By the end of The legal framework for these three this period, the expectation is to finalize constitutional functionaries has been the first integrated draft of the constitution, further institutionalised by statutory laws of and also settle the issue of the management different type and year. The principal statute of Maoist fighters, and get another that the CIAA utilizes apart from CIAA Act three month extension by constitutional 1991 is the Prevention of Corruption Act amendment. The final three month 2002. Nepal unanimously ratified the United extension is to take the draft constitution for public consultation, receive their feed Nations Convention Against Corruption, back, revise the document, and go through which Nepal had signed way back in 2003 on the remaining Constituent Assembly February 2011. The CIAA has demanded that process to pass and adopt it. the government reform the existing laws of Nepal in conformity with this convention.1 The Human Rights Commission Act 1997 While the new constitution is being drafted provides legal regime for the operation of in a very difficult political scenario – National Human Rights Commission is the ideological differences on the choice as to principal national human rights protection form of government, federal system and institution (NHRI). Originally established as electoral issues and so on, inter-party a statutory body, the Interim Constitution squabbles, the rows over formation of provided it constitutional status, but this government, the peace process, especially new status is yet to be fully reflected in the the unfinished part of the management of Act. A bill in this regard is pending in the Maoist fighters – the Interim Constitution House. in force in Nepal since 2007 is providing the framework for the government and basic oversight and accountability The Judicial Council provided by the institutions. Restructuring of Nepal by the constitution is to work on appointment of new constitution will definitely also involve judges and disciplinary action against them. restructuring of legislative framework, It is also statutorily governed. The Judicial oversight and accountability system based Council Act 1991 provides necessary on federalisation of the country. enabling provisions for its oversight and other functions. The Council has made a point in its recent bulletin that it has requested the government to provide Legal Framework necessary budget for its Committee of Inquiry.2 As of today, these institutions, though based on the interim constitutional formulations, are supported by the statutory laws and These constitutional bodies are being regulations as necessary. The Constituent modified for national and provincial Assembly which acts as the Legislative requirements. As such, the legislative Parliament for the interim period is no framework provided to these oversight doubt the supreme representative and institutions will have to be revised to meet oversight institution. It operates according the demands created by federalizations to the Constituent Assembly (Conduct under the new constitution once it is of Business of Legislative Parliament) promulgated. One can see unprepared-ness Rules, 2008. The Constitution has created for drafting of model/framework legislation three major oversight institutions: the in the sub-sector to cater to the centre and Commission for the Investigation of Abuse provinces in the changed context.

1 Twentieth Annual Report of CIAA Fiscal Year 2066/2067 (2010) at 463. 2 Judicial Council Bulletin, Poush 2067, Year 7, no 7 (2010) at p. 4

56 Access to Security & Justice and Rule of Law in Nepal oversight and accountability mechanism. Oversight and Each of the seven committees in the present Accountability House is assigned to monitor and evaluate the activities of government, and perform Mechanism oversight and accountability functions in all policy issues under their terms of The Interim constitution is roughly based reference. The Committee on State Affairs, on parliamentary system that Nepal had for example, monitors and evaluates the before 2007 with almost same institutions Council of Ministers, Ministry of Defense, and procedures. The significant exception Ministry of Home Affairs, Ministry of is the lack of upper house – the National General Administration, the Commission Assembly, mostly representing the for the Investigation of Abuse of Authority, development regions of Nepal, in the Public Services Commission and Election Legislative Parliament. Commission. The Public Accounts Committee deals with Public Accounts As stated above, while the job of the and report of the Auditor General - who Assembly is to draft a new constitution for provides audit service to the nation for the Nepal, it also serves as the Legislative- efficient management of public resources, Parliament during its term. In this capacity, accountability and transparency. Apart it performs its legislative and financial from these seven thematic committees, at role, and also performs as supreme present, there is one Legislative Committee oversight and accountability mechanism. exclusively devoted to all legislative works, The Constituent Assembly (Conduct of whatever the thematic area. With the Business of Legislative Parliament) Rules exception of the Committee on State Affairs 2008 provides for necessary parliamentary and Public Accounts Committee, which procedures.3 While these procedures are are on the media throughout the year, the functional, the parliamentary institutions performances of other committees have not of the House has been generally affected been effective. For example, the Legislative by its constitution building functions - and Committee, which is a committee of 75 politics around constitutional themes. After members, has more than four dozen bills in the dissolution of the house on 22 May the queue for clause-by-clause discussion. 2002, its reinstatement in April 2006, and The frequent changes in governments have the subsequent events, there was gradual created a problem of ownership of many of decline in representation and oversight these bills, thus delaying new legislation functions. Absence of elected local bodies and reform of the legal system. throughout the country since a decade further impacted on this environment. The The Legislative Parliament, which is background of the Mass Movement II in not enthusiastically engaged in by most 2006 and subsequent promulgation of the Members, `receives annual reports from Interim constitution and elections to the the CIAA , the Auditor General, Public Constituent Assembly helped secure a truce Service Commission, Election Commission, with the Maoists and liberalisation of polity NHRC and Attorney General through the in some significant sense, but the public President, who must through the Prime institutions gradually became less effective Minister make arrangements to present and governance suffered due to ongoing the same to the Legislative Parliament. decline of the rule of law and over reliance With the exception of the Attorney General, on the plea of transitional necessity. all these functionaries are independent oversight and accountability institutions. Nepal's parliaments have used the Their officials, except in the case of committee system as one of the key Attorney General, are appointed by the

3 There are separate Constituent Assembly Rules 2008 dealing with the House's constitution building procedures.

An assessment report 57 President on the recommendation of the using seconded government attorneys who Constitutional Council (manned by Prime act on powers delegated by the Attorney Minister, Chief Justice, speaker, three General. Yet, the Commission has been ministers designated by the prime minister without commissioners for about twenty representing three different political parties months. This holds not just for the CIAA; in the Council of Ministers, and leader it is also true in the case of other chief of the opposition party in the legislative commissioners of the constitutional bodies parliament). The government cannot like the Election Commission and Public remove the officials of these independent Service Commission, and Auditor General oversight and accountability institutions. as well. The Constitutional Council is Except in the case of the Attorney General, not able to send its recommendations if they are to be removed, it can be only for parliamentary hearing and then to with an impeachment motion passed by a the President because the parties in the two third majority of the House. In practice, Constitutional Council are deeply divided, however, most of these reports are not and the Council has not been able to meet looked into seriously, and the discussions in as frequently as required. In the case of the House, or in the respective committee, CIAA, there are press comments to the on these reports are neither adequate effect that it cannot and should not take nor effective. The feedback system also action through its bureaucracy against needs to be consolidated. All committees anybody in the absence of decisions in the House suffer from inadequate constitutionally made by the independent staffing and resources. The support of Commissioners. Nevertheless the CIAA is the experts and policy practitioners to doing it. these committees is very limited. Above all, the provisions of appointment through The performance of the National Vigilance Constitutional Council, which is supposed Centre (NVC), which is in operation since to be independent and well thought out and 2002 under the direct supervision and balanced, are misused, as the high officials control of Prime Minister is very poor. As or parties represented in the Council, a government body, which does not have instead of trying to find best candidates independent constitutional status as that for these constitutional functionaries trade of CIAA and is not directly linked with off each others candidates, and send their the parliament, it is to lead the efforts recommendation. Every party is silent on the government side to effectively about these compromises because they get control Corruption oriented acts and to their underrate candidates recommended. promote awareness against corruption. The impact of this biased procedure on the Among other things, it also collects independence, impartiality and efficiency of information on whether or not the functions these constitutional oversight mechanisms to be carried out by the Ministries, is enormous. Departments, offices of the government and public institutions are being regularly The presence of the CIAA in this sub- carried out; to alert them when there are sector is significant. It is a constitutional lapses, and make necessary provision commission that investigates and for regular surveillance, surprise check prosecutes cases against persons holding and investigation in corruption prone public offices who abuse their positions places or works. It also has power to corruptly or by improper conduct. The make necessary recommendations to the commission undertakes preventative government with regard to the policies, as well as prosecutorial functions that strategies and reformation on laws to be include advising agencies on processes adopted for corruption control. A very for preventing corruption and publishing politicized bureaucratic environment, associated promotional material. It limited governmental support, budget, and is yet to establish its presence in the the physical infrastructures at the disposal Districts through its own branches. of the NVC are its major fault lines. Suffice CIAA prosecutions are initiated by filing it to point out here that the NVC website proceedings in the Special Court still posts the photo of late Prime Minister

58 Access to Security & Justice and Rule of Law in Nepal Madhav Kumar Nepal as the Prime Minister, On the top of that the concept note and and there are no updates on the activities preliminary draft prepared by the CA and reports of the organisation since almost Committee on Fundamental Rights and haf a decade. Directive Principles towards the new constitution have increased the numbers of fundamental rights from twenty-one On women's issues, the House has its own to 31. Similarly, the directive principles formal caucus of women parliamentarians: have also been expanded creating further there is also an informal caucus of adivasis obligations of the state in favour of deprived janjatis who influence the process and and vulnerable people. This demands of its outcome from the perspective of legislative research and reform in the indigenous people. This exists apart from existing legal framework and committed the parliamentary Committee on Women, and long term legal drafting process. Children and Social Welfare. They are active, but under-resourced as oversight structures. While the Legislative Parliament There is a provision in the House rules that has allocated office space and other enables eliciting public opinion on any bill supports to the women's caucus, the adivasi that the Legislative Parliament considers janjatis are without these support and appropriate. But eliciting public opinion on official capacity. any bill is very rare. There is no functioning mechanism at work in the Legislative Parliament in this regard.

Legislative Drafting Generally, the Ministry of Law and Justice is The Interim Constitution of Nepal has the line ministry responsible for drafting and invested twenty-one articles to enumerate approving bills, ordinances, rules and orders; fundamental rights of the Nepalese and monitoring implementation of existing people. It includes both civil rights and laws and international legal instruments. liberties starting from the right to freedom The monitoring and implementing aspects to equality to the right to constitutional have backlogs. In fact, many laws need to remedy. Right against untouchability and be reviewed for their implementation and racial discrimination, right to environment reform. For example, all laws that provide and health, education and culture, operational regime to CIAA need to be revised in view of the UN Convention against employment and social security, social Corruption. All laws dealing with police, justice, labour and right to information put prison and local administration will need more commitment on the part of the state overhauling in view of the federal project of in the context of women, indigenous people, Nepal. The list will also include judiciary, Dalits, Madhesi and marginalized people. customary courts, traditional mechanisms, These rights are guaranteed through the legal profession, etc. Different draft laws on Supreme Court and other institutions. access to security, justice and rule of law for But implementation of rights like social the use of the national parliament and other security, social justice and labour require provincial legislatures will also be necessary. making of new laws with precise ways to There has not been any focus on these implement them. requirements on the part of the government.

Part IV of the Interim Constitution, which delineates the Responsibilities, Directive Principles and Policies of the State assures Judicial Council of progressive political economic and Seen against the history, the social change, and provides that the state establishment of Judicial Council to shall be inclusive for all. These policies make recommendations and give advice are to be given effect by the government concerning the appointment of, transfer creating necessary laws and institutions. of, disciplinary action against, and These provisions have not been efficiently dismissal of judges, and other matters implemented. relating to judicial administration was a

An assessment report 59 great innovation in Nepal. It was a sincere nearly six month ago has fallen into limbo effort to keep the executive at some length due to apathy among major political party as far as the appointment of judges and leaders to take action. To be entertained, disciplinary action against them was an impeachment motion requires at least concerned. The Council consists of the 25 percent of House members to formally Chief Justice (Chairperson), the Minister of begin the process and commissioning an Justice, a senior most judge of the Supreme inquiry panel to furnish a report. Even if Court, a legal expert nominated by the the inquiry finds the official on the wrong president on the recommendation of the side of the law, only a two-third majority of prime minister, a senior advocate, or an the House can relieve him of his position. advocate who has at least twenty years According to the source, party leaders, experience to be appointed by the Chief especially those from the western region, Justice on the recommendation of the Nepal have been creating hurdles. Justice Bam Bar Association. hails from the western region. In the case of two other Court of Appeal judges, while The Act lays down the modus operandi Judge Karki was terminanted, Judge Basnet of the Council, which are mostly skeletal. resigned. The Chairperson and members of the Judicial Council may obtain and study the There is much concern expressed in the documents and files of a case related to media that the Council has been very slow any complaint lodged against a judge, and in its oversight activities, and has not been may furnish information thereon to the effective in response to frequent allegation Judicial Council. The Judicial Council may, of judicial improprieties, especially in the while carrying out preliminary investigation lower courts. The Council has disclosed of a complaint received against a judge, recently that it has expedited probes constitute a Committee of Inquiry, if it has against some 125 incumbent judges across determined that a detailed investigation by the country on the issue of corruption and an expert is required. misconduct. 4 Also the Council is not obliged to submit its annual report directly to the Legislative Parliament, rather than through As the authority of commission for the the Supreme Court. investigation of Abuse of Authority is limited to the investigation of public officials and it is not empowered to investigate members of the judiciary, the Judicial Council has important role to perform in this regard. Relevant Ministries Recently, the image of Judicial Council had In the context of this sub-sector, the role opportunity to get a boost, when Justice of some Ministries is important in view of the ongoing transition in the country. They include the Ministry of Federal Balram KC, who was assigned by the Affairs, Parliamentary Affairs, Constituent council to investigate some alleged cases Assembly and Culture; Ministry of Peace of improprieties, recommended serious and Reconstruction; Ministry of Women, action against Supreme Court Justice Rana Children and Social Welfare; Ministry of Bahadur Bam and Court of Appeal judges Law and Justice, Ministry of Information & Hari Bahadur Basent and Tej Bahadur Communication, and Ministry of Home Affairs Karki. The Council's recommendation are key to Nepal in the process of transition. to parliament to initiate impeachment proceedings against Justice Rana Bahadur Bam (being a Supreme Court judge All these Ministries suffer from the amenable to impeachment proceedings) instability of changing governments and

4 http://www.myrepublica.com/portal/index.php?action=news_details&news_id=34183

60 Access to Security & Justice and Rule of Law in Nepal ministerial personalities. In view of the capacity building in developing and running commitment of the country to move toward democratic institutions in the provinces. federalism, the Ministry of Federal Affairs, Parliamentary Affairs, Constituent Assembly Constitutional functionaries like CIAA have and Culture is of utmost importance in hardly any cooperation with the government channelling efforts to establish a roadmap ministries unless cases of abuse of for federal development and development authority or other official business are of the necessary institutional structures. concerned. The efforts of the NHRC to work This was the reason why this ministry with the government and its ministries or was renamed to include federal affairs. departments are not easily reciprocated Similarly, the Ministry of Law and Justice by them. All independent constitutional as the line ministry responsible for framing functionaries are staffed by the government governmental policies concerning matters and in principle are under its control as of law and administration of justice is state employees. There is no separate expected to prepare numerous pieces of personnel service catering to all these legislation and policies especially with independent functionaries. This someway respect to the new requirements of law and limits their potential as oversight and justice administration. The Home Affairs accountability mechanisms. Ministry's tasks are no less challenging because of the need to maintain law and order and facilitation of planned devolution of power to the provinces (without affecting Human Rights service delivery, internal security and administration of justice). All these Commissions and ministries will have to work for a planned process of federalization with a clear cut Organisations roadmap over at least a period of five to In the post armed-conflict perspective, seven years. It will involve not just the the National Human Rights Commission development of framework legislation, but of Nepal has been changed into a also transfer of governance power and responsibilities to the provinces and the constitutional body by the interim local government units.5 In fact, there is constitution vesting in it the power no transitional chapter in the preliminary to ensure the respect, protection and drafts of the CA thematic committees as far promotion of human rights and their as federalization is concerned. effective implementation. It is largely a recommendatory body. Its functions include investigating complaints, evaluating existing There is little federalization consciousness, human rights, conducting inquiries and and therefore almost no coordination making recommendations on the adoption between these Ministries in the context of measures to end or prevent human rights of future planning (partly also because of violations and to take action against those coalition governance and frequent change responsible. of ministers). For example, the Ministry of Federal Affairs, Parliamentary Affairs, Constituent Assembly and Culture are all There are other institutions established still without any meaningful work except outside the constitutional framework, maintaining relations with the legislative but serving important constituencies of parliament. There is a pressing need for marginalized people: National Women greater coordination on state restructuring, Commission; National Dalit Commission early implementation measures, responding and National Foundation for Development of to demands for expert assistance, and Indigenous Nationalities.

