ILF-Nepal

ILF – Nepal

Introduction

ILF-Nepal provides free criminal defense services to Nepal’s poor.  In 2008, the ILF opened Nepal’s first independent public defender office in Katmandu with four Nepali lawyers. Today, ILF-Nepal has 17 staff lawyers in five offices across the country. To date, ILF-Nepal has represented over 2,500 clients, a great majority (80 percent) of whom belong to marginalized at-risk groups, including members of lower castes, indigenous peoples, juveniles and women. ILF-Nepal has also held trainings for lawyers and judges on issues related to indigent defense.

ILF-Nepal lawyers travel to visit detention centers across the country, steadily advancing the right to counsel and the rule of law.

ILF-Nepal lawyers travel to visit detention centers across the country, steadily advancing the right to counsel and the rule of law.

Background

In 2006, Nepal’s government signed a peace agreement with Maoist rebels, ending a decade-long civil war marked by social upheaval, political instability and a deteriorating human rights situation. During the civil war, laws were ignored, arbitrary detentions became common, and accused persons were denied the right to fair trial. Many languished in pre-trial detention indefinitely, threatened by torture and without legal representation or trial.

Since the 2006 peace agreement, Nepal has begun rebuilding its justice system. It now has an Interim Constitution, adopted in 2007, that guarantees accused persons the right to counsel and the presumption of innocence; it also prohibits arbitrary detention and the use of torture. Despite these positive developments, Nepal’s justice system remains riddled with problems, which include a lack of access to counsel, prolonged detentions and a reliance on forced confessions.

Nepal is one of the world’s poorest countries. Few accused persons can afford to hire a lawyer to defend their legal rights. The government’s indigent defense system is so woefully inadequate that the poor have little chance of receiving any meaningful access to a lawyer. Nepal’s indigent defense system is a court appointed counsel (Baitanik Wakill) system in which one lawyer is appointed to each court to represent all poor persons charged with felonies who appear before that court. Most Baitanik Wakill are grossly unqualified and under-compensated. Few have any knowledge or experience in criminal defense, and they receive no training. Additionally, Baitanik Wakill are largely incapable of protecting their clients’ rights because they are not appointed to cases until the time of indictment, by which time the investigation is over, involuntary confessions have been obtained, and pre-trial detention is completed. Finally, Baitanik Wakill do not represent the more than 30 percent of accused who appear before quasi-judicial bodies. Without access to a lawyer, accused persons languish in detention. Of the 7,136 persons detained in Nepal’s jails in 2005, 55 percent were awaiting trial. Further, those detained before trial are more vulnerable to making coerced false confessions that lead to wrongful convictions.

International Fellows lead a continuing legal education seminar in Kathmandu.

 

Work of ILF-Nepal

ILF-Nepal provides representation in all courts, both judicial and quasi-judicial proceedings before the Chief District Officer (CDO). The CDO has jurisdiction over all misdemeanors and arms-and-ammunitions cases, which comprise approximately 30 percent of all criminal cases in Nepal. Since Nepal’s Constitution does not guarantee representation to defendants tried in this system of justice, ILF-Nepal is increasing access to justice by providing a vigorous defense to those who would otherwise go unrepresented.

Since its founding, ILF-Nepal has provided criminal defense services to more than 2,500 indigent accused. With the assistance of a strong team of International Fellows, ILF-Nepal emphasizes the filing of writs of habeas corpus seeking immediate release of detainees on speedy trial grounds. In 2013, of the 129 writs filed, 91.3% were granted.

ILF-Nepal is also making progress on the institutional level and is often called upon to comment on pending legislation. ILF lawyers in Nepal suggested amendments to a draft of the Maoist Constitution and the proposed Child Rights Act, specifically, the section which outlines the rights of juveniles in the criminal justice system. ILF-Nepal also works closely with the Judges Society of Nepal, the nation’s largest judicial association. Through this partnership, ILF-Nepal has conducted seminars for judges on the role of counsel under the new Nepali constitution. Educating judges on the role of counsel has helped them to appreciate the importance of a public defender system.

