Comparative law and justice/Nepal

Part of the Comparative law and justice Wikiversity Project

Subject classification: this is a comparative law and justice resource.

Basic Information

(Flag of Nepal) (Coat of Arms of Nepal)

Demographic Characteristics

• Total Population is 28,951,852

• Age/Gender Breakdown birth: 1.04 male(s)/female

• under 15 years: 1.04 male(s)/female

• 15-64 years: 0.92 male(s)/female

• 65 years and over: 0.88 male(s)/female

• total population: 0.96 male(s)/female

(Mount Everest)

Geography

• 147,181 sq. km

• Weather varies from cool summers and severe winters in north to subtropical summers and mild winters in south

• Nepal is landlocked, located between China and India

• • • contains eight of world's ten highest peaks including Mount Everest and Kanchenjunga (world's tallest and third tallest)

• Kathmandu is the capital and largest metropolitan city with population of 949,486 people

Religions:Hindu 80.6%, Buddhist 10.7%, Muslim 4.2%, Kirant 3.6%, other 0.9%

Ethnic Groups: Chhettri 15.5%, Brahman-Hill 12.5%, Magar 7%, Tharu 6.6%, Tamang 5.5%, Newar 5.4%, Muslim 4.2%, Kami 3.9%, Yadav 3.9%, other 32.7%, unspecified 2.8%

Languages: Nepali (official) 47.8%, Maithali 12.1%, Bhojpuri 7.4%, Tharu (Dagaura/Rana) 5.8%, Tamang 5.1%, Newar 3.6%, Magar 3.3%, Awadhi 2.4%, other 10%, unspecified 2.5% (many in government and business all speak English)

Economy: "Nepal is among the poorest and least developed countries in the world, with almost one-quarter of its population living below the poverty line. Agriculture is the mainstay of the economy, providing a livelihood for three-fourths of the population and accounting for about one-third of GDP. Industrial activity mainly involves the processing of agricultural products, including pulses, jute, sugarcane, tobacco, and grain. Nepal has considerable scope for exploiting its potential in hydropower, with an estimated 42,000 MW of feasible capacity, but political instability hampers foreign investment. Additional challenges to Nepal's growth include its landlocked geographic location, civil strife and labor unrest, and its susceptibility to natural disaster".

• GDP (purchasing power parity): $35.31 billion, GDP per capita: $1200, Annual Income: lowest 10%: 6% highest 10%: 40.6%
• Key Industries: tourism, garment, food, metal manufacturers, and herbs
• Key Imports: petroleum products, machinery and equipment, gold, electrical goods, medicine
• Key Exports: clothing, pulses, carpets, textiles, juice, pashima, jute goods

Brief History

History of Nepal

• "In 1951, the Nepalese monarch ended the century-old system of rule by hereditary premiers and instituted a cabinet system of government. Reforms in 1990 established a multiparty democracy within the framework of a constitutional monarchy. An insurgency led by Maoist extremists broke out in 1996. The ensuing ten-year civil war between insurgents and government forces witnessed the dissolution of the cabinet and parliament and assumption of absolute power by the king. Several weeks of mass protests in April 2006 were followed by several months of peace negotiations between the Maoists and government officials, and culminated in a November 2006 peace accord and the promulgation of an interim constitution. Following a nation-wide election in April 2008, the newly formed Constituent Assembly declared Nepal a federal democratic republic and abolished the monarchy at its first meeting the following month. The Constituent Assembly elected the country's first president in July. The Maoists, who received a plurality of votes in the Constituent Assembly election, formed a coalition government in August 2008, but resigned in May 2009 after the president overruled a decision to fire the chief of the army staff. The Communist Party of Nepal-United Marxist-Leninist and the Nepali Congress party then formed a new coalition government with several smaller parties. In June 2010, the prime minister resigned but, as of December 2010, continued to lead a caretaker government while the parties debate who should lead the next government. Disagreements among the political parties over issues such as the future of former Maoist combatants has hindered the drafting of a new constitution due in May 2011 and the formal conclusion of the peace process".