5 See Bipin Adhikari, Roadmap to Transition to Federalism in Nepal: Lessons from Comparative Transition Experiences (paper presented at international workshop on “Transition to Federalism in Nepal" (jointly organised by Nepal Constitution Foundation and forum of Federations, Kathmandu, 27-28 October 2010)

An assessment report 61 These are not only catalytic agents for there is little commitment to get these bills the government, but also the principal enacted into laws. watchdogs in their specific areas of interest. All of them are government oversight and accountability mechanisms. There is much willingness on the part of these institutions Civil Society to help improve oversight functions; Nepal has a liberal environment for however their budgetary constraints are the functioning of civil society and substantial. An organisation such as the nongovernmental organisations. They National Dalit Commission, which is the have been involved in almost all areas key national institution responsible for Dalit of constitution building, human rights related issues, is still after about a decade and advocacy. Some nongovernmental of its establishment not able to establish organisations in the area of legislative its regional offices in five development framework, oversight and accountability regions of Nepal, not to mention the offices have contributed to the issues of rule of in the 75 Districts; solely because of the law, transparency and ant-corruption. unwillingness on the part of the government The operation of these organisations is to appropriate the necessary funding. This largely unconnected with each other, prevents the Commission from working as uncoordinated and unmonitored. There a watchdog with a broad-based presence is limited willingness on the part of throughout the country. the Government to work with these organisations as development partners; and There are two other significant human rights mutual suspicion plays a significant role. bodies to be created under the interim Some constitutional oversight bodies like constitution as part of the peace and justice NHRC have been traditionally working with process: a Commission on Disappearances civil society groups, in both the centre and and a Truth and Reconciliation Commission. districts, the partnership between them and Bills providing for these commissions are the formal institutions of state in the area of pending at the Legislative Parliament. But oversight and accountability are minimal.

62 Access to Security & Justice and Rule of Law in Nepal ANNEX QUALITATIVE DATA

Bhis Annex contains, for each sub- of the desire for revenge, a circumstance sector, a synopsis of the significant exacerbated by the shoddy criminal Tqualitative secured in interviews investigation and a belief that often cases with citizens and officials conducted in were derailed by the police coming under Kathmandu and in the course of two field pressure from political and other powerful missions to districts. interests.

All victims shared a sense of helplessness, particularly in the immediate aftermath of a Criminal Justice crime. Some spoke of a lack of community The following paragraphs summarise the support and others expressed a fear spectrum of facts, perspectives and opinions that somehow or another they would be provided by the 30 citizens and 19 officials “entrapped” in a police case: meaning they who were interviewed in the course of this would get caught up in processes that would assignment, either individually or in groups; be further endangered, becoming more on the challenges and priorities relating to vulnerable to further harm at the hands of the Criminal Justice System. their assailant or their assailant's family or associates. There was unanimous agreement on the part of all respondents that women and Respondents who were victims spoke of children were the groups most susceptible the uncaring attitudes and incivility of the to being victims of violent crime; the most police and were generally suspicious of the frequently cited reason for this was the fact sincerity of investigating police officers; and that the relative powerlessness of women beyond them, prosecutors and the courts. and children somehow made them more Having to provide details of the crime vulnerable than would otherwise be the case. against them, which sometimes entailed embarrassing or intimate matters, seems With regard to victims: respondents who to have rested heavily on some victims; had been victims of crimes of violence especially in the face of unsympathetic highlighted the fact that this created responses from investigators. They financial problems for them because of loss expressed a belief that this would not have of earning because of the inability of the been the case if they had been assisted by a victim to work, medical expenses, expenses lawyer; but few were able to afford this level incurred in engaging in the criminal justice of representation. process: and for some who had been bereaved as a result of crime, the loss of the A factor that caused considerable irritation family sole breadwinner. for some respondents was the strongly held belief that victims of past armed conflict Some of the victims of violent crime referred and those who were victims of “usual” to psychological scars and an abiding sense crimes were treated differently by the state

An assessment report 63 agencies. Government had provided some of which he had spent anyway, arranged relief to the conflict victims but not to the to have the husband charged with murder. usual crime victims, a fact perceived as He spent two and half year in prison being discrimination by “usual” victims. before coming to trial and finally the court concluded that it his wife's death was a Some respondents explained that they did case of suicide. This man had lost his wife, not report a crime to the police because four hundred thousand rupees and his their community traditions were such that freedom for over two years. He asked our they usually mediate the criminal cases in interviewer whether there was a possibility the community, and going outside of this of legal action to recover the money. would be seen as unacceptable. Regarding criminal trials, respondents Those respondents who had been believed that the court process was defendants in criminal cases claimed that an institutional arrangement to affirm police usually arrested the least powerful accusations created by police and people from the community, purely for the prosecutors. Some expressed their distress sake of saving face. Most of the respondents that the trial court did not considered their said that they felt need of legal support request for release on bail. immediately after arrest. Every respondent had experience of being hindered by the In one case a respondent reported that the police when they asked to consult with a evidence which the court used as grounds lawyer. Many respondents experienced for detaining him in custody and later what hey called “highhandedness” on the acquitted him on the grounds of the same part of the police during the investigation evidence. “I experienced that the provisions period and prosecution. Respondents for test of the legality of arrest and also complained that court failed to give detention is meaningless and verification sufficient attention to constitutional and of accusation by the court is futile" the legal guarantees. "Legal and constitutional respondent said. entitlements are decorative in the law book alone" said a respondent who served six The defendants who were released service months in the name of investigation and prison terms from two month to years trial and was released from the prison after reflected that the prison conditions are being acquitted. detrimental to the young people who are kept there as under trial prisoners. As Some of the defendant respondents believed the prison management house together that the investigating officers knew of their the detainees and convicts, criminality innocence but the police arrested and put is contaminating the innocent. Present them forward for prosecution to show the prison environment is inhumane and community that at least police has done respondents estimated 60 percent of the some thing. “Failure to identify and arrest prison population is innocent of any crime. the real offenders puts the innocents at One defendant expressed his worry on risk.” the misuse of the human resources of the inmates as there is no opportunity for An extreme variant on this was reported learning livelihood skills that they could use by one respondent who gave an account after prison life. of returning from working overseas to find that not only had his wife started an All of the respondents expressed the affair with another man in his absence, opinion that right to reparation for victims she also passed the bulk of her husband's of crime is urgently needed. Both victims remittances to her paramour. Within days and defendants were strongly in favour of of the husband's return, his wife committed the provision of compensation to victims suicide. Although the police had a clear out of government fund. According to these idea that the case was suicide; the lover, respondents this is essential to regain not wishing to relinquish the money, much people's trust in criminal justice system.

64 Access to Security & Justice and Rule of Law in Nepal Similarly, respondents expressed need of In their views existing laws and procedures clear provision for compensation from the are complex, time consuming and state to accused persons acquitted by the orientated to process rather than results. courts. They believed that such laws of procedure need to be made simple, short and result Representatives of the criminal justice orientated. Of particular concern was agencies: the police, government attorneys, the inefficiency and delay in delivery judges and court officials all stated that they of subpoena. Most also raised issues of have been rendering satisfactory services the lack of needed conveniences for the to the victims of crime, in so far as present service users: there was no waiting place, provisions allow. Although this was the drinking water, inquiry desk, toilet, canteen, case, in some instances victims and witness photocopy/fax/ telephone and other become hostile during their deposition in required facilities in the courts and other court. Likewise, representatives of criminal justice related offices. justice agencies said that they have tried their best to protect rights of suspects, The interviewees also expressed their accused and defendants of criminal concern about management, capacity and charges. fairness regarding the judicial functions of the quasi-judicial institutions i.e. Land In the group discussion held in Revenue Office, District Land Survey headquarters of the both Bara and Office and Land Reform Office. The service Dhankuta districts, criminal justice actors users at the district level in Kathmandu, expressed their strong preference for Bara and Dhankuta described how the maintaining the status quo and were clearly Land Revenue, Land Reform and Land resistant to any changes in the modalities Measurement Offices do not treat service for the delivery of criminal justice services. users with reasonable respect. They have not maintained proper record and document management, which causes delay Blame was apportioned to non-government and lack of coordination with courts and organisations for raising the expectations of other offices. the people in the name of rights' advocacy. The officials argued that state was not in a position to fulfil all the rights of the parties Some of the people who had filed and were in criminal cases as the state had priorities defending land encroachment cases of the other than access to justice. community forest were also interviewed. In their opinion government offices should be able to settle such dispute at district level. Although there was consensus on the Civil Justice inefficiency and low level corruption within local quasi-judicial offices, they were of The majority of the interviewees expressed the opinion that, in the context of the new concerns about sharing their experience federal structure such offices should have of the court system; possibly for fear devolved powers in relation to issues such that this might prejudice their case in as land management, land revenue and land some way: but in the end citizens were measurement. The members of the Judicial quite forthcoming. Once they engaged, all interviewees were enthusiastic to listen and Sector Coordination Committee also think to tell their stories: when asked challenges that such issues must be settled at the and opportunities, many were not able to provincial level, but seemed less convinced express their views succinctly, but all of that the current quasi-judicial jurisdictions them wanted to see changes in the justice were the most appropriate locus for this. delivery system and the highest priority complaints were on procedural delay Statutory based arbitration was established and corruption. All of those who had land to serve as an effective and cost-effective related disputes wanted to settle their half-way measure between unregulated cases at the local level. informal mechanisms and the time

An assessment report 65 consuming costliness of resorting to the According to respondents, implementation courts. of the court’s judgments is a serious concern for civil litigants. They commented However, all of the five respondents in this that it is difficult to posses the property area, disputants utilising the arbitration even after the court's decisions and process, expressed their dissatisfaction wanted some initiatives at the local level about delay. In each of their cases one of to implement the judgments, including party was disagreeing to initiate arbitration, increasing the role of the civil society in therefore the other party had to file implementation of judgments. petition in the Court of Appeal to appoint arbitrators. In each case a petition seeking One of the interviewees in Dhankuta was a writ of Certiorari was filed in the Supreme person who won their case in the Supreme Court and in every case at least five years Court, but failed to have it implemented. period had already elapsed. The other issue He was of a view that current laws and raised by the interviewees was about cost. structure of the court frustrate the In their experience lawyers ask for more implementation of judgments; therefore, remuneration in arbitration proceeding in he suggested that denial of implementation comparison to normal court proceedings. must be followed with sanction. Moreover Moreover, there is not any specific rule to there should be legal procedure and police determine remuneration for arbitrators cooperation for the enforcement of the court and tribunal itself has to propose its decisions. remuneration. Interviewees also expressed their concern about current provisions of the Arbitration Act which provides an Regarding level of legal awareness, option to file petition against award of the the members of the civil society and arbitration tribunal, which in turn also interviewees wanted to know about the law, creates more delay. procedure, court, government offices and their staff beforehand through different sources including by the radio and other Interviewed arbitrators also accepted that means of media. They said we know there the existence of several options to enter are laws, courts and staff, but we do not in regular court proceedings in relation know their functions, time line and services to an arbitration process has made it a provided by such offices. time consuming affair. However, in their view, in spite of possible delays, it is more efficient than the courts. They also accepted Most of the women who were plaintiffs that arbitrated disputes can prove more in the cases were left out or ignored by costly than court action. In their view, the their husbands and they sought partition appointment of Government employees as property. According to them, they faced arbitrator by the Government on its behalf, social stigma, use of force by their which is common practice in Nepal, raises husbands, discouragement by the society questions about the impartiality of the and even some times harassment by the process itself. court staff. However, in Dhankuta they were grateful to the women lawyers who provide legal aid service for them. With regard to mediation Bara and Dhankuta provide contrasting views. The complaints in Bara were about the About trust to the courts and justice procedures and effectiveness of the Court related institutions, those who were using Annexed Mediation, while in there was a court facilities still expressed hope. One more positive perception. In Dhankuta the respondent who had won their case still JSCC believes that the use of court annexed maintained that the court is corrupt. Many mediation has reduced the number of of them said they had paid small amount litigations. This view of JSCC corroborates of money to the court staff for quicker with the statements of the service users services. Some of them who had used the in respect of their satisfaction level and facility of the quasi-judicial bodies like preference to use mediation. land related offices criticized their way of

66 Access to Security & Justice and Rule of Law in Nepal operation and do not want to go again to was claimed by the CDO as illustrative of such offices. increasing faith and trust on the part of the people in the local administration. In reverse the judges think this is the mis- A respondent in a commercial case in understanding of jurisdiction by such Kathmandu cited the delay in decisions as authorities. On the other hand, most of the a problem, but still thought that the court interviewees wanted to settle some of the was better than any other place to settle small disputes at the VDC level and they disputes an indication of the belief that want such jurisdiction to be provided to the cases with civil liability like consumer local bodies. related cases must be brought under the mainstream court system instead of being dealt with by the CDO office. On the subject of legal aid, the president of the Bar Association in Bara reported that Bar Associations do provide legal aid, but Most of the interviewees think that local to a very limited degree. The district legal lawyers' capacity to use the law in litigation aid committee appears to be lacking in must be improved. They hold that lawyers' resources. Some of the NGOs are providing service must be oriented to solve the legal aid to specific groups or on specialist problems, rather than to prolong the cases. themes. Officials stated that such NGOs' The JSCC also talk about enhancing the service is not sustainable. Usually, such capacity of the local bar units, properly service exists till the projects close. There implementing their codes of conduct and is a paid lawyer appointed by court who strengthening regulatory mechanisms. provides free legal aid to a party unable to afford lawyer and to whom court agrees to Significant numbers of interviewees used provide such service. Mostly such aid is the services of Lekhandas (paralegals) for limited to criminal trails. There is lack of preparing documents and facilitating the coordination among such legal aid providers works in the government offices and courts. and a strongly held belief that often the Because of ability to speak local vernacular, quality of lawyers operating under the low cost and easy availability rural people various schemes remains questionable. are more comfortable using paralegals services. In fact respondents from rural With regard to the views expressed by areas were unable to differentiate between officials: most of the allegations on court the qualified lawyers and paralegals. management made by the interviewees in Bara were not defended by the members Private practice lawyers including the of the Justice Sector Coordination members of the JSCC had express serious Committee (JSCC), rather they tried to concern about Lekhandas' (Paralegal) justify the situation, citing the insecurity quality of services and accountability. Only and government's inability to introduce a few interviewees claimed to know about new laws, provide human resources and the availability of legal aid, some of them adequate infrastructure. The interviewees having just heard about it but did not know raised questions about the capacity of the how and where it is available. Women, court staff, such as officials' inability to Dalits and poor interviewees said that they understand language in Bara, their lacking would be happy to use legal aid. in basic skills and their ability to deal with the service users. These issues were also With regard to the use of statutory accepted by the members of the JSCC institutions outside of the courts: some of who were looking for a government lead to the civil issues which do not come within improve the capacity of staff in the court the Jurisdiction of CDO had nonetheless and other relevant offices. been dealt with by the CDO. Influential people seeking recovery of money tend The members of the JSCC highlighted the to go to CDO rather than regular court. importance of their role at the local level This saved their time and also court fees. and stated that if utilized properly the Such expansion of de-facto jurisdiction JSCC could build up synergy to reform the

An assessment report 67 justice sector, including the civil justice system. According to them the JSCC needs Non-State/Informal more resources, expansion of membership Justice and including the representatives of the users' groups and the provision of more resources Community Security to lunch capacity building trainings for the local staff and organize interactions at the With regard to Community Security: the local level. majority of the respondents stated that security situation in the community and districts has been improving in comparison Though no attempt has yet been to organize to the period of armed conflict; reporting a justice sector service users as a group, the noticeable decrease in serious violence. In JSCC considered that users groups of civil Dhankuta District the CDO reported that justice system should be involved in their the security situation of the district is, in regular meeting to improve management, the national context, above average. rectify problems in the Court and other quasi-judicial bodies. Moreover, JSCC also thought such groups could be mobilized However, killing, abduction, quarrels, to communicate with the common people smuggling, activities of underground on the law, procedure, management and armed groups and regular bandhas are service facilities of courts. The members of still the part of life for the people in the JSCC were of the opinion that regulatory Bara as reported by the full spectrum and disciplinary mechanisms and code of respondents, including political party of conducts of the respective sectors members. Moreover, there was considerable need to be established or strengthened. disillusionment expressed on account of Such mechanisms must be designed and the lack of convictions for criminals, the activated at the central and local levels. ongoing impunity for crimes committed by state actors as well as the armed groups, and the smugglers. Citizens also pointed The interviewees in Bara and Dhankuta out the deep-rooted corruption throughout thought that the court's junior staff should the system and the resulting failure of the receive capacity development trainings government and security institutions. and opportunity to exchange their experiences. The discussions with the court staff suggested that they simply do their In Dhankuta, there are no local armed regular work, by following the orders and groups but respondents were very conventional practices without appreciation concerned at the ongoing closure of or motivation. The members of the JSCC political space due to armed groups and an accepts the overlook on the (junior)staff ineffective state justice system, suffering trainings and said that annual review of from widespread political interference and the effectiveness of the law, procedure and corruption at national level. court staff must be conducted at the central and local level. It is noteworthy that the majority of the women respondents of both districts The members of the JSCC were of the view reported that there was no security at all that government should initiate reform for women in the community. They pointed plans in such offices, with the involvement out the lack of trust, dowry, and domestic of local staff. One of members of the JSCC violence, sexual abuses against women in Dhankuta, who represents civil society, including rape, polygamy, child marriage, was critical of the service provided by such and ethnic terror including gender, offices. He emphasized the need the voices caste and ethnicity-based violence are of stakeholders to be heard by the justice prevalent in the community. They thought system. He highlighted the need of civil that security mechanism is very weak; society's involvement to improve and support indicating a limited police presence and the local justice initiatives and to raise their their lack of accountability to the people as voices for justice at the local level. major reasons for this.

