There is a moral obligation on civilized society to appropriately respond to victims. Our attitude towards victims reflects the quality of the society that we live in and its legal mechanisms. Victims’ rights constitute an important part of the UN standards on war crime trials. South Africa’s truth and reconciliation commission has established them as important aspects of the mechanism of adjudication. To date, there is no special law in India that makes provision for victims’ rights. However, some positive decisions taken by the Supreme Court have played a role in protecting the rights of victims.
Protecting victims and helping them are essential components of the criminal justice mechanism. In the United States and many countries of Europe, both legal and practical approaches have been implemented to protect victims’ rights. Various provisions in these countries have addressed the needs of victims of crimes. Victims’ needs are diverse, and to understand and address these needs, it is necessary to personally interact with victims.
Bill created to protect victims’ rights
The Government of Nepal (GoN) has drafted a bill to make provisions for the protection of victims’ rights. There are various positive aspects in the bill: It proposes to allow victims the right to privacy, right to obtain information relating to the legal prosecution, and the right to compensation. However, there is a lot of room for improvement.
Article 3 (chapter 2) makes provisions for the foundational policies for the state to pursue in relation to victims’ rights. The policies are a follows:
1. The GoN shall provide security to victims against potential damage to, attack on, and threat against body, life, and property from the suspect, accused, felon, or relevant person.
2. The GoN shall make provisions, as necessary, for training and orienting – on how to deal with victims in a humane manner – its manpower involved in administering criminal justice.
3. The GoN shall prepare the physical composition of its bodies that administer criminal justice to be as victim-friendly as possible.
4. The GoN shall make provisions, as necessary, for interpreters in bodies that administer criminal justice, so that victims would not have to face difficulties due to language barrier.
5. The GoN shall conduct various programs for victim protection in a manner in which the events would be accessible to victims.
6. The GoN shall prioritize the investigation and judicial prosecution of crimes, and facilitate justice to victims, by taking required steps in an effective and timely manner.
These policies show the bill to be qualitatively consistent with prevailing international laws and provisions made by the U.S. and European countries for victims’ rights. But article 4 invalidates the meaning of these policies: No question can be raised in any court regarding the implementation of the above-mentioned policies. No claim can be made for compensation in case of damage caused by a violation of the policies. No questions can be raised on the legality of actions conducted in accord with this act, or rules made under this act, with the rationale that these policies have not been implemented. It is not clear why such meaningless policies have been kept in this bill. Legal history shows that policies have never been included in acts. If, by mixing policy with legislation, a new approach is being started, it would be appropriate to clarify the objective of doing so in the introduction.
In articles 5-20 (chapter 3), related provisions have been made for victims’ rights. In particular, victims’ right to information regarding the legal prosecution has been elaborated well. This includes the right to information about the investigation, prosecution, and legally established rights. But it is stated that the information is to be given only upon request. Clarification is needed on whether requests should be written or oral, and if there should be a fee for making such requests. Since this act is made to protect victims’ rights, it would be appropriate to make provisions for concerned officials to mandatorily provide information, free of cost.
Elaborating on the right to be secure, article 11 states that “a victim has a right to be secure from potential damage to, attack on, and threat against the victim, victim’s close relatives, and dependants, from the suspect, accused, felon, or relevant person.” This is a very important article in the bill because the main point of the bill is to protect the victim. But the provision made by this article is presented as policy and not legislation; it is not mentioned how the right of the victim to feel secure against a potential attack, threat, or damage shall be guaranteed. The article does not mention how the state can protect the victim against the above-mentioned threats. It simply states that ‘there will be a right to be secure’, which holds no meaning if it cannot be implemented.
Article 18 mentions that victims who are dissatisfied with the court’s decision can appeal within 15 days of receiving the verdict. The deadline for filing an appeal is normally at least a month. A limit of 15 days is not enough.
Making provision for the prevalence of these rights, article 22 (chapter 4) elaborates that “to make prevalent the rights conferred by chapter 3, the victim can appeal to the appropriate appellate court, and the court can give the necessary decisions.” But article 23 mentions that “an appellate court cannot invalidate, over-turn, or partially over-turn prevalent law; this act; or decisions, orders, and actions in accord with rules formulated under this act solely on the basis that the victim cannot secure his/her rights conferred by chapter 3, or that these rights have been violated or refused.” It is not clear what this article is trying to establish. It seems to suggest that there is no remedy for any violations of the rights mentioned in chapter 3. Additionally, it marginalizes the role of the appellate court.
