Modern Nepal was created in the latter half of the 18th century when Prithvi Narayan Shah, the ruler of the small principality of Gorkha, formed a unified country from a number of independent hill states. The country was frequently called the Gorkha Kingdom, the source of the term "Gurkha" used for Nepali soldiers.
After 1800, the heirs of Prithvi Narayan Shah proved unable to maintain firm political control over Nepal. A period of internal turmoil followed, heightened by Nepal's defeat in a war with the British from 1814 to 1816. Stability was restored after 1846 when the Rana family gained power, entrenched itself through hereditary prime ministers, and reduced the monarch to a figurehead. The Rana regime, a tightly centralized autocracy, pursued a policy of isolating Nepal from external influences. This policy helped Nepal maintain its national independence during the colonial era, but it also impeded the country's economic development.
In 1950, King Tribhuvan, a direct descendant of Prithvi Narayan Shah, fled his "palace prison" to newly independent India, touching off an armed revolt against the Rana administration. This allowed the return of the Shah family to power and, eventually, the appointment of a non-Rana as prime minister. A period of quasiconstitutional rule followed, during which the monarch, assisted by the leaders of fledgling political parties, governed the country. During the 1950s, efforts were made to frame a constitution for Nepal that would establish a representative form of government, based on a British model.
In early 1959, King Mahendra issued a new constitution, and the first democratic elections for a national assembly were held. The Nepali Congress Party, a moderate socialist group, gained a substantial victory in the election. Its leader, B.P. Koirala, formed a government and served as prime minister.
Declaring parliamentary democracy a failure 18 months later, King Mahendra dismissed the Koirala government and promulgated a new constitution on December 16, 1962. The new constitution established a "partyless" system of panchayats (councils) which King Mahendra considered to be a democratic form of government closer to Nepalese traditions. As a pyramidal structure progressing from village assemblies to a Rastriya Panchayat (National Parliament), the panchayat system enshrined the absolute power of the monarchy and kept the King as head of state with sole authority over all governmental institutions, including the Cabinet (Council of Ministers) and the Parliament.
King Mahendra was succeeded by his 27 year-old son, King Birendra, in 1972. Amid student demonstrations and anti-regime activities in 1979, King Birendra called for a national referendum to decide on the nature of Nepal's government--either the continuation of the panchayat system with democratic reforms or the establishment of a multiparty system. The referendum was held in May 1980, and the panchayat system won a narrow victory. The king carried out the promised reforms, including selection of the prime minister by the Rastriya Panchayat.
In 1990, the political parties again pressed the king and the government for change. Leftist parties united under a common banner of the United Left Front and joined forces with the Nepali Congress Party to launch strikes and demonstrations in the major cities of Nepal. This "Movement to Restore Democracy" was initially dealt with severely, with more than 50 persons killed by police gunfire and hundreds arrested. In April, the king capitulated. Consequently, he dissolved the panchayat system, lifted the ban on political parties, and released all political prisoners.
An interim government was sworn in on April 19, 1990, headed by Krishna Prasad Bhattarai as prime minister presiding over a cabinet made up of members of the Nepali Congress Party, the communist parties of Nepal, royal appointees, and independents.
The new government drafted and promulgated a new constitution in November 1990, which enshrined fundamental human rights and established Nepal as a parliamentary democracy under a constitutional monarch. International observers characterized the May 1991 elections as free and fair in which the Nepali Congress won 110 seats out of 205 to form the government. The 1994 elections resulted in a Nepali Congress defeat and a hung Parliament, with a minority government led by the United Marxist and Leninist Party (UML). The next 5 years saw five successive governments. Although the Nepali Congress won a clear majority (113 out of 205) in the latest parliamentary elections, held in 1999, the pattern of short-lived governments persists, with three different Nepali Congress Party Prime Ministers holding office from mid-1999 to mid-2001.