68 Access to Security & Justice and Rule of Law in Nepal Moreover, the representatives of women's have supported their followers by resolving rights organisations and women paralegal disputes on various issues. groups in both districts reported that they had to face threats by their male From the evidence provided by respondents, counterparts as well as by the perpetrators it is evident that, for them, institutions such while performing their roles as facilitators as the Nepal Police are not the key players and mediators. They commented that male in the provision of justice and security members in the community think that the system in their communities. They are women have taken over their roles and secondary players and, if anything, play a power / authority in the community that role only if a dispute/problem is not solved they have been exercising since many in the community through other informal centuries. means. When people discussed the security and justice mechanism/system in the Women from the Dum community (the community, there was a clear impression Madhesi Dalits) also explicitly said that the that there were no presence of national police do not response and protect them actors such as police, VDC personals and from cast- based discrimination despite other state institutions in the community, the laws which prohibit the people from which could play a lead role. practicing such discriminations. They reported that the so-called high caste people do not let them use public water Although the crisis-levels of conflict-related resources and there is always a possibility abuse are past, there is still a substantial of tense between so- called high caste gap between the prevalence of abuse and people and low-caste people, which is the capacity of the national actors to deal always a cause of insecurity. In addition, with it. While the Peace Committee in the larger volume of alcohol consumption in Dhankuta district is working effectively the community and lacking of saving habits this is not the case in Bara. Political parties' are another causes of insecurity in the wings in Bara district expressed concern community. that the Maoists continue to be targeted by underground armed groups; composed, they believe, of ex-police officers. As for the There are two major contributors to future, respondents voiced grave concerns community security in Nepal: formal and about the considerable uncertainties informal actors. The police are the formally surrounding the next stages in the political designated institution to provide the citizen process and the consequent impact on local with protection and promotion of security levels of security and peace. in the community, safeguarding citizens from violence, threats and crime. However, the majority of respondents perceived With regard to Informal Justice: traditional Village Development Committees and tribal, ethnic, cultural dispute resolution Municipalities, as well as informal justice mechanisms have existed in Nepal for mechanisms as more effective guarantors centuries. Khata Yanzi system in Eastern of security. Sherpa Community, Badhgar System in Tharu community in Bardia, Mukhia System in Upper Mustang, Manyajan System in A considerable diversity of informal eastern Yadav Community are still in groupings is actively engaged in providing existence. Most of such systems possess a security and justice to community combination of mediation and arbitration. members. This includes community level women's groups, mothers' groups, local peace committees, both at district and Respondents reported that in the past VDC level in Dhankuta, and paralegal as there were many examples of traditional well as traditional practices like Anjuman justice practices in the community, but it is in Muslim and Shir Uthaune in Limbu. a widely held opinion that these are slowly Additionally, in many instances, various disappearing. For instance a respondent wings of political parties also offer security from Bara district commented that to their followers and cadres: claiming to Mukhiya, Manjan in the Dum community

An assessment report 69 and Anjuman in the Muslim community with several types of civil cases, family used to practice traditional means of justice issues, marriages, divorce, and property- in the respective communities, but no related issues and so on. The structure longer do so. Similarly, a respondent from of Anjuman is based on different levels: Dhankuta stated that the practice of Shir Madarasa, Masjid and Maptab. But Shir Uthaune in Limbu community is fading out. Uthaune in Limbu community is confined to a few rural VDCs in Dhankuta and The evidence is that in Bara all traditional Therthum districts. systems of dispute resolution are diminishing. Nomination of traditional Regardless of examples of where they positions such as Mukhia (Head of the linger on, the distinct impression is that Community), Manya-Jan (Respected Man) longstanding traditional mechanisms within specific community is no longer are slowing being taken over by political practiced. A recent trend has been to party leaders, community organisations, organize specific religion or cast groups influential individuals, paralegal groups, as NGOs. For example all Muslims of women's groups etc. the district has registered a NGO named "Muslim Sewa Samaj" (Muslim Service Society). Similarly, Yadavs have also An indication of the changing times is registered " Gopal Sewa Samaj". Both to be found in interviews with villagers of the organisations claim to have their from outside Kalaiya Town who utilised presence at village level. Both Samaj also community based mechanism to resolve claim that any dispute within the Muslim dispute in their village. However, whereas Community or Yadav Community is resolved traditionally, elderly people of the village by the respective organisation itself. were nominated as the decision makers, Except for some hypothetical cases any now school teachers, political leaders and specific example of such resolution was youth wing leaders are nominated. not provided by any organisation. In these organisations there is no participation on All respondents reported that, whatever the part of women. other shortcomings there might be within informal mechanisms, they produced Interviewees in Dalit (Dom) dwelling prompt results. Equally, all also accepted area within Kalaiya Town also said that that these mechanisms tend to be biased they have not nominated any community toward rich, socially and politically leader (Manya Jan) in the last 20-25 years; influential parties. Punishments given by indicative of traditional values eroding in such systems are sometime degrading and such communities: now they rely on other humiliating and public hearings detailing mechanisms for security and justice. None the cases of assaulted women is considered of the respondents in the Dom Community normal. Coercion is common and most of had any experience of court or litigation in the interviewees said that intimidation and Kalaiya. All interviewees were of the view “mild torture” against accused is normal that, in the case of any dispute, they would practice. prefer to go to Thana (Police Office) or local elected member of Town Council (when there A case that stands out as an example of was). Paradoxically, all of the interviewees the inappropriateness of some informal from Dom/Dalit Community complained interventions is one where rather than about discrimination and poor behaviour reporting the matter to the police, as they toward them on the part of the police. had wanted to; the family of an individual who had been murdered was coerced into However, against the trend toward other accepting the intervention of informal justice mechanisms, still to be found institutions to resolve the matter with within the Muslim community in Bara is award of compensation. The second case the traditional practice of Anjuman; where is one that illustrates how the informal decisions are based on the Koran and mechanisms were utilized in order to Islamic principles. These mechanisms deal undermine the criminal justice system.

70 Access to Security & Justice and Rule of Law in Nepal In contrast to the above example of pregnant in relationship with a third person, informal justice mechanisms conspiring to in the absence of her husband. Women undermine the rule of law, during the field used undue freedom in absence of their visit the review team met with a 13-year- husbands, ignoring their responsibilities old girl victim of rape who visited a local to family. We tried to convince them to women's group seeking justice and security control their feelings. Men work hard to and who was helped in her efforts to do so: earn money but wives spend the money as described in the case study below. unnecessarily. In the case of the above mentioned woman, she could not tolerate pressure from society at the end and so one In defence of the informal systems engaging day she committed suicide. We are so sad with criminal cases, a respondent from for her and her family. Women should not Bara said that they have settled in the forget their limitations. There is a saying community cases of sexual abuse, rape, that our body is our enemy. polygamy, and even some murder cases through the traditional mechanism. The argument was that they did not have any choice since even from the formal justice system (court) victim do not get any justice Legislative and compensation (the most of the people Framework, Oversight define justice in terms of monitory value they receive), and even if the court provides and Accountability justice, it takes too long. The following paragraphs provide an account of the spectrum of insight It is too early to say about the performance and opinion provided by wide range of of the Para-legal groups in both districts. parliamentarians, officials, representatives The para-legal groups were recently formed of international organisations and those and reformed where the team visited. International NGOs that are operating They have been working in the community primarily at the legislative and policy levels. but they were not well informed about As with other aspects of this report this their roles and responsibilities. Although does not represent an exhaustive study of apparently lacking in the skills and the full panorama of interests, but rather knowledge on mediation but the members seeks to shed light on the major salient were confident about their expertise and issues from the perspective of a select effectiveness in mediation work. group of diverse informed and influential key informants. A traditional mindset is highly prevalent in both men and women in the community. The The questions posed to each respondent members of women groups and paralegals were: are also not immune from this mindset. ƒƒ What, from your perspective, are the Particularly, they seem very judgemental challenges and opportunities faced about women's moral character, particularly by citizens, particularly the poor and in relation to sexuality, so there instances excluded groups, within the context of reported where they did not provide the legislative framework, oversight and security to women but, rather, re-victimized accountability issues as they relate to those seeking their help. Access to Security and Justice and Rule of Law? The following statement made by a ƒƒ How might the relevant institutions be member of a woman's group serves to strengthened? illustrate the point. The consequences of ƒƒ What are the options for improving the foreign employment are very huge in our impact of international support over the communities. One woman just eloped with coming three to five years? other man, leaving two young kids at home. In another instance, one woman recently The following paragraphs provide a committed suicide because she became summary of the informants' responses to

An assessment report 71 these questions and some of their opinions experts like lawyers, reporters, marshals, on related issues. and parliamentary committee level staffs. Some of them are pulled from government services. While marshals are received from Nepal Police, they are under the Institutional Capacity functional control of the secretariat. A few This is a highly emphasized intervention. marshals are also taken on contract by Parliamentarians and officials saw limited the secretariat from the ranks of retired budgets and resources, lack of education Nepal Army officers. Their capacity and training opportunities, low salaries and development is a very important aspect of resulting poor motivation as contributing capacity building initiatives. Newly elected to poor institutional performance. What legislators, especially the first timers, need limited training there is like exposure such support more than others. Focus of trip abroad on particular training offers legislatures means improved capacity at available is technocratic basically one level, but focus on the capacity of the focusing on current problems and past members of bureaucracy means improved perspectives, rather than providing higher capacity at all levels. This reality has not level capacity building. One consequence been well recognized. of the institutional shortcomings was that the more able officials had a tendency to move to more lucrative institutions and others had a limited commitment to their Citizens’ Awareness employers. Citizens are more aware today on what is happening around than ever before. More and more civil society organisations are working As far as strengthening legislative as thematic or pressure group organisations. framework is concerned, the parliament Parliament is now much closer to civil society secretariat does not have a modern and groups. However, citizens' awareness of functional capacity building division legislation policies and institutions is not that could focus on consolidating and even across all areas. Several legislations modernizing oversight and accountability which are vital for the economic and functions. There is a committee on capacity financial health of the nation are not fully or development at CA which has virtually no adequately reported. When they are reported, programme calendar. After the election the interpretations given are mostly from of 2008, the members of the constituent politicians and senior leaders. assembly (or legislative parliament) have been given the opportunity to take part in different orientation programmes abroad Analysis of new legislation or discussion and are taken on overseas field visits. Many on the theme of legislation before they of them were able to further focus on the are finally passed is not reported in the technical aspects of constitution making. newspaper or the electronic media. The However, these trainings were sporadic, capacities of the journalists who report decided in most of the cases by donors with these issues are inadequate in several little or no consultation with the constituent cases. Sensational issues get priority over assembly secretariat. Some prominent issues which are economically important members had more opportunities in this for the country. What is seen almost as a regard than others. trend is that the news is not well analysed and the message given to the people is politically biased. This has impact on the What has been observed is that the citizens' awareness of legislation policies capacity development under this type and institutions. of intervention no longer focuses on all the areas where capacity is needed. The constituent assembly secretariat, or the It must also be pointed out that Kathmandu parliament secretariat of the past, has is the centre for parliamentary news. It is its own bureaucracy which includes not the people of Kathmandu who are mostly just administrators, but also thematic the target of information dissemination. By

72 Access to Security & Justice and Rule of Law in Nepal and large, the people in the hills and plains, Policy decisions, which are made at those outside the vicinity of Kathmandu, the ministry or departmental level, are are hardly considered stake holders by generally made without consulting the the media. Their stakes and immediate immediate stakeholders. The drafting of priorities hardly get attention. the bills on civil procedure code, criminal procedure code and sentencing statute was a significant exception. Even if some Although, the mushrooming of local FM formalities are made, their opinion is not radios and community endeavours have the basis on which policy decisions are given scope for wide spread reporting and made. The empowerment of people at dissemination, free flow of information from this level requires involvement of effected Singha Durbar (the government secretariat) interest – more so in the case of Dalits, to the villages and other rural areas is not Janjatis, Madhesis, etc at the level of ensured from the parliament. There is no inception of the idea itself. Therefore, feedback system either. when the policy itself comes from the bureaucratic level, the idea of translating these policies into law is also very difficult. Consultation with This needs to be taken into account in the Affected Interests reform process. In principle, the governmental system There are, as noted frequently, in general and the sub-system of the constitutional bodies like CIAA, Office of parliament mostly recognizes the Auditor General and the NHRC and others. importance of consultation of affected All these institutions are important in interest in the oversight and accountability the constitutional scales but they do not procedures. All those interviewed regularly sit with the common citizens. agreed that citizens should have the full opportunity to comment of new legislative Consultation with affected interests at measures and amendment of existing the level of clause wise discussion in the laws of the country. This theoretical Legislative Committee is also almost non- understanding, however, needs to be put existent. Many of the members are ignorant into practice. of the importance of this process. Even high profile members hardly take interest in it. Most of the bills are introduced in the parliament are passed without the Mostly news in which a particular political necessary discussion in most of the party has stake gets to the media. But news cases. At the committee levels, in-camera without banners does not go well even if proceedings have been opened up in recent many people want it. This limits democratic years, and it is there that discussions on space for oversight and accountability. the oversight and accountability issues are held. It is in the Legislative Committee that clause-wise discussions are held on the bills. While this committee is overwhelmed Effectiveness of with its works, the other committees are deprived of holding discussions on the Legislative, Oversight bills that concern their oversight and accountability responsibility. In the past, and Accountability these procedures used to be applied consistently but in recent years, rules are Institutions not uniformly applied. Political decisions Most of the people interviewed agree that are made without giving credence to the political environment in the country the procedure of the formalities. In this has been at the low ebb for many years. environment, affected interests have very This has affected the conditions of the little time to network with their groups and rule of law, due process requirement, and influence the legislative process. recourse to the courts and tribunals. The

An assessment report 73 effectiveness of legislation has not been and maintain accountability is crucial to much discussed. More or less, the system maintain quality of governance. seems to be stable on this ground. However, there are problems with oversight and Constitutional bodies, right from the accountability. Elections Commission, Public Services Commission, or the Commission on the The operation of any sub-system requires Investigation of Abuse of Authority to political commitment. Due to instability the Office of the Auditor General must in the government, the system of political have greater roles in the parliamentary control is ineffective, or straightforwardly process. The importance of the National does not work. Moreover, politicians have Human Rights commission cannot also been found to have nexus with senior be emphasized. At present, whatever the bureaucrats, leading to abuse of the legal constitutional commissions produce as process and corruption. The accountability their annual reports, they are submitted to system in the political parties is very weak: the head of the state, who in turn requests internal procedures are behaviours are the prime minister that they be placed not regulated. This is one of the reasons in the parliament where discussions are that the call of the Judicial Council to start held on these reports, if required. The impeachment proceedings in the case of parliamentary feedback on these reports a Supreme Court Judge is not still taken is generally very limited. Reports of up. There is no transparency in respect of commissions like the Rights to Information the income and disbursement system of Commission hardly get tabled because political parties. Party leaders do not have they are governmental commissions, not the tradition of voluntarily disclosing their constitutional, although very important in income; and the ordinary cadres of the the life of common people. These reports party hardly have that power and clout to hardly make national news. The statutory demand it. and government decreed commissions, which are also not sufficiently connected The role of the Public Accounts Committee with the parliament, must be connected is very important in any parliament system. well through necessary institutions and This is the committee which ideally looks procedures. into the income and expenditure of the estate and how they are spent in regard It is rare that the parliament ever has to the laws of the country. It also makes constituted a taskforce on any of these ministers and the seniors bureaucrats reports to study the document intensively accountable. However, this committee and suggest measures that could be taken is not as effective as it used to be a few to improve their oversight system. This years back. The interaction with the naturally affects accountability towards the Minister and concerned Secretaries is citizenry. more confrontational than interactive. The government is quick to make commitment In the interaction with the members of on the demands of the committee members. parliament and of the staff of the legislature There is little follow up. Ultimately, very few it was emphasized that the internal rules of the Committee‘'s demands get responded of procedures should be revised and well. strengthened; the committee system modernized, the library and resources at Only a few of the Secretaries of the the legislature upgraded and institutions Government who are called in the and procedures must be established to committees to respond to the members deal with issues surrounding bills in the are efficient. What has been found is that parliament. They also said that reform of the secretaries coming from the Finance Constituent Assembly (Conduct of Business ministry, Law etc are much more efficient of Legislative Parliament) Rules and than the others. Their cooperation with the anything that replaces them under the new Committees where they are asked to come constitution must be updated (requiring

