The Madheshi community in relation to the criminal justice system:
All steps taken so far to bring reforms into Nepal’s criminal justice system have not made any meaningful difference in the lives of Madheshi and other minority communities. Although the Madheshi community forms a majority by population, it does not have enough reach on the state’s resources, judging from any angle. In fact, the state has always adopted a discriminatory approach towards it. In light of this, even though the government has introduced drafts of the Criminal Code and Criminal Procedure Code (2011) to the Constituent Assembly with the intention of improving the criminal justice system, questions about the quality of justice that the proposed legislations could provide for the Madheshi community, and others, remain unanswered. These doubts stem from past and recent experiences.
Sixty-seventy percent of all cases registered in Nepal’s criminal justice system come from the Madheshi community. Every morning a large number of Madheshis, wearing loincloths and kurtas, can be seen queuing in front of the Supreme Court, seeking justice. Facing security guards outside courts and interacting with Nepali-speaking court officials and opposition lawyers can be as alienating as the tedious bureaucratic processes that follow. Once all the appropriate paperwork is handed over to middlemen, and the date eventually announced, the case is postponed an infinite number of times. This is the sad story for the majority.
Important provisions excluded by the Criminal Code Bill (2011):
A) Hate crime:
This is an important aspect of criminal law. Any attack on another person’s dignity on the basis of ethnicity is called hate crime. For example, an American cannot refer to a person of Nepali origin as a British Lahure or Gurkha simply on the basis of his/her nationality. Similarly, identifying a Madheshi as ‘marsiya’ or ‘dhoti’ is an act of undermining his/her dignity on the basis of ethnicity. This constitutes hate crime, and a legal provision must be included in the Criminal Code to address this problem.
B) Harassment on the basis of ethnicity or religion:
Formerly, Nepal was a Hindu country with a Hindu majority. But, now, there are many communities that practise other religions. Various ethnic and religious minority groups are increasing in number. It is human nature for people of majority groups to degrade those from minority groups. However, if the state tolerates such behaviour, social solidarity and coherence will be eroded.
C) Crime and criminals should be looked at from the changing perspective of criminology:
Nepali law has been influenced by free-will theory. This theory was developed by majority groups to subjugate minorities. There are many schools of criminology that reject free-will theory. Looking at things from one angle might not be sufficient to understand crime, which is generally multifaceted.
D) Disregard for the Interim Constitution of Nepal (2007)
Article 4 of the Interim Constitution of Nepal (2007) has declared Nepal as a secular state. In contrast, section 291 (chapter 27) of the Criminal Code Bill (2011) has prohibited the slaughtering of cows and oxen. According to the provision, a person who slaughters these animals can be sentenced to prison for up to three years. Nepal is a small but diverse country. The Madheshi community, while a majority by population, is a minority group judging by such provisions. The Madheshi Muslim community is an even smaller minority. Judging from the Bill, Nepal is still a Hindu nation.
E) The legitimacy of inter-caste marriage:
The Government of Nepal has created a policy to encourage inter-caste marriage. However, many lower-caste families are still forcefully removed from villages because of inter-caste marriage. These cases tend to be more serious when the bride is from a higher-caste family. Creating a policy to promote inter-caste marriage on one hand and not doing anything to implement the policy on the other is meaningless. Therefore, activities against inter-caste marriage must be criminalised.
F) Only discrimination is public places has been made punishable:
Section 168 (chapter 10) of the Bill has made discrimination in public places punishable by law. But such behaviour is more prevalent in private life. Therefore, it is essential to make personal and domestic discrimination punishable as well. The Code should include an appropriate provision.
G) Third-gender weddings have not been accepted:
Section 173 of the Bill claims that marriage can only happen between a man and a woman. It excludes the possibility of marriage between people categorised as belonging to the third gender. An appropriate provision must be included.
H) Violation of the human rights of persons infected with HIV/AIDS
Section 107 (chapter 5) has made the act of transmitting HIV punishable by law. But it has not made the discrimination and ill-treatment of persons infected with HIV punishable. This is a grave violation of human rights.
Aspects ignored by the Criminal Procedure Code Bill (2011):
The proposed Criminal Procedure Bill does not seem that different from the General Code (1963). The only difference is that procedural aspects have been presented in simpler language. The Code seems incapable of brining changes to the county’s legal administration. For example, article 24 (3) of the Interim Constitution has established the fundamental right of an accused to be presented in a court of law within 24 hours of being arrested. In reality, detainees are sometimes held for months without being presented in court. If we are to give justice to the Madheshi and other minority communities, the following points must be taken into consideration in the Bill.