(Swayambhunath Temple)

Economic Development, Health, and Education

• Infant Mortality Rate: 46 deaths/1,000 live births (male: 45.97 deaths/1,000 live births) (female: 46.04 deaths/1,000 live births)

• Life Expectancies: Males= 64.62 years, Females= 67.05

• Literacy Rates(age 15 and over can read and write): Males= 62.7%. Females= 34.9%

• School Life Expectancy: Males= 10 years, Females= 8 years

(Children at countryside local school in Nepal practice dancing)

Governance

• "Nepal is a Federal Democratic Republic in which the powers of the central government are restricted and in which the component parts (states, colonies, or provinces) retain a degree of self-government"

• Power rests with the voters who chose their governmental representatives

• All the bills are presented in the parliament and after passing the bills by the majority and the approval, it becomes the law. All laws are made in Parliament

• "The legislative is the law making body of the country. To make law is the most important function of the state. The country functions under the laws made by the legislature. The legislative came as an organ of state in 18th and 19th century. In most of the countries the members of the legislative are elected by the people. Constituent assembly is working as the legislature of Nepal at present. Legislative is composed of 601 members. Among them, 240 members are directly elected by the people from 240 constituencies. 335 members are elected through proportional basis and 26 members are nominated by the cabinet"

• Currently, the position of President (head of state) is occupied by Ram Baran Yadav. The position of Prime Minister (head of government) is held by Jhala Nath Khanal, following a seven-month interval with no prime minister after the resignation of Madhav Kumar Nepal on June 30, 2010. Executive power is exercised by the Prime Minister and his cabinet, while legislative power is vested in the Constituent Assembly

• "Until 1990, Nepal was an absolute monarchy running under the executive control of the king. Faced with a people's movement against the absolute monarchy, King Birendra, in 1990, agreed to large-scale political reforms by creating a parliamentary monarchy with the king as the head of state and a prime minister as the head of the government".

• Governments in Nepal have tended to be highly unstable and no government has survived for more than two years since 1991 either through internal collapse or parliamentary dissolution by the monarch.

Elections

Bidhya Devi Bhandari is the current president of Nepal.

• "The people of Nepal exercised, for the first time in history, their most important fundamental right on April 10, 2008 in electing a 601-member Constituent Assembly mandated to write a new constitution for the country"

• "For many Nepalese, participation in the democratic process meant either walking for hours along mountain paths or riding a yak to cast a ballot. Since most voters were illiterate, they had to choose a candidate according to the party's symbol as authorized by the election commission; for example, a tree signified the Nepali Congress Party and a sun represented the Communist Party of Nepal"

• 18 years of age is legal to vote in Nepal and any citizen has the right

• Elections are similar to the U.S. where they have ballots for voting and their National Holidays are May 29 (Republic Day) and April 24 (Democracy Day)

Judicial Review

• "The first democratic constitution of Nepal drafted in 1991 allowed unprecedented independence to the judicial branch of the government. As Nepal's political environment evolved over the years, the judiciary has remained independent and much progressive. However, there were times when the judiciary came under sharp criticism for not taking action against government decisions that violated the constitution. Now, with 2008 general elections that won victory to the ultra-left Communist Party of Nepal, political scene in Nepal has changed one more time"

• The Judicial Review in Nepal can be traced back to the early days of the establishment of the Supreme Court

• "The provision of Judicial Review in the Constitution is aimed at harmonizing the Constitutional culture, value and Constitutional democracy in Nepal apart from spreading a sense of justice among the people"