74 Access to Security & Justice and Rule of Law in Nepal selection of the chairperson and members of the thematic committees based on their Impact of the educational background, interest and Transition to a thematic experience; strict attendance of legislators and their participation in the Federal System of house proceedings; division of labour, etc). Government Nepal has been declared a federal state by the interring constitution. However, Degree to which except for this declaration there is little Responsibilities are in the constitution that shows federalism in action. It is the new constitution Fragmented/Over- which is expected to provide for federal Departmentalised arrangement. Most of the citizens interviewed held The main stake holders of federalism that the system that is in use in Nepal is are Madhesis, janjatis, and the people of fragmented and over-departmentalised. deprived or marginalized regions. There Efforts on interdepartmental or inter- is some support of federalization project ministerial coordination are made in most among the dalits and women as well. of the cases. The Nepal Peace Trust Fund However, the latter groups are not much at Ministry of Peace and reconstruction keen on this issue, rather look at more is one example. However, they are not state focus on their plight. The government quite effective. Although all allocated officials have mixed feelings. Some of funds have been disbursed, people (in them emphasized that in the absence of this respect conflict victims, indigenous political stability, federalization initiatives and marginalized communities, and might end up creating a further chaotic fighters who are yet to be rehabilitated) situation. They emphasized the need for the are generally unhappy with it. The co- political parties to be realistic in espousing ordination at departmental or ministerial federalist concerns. levels is mostly at mid-level bureaucrats, and decisions are mostly top down. For example, it is important for the Nepal Peace It is generally expected that federalism will Trust Fund to deal with youth wings of empower the people at the provincial level different parties, including the YCL of the as well as those in the grass roots within UCPN (Maoist), but has been substantially these provinces. Many of the governance neglected by the Ministry of Peace and issues and grievances of common people Reconstruction. might be tacked at grassroots and provincial level.

Policies are developed within each ministry according to the subject beforehand. These Federalization will involve closely work policies are then progressed into legislative with international donors. There is concern measures, which are endorsed by the at informed level that Nepal Development concerned department or ministry. Once Forum has not been able to hold its meeting the ministry gives clearance, it is sent to since 2008. So it has not been able to the Ministry of Law and Justice for legal espouse federalization issues at that level. inputs and drafting. This Ministry gives the Gender issues have not fared up much in measures developed by any line ministry the federal dialogue, nor the issues of Dalits. the final approval and revises the bill technically. These bills are then sent back to the line minister at the parliament. Many sectors are interrelated and require more Civil Society coordination and interdisciplinary input. The informal janjati caucus at the This means delay, but also efficiency in the legislature was very keen to emphasize policy formulation process. that indigenous people‘'s organisations

An assessment report 75 have received scant attention from janjatis are generally firm that identity the donors. They have not received related issues must be handled by way donations as much as they have share of federalization. Whatever transitional in the population of the country. This issues are envisaged, they all should have has helped perpetuation of existing access to decision making structures. In inequalities in Nepal‘'s development. In the absence of this, the deprived people order to check it, janjatis must be allowed will feel that they are cheated out this to lead and manage their development time around as well. projects themselves; no intermediary is required. They must give opportunity to Some key informants also highlighted "good" persons, rather than articulate the fact that there has been so much of persons. Vested interests in the top are advocacy and awareness programme by patronizing injustices. So the projects the NGOs with the donors‘ money. It is like JEP (Janjati Empowerment Project) high time that the donors now also meet should be a model. This type of project the expectations that they have aroused must also be launched for women, Dalits everywhere. In the area of economic, social and Madhesis. This is the point of view and cultural rights, the government cannot of all Dalit citizens, which included escape now, and there is no escape for the professionals as well, think. Madhesis and donors as well.

76 Access to Security & Justice and Rule of Law in Nepal ANNEX SUMMARY OF SECTOR STRATEGIC PLANS

Chis Annex provides summaries of the mission as path to destination and values strategic plans for six institutions as guidelines to the proceedings of the Twithin the Security, Justice and Rule judiciary. of Law Sector.

Vision SUPREME COURT To establish a system of justice which is independent, competent, inexpensive, The first five-year Strategic Plan of the speedy, and easily accessible to the public Nepali Judiciary had defined the vision, and worthy of public trust and thereby to mission and values of the judiciary. Vision, transform the concept of the rule of law and mission and values do not change constantly human rights into a living reality and thus and since they are permanent in nature, the ensure justice to all. spirit of mission, vision and values defined by the first Plan have been incorporated in the second Plan with minor changes. Commitment and ownership regarding Mission implementation of the Plan of the judiciary To impart fair and impartial justice in has been incorporated as a new value. accordance with the provisions of the Constitution, the laws and the recognized The Plan recognizes vision as destination, principles of justice.

Values

Allegiance to the Constitution Judiciary shall remain committed towards the supremacy of the Constitution and shall remain committed towards the realization of economic, social and political justice as enshrined by the Constitution. Independence and Autonomy Judiciary believes in independence to perform its duties without any interference and pursues autonomy to deliver its services.

Duty towards Society Judiciary is mindful of its judicial responsibility to the society and by preserving the values of democracy, multi-party and open society, the judiciary furthers collaboration with other external actors for peaceful settlement of disputes and is committed towards promotion consensus building and spirit of mediation in the society.

An assessment report 77 Accessibility of Justice The judiciary will strive for providing increased accessibility of the people including the disempowered, minorities and indigents to judicial services at the most local level.

Competent Justice The judiciary underlines the need to continuously improve the capacity of judicial institutions in order to provide quality services to the people in a dedicated and professional manner.

High ethical standard Morality, ethics, integrity accountability, transparency and honesty will guide the judicial process in order to enhance the public trust.

Representation and Inclusiveness The judiciary will be guided by the principle of fair demographic representation, promote inclusive institutional culture and carry out its duties without compromising the merit and quality of justice

Ownership Judges and employees shall remain fully committed in order to maintain the prestige of judicial service and shall be committed to reform of judicial process.

Projection of Strategic orders issued in public interest Interventions matters Strategic Intervention 1: To reform case Strategic Intervention 3: To develop human management process so as to make resources adjudication process effective 3.1 To establish and strengthen Human 1.1 To prepare and implement scientific Resource Division process for case management 3.2 To implement human resource 1.2 To conduct special campaigns in development plan places having many cases and courts 3.3 To motivate human resource considered to be sensitive in terms of security 3.4 To enhance the capacity of human resource 1.3 To make the process of judgment writing speedy and quality 3.5 To coordinate and cooperate for development of human resource 1.4 To develop scientific documentation process 1.5 Impact evaluation of pilot courts Strategic Intervention 4: To develop infrastructure of court and manage logistics Strategic Intervention 2: To make execution 4.1 To review and implement Plan of judgment simple, speedy and effective relating to land and building 4.2 To manage vehicles, machinery and 2.1 To establish and strengthen Judgment furniture Execution Directorate 4.3 To manage financial resources 2.2 To enhance the capacity of Judgment Execution Unit 4.4 To strengthen library system 2.3 To manage records of sentencing and fines to make revenue recovery unit Strategic Intervention 5: To institutionalize effective the application of information and media 2.4 To manage goods of cases technology 2.5 To effectively manage bail and bond 5.1 To establish and strengthen the 2.6 To monitor the execution of directive infrastructure for institutionalization

78 Access to Security & Justice and Rule of Law in Nepal of information technology as to increase the quality of service 5.2 T o develop and implement provided by the court information and media technology plan Strategic Intervention 10: To strengthen and institutionalize relation with stakeholders of Strategic Intervention 6: To strengthen the justice sector inspection and supervision system 10.1 To strengthen justice sector 6.1 To strengthen inspection and coordination committee supervision mechanism 10.2 To develop coordination and 6.2 To maximize the use of information cooperation with stakeholders on the technology for developing automated basis of mutuality monitoring system 10.3 To regulate and manage cooperation 6.3 To link performance of work observed with donor agencies and non- during inspection and supervision governmental organisations with career development 6.4 To maintain an integrated record of Strategic Intervention 11: Increase access cases disposed by each judge to justice and increase public trust 11.1 To determine stakeholders access to Strategic Intervention 7: Reform in security judicial information management 11.2 To promote legal aid 7.1 To strengthen security management 11.3 To promote mediation in courts 11.4 To strengthen the service provided to 7.2 To strengthen security management court users of judges, defense lawyers and employees Strategic Intervention 12: To strengthen 7.3 To manage security for parties to a institutional capacity of courts and tribunals case, victim, witness and other court users 12.1 To draft strategic plan and to establish and strengthen the implementation mechanism Strategic Intervention 8: To preserve the values of judicial independence, 12.2 Drafting and implementation of accountability and autonomy implementation plan by all courts and tribunals 8.1 To strengthen judicial independence 12.3 Dissemination of current Plan, 8.2 To effectively implement code of monitoring, evaluation and drafting conduct for judges and employees for future plan 8.3 To strengthen mechanism for hearing complaints regarding irregularities 8.4 To maintain financial discipline and transparency OFFICE OF THE

Strategic Intervention 9: To institutionalize ATTORNEY GENERAL: research regarding adjudication, justice system and judicial reform 9.1 To strengthen research mechanism Five-Year Strategic within the judiciary Plan 2011/12 – 9.2 To conduct research on precedents, law and justice system and to publish 2016/17 the same The Strategic Plan of the Office of Attorney 9.3 To review, amend and draft new laws General (OAG) has recently been approved related to administration of justice so by Nepal Government. The Strategic Plan

An assessment report 79 begins with Vision and Mission and goes on 15. Raise legal skills of support level staff. to identify the Goals and Values. The Goals 16. Increase facilities for the staff. have identified six areas for immediate action. 17. Develop appropriate law for reform of criminal justice system.

In addition to the basic elements of 18. Strengthening of quasi-judicial bodies a strategic plan, it goes on to identify for fair justice. operational priorities for fulfilling the 19. Develop good coordination among Vision, Mission and Goals. The detailed stakeholders. action plans or activities are highlighted 20. Strengthen security of the OAG and in the paragraphs below. The detailed government attorney offices as well as activities identified are priority agendas for attorneys working under it. the OAG. The activities include:

The Strategic Plan has prepared a timeline 1. Arrangement of human resources for and budgets required for implementation of implementation of the responsibilities activities identified. under the constitution and law of the land. 2. Effective representation of cases where the rights and interests of the State is NATIONAL JUDICIAL involved. 3. Raise the level of awareness among the ACADEMY government agencies of the roles and responsibilities of the OAG and offices Strategic Plan under it. 4. Develop a system of availing legal opinion of the OAG while giving decision 2006/07 – 2010/11 by agencies of the Government. 5. Modernize investigation and Vision prosecution of criminal offence. The vision of the National Judicial Academy 6. Strengthening of professional service of of Nepal is: To become a capable institution government attorneys. for providing required knowledge for the fair and efficient performance of legal and 7. Establish a professional relation and judicial responsibilities commensurate monitoring between the OAG and offices with the efficient and quality needs of the under it. national judicial system which strives for an 8. Specialization of the service of the impartial, competent, inexpensive, speedy, attorney. accessible justice. 9. Development of physical infrastructure and modern technology. 10. Management and monitoring of job Mission performance of government attorneys of The mission of the NJA is to: Bring about the OAG and offices under it. an established professional system of 11. Develop a separate legislation for the continuing judicial education through service of government attorneys. training, professional development, research 12. Management of basic necessity like the and publication programmes which address facility of a library. the respective needs of judges, attorneys, judicial officers and others who are involved 13. Allocation of enough budgets for in the administration of justice to foster transaction of business. desirable traits, values and attitudes for 14. Develop clear and transparent job promoting fair, just, and efficient justice performance and evaluation standards. system for Nepal.

80 Access to Security & Justice and Rule of Law in Nepal Values ƒƒ Develop the data base using software ƒƒ Explore to create a publication cell We value knowledge and expertise. ƒƒ develop and publish training materials We value commitment to the legal and ƒƒ Establish a Document Cell judicial community We value accountability. Operational Goal 1: To strengthen the We value professionalism. institutional capacity of the NJA Operational We value teamwork. Strategies: In order to accomplish the We value integrity. strategic goal, following strategies will be adopted: Strategic Goal 1: To develop and offer ƒƒ Explore resources and options for quality training to enhance professional completing the NJA building capacity of judges, legal and judicial ƒƒ Develop and implement the best professionals. Strategies: The following alternative to operate the courses at strategies will be adopted for achieving present above strategic goal: ƒƒ Develop and implement personnel, financial, operational and general ƒƒ Analyze, identify and update training management policies and its associated needs of judicial and legal personnel and rules and regulations professional ƒƒ Pursue for NJA course mandatory ƒƒ Develop appropriate professional ƒƒ Explore the demand-led training courses training courses and consultancy ƒƒ Develop detailed training plans for different target groups ƒƒ Implement standards-based courses Operational Goal 2: To develop and enhance ƒƒ Ensure that individuals engaging in the capacity of human resources of the judicial and legal system affiliated with NJA Operational Strategies: In order to government get opportunity to participate accomplish the strategic goal, following in continuing legal education programme strategies will be adopted: conducted by NJA ƒƒ Develop organisational structure ƒƒ Select, recruit and deploy required Strategic Goal 2: To develop NJA as a centre personnel of excellence in the study and research in ƒƒ Formulate employee development plan the field of law and justice Strategies: The ƒƒ Explore employee development following strategies will be adopted for programme achieving the above strategic goal: ƒƒ Develop and implement performance- based personnel policies ƒƒ Identify contemporary/significant/ ƒƒ Develop and practice organisational ambitious legal and judicial issues culture demanding further study and research ƒƒ Develop succession plan ƒƒ Explore strategic alliances with other organisations to conduct research activities Operational Goal 3: To establish and ƒƒ Encourage individuals to involve in build up the networking and coordination research activities with various stakeholders Operational ƒƒ Explore funding for legal and judicial Strategies: In order to accomplish the research strategic goal, following strategies will be ƒƒ Consider awarding funds for research grants adopted: ƒƒ Explore the organisations involved in Strategic Goal 3: To establish and training, research and consultancy in strengthen legal information system national and international level Strategies: The following strategies will be ƒƒ Explore the form of relationships with adopted for achieving the strategic goal: these organisations

An assessment report 81 NEPAL BAR STRATEGIES a. ADVOCACY AND LOBBYING ASSOCIATION Lobbying and advocacy aims to change written and unwritten policies in Strategic Plan order to strengthen the rule of law and justice system. There are numbers of ways where lobbying and advocacy is 2007-2011 conducted to achieve policy changes. Advocacy and lobbying has always VALUES been the strength of NBA. Some of the opportunities as expressed by the 1. Commitment to independent judiciary members are as follows: 2. Inclusiveness and participation ƒƒ Strong solidarity with professional 3. Equity and equality organisations for rule of law 4. Mutual respect and solidarity ƒƒ Show strong commitment on rule of 5. Transparency and accountability law and stable government 6. Non partisan ƒƒ Capable of generating pressure to the government for laws and by laws 7. Empathy towards the people who have no formulation on notary public access to justice system ƒƒ Committed to contribute towards the formation of stable government VISION b. PROMOTION OF PROFESSIONAL A competent, vibrant, decentralised, ACTIVITIES TO THE REACH OF participatory and inclusive NBA with JUDICIAL, QUASI JUDICIAL AND sound professional ethics and standards ADMINISTRATIVE BODIES committed to rule of law, social justice, Professional activities are a key to reach human rights, democracy and independent, judicial and quasi-judicial bodies which competent and impartial judicial system demand high level of competencies and commitments. Professional activities not only ensure the quality of work but are MISSION also effective in reaching and influencing policy makers and professionals. NBA strives for ensuring constitutional supremacy, upholding rule of law, maintaining independent judicial system, c. COLLABORATION AND EXPANSION promoting human rights and social justice OF PROFESSIONAL NETWORKS WITH with special emphasis on making justice NATIONAL AND INTERNATIONAL system accessible to all by maintaining PARTNERS/STAKEHOLDERS high professional ethics, standards and Achieving goals and objective of NBA commitments of our members would not be possible alone without networking and collaboration with similar professional organisations within the country and outside. Collaboration GOALS with professional organisation while in 1. To contribute towards ensuring the rule one hand brings synergy and strength, of law through independent, competent and on the other minimises the resources and impartial judicial system so that the by maximising the benefits. basic rights of the people are protected Some of the issues related to and promoted. collaboration and networking as expressed by the members are as follows 2. To contribute in establishing and ƒƒ Manage resources available for strengthening constitutional supremacy research