A) The relation between criminal law and society has been ignored:
The perspective for understanding crime and criminals has remained the same. But crime and society are related in many ways. Each person in a society must be treated equally by the law. But the sociology of law gives equal importance to the differences that exist in society. Laws become ineffective otherwise. Many theories have been developed in criminology, some of which pay attention to poverty, lack of awareness and education, etc. In the present context, the Madheshi community, by and large, is poor and uneducated, and lacks awareness. Therefore, the state must create the conditions for the community to be treated slightly differently. Service acquired from legal professionals, guarantees kept in court, fines, legal fees, etc. are important aspects of the criminal justice mechanism. The state has to be sensitive regarding these issues. Sometimes, for example, an accused might be locked up without a hearing for months because he/she cannot afford a lawyer or pay the guarantee. The Bill is silent on such issues.
B) Improve external communication:
Ensuring justice for non-Nepali speakers will remain a dream unless the problem of language barrier can be resolved. The Supreme Court’ decision to retain Nepali as ‘the’ language of government offices and its order to strictly enforce article 5(2) of the Interim Constitution are problematic in that regard. It seems that the supreme legal body of the country does not want to give justice to minority groups. Our tradition has always been to seek unity in diversity without acknowledging various identities individually. The experience of our neighbouring country India can provide valuable lessons.
C) Make courts more inclusive:
In Nepal, there is a tendency to make changes to the law to seem progressive, but, in practise, a lot of changes are not actually implemented. The percentage population of the Madheshi community and their representation within legal bodies show, for example, that the principal of proportional representation has not been followed. The community from which 60-70 percent cases are registered seem to have been ignored. Until legal bodies are made inclusive, minority groups will not have access to justice.
D) Simplify courts and make them more accessible to pro se parties:
The courts need to be simplified in order to increase their reach. Access to justice will be impossible as long as bureaucracy reigns supreme. Our existing legal procedures are so complicated and burdensome that ordinary people cannot bear their weight.
E) The economic burden of courtrooms and legal procedures:
All the discriminatory practises existing in courtrooms aside, the various courtroom-related fees that one has to pay to utilise services are extremely burdensome. The cost incurred can be so high that sometimes people are dissuaded from going to court. Section 24(2) of the Interim Constitution guarantees the fundamental right of a person to choose his/her legal representative. But this provision has not come into practise. The Legal Aid Act (1997) has made some progressive provisions as well, but the implementation aspect of the Act remains weak.
F) The structure of courts needs to be changed:
Under the existing system and structure of courts, it is hard to imagine that the diverse Nepali community will be able to access justice. The language used in courts is such that, often, even Nepali speakers are confused. How can Madheshis, in light of this, be expected to understand courtroom procedures? It is imperative to change the legal structure.
In the Panchayat era, there were fast-track courts. Our neighbours in India also have fast-track courts, which have been widely praised. Why has the Criminal Procedure Code not been able to imagine such a mechanism? Some farsightedness is needed.
G) The structure of the criminal justice administration needs to be improved:
If the state sincerely wants to increase the Madheshi community’s access to justice, it needs to seriously think about how to change the behaviour of the Nepal Police, government attorneys, and judges towards Madheshis. Simply trying to improve legislation and making general changes to legal procedures will not be enough. A provision to define hate crimes must be made in the Criminal Code in order to prevent discrimination.
What is written in this review paper is partly based on statistics and partly on experience. In order to ensure that each person feels that he/she has access to justice, the criminal law and criminal justice administration has to be changed in such a way that it can incorporate every citizen from all the different communities. Even though this review has been written from a Madheshi perspective, the problems highlighted in the paper are similar to those faced by other minority communities. Therefore, the initiative of other minority communities is extremely important as well.
This research and recommendation paper prepared by Professor Balram Prasad Raut 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 Gopi B.K., Saraswati Shrestha, Jaya Mangal Prasad, Sambojan Limbu, Rabindra Tamang, Madan Kumar Dangol, Bibek Kumar Poudel, as well as Abhishek Adhikari, Ganesh Datta Bhatta and Dr. Bipin Adhikari.
This research has been supported by The Asia Foundation and opinion expressed in this report are of the authors and don't necessarily reflects of The Asia Foundation.