Courts and Criminal Law

• "The Chief Judge or the judges of the Court of Appeal are appointed from among the individuals either who have worked as a District Judge or as an officer of Nepalese Judicial Service in an equivalent rank for a minimum of seven years, or any Senior Advocate or Advocate with minimum practicing experience of ten years, or any legal researcher or law teacher or person engaged in any field of law and justice for a minimum of ten years."
• The Judges of the Court of Appeal hold their office till the age of sixty three
• "Nepal Bar Council is a statutory organization which issues license and also regulates conduct of lawyers. The Nepal Bar Council also grants license to practice for those candidates who succeed in the Bar Council's licensing examination. Usually to be eligible to participate in the licensing examination the applicant should have at least a graduate degree of law".
• All licensed lawyers have to update their license in the Nepal Bar Council every five years
• Trial system is innocent until proven guilty and the accused have the right to speak
• "Nepal has a three-tier court system consisting of 75 district courts, 16 appellate courts, and the Supreme Court. Village and municipal bodies may exercise quasi-judicial functions for minor offenses. All courts have original jurisdiction, but district courts have original jurisdiction over most judicial matters. The Supreme Court also has appellate jurisdiction and jurisdiction over all courts, except military courts, and Supreme Court orders, decisions, and interpretations are binding on all, including the king. The Supreme Court has a chief justice appointed by the king on the recommendation of the Constitutional Council and 14 judges appointed by the king on the recommendation of the Judicial Council, which also appoints appellate and district court judges. The House of Representatives can impeach Supreme Court justices. The judiciary is widely regarded as becoming more autonomous, but it suffers from large case backlogs, insufficient finances and personnel, political intervention, poor demarcation of jurisdiction between courts, and biases based on caste and economic status. Thus, many Nepalese do not view the official court system as a viable option for legal matters. A survey conducted in 2000 revealed that the majority of legal-type issues were handled not by government officials but by local actors, such as village chiefs".
• Nepal has social insurance against any lawsuits

Punishment

Typical Punishments for key offenses

• Rape- face between 10 and 15 years imprisonment
• Murder- maximum 20 years
• Theft- depends on value of property stolen
  • • Most heinous crime gets a maximum jail term of 20 years in Nepal

• Nepal uses fines similar to the United States and one of their newest laws in being fined for driving while on a cell phone. Also, their is a sacred temple of Shiva located in Nepal where couples seen kissing, hugging, or embracing can be fined between $200 and $500. Each fine in Nepal is based on severity of the crime.
• "Corporal punishment is unlawful as a sentence for crime under criminal law. The Interim Constitution (2007) prohibits cruel, inhuman or degrading treatment of citizens of Nepal. The Children’s Act, defining a child as under 16, prohibits cruel treatment and subjecting a child to handcuffs, solitary confinement, and does not provide for sentencing to corporal punishment. Under the Act, children aged 14-15 are liable to reduced sentences under criminal law and older children face full sentences under criminal law which does not provide for judicial corporal punishment. The Abrogation of Some Criminal Cases and Remission of Punishment Act 1963 explicitly prohibited a number of cruel and humiliating punishments, including shaving the head of the offender, impaling/piercing the body, branding the body and forcing the offender to eat forbidden/inedible foods."
• "Capital Punishment in Nepal was abolished in 1997 however, the growing incidents of abductions, killings, rapes and other heinous crimes in the country have forced some people to speak in favor of death penalty. The murder of Khyati Shrestha has further forced people to think of effective means to stop murderers from committing crimes again. In fact, arguments for and against death penalty have raged on for debates between abolitionists and retentionists. Retentionists have been arguing for years that capital penalty is necessary in order to prevent a murderer from committing crimes in the future. They argue that the criminal justice systems impose punishments for at least three important reasons, namely, just punishment, deterrence and incapacitation and it is the only effective means to that end. “Let the punishment fit the crime” is a generally accepted and sound precept of criminal justice system. Retentionists argue that capital punishment is apt for a crime as grave as a cold-blooded murder."
• 1979- last year an execution for all crimes took place in Nepal
• Nepal imprisonment rate - 26 per 100,000(one of the lowest in the world)
• Prison conditions are very poor with lack of proper health care and food. Prisoners have said that the buildings are in despair and their was reports of widespread corruption of prison officials
• Juvenile offenders -"Nepal has ratified the UN Convention on the Rights of the Child. In fact, it was among the first batch

of nations to ratify this convention to protect and safeguard children's rights"

• Children below 10 years of age are not subject to any legal punishment and are pardoned for their acts against the law as they are innocent
• Children ages 10 to 14 years of age are subject to imprisonment for the period of 6 months maximum or are persuaded to reform their behavior
• Children between ages of 14 to 16 years are subject to partial or half of the punishment to the adult criminals
• Children who are 16 year and above are regarded as the state of full responsibility and must face the consequence of his/her delinquency
• "Children’s Act 1992" was the first comprehensive children's rights act in Nepal

Law Enforcement

History

• Prior to 1864 AD: The Police institution dates back to the ancient times as does the history and language of the country.