82 Access to Security & Justice and Rule of Law in Nepal ƒƒ Capitalise international recognition material in one hand improves the and network in resource pooling credibility of the organisation and at the ƒƒ Research on the economic same time generates some resources by opportunities for NBA selling the products and services. Many ƒƒ Equitable distribution of available international organisation and research resources institution always look for quality ƒƒ Mobilise Bar members and researches in the field of governance international community to improve and democracy, NBA can offer the the physical resources of NBA opportunity to fulfil this gap at the ƒƒ State to allocate budget for NBA national level. d. PROMOTION OF DEMOCRATIC NORMS, VALUES AND CULTURE WITHIN BAR OBJECTIVES: Some of the issues as expressed by the a. To protect and promote basic human participants of various workshop are as rights and liberties of the Nepalese follows citizens and individuals. ƒƒ Relevant changes in NBA constitution Performance indicators ƒƒ Decentralization of NBA leadership ƒƒ Form constitution reform committee 1. Significant improvement in situation of ƒƒ Formulation of relevant constitution Human Rights Index (Benchmarking) in ƒƒ Amendment of NBA constitution the country. ƒƒ Decentralisation of leadership and 2. Relationship and networking established effective coordination between central with international Bar Association and bar units particularly in the countries where ƒƒ Dynamics and decentralised Nepali migrate for work. leadership b. To protect and promote the independence e. PROFESSIONAL AND INSTITUTIONAL of judiciary and professional standards, CAPACITY BUILDING (Human re- rights and ethics sources, physical facilities and system) Performance indicators of NBA 1. Area of professional activities expanded ƒƒ Explore opportunity of training, 2. Representation of NBA in policy making workshop and higher education for its process increased members ƒƒ Regularity in professional training c. To uphold rule of law and supremacy of ƒƒ Orient NBA members towards the Constitution professionalism ƒƒ NBA to suggest a framework that Performance Indicators guarantees professional security 1. Timely enforcement of judicial decision ƒƒ Introduce award and punishment to improved maintain professional ethics 2. Law and order situation monitored and ƒƒ Black list of violator and make public advocated ƒƒ Enforce code of conduct effectively so as to make the Bar members more professional d. To play a catalytic role in strengthening ƒƒ Abide by code of conduct and accelerating the justice delivery system f. RESEARCH AND PUBLICATIONS Performance indicators Research while improves professional 1. Average time taken to settle the court qualities of the member it also improves cases reduced the decision making process as 2. Case registration of deprived groups well as policy influencing efforts by increased producing empirical evidences and 3. Out of court settlement and mediation actual information. Publication of such increased

An assessment report 83 4. Number of cases disposed every month professional standards, rights and ethics increased d. Code of conduct reviewed, updated, implemented, monitored and e. To make law enforcing agencies and state implementation status report produced departments responsive towards the and disseminated periodically. enforcement of and abidance by national e. Coordination and collaboration and international human rights laws maintained between Bar and Bench by Performance indicators establishing formal mechanism at all 1. Advocacy conducted based on the level of courts monitoring reports produced f. Disciplinary committee of Nepal Bar 2. Domestic laws reviewed and harmonised in Council activated and strengthened line with the international laws and treaties 3. Fair trial system protected and promoted Outputs for Objective 3: To uphold rule of law and supremacy of the constitution f. To strengthen the physical and g. Amendment of Acts, rules and intellectual capacity of NBA and its regulations made compatible with members constitutional standards through advocacy/lobbying Performance indicators h. System of judicial review made effective 1. At least 70% Bar units shall have their through pro-active court own buildings 2. Efficient communication and IT system Outputs for Objective 4: To play a catalytic between various Bar units established role in strengthening and accelerating the 3. Well equipped resource centre justice delivery system established and maintained at the centre and other Bar units i. Speedy justice system maintained 4. A training center established at the j. Laws, Rules and regulations amended central level k. Behaviour of justice sector actors 5. Efficiency and effectiveness of NBA improved members increased 6. Mediation skills of Bar member enhanced Outputs for Objective 5: To make law enforcing agencies and state departments responsive towards the enforcement of OUTPUTS and abidance by national and international human rights laws Outputs for Objective 1: To protect and l. Law enforcement agencies/ authorities promote basic human rights and liberties of sensitized on human rights laws the Nepalese citizens and individuals m. Campaign on enforcement of human a. NBA members, stakeholders and general rights laws launched people are sensitised on human rights and other legal rights Outputs for Objective 6: To strengthen the b. Legal aid provided to individuals physical and intellectual capacity of NBA whose rights are violated or denied in and its members. coordination with relevant stakeholders c. Regular report on implementation n. Physical facilities in all BAR units status of treaties, conventions (computer, other equipment ...) improved and commitments produced and o. NBA structure and system modified and disseminated made operational p. Knowledge and skills of NBA members Outputs for Objective 2: To protect and enhanced promote the independence of judiciary and q. Secretariat of NBA strengthened

84 Access to Security & Justice and Rule of Law in Nepal in police attitudes and ultimately police Nepal Police Interim culture thereby enhancing the chances of long term police reform; Strategic Plan, 2011 ƒƒ To highlight to Nepal Police Key Stakeholders, and to communities (Draft) ,that the Nepal Police is committed to developing a police service in 1. Purpose of the Interim partnership with communities they serve; Strategic Plan for the Nepal ƒƒ To develop the capacity and experience Police of key personnel in the Nepal Police in In initial discussions between the IGP and strategic planning and implementation DFID it was agreed that rather than attempt as a effective foundation to build capacity to develop a full blown Strategic Plan for the towards the design and delivery of the Nepal Police at this time, it would be more Nepal Police Strategic Plan under the effective to develop an Interim Strategic new DFID Programme; Plan comprising of tackling three core ƒƒ To effectively use the lesson learned strategic priorities: from the design and delivery of the ISP Strategic Priorities, towards the design ƒƒ Developing and implementing a and delivery of the full Nepal Police Communication Strategy whereby the Strategic Plan; and Nepal Police can develop more effective ƒƒ To develop an effective programme two way communication both within the implementation architecture within the Nepal Police, and externally between the Nepal Police as an effective foundation Nepal Police and its key stakeholders to build capacity towards the design and and the communities that they serve; delivery of the Nepal Police Strategic ƒƒ Developing and implementing a Nepal Plan under the new DFID Programme. Police Accountability and Transparency Strategy whereby the Nepal Police can be held accountable to its key stakeholders but especially to the communities they 2. SP Strategies serve at the local level. In this section the strategies identified to ƒƒ Developing and implementing a deliver the strategic priorities is explained Nepal Police Community Relations highlighting their purposes, objectives, Strategy whereby the Nepal Police can actions and activities, all of which are effectively work in partnership with its contained in three Action Plans. The key stakeholders but especially those question of the required budget to deliver is communities they serve. discussed and the identification of relevant 'performance indicators' to be formulated The core objective of these three by the Nepal Police in consultation with strategic priorities is that together, their Saferworld. implementation will led to an effective partnership between the police and their communities that will result in improved Strategic Priority 1: service delivery and accountability of policing services that are owned by both the During the detailed planning process, police and the communities they serve. Senior Officers involved were clear that there needed to be a culture of information sharing developed at all levels within Nepal The development and delivery of the Nepal Police, not just “top down”, but also “bottom Police Interim Strategic Plan will also up” with systems and processes put in achieve the following objectives: place to ensure that all Officers “voices” ƒƒ The process of formulating and were heard, and that their inputs were implementing the ISP will start to valued and responded to. There was also a impact police behaviour in the strategic clear resolve to improve the organisations priorities, leading over time to changes external communication systems, having

An assessment report 85 regard to messages, audiences and Communications at meetings held between mediums utilized. the NP and its key stakeholders and the communities they serve Purpose: Developing and implementing a Communication Strategy whereby the Nepal Police can develop more effective two way Strategic Priority 2: communication within the Nepal Police and Officers involved in the planning process externally between the Nepal Police and its recognised the need for NP to become, and key stakeholders and the communities that to be seen to become, more accountable they serve. for their actions, both organisationally and individually, and that this was especially Key Objective 1: To develop effective important in relation to citizens making written and verbal top down and bottom complaints about Police performance, or up communication within Nepal Police that Officer behaviour. is acted upon and properly monitored and evaluated. There was a shared understanding that to Action 1. To develop a culture of information achieve this goal, issues related to training, sharing within the Nepal Police values and police/community consultation Action 2. To commence sensitisation of processes (especially at the District level) all Nepal Police Staff on the importance of need to be addressed, and that all of this effective two way communication within the needed to be underpinned by an effective organisation NP Performance Management System. Action 3. To develop the effectiveness of Communications at meetings held within Purpose: Developing and implementing the NP a Nepal Police Accountability and Action 4. To develop effective Monitoring Transparency Strategy whereby the Nepal and Evaluation of Communications within Police can be held accountability to its the N.P. key stakeholders but especially to the communities they serve at the local level. Action 5. To develop communications at roll call and inspections Action 6. To develop the effectiveness Key Objective 1: To improve access for of Nepal Police Publications getting key communities, and confidence of people, to messages to key audiences through the make complaints against police officers right medium about their behaviour. Action 7. To ensure the effectiveness Action 1. To develop a revised IGP Policy on of NP Media Policy in line with the new Accountability and Transparency Communications Plan And Policy Action 2. To design and develop improved police training in dealing with people and Key Objective 2: To develop effective written communities and verbal two way communication between Action 3. To commence a programme the Nepal Police and its stakeholders within the NP to re evaluate their current and the communities they serve, that is corporate values and their implementation acted upon and properly monitored and Action 4. To effectively develop reception evaluated. areas of Police Stations that are customer Action 1. To develop a culture of information friendly and safe sharing between the Nepal Police and its Action 5. To design and develop a key stakeholders and communities programme of police and community Action 2. To commence sensitisation of consultation leading to an increased all Nepal Police Staff on the importance of understanding of each other effective two way communication within the organisation Key Objective 2: To develop a transparent Action 3. To develop the effectiveness of investigation system and procedures of

86 Access to Security & Justice and Rule of Law in Nepal investigation of complaints against police by Priorities, and were clear that there was a the public and by other police. need for the principles of Community policing to be further imbedded throughout NP. Action 1. To improve the current Complaints against Police Process Action 2. To improve the management of Specifically the current Community malicious complaints against police Services Division need to be developed, as did mechanisms for improved Police/ Action 3. To develop an independent body Community Consultation at the District to oversee the investigation of complaints level, and that the effectiveness of the against police alleging serious wrongdoing current Community Service Centres need to be enhanced. Key Objective 3: To develop effective NP accountability mechanisms to communities There was a recognition that training in they serve. Community Policing needed to be improved Action 1. To design and develop mandated and increased within all training curricula, police and community liaison and and that Officers so trained should be posted consultation meetings at the District level to equitably within NP including at Police Posts. provide effective two way communication, community input into police planning Purpose: Developing and implementing and provide a local accountability a Nepal Police Community Relations mechanism whereby local communities can Strategy whereby the Nepal Police can question Distinct Commanders on police effectively work in partnership with its performance; with effective monitoring and key stakeholders but especially those evaluation. communities they serve. Action 2. To design and develop a pilot on the construction of police district planning and the creating of a 1 year Police District Key Objective 1: To improve Police Action Plan formulated in consultation and Community consultation and the with their communities; with effective development of Community Policing monitoring and evaluation. throughout Nepal Police. Action 1. To develop the philosophy, and Key Objective 4: To develop effective practice of Community Policing with accountability mechanisms for members of operational strategies throughout Nepal the Nepal Police for their Performance. Police to include review of Community Service Division and related structures Action 1. To develop an effective NP Action 2. To develop mechanisms at District Performance Management System level to improve Police Accountability to their Action 2. To develop an effective NP citizens and the communities they service. Individual Performance System Action 3. To improve the effectiveness of Community Service Centres Key Objective 5: To develop effective accountability of NP officers and staff for their decisions 3. Programme Implementation Action 1. To ensure that in each rank and Architecture position within the NP responsibility and authority is effectively aligned to existing In this section the programme management job descriptions. arrangements for the monitoring and evaluation of performance and impact will be described with specific roles and responsibilities. Strategic Priority 3: As with the other two Strategic Priorities The IGP's top team for the purposes of Officers involved in the planning process the implementation of the ISP will be recognised the linkages between all three known as the 'Programme Board' (PB).

An assessment report 87 The Programme Board will be responsible responsibilities bestowed upon it. Since for the implementation, monitoring and the five year period is about to be over, a evaluation of the Strategic Priorities. three year strategic plan has been prepared Each Strategic Priority will have an AIG by the CIAA to make the anti-corruption responsible for it and will report progress programme more effective. on implementation to the PB, and should there be any blockages to the achievement of the SP's then this board will take the 2. Status review: necessary action to remove them. The Programme Board will be supported by the Some of the important achievements have Strategic Planning Task Force, who will be been made after the implementation of the specifically responsible for the collection of five year strategic plan. During this period, the monitoring and evaluation information working procedures of 49 departments have and provide direction and assistance to been prepared and taken into practice. the PAT's who will be charged with the In the context of corruption control, CIAA implementation of the SP's. has delegated its power to the Regional Administrators, Chief District Officers (CDO) and Government Attorneys in order to make the business fast. Pilot programmes 4. M&E Systems have been implemented in 10 districts The Monitoring and Evaluation systems and local co-ordination committees have will be set up to collect baseline data, and been formed in 5 districts to commence then monitor the achievement of the Action the campaign against corruption from the Plans, and collect evaluation of impact local level. Training programmes have been through agreed data collection and analysis conducted to enhance the skill and efficiency routines. The design of these routines will of the people working in the CIAA and be undertaken in liaison with Saferworld. symposiums / interaction programmes have been organized at the district level with the involvement of government officials, civic society, NGO people and representatives Strategic Plan of of political parties. Construction of office building with good facility is one of the Commission for the major achievements of this period. Materials related to information, communication and Investigation of Abuse education for public awareness against of Authority corruption are produced and distributed. National and international visits by CIAA higher officials has enriched the organisation 1. Background: adopt the anti- corruption measures. The Interim Constitution of Nepal, 2063 has given continuation to the Commission for the Investigation of Abuse of Authority 3. Vision: (CIAA) as the agency to investigate and To assist to build a disciplined society prosecute corruption cases. The CIAA is in order to build prosperous country carrying out its responsibilities as per the by ensuring good governance through Constitution, Abuse of Authority Act, 2048, state machinery free from corruption in Corruption Control Act, 2059, and other accordance with the rule of law. concerned regulations. Corruption control is a challenging task and is not possible to control it with the effort of a single agency. For this, political commitment, strong and 4. Goal and Objectives: efficient government mechanism, support (a) Goal: of private sector and civic society is the must. In the past, CIAA formulated a five Reduce improper conduct and corruption year strategic plan (2059/60 - 2063/64) in the state machinery by a perceptible in course of fulfilling the constitutional amount within three years.

