By Leah Conklin, Communications & Outreach Officer
I first spoke to Rishikant on a humid day at his home in a rural district of Nepal. He and his wife Prativa were busy preparing for Teej, a much-loved celebration to seek blessings from the goddess Shiva for marital bliss. This year was particularly special. Having just been released from prison, Rishikant was celebrating the festival at home for the first time in seven years.
In 2011, Rishikant agreed to give his friend a ride on his motorbike to a relative’s house in a neighboring region. He had no idea it would lead to his implication in a poaching scheme, until two years later when army from the National Park office, known in Nepal as the Kasara, knocked on his door in the middle of the night. They took him from his wife and young son and told him he was under arrest.
When Rishikant arrived at the Kasara office, he saw the friend to whom he had given a ride, beaten and bruised. An officer at the Kasara told Rishikant to sign a piece of paper, but didn’t explain what it was. Scared for his own safety after seeing his friend, Rishikant signed. It turned out to be a confession to poaching-- a crime he did not commit.
Nepalese law guarantees the right to a lawyer; however, this law is routinely not enforced in the Kasara— one of many quasi-judicial bodies in Nepal.
Quasi-judicial bodies are thought of as a low-cost solution to address alleged offenses. But due to lack of formal training of “judges” and a lack of accountability, these bodies are often hotbeds for rights violations and discrimination. While the accused have the right to a lawyer, legal aid is not provided by the state in these bodies if someone is unable to afford a lawyer on their own. Meanwhile, the conviction rate of cases tried in quasi-judicial bodies is close to 100 percent. These challenges particularly impact criminally accused who lack economic resources, and who come from ethic minority communities and lower castes.
Without access to a lawyer, Rishikant was tried and forced to defend himself in an informal Kasara court. He was detained for nearly two years awaiting a decision on his case. In October of 2013, he was convicted and sentenced to 8 years in prison.
Kamal Bahadur Ghising, a senior lawyer with the ILF, came into contact with Rishikant two years after his arrest. Our legal team fought through slow and tedious court processes to appeal Rishikant’s case having to undo the damage that lack of due process created. After years of appeals before the Supreme Court, we were at last able to secure Rishikant’s release based on lack of evidence. He was released from prison just nine months ahead of the end of his sentence.
If Rishikant had a lawyer from the time of his arrest, seven years of his life could have been spent watching his son grow up instead of locked in a jail cell. Having a quality defense lawyer, regardless of the ability to pay, helps ensure every other fundamental right for someone arrested or detained — including protection against arbitrary detention and coercion.
As the ILF argued on appeal, Rishikant’s confession was coerced. A lawyer would have identified this, and might possibly have prevented it from happening in the first place. If present from the start, a lawyer could have demonstrated that details of Rishikant’s confession were not corroborated by the co-accused and could have fought for Rishikant’s right to a speedy trial and decision. Ultimately, it’s likely that with a quality defense, Rishikant would have never been convicted.
The ILF, now established locally as the Public Defender Society of Nepal, has been working in Nepal since 2008. In that time, we have provided the only legal aid available in quasi-judicial bodies, trying to ensure that what happened to Rishikant does not happen to other people.
In 2015, Nepal’s new constitution wrote into law that potential sentences of over one year of imprisonment had to be tried by formal district courts, instead of quasi-judicial bodies. It was a positive step in reform yet, the new law was not being implemented in practice. Using the new constitution, the ILF immediately began bringing challenges to secure the transfer of cases with consequence of over one year to formal district courts. In accordance with Nepal’s new law, we were able to secure the transfer of hundreds of cases out of the jurisdiction of quasi-judicial bodies. Since then, jurisdiction for certain offenses has shifted back and forth between the formal courts and quasi-judicial bodies, as Nepal struggles to administer justice with limited resources.
There is certainly more progress to be made to ensure courts are able to handle caseloads, and to ensure that if quasi-judicial bodies are in use, they are adhering to laws and anti-discrimination practices. But getting cases with serious consequences in front of experienced judges and into environments with more accountability and especially, greater access to legal aid is a step in the right direction to protect human rights. The earlier we can get defense lawyers in the room to protect people like Rishikant, the better.