Chapter 6 makes provisions for compensation and even specifies monetary amounts. But the basis or framework for giving compensation has not been defined. Additionally, the amounts specified for compensation seem limited. For example, article 34(L) mentions that as compensation, “up to NRS 25,000 shall be given to rape victims who become pregnant, to either abort or to give birth to and nourish the child.” This amount will not be sufficient to help the victim.
Article 48 (chapter 7) makes provision for a culprit to pay compensation to the victim and even mentions a list of crimes for which this provision is valid. It would be appropriate to add crimes related to communal violence and discrimination to this list. Ethnic discrimination also falls under criminal acts, and the basis for a culprit paying compensation to the victim has already been established by the Caste Based Discrimination and Untouchability (Offense and Punishment) Act 2011.
Article 58 (2) states that “if the person who files the complaint cannot appear in front of the committee, at the time set by the committee, due to circumstances beyond control, the committee has the right to issue a terminate order.” This provision seems arbitrary; the person deserves a second chance, particularly because the circumstances were beyond control.
Article 102 (chapter 14) makes provision for a felon to pay compensation to the state and even mentions appropriate fines. But these fines seem to have been declared arbitrarily. For example, a fine of NRS 200 has been deemed appropriate for a prison sentence of less than a year, NRS 400 for up to two, 1000 for five, 1300 for eight, 1800 for 12, and 2200 for life imprisonment. What is the basis for this? If a person serving up to five years pays NRS 1000, why should someone serving eight years pay NRS 1300 and someone serving 12 years pay NRS 18,000? Article 121(2) (chapter 16) states that “the Government of Nepal shall, as necessary, taking into consideration advice from the victim protection committee, implement services for victim protection, compensation, and minimization of impact through rescue; rehabilitation; consultation; and economic, physical, social, and legal services.” This is a very important provision. But, once again, the provision is discussed through a policy framework. How and when this provision will be implemented is not guaranteed.
To create a bill for the protection of victims’ rights is a laudable act. But the bill fails to create sound provisions for achieving its goals. Even though the bill establishes the right of the victim to receive information and participate in the legal process, it does not play a big role in victim protection. Such provisions have only been presented as policy measures. The bill is mostly centered on giving compensation to victims and on how to extract compensation from the felon. Even the compensation given to victims has not been satisfactorily defined: a pregnant rape victim cannot give birth and raise the child with NRS 25,000. No provision has been made to support victims with the state’s own funds. The bill does not mention what to do if the case is aborted back or the culprit cannot be found. How would the victim be compensated in such cases?
There are other laws in Nepal that make provisions for compensation: Compensation for Torture Act, Consumer Protection Act, etc. It is appropriate for this bill to include provisions mentioned in other acts and comprehensively lay out compensations for victims.
The language used in the bill needs to be simplified because there are many complex sentences that cannot be understood easily, especially in the section with definitions. The implementation of many important provisions – article 11 and article 121 mentioned above, for example – must be guaranteed through clear provisions.
The International Covenant on Civil and Political Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination Against Women, and other international laws have already clarified that the state needs to make appropriate provisions to protect victims, providing shelter, medical treatment, relief, easy access to justice, compensation, and rehabilitation – as necessary. It is the duty of all signatories to take these provisions and implement them through domestic legislation. Many other countries have already taken these steps. It is, therefore, necessary to clarify these provisions in the proposed bill.
This research and recommendation paper prepared by legal expert Shiva Bishankhe for the Nepal Constitution Foundation has been finalised based on the inputs given by various pressure groups: women’s, ethnicity-based, Dalit, Madeshi, youth, and others. The Constitutional Foundation would like to thank Shankar Kumar Shrestha, Anup Acharya, Sanu Laxmi Gasi, Mohan Sasamgat, Mahesh Sharma Poudel, Shiva Poudel, Prativa Shrestha, Kaushila Rai, Dinmani Pokharel, Gyani Maharjan, Prasanna Kasasna Das, Jagan Nath Mishra, Bimala Niraula, Sambojan Limbu, Pramod Kumar Rai, B.P. Bhandari, Chetan Acharya, as well as Sabin Rana, Ganesh Datta Bhatta, and Dr. Bipin Adhikari.
This research has been supported by The Asia Foundation and opinions expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.