88 Access to Security & Justice and Rule of Law in Nepal (b) Objectives: vi. Monitor the implementation of Departmental Procedures; i) Assist in ensuring good governance by carrying out the punitive measures in a vii. To help implement code of conduct coordinative way. in public, commercial and corporate sector; ii) Assist in ensuring good governance by carrying out preventive measures viii. Monitor and evaluate the indicators in through systematic correction and public service delivery system; reforms. ix. Help to raise the "Zero Tolerance" state iii) To build social integrity systems; with the help of civic society; maintaining social discipline through x. Carry out community education and promotional and awareness programme. public awareness campaign against iv) Develop CIAA as an specialized agency corruption and misappropriation; in corruption control cases. xi. To enhance advocacy to combat corruption; xii. Extend and develop the relation 5. Strategy: with regional and international anti- corruption agencies; Make information collection and its analysis more reliable; xiii. Further extend the anti-corruption programmes through local bodies and i To expedite the investigation and communities; prosecution activities related to xiv. Develop the CIAA as an efficient and corruption and misappropriations; specialized agency in corruption control; ii. Implement CIAA decisions in a xv. To create conducive environment for coordinative way effectively; career development; iii. To coordinate in formulation and xvi. Appraise the performance of the CIAA amendment of the anti-corruption acts personnel on the basis of achievement concerned; and develop rewarding system; iv. Make the anti-corruption campaign xvii. Logistic support and management to effective at the local level; the office; v. To build up corruption prone areas as xviii. To set up reliable information and data the "Island of Integrity" base system.

An assessment report 89

ANNEX SELECTED D REFERENCES SELECTED REFERENCES:

Adhikari, Bipin; 2010. Nepal: Design Options ------, 2010. "Justice and for the New Constitution (Kathmandu: Security Sector Reform in Nepal Civil Society Nepal Constitution Foundation) Briefing Paper." Issue 2 : Gender and JSSR, AJAR Nepal 2011. Criminal Justice System Antennna Foundation et. al., Kathmandu, of Nepal (Draft Criminal Code, Criminal Nepal. Procedural Code, Sentencing Bill, Children Bill and Prison Act), Citizen's Appraisal Attorney General 2010. Annual Report of Constructive Improvement Options (Kathmandu: Office of Attorney General, ) (Kathmandu: Access to Justice and 2010) Advocacy of Rights (AJAR) Nepal) (also available at www.ajarnepal.org.np) CA 2009, Report of the Committee on Judicial System (Kathmandu: Constituent AJAR Nepal 2009. Fair Trial for Children Assembly Secretariat, 2009) in Conflict with the Law: Enforcement of Legal Safeguards and Treatments (English CAP 2007. Prisoners' Access to Justice, Version) (Kathmandu: Access to Justice and Baseline Survey 2007 (Lalitpur: Consortium Advocacy of Rights AJAR) (also available at for Assisting Prisoners). www.ajarnepal.org.np) CAPCRON 2010. Children in Conflict with Antenna Foundation et. al., 2010. "Security Law: Law in Conflict with Normative and Justice in Nepal Assessment Findings." Criteria Reviewing Nepalese Laws' Antenna Foundation et. al., Kathmandu, Conformity with International Standards Nepal. of Juvenile Justice. Unpublished: Centre to Assist and Protect the Child Rights of Nepal. ------. Justice and Security Sector Reform in Nepal." Policy Briefing CeLRRd, 1999. Analysis and Reform Paper 1, Antenna Foundation et. al., of Nepalese Criminal Justice System. Kathmandu. Kathmandu: Center for Legal Research and Resource Development. ------, 2011. "Justice and Security Sector Reform in Nepal; CIAA 2010. Souvenir 2067 of the Commission Strengthening the Gender Responsiveness for the Investigation of Abuse of Authority on of Security and Justice Agencies in Nepal." the occasion of its Twentieth Commemoration Policy Briefing Paper, Antenna Foundation Day (a collection of 97 articles on CIAA and et. al. Kathmandu, Nepal. related subjects) (CIAA, 2010)

An assessment report 91 CIAA 2010. Twentieth Report of the Mahottari Nepal." International Alert Commission for the Investigation of Briefing Paper, Snapshop Series 1, Abuse of Authority, Fiscal Year 2066/2067 Kathmandu. (Kathmandu: CIAA, 2010) Judicial Council Bulletin, 2011, Judicial Cochran-Budhathoki, Karen; 2011. "Calling Council Secretariat, Kathmandu for Security and Justice in Nepal: Citizens' Perspectives on the Rule of Law and the Khatri, Sridhar K., 2006. " Security Role of the Nepal Police". Strengthening Challenges of Nepal During Democratic Security and Rule of Law Project in Nepal, Transition, Paper presented to workshop on Kathmandu. Democratic Transition and Security Reform in Nepal (28 August – 1 September, 2006), Crozier, Rebecca, Gunduz, Canan and Centre for Security Studies, Kathmandu, Subedi, DB; 2010. "Private Sector and Nepal. Public Security in Nepal : Perspective and Response." Working Paper, International NHRC 2010. Annual Report (Lalitpur, Alert. National Human Rights Commission, 2010)

CVICT 2001. Nepal's Penal System: an NJA 2008, Assesment of the Effectiveness of Agenda for Change. Kathmandu: Centre for the Quasi-judicial Bodies (Lalitpur: National Victims of Torture. Judicial Academy, 2008)

Dhungel, Surya, Bipin Adhikari, et al, 1998, Office of the Prime Minister 2010. National Commentary on the Nepalese Constitution Plan of Action on Human Rights (Nepali (Kathmandu: DeLF) version) ( Kathmandu: Office of the Prime Minister and Council of Ministers) DoPM 2011. Official Data of Department of Prison Management (unpublished) Onslow, Charlotte, 2010. "Breaking Patterns (Kathmandu: Department of Prison of Sexual and Gender-Based Violence: management, 2011)

PPR 2007. Rehabilitation and Reintegration Friends for Peace, 2005. "Security Denied? A Critical Analysis of Juvenile Sector Reform in Nepal: Challenges and Justice System in Nepal, Kathmandu: Forum Opportunities." FFP Publications, Series 008, for Protection of People's Rights, Nepal (PPR Friends for Peace, Kathmandu, Nepal. Nepal).

Government of Nepal web portal http:// Rizal, Dr. Minendra and Rana, MG Gaurab www.nepalgov.gov.np/ (all ministries, SJB, 2007. "Civil Security Forces Perspective departments and other governmental on Democrative Transition and Security bodies) Sector Reform in Nepal." Paper presented to workshop on Democratic Control of the INSEC 2006. Human Rights Yearbook. Security Forces (28 May – 1 June, 2007), Kathmandu: Informal Sector Service organized by CCMR, ACEP and Centre for Centre. Security Studies, Kathmandu, Nepal.

International Alert, 2010. "Security and Safeworld, 2008. "Public Safety and Policing Justice from a District Perspective, Rasuwa, in Nepal : An Analysis of Public Attitudes Nepal." Snapshot Series 1, International Towards Community Safety and Policing Alert Briefing Paper, Kathmandu. across Nepal." Safeword.

------, 2010. "Security Safer-world and IDA 2010. Security and and Justice from a District perspectives Justice in Nepal (Nepali edition). Perception

92 Access to Security & Justice and Rule of Law in Nepal Survey 2010. Kathmandu: Interdisciplinary Supreme Court 2009. Second Five-Year Analysts and Safer World. Strategic Plan of the Judiciary of Nepal 2009/10-2013/2014 (Kathmandu: Supreme Supreme Court 2010. Annual Report Court of Nepal, 2009) (Kathmandu, Supreme Court, 2010) Supreme Court 2011. Annual Report (Kathmandu: Supreme Court, 2011) Security and Justice Provision in Post- Conflict Nepal." International Alert, IFP Gender Cluster Country Case Study, Nepal. UN et. al., 2011. "Nepal Peace and Development Strategy 2010 – 2015." Kathmandu, Nepal. Shah, Saubhagya, 2007. "Securing Liberty and Security : Evolving Civil-Military Relationship and State (re)Structuring USAID 2009. Nepal Rule of Law Assessment, Challenging in Nepal." Paper presented to Final Report. Kathmandu: United States workshop on Democratic Control of the Agency for International Development. Security Forces (28 May – 1 June, 2007), organized by CCMR, ACEP and Centre for Walsh and Gandhi 2010, Judicial Mapping Security Studies, Kathmandu, Nepal. and Judicial Assessment, Consultants' Report. Kathmandu: Barry Walsh & ------, 2006. "Democracy by Associates and Gandhi & Associates. Design : Regime Change on Democratic Transition and Security Restructuring in Wild Leni, Jiwan Subedi, "Review of Nepal." Paper presented to workshop on international assistance to political party Democratic Transition and Security Reform in and partysystem development, Case study Nepal (28 August – 1 September, 2006), Centre report: Nepal", (Oversee Development for Security Studies, Kathmandu, Nepal. Institute, 2010).

An assessment report 93

ANNEX E TERMS OF REFERENCE Review of International Community Support to Access to Security and Justice and Rule of Law in Nepal

Background The national level political system has been characterised by a constant changing In Nepal, the imperative to improve of coalition governments, with each public security and access to justice is party protecting its own members from compelling. Although reliable statistics are accountability under the law. At the local somewhat difficult to ascertain, there is a level, party representatives regularly definite popular perception that security is exert pressure on the police, chief district progressively deteriorating. Improving this officers, prosecutors, and courts not to situation is a key public demand. Rising investigate, register or prosecute criminal crime and insecurity is acting as a brake cases and to release party members who to business investment and is contributing are accused of crimes. to the prevention of post-conflict economic growth and development. The government's perceived inability to improve the situation is undermining public confidence in both International engagement the rule of law and in the state itself. The Donors and key multi-laterals support a lack of equitable access to security and number of initiatives aimed at improving justice was one of many key grievances that citizen security and access to justice, and led to the 10 year civil conflict. Yet citizens strengthening the rule of law. The need to - in particular poor and excluded groups do more in this sphere is highlighted in the – continue to find it difficult to access Nepal Peace and Development Strategy personal security and justice. The country's launched by international development imminent move to federalism is likely to actors in January 2011. This assessment pose additional, highly complex challenges. responds to this demand. Similarly, Nepal has been selected as a pilot country by the Widespread impunity is impeding law UN Rule of Law Coordination and Resource enforcement, fuelling a breakdown in law Group which aims to better coordinate RoL and order, and enabling crime and violence initiatives within the UN family. to proliferate. This climate of impunity is manifested most starkly in the criminalization Currently there is little government of politics and politicization of crime. coordination leadership in this sector.

An assessment report 95 In an effort to improve coordination and cutting issues to be considered within each synergy, an informal Security and Justice of these areas. Coordination Group6 for international actors engaged in this area meets periodically. In i. The criminal justice system (includes 2010 this group completed a 'who-what- the work of, and interaction between, where' matrix to map out international the police, prosecution service, courts, support more clearly. In addition, a sub prison service, lawyers associations/ group of donors from within the group legal aid for defendants including hired a consultant to conduct a review of indigent criminal defense, victim support international assessments, evaluations units, and victim/witness protection). and support to the sector, plus existing government strategies and plans. ii. The non-criminal justice system (includes court handling of civil As a next step, the sub group has agreed and commercial law, overall court on the need for a more in depth 'Review administration, and other related of International Community Support institutions). to Access to Security and Justice and Rule of Law in Nepal'. This will develop a shared assessment of the challenges iii. Non-state/informal justice and and opportunities faced in this sector community security (includes mediation and options for improving the impact of (court-referred, community and international support over the coming 3-5 commercial mediation), arbitration, years (during which time the country will paralegal committees, traditional/ likely move to a federal model). This will indigenous justice mechanisms, include a critical path analysis on key religious leaders, community safety/ building blocks for medium to long term security groups and political youth support as well as a realistic prioritization wings/militia. Links between informal assessment taking into account Nepal's and formal security and justice will also current political environment. be examined, to explore the role of the informal in an overall system of security and justice). Objective To develop an assessment of the challenges iv. Legislative framework, oversight and opportunities faced in citizen access to and accountability (includes legal security and justice and the strengthening frameworks and legislative drafting of the rule of law in Nepal, and options [with emphasis on post constitutional for improving the impact of international requirements], and oversight and support over the coming 3-5 years (in accountability mechanism such as particular for poor and excluded groups). parliamentary committees, judicial council, relevant ministries, human rights commissions and organisations, Scope and civil society). The assessment will examine the following The assessment will: 'sub sectors'7 . Note that gender, social and economic dimensions, human rights, ƒƒ Conduct an overview and political peacebuilding, transitional justice and economy analysis of sector, sub sectors federalism will be considered as cross (plus relations between sub sectors), and

6 The group is hosted by International Alert and includes key donors and NGOs working on issues relating to security, justice and rule of law. 7 For simplicity, we will refer to the entire arena of citizen security and access to justice as 'the sector', and to the component parts listed below as 'sub sectors'.

96 Access to Security & Justice and Rule of Law in Nepal key institutions (plus relations between conflict dynamics. A federalism lens should key institutions), identifying major also be applied, so a potential provincial challenges and opportunities for reform; capital should be visited to examine its ƒƒ Examine social, economic and gender preparedness to provide the types of dimensions of access and service services likely to be required of a provincial delivery; ways in which men/women, capital. youth/non-youth, marginalised/non- marginalised experience insecurity and the provision of security and justice; Outputs and Reporting ƒƒ Examine national reform initiatives, including plans and strategies; The consultancy team will develop a ƒƒ Review current international support; methodology framework of up to 5 pages ƒƒ Provide recommendations for improving prior to commencing travel to Nepal for the impact of international support, comment and sign-off from the Security and including a critical path analysis and Justice Coordination Group and Enabling recommendations on potential joint States Programme (the contract manager). aid instruments and coordination mechanisms to be adopted; and A final report of up to 40 pages, plus ƒƒ Identify and examine key risks and annexes, including: mitigation strategies.

(i) Executive Summary; Approach (ii) Summary overview, institutional capacity assessment and political The assessment approach will include; economy analysis of the sector, sub ƒƒ Reviewing existing documents, papers sectors (plus relations between sub and assessments8; sectors), and key institutions (plus ƒƒ Interviewing and consulting with relations between key institutions), key stakeholders in both Kathmandu identifying major challenges and and a number of districts (providers, opportunities for reform (if required, users and supporters of security and additional detail should be included in justice services, including government, separate annexes). Social, economic security and justice providers, political and gender dimensions of access and parties, private sector, civil society service delivery should be examined; and community members [including members of excluded groups], (iii) Overview of ongoing national reform international community, etc); efforts, plans and strategies; ƒƒ Facilitating a number of consultative (iv) Overview of current international support; workshops at the sub sector level (including providers, users and (v) Options and recommendations for supporters of security and justice improving in the short, medium and long services) to inform conclusions; and term impact of international support ƒƒ A workshop towards end of process to (in particular for poor and excluded validate findings and recommendations. groups). Recommendations on priorities, sequencing (critical path), potential joint aid instruments and coordination The selection of districts that the mechanisms should also be included; assessment will focus on will need to and capture the differences between tarai/ hills/ mountains and urban/rural, and different (vi) Key risks and mitigation strategies.

8 The report 'Preliminary Mapping: Rule of Law / Security and Access to Justice in Nepal' (Rima Das Pradhan-Blach, October 2010) provides a synthesis of existing reports and assessments, and references to the full documents. Note that some donor reports will require confidentiality.

An assessment report 97 A series of workshops will be staged by the the police and prisons. (in Nepal, and consultancy team to inform the conclusions comparative international experience in of the assessment, and a further workshop fragile environments); held to validate key findings and ƒƒ Informal/non-state justice and recommendations. community security expert(s): experience with mediation/arbitration, paralegal committees, traditional/indigenous The final report will be produced within two justice mechanisms, semi-formal and weeks of leaving Nepal. quasi-judicial bodies, community safety/ security groups and political youth The consultancy team will report wings/militia (in Nepal, and comparative contractually to the DFID ESP (Enabling international experience in fragile States Programme) Manager. Its working environments). station will be the ESP Office, Sanepa, ƒƒ Legislative framework, oversight and Lalitpur. accountability expert(s): experience with legal frameworks, legislative drafting The team will liaise through periodic and constitution-making, and oversight meetings throughout the process with an and accountability mechanism such 'assessment reference group' (a small group as parliamentary committees, judicial from the Security and Justice Coordination councils, relevant ministries and civil Group) to keep it informed of plans, society (in Nepal, and comparative progress and initial conclusions (frequency international experience in fragile to be confirmed). environments).