• During The Rana Regime (1864-1951 AD): little was done to institutionalize the Police Force

• "During The Period 1951 till 1990: Nepal saw the dawn of democracy after the fall of the Rana regime. The Police Head Quarters was established in 1952 in Kathmandu. Mr. Toran Shamsher J.B.Rana was appointed the first Inspector General of Police. The Police Act, 2012 BS (1956 AD) came into effect. The Police Regulation, 2015 BS (1959 AD) came into effect. The Parliamentary Government under the multi-party system was adopted for some years which was followed by Panchayat System since 1960. The establishment of the Central Police Training Center was created in 1963. The role of Police was focused mainly in safeguarding the interest of the ruling system."

• "From The Period 1990 Till Date: The Peoples democratic movement of 1990 reinstated the multi party democratic system. The new constitution of the kingdom was promulgated on Nov. 9.1991. The Police Reform Commission was constituted in the year 1992 and Modernization of the Police Organization started to tune with the aspirations of the people and norms of Multi-Party system. The first contingent of Police personnel was deployed in UN Mission in 1991. More than 2000 police personnel have already left their feet serving the international community in blue helmet."

• The present chief of Nepal Police is Inspector General of Police Ramesh Chand Thakuri

• Nepal Police Force is a Single Centralized structure

Structure

• Four Main Departments (Administration Dept., Operations Dept., Crime Investigation Dept., and Human Resource Dept.)
• Service to be on the Nepal Police Force is voluntary and minimum age of enrollment is 18 years old, must Pass Written and Physical Tests, and graduate from a 9 month Nepal Police Academy

• Nepal ranked at 2.2 in corruption on the Corruption Perceptions index according to Transparency International which means the country is highly corrupt
• Many Nepalese people feel the Police Force is corrupt and don't have trust in them

Role Of Military to Law Enforcement

• "The Primary role of the Nepal Army is to defend the territorial integrity, sovereignty and independence of Nepal. Their secondary role is to provide assistance to the Civilian Government of Nepal in the maintenance of internal security and help with Nepal Police Force. Other duties include humanitarian assistance/disaster relief operations, assisting in national development, nature conservation efforts and participation in international peacekeeping mission".

(A protective mask and grenade launcher are part of the uniform of this Nepalese soldier)

Crime Rates and Public Opinion

Major Crimes

• Human Trafficking is one of the largest crimes in Nepal. Many of the traffickers, who are known as "dalals", trap girls and their guardians by offering them marriage and a better life -Between 10,000 and 15,000 Nepali girls are trafficked every year

• Drug Trafficking: illicit producer of cannabis and hashish for the domestic and international drug markets; transit point for opiates from Southeast Asia to the West

Homicide Rate: 2.1% per every 100,000 people

Other Key Crime Rates: Assault= 2.27%, Robbery= .54%, Theft= 1.95%, Drug Related Crimes= 1.47%

• • • However, most of the crimes are not reported and crimes such as human trafficking are well organized which make these numbers less reliable

• According to the University of Ottawa, Nepal is a Common Law Country.

Rights

Family Law

Adoption Regulations

• "According to the adoption rules of the Government in Nepal, infertile couples married for four years or even single women, widow, divorcee are eligible to adopt a child. The age difference between the adopted child and the parent should be not less than 35 and not more than 55 years."
• "Only one child of each sex is allowed for adoption except in the cases of twins. If the willing adoptive parent has his/her own offspring, in that case, acceptance to adopt a child of another sex can be granted and in this case the adopted child should age less than the offspring."
• "An application has to be submitted to adopt a Nepali son or a daughter. In case of married couples, the application should also include the infertility report, marriage certificate, family and economic condition statement, health, character certificates, copies of passport and visa and a letter of consent to adopt a Nepali child authorized by the officer of the concerned country."
• "In the case of unmarried, divorced, windowed single parent, a guarantee letter written by the government of his/her country or the Embassy of his/her country in Nepal has to be submitted confirming that he/she who is taking the child in adoption shall bear the whole responsibility including nourishment and education of the child including the authorized evidence."
• "Upon the approval of adoption, the child could travel to the country of the adoptive parents. Until the adopted child attains majority, the adoptive parent should inform the concerned orphanage, Royal Nepalese Embassy or Mission located in the concerned country and Ministry of Women Children and Social Welfare of His Majesty's Government, in writing, on the child’s growth, diet, education and health every year".

