ILF-in-Nepal |
Today, Advocacy Forum has more than 50 lawyers, full- and part-time, working in Kathmandu and its 12 offices throughout the country, focusing on: 1) documenting human rights violations; 2) promoting juvenile justice; 3) monitoring custody; 4) promoting the debate on transitional justice; and 5) providing legal aid. Its custody monitoring program led to the establishment of its currently small legal aid project. Its legal aid lawyers visit the custody centers daily in eleven districts to observe the situation of detainees. Through its custody monitoring, Forum can identify the detainees in need of legal representation. Detainees who cannot afford lawyers are provided with legal aid services. Forum organizes consultations meetings with the different stakeholders, police, prosecutors, prison authorities, sensitizing them to their obligations regarding detainees, torture, and pretrial detention. However, Forum believes that its legal aid lawyers need criminal defense mentoring to improve the rigor and effectiveness of their practice. Outside expertise, such as that only the ILF can provide, is needed.
Definition of the Problem On February 1, 2005, King Gyanendra seized control of power. Fundamental constitutional rights including freedom of assembly and expression, right to privacy and information, and prohibition against illegal detention were suspended. Journalists, political leaders, and activists were arrested and detained. The rule of law collapsed. After a popular movement in April 2006, the King gave up the power he had usurped. In November 2006, a peace agreement was reached between the government and the Maoists. An interim constitution was put in place, and elections for a constitutional assembly are scheduled for June 2006. The new assembly will immediately begin drafting a new constitution. Both the ILF and Forum believe that this transitional period makes Nepal ripe for strengthening its rule of law through the development of a strong, proactive criminal defense culture and practice. The time is also right for constitutional commentaries on rule of law and criminal law reforms. As they have in Afghanistan, the ILF’s International Fellows working on cases with Forum lawyers will become intimately familiar with the justice system in Nepal and will be able to provide meaningful constitutional commentary. The problem of indigent criminal defense in Nepal can be illustrated with one example: defendants charged with a crime must be taken before a judge within 24 hours of arrest. Most are not; one police supervisor candidly admitted to the ILF’s Executive Director during her second assessment visit that he simply falsifies the booking information to satisfy the 24-hour rule. Since no one has counsel at the first court appearance, the judge never asks the suspect when he or she was arrested, and the 24-hour rule is therefore completely ignored leading to illegal detention. By simply ensuring the presence of counsel in the courtroom where these initial appearances take place, the ILF and Forum will be able to seriously curtail such illegal detentions, having a major impact on human rights in Nepal. Nepal is about to embark on a sea of democratic changes. Elections are scheduled for November 2007, a new constitution will be drafted and new legislation protecting human rights and eliminating discrimination will be enacted and democratic institutions built or rebuilt. The justice sector and the criminal justice sector in particular are completely dysfunctional. Though the interim constitution provides for the right to counsel for the indigent, the indigent rarely get representation. When they do, it is at the last minute when the trial is beginning. Efforts to rebuild the judiciary, the prosecution, police, and corrections have begun. Indigent criminal defense is indispensable to the reconstruction of a criminal justice system. Without criminal defense lawyers to challenge the improper and ad hoc practices of judges and prosecutors, the building of a fair and impartial justice system is impossible. Similarly, without criminal defense lawyers to force the implementation of new legislation, old practices and attitudes remain in place.
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