Today, Nepal is a constitutional monarchy with a parliamentary form of government. In 1990 the late King Birendra, formerly an absolute monarch, legalized political parties, after which an interim government promulgated a new Constitution. On June 1, the late Crown Prince Dipendra apparently killed King Birendra and nine members of the royal family. King Birendra's brother, Prince Gyanendra, assumed the throne on June 4. King Gyanendra retains limited powers, and has dissociated himself from direct day-to-day government activities. The democratically elected Parliament consists of the House of Representatives (lower house) and the National Assembly (upper house). In 1999 the country's third national parliamentary elections were held, which international observers considered to be generally free and fair. After Maoist insurgents broke a 4-month ceasefire with a series of violent attacks, on November 26 King Gyanendra, acting on the advice of the Cabinet of Ministers, declared a nationwide state of emergency. The state of emergency may be maintained for up to 3 months without the approval of Parliament. Under the Constitution's emergency provisions, the King suspended several constitutional rights, including the right to assembly, the right to public information, and the rights to opinion and expression. The Constitution provides for an independent judiciary; however, the courts often are inefficient and susceptible to political pressure and corruption.
In 1996 the leaders of the Maoist United People's Front ("Maoists") launched a "People's War" that has led to continued violence in more than 50 of the country's 75 districts. The insurrection has been waged through torture, killings, bombings, extortion, and intimidation against civilians and public officials.
In March, 2001, the Government began distributing land to approximately 200,000 bonded laborers and family members freed in the 2000 Government decree from the feudal "Kamaiya" system of debts to their landlords.
During the year 2001, the Maoists increased the scope of their campaign, frequently committing torture, killings, bombings, and other abuses.
Nepalese police, backed from time to time by the army, combat routine crimes in addition to monitoring numerous political strikes and demonstrations. The incidence of organized political violence was low, however. Nepal was not a fertile breeding ground for international terrorism because most political violence was committed by Nepalese dissidents to further their own domestic political agendas.
In the mid-1980s, small antimonarchist and communist groups conducted a series of bombings in the Kathmandu Valley to dramatize their opposition to Birendra's rule. In June 1984, clandestine Maoist bands such as the Samyuktha Mukti Bahini (Socialist Liberation Army), the Democratic Front, and the United Liberation Torch Bearers mounted a campaign of bombings and assassinations intended to spark a revolution. Their actions had the opposite effect, however, as moderate opposition politicians condemned the violence and rallied around the king. The opposition civil disobedience campaign was called off, and the Rashtriya Panchayat passed a stringent antiterrorist ordinance to put down the threat. By August 1984, over 1,000 suspected terrorists and sympathizers were imprisoned under provisions of antiterrorist legislation promulgated by the king.
The following year, another bombing in downtown Kathmandu killed eight persons and wounded twenty-two others. The sensational crime was perpetrated by the Jan Morcha (People's Front), a Taraibased antimonarchist group with ties to political thugs in the Indian border states of Uttar Pradesh and Bihar. Several Jan Morcha leaders who fled to India were convicted of the bombing in absentia. In June 1991, following the installation of the Nepali Congress Party government, King Birendra pardoned the exiled terrorists as a gesture of political goodwill.
The ethnic tensions that spilled across Nepal's international boundaries also posed security and foreign policy problems. In 1987 the Nepalese minority residing in the mountainous northern districts of the Indian state of West Bengal mounted a violent agitation demanding statehood within the Indian union for Indian citizens of Nepalese origins. The standard bearer of the campaign was the Gorkha National Liberation Front led by Subhas Ghising, a former noncommissioned officer in an Indian Gurkha regiment. The communist state government of West Bengal complained of Nepalese collusion with the agitators after Ghising openly solicited Kathmandu's support and called on Gurkhas in the Indian Army to back the demand for a separate "Gorkhaland." The situation worsened when Indian police crossed the Nepalese border while pursuing Gurkha militants. Although Kathmandu probably was sympathetic to the plight of the Nepalese minority, any appearance of support for the statehood agitation was scrupulously avoided for fear of angering New Delhi. Official Nepalese support for the movement never was proven. By 1991 the Gorkhaland agitation had subsided after New Delhi, West Bengal, and Gurkha militants negotiated a political settlement that fell short of statehood.
In the 1980s, some of the young, militant Nepalese population residing in the southern part of Bhutan began to complain of systematic discrimination at the hands of the Bhutanese government. As many as 6,000 ethnic Nepalese refugees fled to Nepal. Because there were another 16,000 Nepalese refugees who had fled from Bhutan to India, the ethnic dispute in Bhutan threatened to become a transregional security problem involving all three states.