In addition, the team will collectively have; Skills/expertise ƒƒ Good knowledge and sound understanding of Nepal's political, social The consultancy team will require the context, with a special focus on issues of following mix of expertise and experience. security and justice. Exact numbers and the mix between ƒƒ Good networks and contacts with international and Nepali members will government, representative organisations depend on the expertise and experience of and development partners working on available consultants: security and justice (both state and non state), both in Kathmandu and in ƒƒ Team Leader; an expert with significant districts. security and justice and institutional ƒƒ Knowledge and understanding of reform expertise (from the perspective donor instruments for the delivery of of “people's access”) and a track record development assistance. of successfully leading teams to conduct ƒƒ Knowledge of the approaches and assessments that guide international policies of different international development engagement; assistance providers and institutions, ƒƒ Political economy analyst; experience including the United Nations and UN of using political economy analysis to international norms and standards, inform recommendations for donor in particular those international support (ideally including experience instruments Nepal is a signatory to. of applying this lens to the security and justice 'sector'); ƒƒ Formal justice expert(s): experience Timing in assessing the judiciary, judicial oversight mechanisms, bar associations, Number of days to be confirmed (up to 2 the Attorney General's Office, and the months), starting as soon as possible. While interlinkages between all stakeholders in country, the team will be expected to in the chain of criminal justice, including work a six day week.

98 Access to Security & Justice and Rule of Law in Nepal ANNEX LIST OF PEOPLE MET F AND CONSULTED List of Persons Interviewed (Individuals & Group)

Dhankuta District

Individual Interview S.N. Name Occupation Address 1 Kalpana Bk 2 Mausami Limbu Labor in local hotel Bode (now Dhankuta Municipality) 3 Meena BK 4 Kali Devi Bhujel, 7 Dhankuta Municipality 5 Sumitra Ghle No profession 6 Harihar Sharma Businessmen Dhankuta Municipality 7 Deepak Budathoki Former VDC Chair Canuwa VDC 8 Krishna Rai Farmer /housewife Lakure VDC 9 Anita Rai Farmer/housewife Lakure VDC 10 Laxmimaya Khadka Daily Wages Kachire, Dhankuta Municipality

Group Meeting : Municipality Level Para Legal Committee S.N. Name Occupation Address 11 Ramkmari, Rai Paralegal Dhankuta Municipality 12 Rubina Sunam Paralegal Dhankuta Municipality 13 Shanta Rasaili Paralegal Dhankuta Municipality 14 Kalidevi Bhujel Paralegal Dhankuta Municipality 15 Kamala Gahatraj Paralegal Dhankuta Municipality 16 Dhankumari Rai Paralegal Dhankuta Municipality 17 Uma devi Acharya Paralegal Dhankuta Municipality 18 Maya Tamang Paralegal Dhankuta Municipality 19 Shantila Tamang Paralegal Dhankuta Municipality 20 Nirmala Chombang Paralegal Dhankuta Municipality 21 Kalidevi Bhujel Paralegal Dhankuta Municipality

An assessment report 99 Group Meeting :Mediation Center, Dhankuta Municipality S.N. Name Occupation Address 23 Bhkta Thapa Mediator Dhankuta Municipality 24 Dhan Bd. Khadka Mediator Dhankuta Municipality 25 Mukunda Bhandari Mediator Dhankuta Municipality 26 Radhika Shrestha Mediator Dhankuta Municipality 27 Rajan Adhikari Mediator Dhankuta Municipality

Group Meeting : Political Party Leaders S.N. Name Occupation Address 28 Tilak Rai Political Leader, UCPN Maoists Chitang VDC 29 Haribhakta Bantawa Rai President , District Office , Janamukti Party 7-Dhankuta Municipality President , Municipality Unit, Janamukti 30 Yagya Bd. Karki 2- Dhankuta Municipality Party 31 Indira Budhathoki District Under Secretary, CPN (UML) Dhankuta Muncipality Central Committee Member, Federal 32 ChandraSing Nembang 7-Dhankuta Muncipality National Lumbuban Forum 33 Tika Prasad Ghimire President Rastrya Prajatantra Party (RPP) 7- Dhankuta Muncipality 34 Indramani Parajuli Secretary, CPN (UML) Dhankuta Muncipaltiy 35 Sabita Adhikari Women Empowerment Team Sishaniya VDC Manoharnarayan 36 Nepali COngress Sishaniya VDC Shrestha

Group Meeting : Women's Rights Organizations S.N. Name Occupation Address Lawyer& Coordinator Women Security 37 Hima Basnet Dhankuta Muncipaltiy Pressure Group, , 38 Tika Bhandari, Women Inter Party Network Dhankuta Muncipaltiy 39 Hima Chemjong Dhankuta Muncipaltiy Women Human Rights Defender / WOREC 40 Sukri Rai, Dhankuta Muncipaltiy Nepal 41 Sita Thapa Women Rights Activists Dhankuta Muncipaltiy 42 Sabitra Wagle, Women Security Pressure Group Dhankuta Muncipaltiy 43 Jaya Rai, Chair person, SIngle Women's Group Dhankuta Muncipaltiy Women Pressure Group, Chairperson, 44 Parbati Rai, Dhankuta Muncipaltiy District NEIFN

District: Bara

S.N. Name Occupation Address 45 Paramhansh Keshari President , District Bar Association, Bara Kaliaya Municipality 46 Hiraman Ansari Member, Distirct Office, UCPN ( Maosits) 6- Uttar Zhitakaya VDC 47 Seuchandra Saha Social Worker Kaliaya Municipality 48 Satyanarayan Mahato Nepali Congress 8- Kaliaya Municipality 49 Mukesha Kusbaha Regional President , Nepali Congress 5- Kaliaya Municipality 50 Ramchandra Sahani Rastrya Prajatantra party 9-Daihiyar VDC

100 Access to Security & Justice and Rule of Law in Nepal 51 Awadhes Prasad Pandit Social Worker/Farmer 4-Gadhahal VDC Sachindra Kumar 52 NGO worker Kaliaya Municipality Thakur 53 Jokhan Prasad Patel Farmer/NGO Worker 7-Narahi VDC 54 Maksud Miya Social Worker 7-Narahi VDC 55 Ram Devi Paswan Member, Women Rights Froum 12 -Kaliaya Municipality 56 Dhurba Yadav President, Yuwa Sangh, Bara Kaliaya Municipality 57 Suresh Kumar MModak CPN ( UML) Kaliaya Municipality 58 Birodha Sharma Secretary, UCPN ( Maoists) Manaharuwa VDC

Group Meeting: Dom Community S.N. Name Occupation Address 59 Sushila Mali Housewife 9 -Kaliaya Munucipality 60 Bindu Mali Housewife 9 -Kaliaya 61 Kaushila Mali Housewife 9 -kaliaya Municipality 62 Binod Paswan Teacher 9- Kaliaya Municipality

Group Meeting: Muslim Sewa Samittee S.N. Name Occupation Address 63 Maham Isha Urdu Teacher 7-Shreenager 64 Mukadam Ansari Secretary Muslim Sewa Samittee Kaliaya Municipality Executive Director, Muslim Sewa 65 Mahamad Shaphik Kaliaya Municipality Samittee

Group Meeting : Paralegal Committee, Sishaniya VDC S.N. Name Occupation Address 66 Pitambar Ram Advisor, Paralegal Sishaniya VDC 67 Jayaram Karma Advisor, Paralegal Sishaniya VDC 68 Surajkali M ember, Paralegal Sishaniya VDC 69 Sunmati Devi President , Paralegal Sishaniya VDC 70 Bhagmati Member, Paralegal Sishaniya VDC 71 Tetardevi Vice-President Paralegal Sishaniya VDC 72 Sarada Devi Member, Paralegal Sishaniya VDC 73 Maharani Devi Member, Paralegal Sishaniya VDC 74 ReetaDevi Secretary, Paralegal Sishaniya VDC 75 ShreekantiDevi Treasure Paralegal Sishaniya VDC 76 Imarawatidevi Member ,Paralegal Sishaniya VDC 77 Sushiladevi Mahato Member, Paralegal Sishaniya VDC

District: Therhathum

S.N. Name Occupation Address Social Mobilizer, Women 4-Bashantpur, 78 Geeta Siwa Empowerment group Therhathum

An assessment report 101 District :Kathmandu S.N. Name Occupation Address Researcher, Social Policy , Security 79 Suman Khadka Lalitpur and Children 80 Sudeep Gautam Executive Director, CeLLERD Kathmandu Program Manager, Mediation Center 81 Sukumaya Pun Kathmandu Nepal 82 Retica Rajbhandari Women Rehabilitation Center Lalitpur

Details of Other Interviewees / Kathmandu S.N. Name Gender Cast / Ethnicity Remarks 83 Anand Subedi M Brahmin Disputant in Arbitration 84 Padam Gurung M Gurung " " 85 Shiva Sharma M Brahmin " " 86 Purushottam Joshi M Brahmin " " 87 Kumarnath Uprety M Brahmin " " 88 Kanak Thapa M Chhetri Arbitrator 89 Kamala Chhettri F Chhetri Arbitrator

Details of Other Interviewees / Bara S.N. Name Gender Cast / Ethnicity Remarks 90 Sushila Malli F Dalit / Dom Labour 91 Bindu Devi Malli F Dalit / Dom Labour 92 Kaushila Malli F Dalit / Dom Labour 93 Binod Paswan M Dalit/ Dusadh Teacher 94 Birendra Malli M Dalit / Dom Labour 95 Shankar Malli M Dalit / Dom Labour 96 Mod. Hiraman Ansari M Muslim Community Leader 97 Shiva Chandra Saha M Teli Social Worker 98 Satya N. Mahato M Teli NC Politician 99 Mukesh P. Kuswaha M Fisherman NC Politician 100 Ramchandra Sahani M Fisherman 101 Jugga Hajara M Dusadh Ex-VDC Member 102 Ramchandra Yadav M Yadav Community Worker 103 Rajkishor Sarma M Carpenter Dispute Resolver 104 Naginalal Kuswaha M Fisherman " " 105 Jayakaran Paswan M Dushadh Violence Victim 106 Dhruba Yadav M Yadav UML Youth Wing 107 Suresh K. Modak M Haluwai UML Party 106 Birodh Sharma M Bramhin UCPN(M) 109 Mukesh Saha M Baniya UCPN Youth Wing 110 Rajendra Jayashwal M Baniya NC Youth Wing 111 Jagat Narayan Thakur M Barber NC Leader

102 Access to Security & Justice and Rule of Law in Nepal Details of Other Interviewees / Kathmandu S.N. Name Gender Cast / Ethnicity Remarks 112 Harihar Shrestha M Newar Litigant 113 Deepak Bhudathoki M Chhetri Community Leader 114 Dr. Gopal Bhattarai M Chhetri Mediator 115 Madhav Pd. Dahal M Brahmin Litigant 116 Dev Raj Pokharel M Brahmin Community Leader 117 Roshan Raj Amatya M Newar Litigant 118 Bharat Krishna Joshi M Newar Mediator 119 Rudra B. Tumba M Yakhha Community Leader 120 SharkeeMan Gurung M Gurung Litigant 121 Bhim B. Subedi M Chhetri Litigant 122 Dan Bahadur Khadka M Chhetri Litigant 123 Manohar Shrestha M Newar Litigants 124 Sabita Adhikari F Brahmin Mediator 125 Indramani Parajuli M Brahmin Community Leader

Interview Summary

Sub -Sector : Informal Justice (Arbitration ) Individual Interviews Conducted in : Kathmandu Category of Respondent No. Male No. Female Total Disputing Parties 5 None 5 Arbitrator 1 1 2

Group Interview

Sub –Sector: Community Security and Informal justice Group Interview : Category of Respondent No. Male No. Female Total Dom Community 1 3 4 Muslim Sewa Samiti 3 None 3 Paralegal Bara 2 10 12 Paralegal Dhankuta ...... 12 12 Mediation Center, Dhankuta 4 1 5 Political parites, Dhankuta 7 2 9 Women's Rights Organization Dhankuta ...... 8 8 Total 17 36 52

An assessment report 103 Individual Interview

Sub –Sector: Community Security and Informal justice Sub – Sector: Community Security and Informal justice Category of Respondent No. Male No. Female Total Victim 1 9 8 Political Leaders & Social Workers / Disputants 25 2 27 NGOs 1 3 4 Total 16 12 39

Interview by Ethnic or Disadvantage group

Sub –Sector: Community Security and Informal justice Individual Interview Conducted in Kathmandu, Bara and Dhankuta Category of Respondent No. Male No. Female Total Braham/Chettri 8 12 20 Janajati 4 16 20 Madhesi 10 10 21 Muslim 6 ...... 6 Tarai Dalit 2 4 6 Hill Dalit ...... 9 9 Total 81

SECURITY, ACCESS TO JUSTICE AND RULE OF LAW

List of Victims and Defendants Interviewed

S.N. Name Occupation Address BARA 1 Ramacharya Prasad Yadhav Farmer Kalaiya 7, Bara 2 Munna Kumar K.C. Business Dharamnagar 5, Bara 3 Phul Kumari Devi Housewomen Dahiyar 8, Bara 4 Pramod Jaisawal Student Dahiyar 8, Bara 5 Brij Kishor Thakur Farmer Utar Jhitkaiya 6, Bara 6 Umrawati Devi Sahani Farmer Dahiyar 9, Bara 7 Suresh Prasad Sahani Farmer Dahiyar 9, Bara KATHMANDU VALLEY 8 Buddhi Chhiring Tamang Farmer Thankot 8, Kathmandu 9 Syumaya Tamang Farmer Thankot 8, Kathmandu 10 Sambhu Karki Hotel Business Gothatar, Kathmnadu 11 Basudev Karki Student Shailungeshwor 1, Dholakha 12 Amir Pode Retired Army Lalitupur SMPC 20, Lalitpur

104 Access to Security & Justice and Rule of Law in Nepal 13 Santa Bahadur Tamang Officer Bhumutar 7, Kavre 14 Rajan Dawadi Student Gongabu 5, Kathmandu 15 Annapurna Bhandari Farmer Sheshnarayan Kathmandu DHANKUTA TEHRATHUM 16 Sita Thapa Paralegal Muga 8, Dhankuta 17 Puskar Bhattarai Teacher Chanuwa 4, Dhankuta 18 Ramesh Rai Mason Dhankuta 1, Dhankuta 19 Naina Kala Rai Shopkeeper Chungmang 9, Dhankuta 20 Dhan Kumar Rai Student Dhankuta 2, Dhankuta 21 Indra Bahadur Rai Farmer Dhankuta 2, Dhankuta 22 Addaman Rai Poultry Farmer Khoku 9, Dhankutta 23 Dev Raj Pokharel Social Service Marek Katahare 9, Dhankuta 24 Gayatri Prasad Luitel Student Phakchamara 7, Tehrathum 25 Krishna Bahadur Khabahang Shopkeeper Basantapur 4, Tehrathum 26 Narendra Tumba Social Service Jitpur Arkhaule 1, Dhankuta 27 Jhadendra Khatiwada Farmer Dhankuta 5, Dhankuta 28 Benuraj Parajuli Driver Jitpur Arkhaule 1, Dhankuta 29 Deepak Budhthoki Social Service Chanuwa 4, Dhankuta

Justice Sector Stakeholder Workshop Kalaiya, Bara List of Participants

Kalaiya, Bara Date: June 27, 2011 (Asar 13, 2068)

Name and organisation

1. Hon’ble District Judge Binod Mohan 8. Mr. Sanjay Gupta, Bara Federation of Acharya, Bara District Court Industry and Commerce 2. Mr. Basanta Kumar Upadhyay, Chief 9. Mr. Bhubaneshwar Paudel, District District Officer Government Attorney Office 3. Mr. Krishna Kumar Thapa. 10. Hon’ble Additional District Judge Superitendent of Police, Armed Police Brajesh Pyakurel, Bara District Court Force 11. Mr. Paramhansha P. Keshari, President, 4. Mr. Suresh Bikram Shah, S.P., Nepal District Bar, Bara Police 12. Mr. Bindu Prasad Guragain, Local Development Officer 5. Mr. Jaya Kanta Jha, District Revenue Office 13. Mr. Nagendra Raut, District Legal Aid Committee 6. Mr. Ramanada Prasad Keshari, Land Reform Office 14. Mr. Kanhaiya Thakur, Kalaiya 7. Mr. Madhav Prasad Timilsina. Bara 15. Mr. Akaramul Haque, Advocate, Kalaiya District Court 16. Mr. Satyandra P. Thakur, Kalaiya

An assessment report 105 Justice Sector Stakeholder Workshop Dhankuta List of Participants

Dhankuta Date: July 4, 2011 (Asar 20, 2068)

