ILF-Nepal Wins Supreme Court Victory
On November 3, 2015, ILF-Nepal won a landmark case before Nepal’s Supreme Court. As a direct result of our advocacy, a common misdemeanor violation has been removed from the jurisdiction of quasi-judicial bodies and placed under the jurisdiction of District Courts. This decision will have an enormous impact upon the ability of Nepal’s poor to access justice and exercise their right to a fair trial. The full text of the decision – Bishnu Lama v. CDO KTM (072-WH-0018) – can be found here.
In Nepal, certain crimes are tried not by the courts, but by quasi-judicial bodies. The highest administrative official in each of Nepal’s 75 districts, known as the Chief District Officer (CDO), has historically had sweeping power to try quasi-judicial cases, most notably Some Public Offense (SPO) cases – a catchall disorderly conduct offense which is frequently used to harass the poor and vulnerable. ILF-Nepal is the only legal aid provider in Nepal to represent clients in these quasi-judicial settings, in which violations of the rights of the accused are very common. The criminal proceedings take place behind closed doors, and generally occur without defense lawyers, due process, witness examinations, or other fair trial protections.
The new Constitution of Nepal, adopted on September 20, 2015, includes language which significantly reforms the use of quasi-judicial bodies. According to Articles 152(2) and 300 (7) of this Constitution, any criminal case which carries a potential penalty of over one year of imprisonment must now be tried by a District Court. However, before ILF-Nepal brought this case to the Supreme Court, this provision of the new constitution had yet to be implemented. CDOs were not only failing to transfer ongoing cases carrying penalties of over a year, but were also continuing to take new ones.
Immediately upon adoption of Nepal’s new Constitution in September, ILF-Nepal began challenging the jurisdiction of quasi-judicial bodies in all of their SPO cases. ILF-Nepal also filed a writ of habeas corpus with the Supreme Court of Nepal to address this clear failure of the CDOs to abide by the new Constitution.
On November 3, 2015, ILF-Nepal’s advocacy was successful. In the case of Bishnu Lama v. CDO KTM (072-WH-0018), brought by ILF-Nepal advocate Ms. Bimala Yadav, a division bench of the Supreme Court (Rt. Hon Kalyan Shrestha and Hon Sushila Karki) issued an order transferring all SPO cases to the District Courts.
This case is expected to result in thousands of criminal cases being removed from the jurisdiction of quasi-judicial bodies; in 2013-2014, nearly 18,000 criminal cases were filed before CDOs. This is a significant victory for the accused in Nepal, as persons tried before quasi-judicial proceedings are far more likely to be convicted than those tried in the court system. Of 8,305 SPO cases prosecuted by CDOs in 2010-2011, just 0.4%, or 33 cases, resulted in acquittal.
Since ILF-Nepal was established in 2008, the organization has played a leading role in challenging the abusive practices of Nepal’s quasi-judicial bodies. In 2009, ILF-Nepal successfully petitioned the Supreme Court of Nepal to acknowledge that the Children’s Act of 1992 had removed juvenile cases from the jurisdiction of quasi-judicial bodies. And ILF-Nepal regularly brings habeas corpus petitions in cases where CDOs and other quasi-judicial officers have illegally detained their clients.
Congratulations to Ms. Bimala Yadav, and to all of the advocates of ILF-Nepal, for their tremendous advocacy on this issue.