It is clear that ILF-Nepal’s brand of tenacious advocacy is already having a marked effect on the criminal justice system as a whole. A prominent Nepalese judge has described ILF-Nepal’s work as “pioneering,” and many judges, as well as international organizations such as the United Nations Office of the High Commissioner on Human Rights, now regularly ask ILF-Nepal to undertake the defense of unrepresented detainees.

 

ILF-Nepal Legal Victories

In three years of operation, ILF-Nepal has won significant victories, provided consistently high-quality representation to its clients and set important legal precedents.

Recognition of the Right to a Speedy Trial

Government of Nepal v. Santosh Nepali (2008): In Nepal, accused persons are frequently detained, even for minor offenses, and often languish in jail for months or even years without access to a lawyer or the right to a trial. However, the Nepali criminal code clearly guarantees the right to a speedy trial whereby a court must reach a decisions within 12 months of the indictment. Mr. Santosh Nepali had been detained for three years without a trial when ILF-Nepal began representing him. ILF-Nepal filed a habeas corpus petition seeking his release. During the oral argument in the appellate court, one judge commented that there were thousands of people on the same situation in Nepal. ILF-Nepal’s lawyer focused the court on the case at bar and the court eventually agreed that the detention violated the client’s right to a speedy trial. Read more in ILF-Nepal’s Case Notes, November 2008.

Access to Pretrial Discovery

Government of Nepal v. Yogesh Pun (2009): Lawyers in Nepal carry a civil law tradition and many have not adapted their practices to the new common law system.  Prosecutors and lawyers believe that the defense has no role before the indictment. That is simply incorrect. The Constitution guarantees the right to counsel from the time of arrest and that means meaningful representation. Meaningful representation means the right to pretrial representation and access to the prosecutor’s files. In this case, ILF-Nepal lawyers won a court order to have access to the client’s file before the trial. Read more in ILF-Nepal’s Case Notes, May 2009.

Removing Jurisdiction of Chief District Officers (CDO) over Juveniles

Government of Nepal v. Saroj Rai (2009): In a landmark decision, the Supreme Court of Nepal, agreeing with ILF-Nepal, removed the jurisdiction of the CDO over juveniles accused of a crime. Before this intervention, juveniles accused of a crime were tried before a CDO in quasi-judicial proceedings that often resulted in a high level of arbitrary detentions of juveniles. The Supreme Court issued a two-page order holding that the CDO had no jurisdiction over juveniles under the Child Act and the Convention on the Rights of the Child as ratified by Nepal. The Court ordered the Home Ministry of Nepal to circulate the order to all CDO offices in Nepal and to transfer all juvenile cases before the CDO to the Juvenile Bench in District Court. Read more in ILF-Nepal’s Case Notes, September 2009.

 

The Future of ILF-Nepal

ILF-Nepal is dedicated to ensuring that all accused persons have access to high-quality, effective legal representation. It continues to expand to reach Nepal’s most vulnerable populations; in 2011, it opened two new offices in Kanchanpur and Hetauda, for a total of five countrywide.

ILF-Nepal is also working with the government to improve and expand the government funded Baitanik Wakill system. In 2010, ILF-Nepal was asked to train and certify all incoming and currently practicing Baitanik Wakill. In 2011, ILF-Nepal began a three-year project to teach 750 lawyers the basic skills necessary to begin to defend indigent accused persons effectively. Ultimately, ILF-Nepal will work with the Supreme Court to change the rules governing the appointment of Baitanik Wakill, specifically by: implementing certification requirements; extending Baitanik Wakill contracts; and expanding the mandate of Baitanik Wakill lawyers to include the representation of defendants in quasi-judicial proceedings.

Read more about our projects in Afghanistan and the West Bank

 

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