Marriage Regulations

(Young Hindu-couple after the wedding ceremony in Nepal)

• The British Embassy can assist in the process of announcing a marriage here in Kathmandu. However, they cannot become involved in the process of the ceremony, religious or otherwise.
• Marriage in Nepal is regulated by the Registration of Marriages Act of 1971. Foreigners wishing to marry in Nepal are subject to the same laws as Nepalese citizens.
• "Marriages may be solemnized according to the customs and usages of the individual’s religion, caste, community or family, provided that those customs do not violate any of the law’s provisions. The minimum legal age for marriage in Nepal is 20 for men and 18 for women".
• "To ensure the legality of a religious marriage, the couple should register the marriage. It is also possible to have a civil ceremony. In both cases the civil authorities will issue a marriage certificate"
• "In order to start the process, the individuals concerned need to have been resident in the Kathmandu Consular District for at least twenty-one days. At this point, you may apply to Consular Section of the Embassy to give Notice of Marriage. This involves an oath to be made confirming that the persons intending to marry are legally free and of age to do so. The Notice of Marriage will then be displayed in the Consular Section waiting room for twenty-one days, after which time, if no impediment has been shown to exist, we will issue a letter of No Impediment and an Affidavit of Eligibility to Marry. On issue of these documents, the couple has three months within which to marry".
• "On receipt, the documents supplied by the Embassy plus the documents listed below, should be taken to the Chief District Officers office. After a period of approximately 15 days, the couple will need to return to the CDO to sign the marriage register following which; the CDO will issue a marriage certificate written in both Nepali and English."

Divorce Regulations

• "Women may legally seek divorce, but on narrower grounds than those applicable to men. A woman may divorce her husband if he is impotent, illegally takes a second wife or mistress, or if he deserts, grossly neglects or abuses her. A husband may obtain a divorce if his wife is unfaithful, deserts him or "plots" against him. A husband and wife may divorce by mutual consent."
• "The law on property rights advantages men in inheritance and the division of family property. Nepal's property law derives from the Hindi system of beliefs emphasizing the retention of family property within the male ancestral line. A woman has equal inheritance rights with her children to her husband's property only if she remains faithful to her husband, even after his death. She relinquishes all inheritance rights if she marries another man or is charged with adultery. A woman is only accorded inheritance of her family's property, on an equal basis with her brothers, if she is unmarried and is at least thirty-five years old when the property is divided. If she marries, the property reverts to her brothers or other direct male descendants".
• "Nepal's biased divorce and property laws result in severe economic inequalities. If a woman leaves her husband, divorce or partition laws provide for only limited economic support. Because she has been married, she has also forfeited her right to parental property. Faced with economic dependence and the severe social stigma facing women who live alone in Nepal, many women are forced to stay in abusive relationships"

Inheritance

• "Inheritance throughout Nepal generally is based on the traditional Mitakshara system, which is encoded in Nepalese law and which states that a legal right to an equal share of the household property goes to each son. In practice, of course, deciding equal shares of partible property is complicated and often fraught with tensions. There have been reforms in the inheritance law for women recently so that they supposedly have more equal rights to the property of their natal family, if they are unmarried, and to their husband's property if he dies. Formerly—and no doubt still today, in practice—they had to wait until they were 35 years old to claim an equal share of their father's property. If their husband had died, they only had been allowed rights to use the land, which reverted to their husbands"