Name and organisation Administrator, Regional Administration 1. Hon’ble Chief Judge Govind Kumar Office Upadhyay, Dhankuta Appellate Court 12. Mr. Baburam Gautam, Local 2. Hon’ble Judge Rishi Raj Mishra, Development Officer Dhankuta Appellate Court 13. Mr.Mahendra Kumar Khamyang, 3. Hon’ble Judge Tek Raj Nepal, Dhankuta Executive Officer, Dhankuta Municipality Appellate Court 4. Hon’ble Judge Shesh Raj Shiwakoti, 14. Mr. Bhuwan Singh Thapa, Registrat, Dhankuta Appellate Court Dhankuta Appellate Court 5. Hon’ble Judge Mahendra Bahadur Karki, 15. Mr. Rohitkumar Dangi, Secretary, District Judge, Dhankuta District Court Appellate Bar Association 6. Mr. Kumar Shrestha, Chief District 16. Mr. Krishna Prasad Sedain, Officer representative, Dhankuta District Bar 7. Mr. Sharad Kumar Tamang, DSP, Nepal 17. Mr. Rajendra Kumar Shrestha, Appellate Police Government Attorney Office 8. Mr. Tulsi Ram Karki, DSP, Armed Police 18. Mr. Muktinath Ojha, District Force Government Attorney Office 9. Mr. Bindeshwar Nayak, Assistant Officer, 19. Mr. Ishwar Onta, Srestedar, Dhankuta District Forest Office District Court 10. Mr. Dhana Bahadur Khadka, Civil 20. Ms. Hima Basnet, Dhankuta District Bar Society 21. Mr. Anirudra Prasad Luintel, District 11. Mr. Praladh Pokharel, Assistant Land Revenue Office

Legislative Framework, Oversight & Accountability

Group consultation with Women's Caucus at Legislative Parliament

Sub –Sector: Legislative framework, oversight and accountability Meeting conducted at Women's Caucus, Respondent Party M/F Hon'ble Neelam Varma Madhesi Janadhikar Forum F Hon'ble Suprabha Ghimire Nepali Congress F Hon'ble Shanti Adhikari Unified Communist Party of Nepal (Maoist) F Hon'ble Kalpana Rana Communist Party of Nepal (Samyukta) F Hon'ble Dana Sharma Unified Communist Party of Nepal (Maoist) SudarshanKhadka Caucus Secretary M Karuna Shakya Caucus Office F

106 Access to Security & Justice and Rule of Law in Nepal Informal Janajati (indigenous people) Caucus at Constituent Assembly Respondent Party M/F Hon'ble Prithvi Subba Gurung Communist Party of Nepal (UML) M Hon'ble Pasang Sherpa Communist party of Nepal (UML) M Dr. Chaitanya Subba Adviser M

Public Accounts Committee of Legislative Parliament Respondent Party M/F Hon'ble Ram Krishna Yadav, Chairman Nepali Congress M Hon'ble Deep Kumar Upadhyay Nepali Congress M Hon'ble Hrydayesh Tripathi Terai-Madhes Loktantrik Party (TMLP) M Hon'ble Rabindra Adhikari Communist Party of Nepal (UML) M Som Bahadur Thapa Committee Secretary M

Thematic Commission Respondent Commission M/F Bijul Biswakarma, Chairperson National Dalit Commission M Mina Swarna, Member National Dalit Commission F Jeevan pariyar, Member –Secretary National Dalit Commission M Sabita Baral, Member National Information Commission F Nainkala Thapa, Chairperson National Women Commission F Amuda Shrestha Member, National Women Commission F Kebal Bhandari, Secretary, National Women Commission M Secretary, Commission for the Investigation of Bhagwati Prasad Kaphley M Abuse of Authority (CIAA) Secretary, National Human Rights Bishal Khanal M Commission

Constituent Assembly Secretariat Respondent M/F Manohar Bhattarai Secretary General M Mukunda Sharma Joint Secretary M Bharat Gautam Joint Secretary M

Government of Nepal Respondent M/F Madhav Poudel Secretary, Ministry of Law and Justice M Rajuman Singh Malla Joint Secretary, Ministry of Law and Justice M Secretary, Ministry for Federal Affairs, Pramod Karki Constituent Assembly, Parliamentary Affairs M and Culture Joint Secretary, Ministry of Women, Children Upendra Prasad Adhikari M and Social Welfare Under Secretary, Ministry of Women, Children Sherjung Karki M and Social Welfare Joint Secretary, Ministry of Peace and Sadhuram Sapkota M Reconstructions

An assessment report 107 Interview by Ethnic or Disadvantage group (civil society)

Sub –Sector: Legislative framework, oversight and accountability Individual Interview (direct and telephonic) conducted in Kathmandu with civil society Category of Respondent No. Male No of female Total Bahun/Chettri 8 3 11 Janajati 12 12 24 Madhesi 6 6 12 Dalit 3 3 6 Total 29 24 539

Legislative Framework, Oversight and Accountability Civil Society Interviews

Daman Nath Dhungana, Former Speaker, Dr Shanker Kumar Shrestha, Victimologist, House of Representatives & Senior Lawyer Kathmandu Dr Surya Dhungel, Constitutional Expert, Ramesh Raj Pradhan, Advocate, Kathmandu Nepal Consulting Lawyers, Inc Santosh Rana Magar, Youth Activist, Ganesh Bhurtel, Secretary, Society for Kathmandu Constitutional and Parliamentary Exercises Madhusudan Tamang, Kathmandu District (SCOPE) Bar Association Professor Ganesh D. Bhatta, General Dilendra Shrestha, Rotary Club, Nepal Secretary, Nepal Constitution Foundation Kishore Chaudary, Social Activist, Siraha (NCF) Dan Bahadur Budha, Youth Activist, Keshab Poudel, Senior Journalist, Kathmandu Kathmandu Krishna Kumar Angdenbe, Youth Activist, Shobhakar Budhathoki, Human Rights and Kathmandu Peace Expert, Kathmandu Milan Shrestha, Lecturer, Tribhuvan Lav Mainali, Advocate, Supreme Court, University, Kathmandu Kathmandu Krishna Man Pradhan, General Secretary, Lalit Bahadur Basnet, Advocate, Kathmandu Nepal Law Society, Anamnagar, Kathmandu Kamala Acharya, Chairperson, Women in Dr Rajit Bhakta Pradhananga, Professor of Good Governance (WIGG) Law, Tribhuvan University Law Faculty Sabita Bhandari Baral, Advocate, Bal Bahadur Rai, Advocate/ Youth Activist, Kathmandu Kathmandu Mandira Sharma, Lawyer, Kathmandu Dina Shrestha, Lawyer/ Youth Activist, Phurpa Tamang, Advocate, Kathmandu Kathmandu Tirtha Man Shakya, Legislative Drafting Asha Moktan, Youth Activist, Kathmandu Expert, former Chief Secretary, Government Sanu Laxmi Gasi, Lawyer, Kathmandu of Nepal

9 This table does not include approximately 80 participants of the roundtable on ‘Enabling Civil Society to Contribute to the Democratic Reform of the Justice and Security Sector in Nepal’ organized by Antenna Foundation Nepal, Equal Access Nepal, Forum for Women, Law and Development (FWLD), Institute of Human Rights Communication Nepal (IHRICON), International Alert and Saferworld on 7 July 2011 which some members of the task force participated and exposed themselves with the perspectives of groups coming from six districts from different regions of Nepal. This also gave the opportunity to the taskforce to interact with the justice ans security sector professionals coming from the districts.

108 Access to Security & Justice and Rule of Law in Nepal Susma Chaudhary, Youth Activist, Ranju Thakur, Gender Specialist and Kathmandu Madhesi lawyer, Kathmandu Neeru Shrestha, Lawyer, Kathmandu Manchala Jha, Freelance Columnist, Yogita Rai, Lawyer, Kathmandu Political Commentator and a Lawyer, Kathmandu Kaveeta Shrestha, Lawyer, Kathmandu Kiran Gupta, Advocate, Kathmandu Rukamanee Maharjan, Lawyer, Kathmandu Seema Chaudary (Jaiswal), Accoutant, Anita Joshi, Nepal Bar Association, Kathmandu Kathmandu Vivha Bharati, Housewife, Kathmandu Pancha Kumari Manandhar, President, Society for Essential Natural Resources Poonam Chaudary, GIZ, Kathmandu Protection and Peace, Kathmandu Yam Bahadur Kishan, NSR, Kathmandu Dikchhya Pradhananga, Lawyer, Kathmandu Jeevan Pariyar, National Dalit Commission Dhanmaya Rana, Advocate, Kathmandu Shyam Kumar Bishwokarma, Advocate, Dr B. K. Roy, Professor, Faculty of Law, Kathmandu Tribhuvan University, Exhibition Road, Gopi Bishwokarma, Youth Activist, Kathmandu Kathmandu Umesh P. Saha, Advocate, Kathmandu Bhim Narayan Bishwokarma, National Dalit Surendra Kumar Mahato, Advocate, Commission Kathmandu Kewal Nepali, National Dalit Commission Dinesh Tripathi, Advocate, Kathmandu Gaura Nepali, ADWAN, Kathmandu Sitaram Agrawal, Advocate, Kathmandu Meena Shornakar, National Dalit Vijay Singh, Advocate, Kathmandu Commission

Subject: FW: Citizen list interviewed

Name List of the Citizens (Court Users) Interviewed in Civil Justice System (this list is exclusive of the interaction had with the Justice Sector Co-ordination Committee)

SN Name Gender/Age Location Identity Kind of Case/Party Kathmandu Land ownership and 1. Kancha Prajapati M/65 Newar District Court transfer of Name/Plaintiff Kathmandu 2. Neelam Ojha F/40 Brahmin Partition/ Plaintiff District Court Kathmandu Transaction of Cash 3. Bhim Lal Khadgi M/74 Newar District Court Amount/Plaintiff Kathmandu 4. Nava Raj Kalida M/63 Newar Land Ownership/Plaintiff District Court Kathmandy 5. Aswini Medwa M/52 Madhesi Cash Transaction/Plaintiff District Court Kathmandu 6. Durga Devi Maharjan F/32 Newar Partition District Court Partition, Cancellation Sita Maya Bhaktapur 7 F/62 Newar of Documents and Shrestha District Court Forgery/Plaintiff 8. Manoj Kumar Shai M/56 Supreme Court Newar Partition/ Defendant

An assessment report 109 Court of Appeal, House Rent and Claim of 9. Rajendra Shrestha M/48 Newar Patan Ownership/Defendant Cancellation of Document Krishna Bahadur Court of Appeal, 10. M/57 Newar and claim of ownership/ Maharjan Patan Plaintiff Court of Appeal, 11. Raju Shrestha M/50 Newar Partition/Plaintiff Patan Ram Chandra Land Reform Expulsion of Tenant/ 12. M/68 Newar Shrestha Office Plaintiff Company Om Prakash Narayan Registrar Office Company related dispute 13. M/30 Brahmin Oli and Kathmandu (share transfer) District Court Kathmandu 14. Haku Maharjan M/50 Newar Partition District Court Cancellation of Decision Bara District 15 Dinesh Tiwari M/58 Madhesi and Name Transferred of Court Land/ Defendant Bara District 16. Mohan Raut M/40 Madhesi Partition/Plaintiff Court Police atrocity (looking for Bara District 17. Rup Narayan Mandal M/52 Madhesi lawyer to file the case)/ Court Plaintiff Bara District 18. Shiva Shanker Shah M/53 Madhesi Auction claim/Applicant Court Chotiya Devi Mahato Kebarand Laxmi F/35 and Bara District Encroachment of Public 19. Mahato Kebar Madhesi M/54 Court Land/ Defendant (daughter in law and Father in Law) Bara District 20. Ram Niber Shah M/40 Madhesi Land Dispute/Plaintiff Court Bara District Coercion (forced to sign a 21. Sohan Shah Teli M/56 Madhesi Court document)/Plaintiff Bara District Partition/Defendant (have Court/ Court of own the case and was Akshya Lal Prasad 22. M/62 Appeal, Hetauda Madhesi interviewed at his home Shah (used the in a village called Sisniya, services) Bara) Partition/Plaintiff (claim of Bara District Madhesi/ 23. Jalil Miya M/70 property of his part from Court Muslim the sons by Father) Bara District 24. Dinesh Prasad Shah M/46 Madhesi Partition/Defendent Court Coercion (document Bara District 25. Nagendra Kurmi M/44 Madhesi signed with force)/ Court Defendant Court of Appeal, Land Dispute (Land Dhankuta and encroachment by public 26. Durga Prasad Dahal M/58 Brahmin Dhankuta District road) and looting / Court defendant Dhankuta District 27. Mausami Limbu F/20 Janajati Divorce and Partition Court Land Revenue Registration of Public Office/District Land/Defendant Court, Dhankuta (registration cancelled by 28. Prem Bahadur Kuwar M/77 and Court of Chhetri the land revenue office, Appeal Dhankuta lost the cases from all the and Supreme courts) Court

110 Access to Security & Justice and Rule of Law in Nepal Dhankuta District Execution of Judgment/ Court, Court of Defendant (own the case 29. Puskar Prasad Joshi M/55 Appeal, Dhankuta Newar from all the court and and Supreme pending execution past Court four years) Execution of Judgment/ Dhankuta District Plaintiff (lost the case Court, Court of from all the courts, but 30. Surendra Rai M/32 Appeal, Dhankuta Janajati still feel injustice and does and Supreme not want to vacant the Court land and house) Land dispute/plaintiff District Court (with neighbor) Lost 31. Bhadraman Ghale M/79 and Court of Dalit in District Court and Appeal, Dhankuta case running in Court of Appeal) Encroachment of private District Court, 32. Puskar Bhattrai M/50 Brahmin land by the Public Road/ Dhankuta Plaintiff (case running) Partition and name transfer of land/ Dhankuta District 33. Rosan Raj Amayta M/40 Newar plaintiff(case running Court with mother, brother and sister) Partition, land dispute and Dhankuta District 34. Januka Karki F/46 Chhetri looting/Plaintiff (case with Court husband and neighbor) Land Measurement Land dispute/defendant 35. Dil Kumari Thapa F/45 Office and Chhetri (running case) Dhankuta District Court Partition/plaintiff (with Dhankuta District husband) (case is settled 36. Mina BK F/55 Dalit Court in mediation in the district court) Encroachment of private land by the public road/ Dhankuta District defendant ( case filed by 37. Dik Bahadur Puri M/46 Chhetri Court uncle for constructing the road in private land and the case is running) Partition/ Plaintiff ( filed case with husband, lost in district court, won in Punney Kala District Court court of appeal and now 38. Bhandari F/62 and Court of Chhetri defendant is moving to (Budhathoki) Appeal Dhankuta supreme Court) (was interviewed in village of Therathum, Basantapur) Partition and claim of Khim Kumari Thapa Dhankuta District 39. F/52 Chhetri relationship (running case (Gagurel) Court in the district court) Dharan, Sunsari Interviewed about the ( editor of Balst 40. Kishor Karki M/42 Chhetri possibility of Provincial daily from Capital in Dharan Dharan) Dharan, Sunsari, Interviewed about the reporter, 41. Harsa Subba M/56 Janajati possibility of Provincial Kantipur national Capital in Dharan daily)

An assessment report 111 Meetings with International Community

Name Organization Leena Rikkilä, Senior Programme Officer International IDEA Dr Sagar Prasai, Deputy Country Director, Preeti Thapa The Asia Foundation (TAF) Mark Wallem (Country Director) Ram Guragain, Jay Nishant National Democratic Institute (NDI) Jorn Sorensen, Deputy Country Director (Programme), Edwin UNDP Berry, Sharad Neupane & Tek Tamata Sharada Gyawali ADB Hira Mani Ghimire, Senior Governance Specialist World Bank Julie Fournier (Head of Mission) & Gopi Parajuli Lawyers without Borders (ASF Nepal) Dr Jyoti Singhera, Representative (a.i.), Ranjana Thapa OHCHR Sarah Levit-Shore, Country Representative The Carter Centre Sangeeta Thapa (Programme Coordinator), Sama Shrestha & UN Women Yamun Yadav Rebecca Crozier International Alert Adam Forbes Saferworld International Centre for Transitional Patrick Burgess, Asia Director Justice International Centre for Transitional Kirsten Young Justice, Nepal

112 Access to Security & Justice and Rule of Law in Nepal

By:

Paul Donnelly, Team Leader Dr. Bipin Adhikari, National Consultant Legislative Framework, Oversight and Accountability Mr. Hari Phuyal, National Consultant Civil Justice Ms. Indu Tuladhar, National Consultant Informal Justice and Community Security Mr. Rabindra Bhattarai, National Consultant Criminal Justice Mr. Satish K. Kharel, National Consultant Informal Justice and Community Security

October 2011