Women's Rights

• "Women consist of 51 percent of the population of Nepal but Nepalese society is dominated by men. The Society of Nepal is based on a patriarchal system which is run by a defective value system rather than the laws of the nation. Women are denied of the right to liberty, equality and property along with other rights."
• Women in Nepal are treated as second class citizens. They do not have the right to entity. They are deprived of the right to provide nationality or citizenship to their family members.
• "They are discriminated clearly in the existing nationality laws of Nepal. Regarding citizenship, a person who is born in Nepal and whose father is a citizen of Nepal at the time of birth, ipso facto becomes a Nepali citizen by descent, whereas the same right is not given to a child whose mother is a Nepali citizen. A Woman of foreign nationality who is married to a Nepali citizen may acquire Nepali citizenship; however, a foreign man who has married a Nepali woman is not entitled to acquire Nepali citizenship by virtue of such marriage. Nepali laws give women equal rights with men in acquiring, changing or retaining their nationality. In practice, however, Nepali citizenship of an applicant's father, brother or husband is required to provide citizenship to a son, daughter, brother or wife. This practice makes it difficult to acquire citizenship through a Nepali mother or wife. Due to these discriminatory laws, which deprive women of right to provide citizenship to their family members, severe problems like statelessness, lack of ownership of property, lack of individual identity, and denial of political, social, economic and civil rights are also seen multiplying day by day in Nepal"

Human Rights

• "Since political reform began in 1990, some progress has been achieved in the transition to a more open society with greater respect for human rights; however, substantial problems remain. Poorly trained police sometimes use excessive force in quelling violent demonstrations. In addition, there have been reports of torture during detention and widespread reports of custodial abuse. In 2000, the government established the National Human Rights Commission (NHRC), a government-appointed commission with a mandate to investigate human rights violations. However, the government continues to stall in implementing the commission's recommendations and has not been able to enforce accountability for recent and past abuses. The King's February 2005 dismissal of the government, subsequent imposition of emergency rule and suspension of many civil rights--including freedom of expression, assembly, and privacy--was a setback for human rights in Nepal. During this 3-month period, censors were deployed to major newspapers, and many political leaders were kept under house arrest. The King's government restricted the media from publishing interviews, articles, or news items against the spirit of the royal proclamation of February 1, 2005 or in support of terrorist or destructive activities. The reinstated government, led by Prime Minister Koirala, reversed these decisions in May 2006. The interim constitution promulgated on January 15, 2007 ensured unrestricted freedom of expression and made the NHRC a constitutional body"
• "Both the Maoists and security personnel have committed numerous human rights violations. The Maoists have used tactics such as kidnapping, torture, bombings, intimidation, killings, and conscription of children. Within the Nepalese security forces, violations ranged from disappearances to executions. After the royal takeover on February 1, 2005 and subsequent imposition of the state of emergency, the security forces arrested many political leaders, student leaders, journalists, and human rights activists under the Public Security Act of 1989, although all were released by June 2005 when the King ended the state of emergency."
• "After the April 2006 cease-fire announced by the government and the Maoists, incidents of human rights violations by the government declined substantially while incidents of human rights violations by the Maoists remained relatively unabated. Even after signing a comprehensive peace agreement with the government in November 2006, Maoists' extortion, abduction, and intimidation remained largely unchecked. Although activities by other political parties have increased significantly in the rural parts of Nepal, political party representatives, police, non-governmental organization (NGO) workers, and journalists reported continuous threats and intimidation by Maoist or Young Communist League (YCL) cadres. During the January-February 2007 uprising in the Terai, reports of government security forces using excessive force to quell demonstrations were common"
• "Trafficking in women and child labor remain serious problems, but some improvement has been seen; in addition, the founder of a U.S.-backed anti-trafficking organization, Maiti Nepal, won the 2010 CNN Hero award. While Nepal is primarily a source country for destinations like India and the Middle East, internal trafficking is also a prominent issue. According to the State Department's 2008 Trafficking in Persons Report, 5,000 to 7,000 girls have been trafficked from rural parts of the country to Kathmandu, and there are over 20,000 child indentured domestic workers in Nepal. Lack of prosecution and police complicity in trafficking cases remain major problems. Discrimination against women and lower castes is prevalent"