The strong communist showing in the 1991 election was a disturbing development from the perspective of Birendra and the army. The Nepali Congress Party, a longtime political and ideological foe of the communists, also harbored deep misgivings over communist political intentions. Many observers feared that the relatively open political environment would allow disciplined communist cadres to mount street protests, paralyze the government, and force a showdown with the king and the army. Army officers, most of whom rejected the antimonarchist platform of the communists, invariably regarded the communists as a potential security menace and a threat to the throne. There was no evidence in late 1991 that the some twenty Nepalese communist factions then in existence commanded any appreciable support within the army rank-and-file.
Nepal is extremely poor, with an annual per capita gross domestic product of approximately $242; the population is 23.2 million. Over 80 percent of the country's population support themselves through subsistence agriculture. Principal crops include rice, wheat, maize, jute, and potatoes. Tourism and the export of carpets and garments are the major sources of foreign exchange. Foreign aid accounts for more than half of the development budget. The economy is mixed, with 39 public sector firms. Seventeen former government firms have been privatized or liquidated since 1992, although the rate of privatization is slow.
In terms of differences in wealth and access to political power, Nepalese society could be divided into a small ruling elite; a growing, intermediate-sized group of government officials, large landholders, and merchants; and the vast majority of the population, consisting of a peasant base. These divisions are descriptive, functional class categories rather than social class entities based on the Marxian concept of the social relations of production. In a way, all three classes were a long continuum in Nepal's social structure because most members of the ruling elite and government functionaries had their direct roots in the rural landed class, which was one stratum of the farming population.
Even though the agricultural sector as a whole faced similar economic and technological circumstances, it was diverse and contained several strata in landholding, relative economic dependence, and independence. The numerically small intermediate stratum of the farmers was only slightly less diverse than the rest of the rural population in terms of members' ethnic and geographical backgrounds. The relative economic and educational advantages of this group and its occupational activities, however, made its members relatively homogeneous in terms of shared interest. They generally aspired to achieve a middle- or elite-class status.
The smallest and least diverse of the three categories was the ruling elite, largely composed of high-caste, educated Paharis, namely different strata of Brahmans and Chhetris. At the zenith of this class was the monarch, whose authority was derived from the orthodox Hindu contention that the king was the reincarnation of Vishnu, whose assigned role in the Hindu trinity is protection. The monarch's authority was not based on electoral support.
The continued expansion of the bureaucracy was a direct response to a consistent increase in the educated population. Because of the lack of development, a large number of educated people failed to find gainful employment upon graduation. Because they constituted the most potent revolutionary force, and happened to be geographically concentrated in urban centers, the ruling class was almost compelled to absorb them into an already bloated bureaucracy in order to neutralize any sociopolitical disturbance they might cause.
In the 1980s, a significant number of college- and university educated people residing in Kathmandu Valley cities discovered a second employment outlet. Development consultant firms and associated services have emerged throughout Kathmandu. Because of the growing pressure on foreign donors to hire Nepalese consultants for development feasibility and evaluation projects, these firms were able to tap into the large pool of foreign aid money and have generated a significant number of jobs. This opportunity has allowed many of the more educated to attain middle class status.
Religion occupies an integral position in Nepalese life and society. In the early 1990s, Nepal was the only constitutionally declared Hindu state in the world; there was, however, a great deal of intermingling of Hindu and Buddhist beliefs. Many of the people regarded as Hindus in the 1981 census could, with as much justification, be called Buddhists. The fact that Hindus worshipped at Buddhist temples and Buddhists worshipped at Hindu temples has been one of the principal reasons adherents of the two dominant groups in Nepal have never engaged in any overt religious conflicts. Because of such dual faith practices (or mutual respect), the differences between Hindus and Buddhists have been in general very subtle and academic in nature. However, in 1991, approximately 89.5 percent of the Nepalese people identified themselves as Hindus. Buddhists and Muslims comprised only 5.3 and 2.7 percent, respectively. The remainder followed other religions, including Christianity.
The geographical distribution of religious groups revealed a preponderance of Hindus, accounting for at least 87 percent of the population in every region. The largest concentrations of Buddhists were found in the eastern hills, the Kathmandu Valley, and the central Tarai; in each area about 10 percent of the people were Buddhist. Buddhism was relatively more common among the Newar and Tibeto-Nepalese groups. Among the Tibeto-Nepalese, those most influenced by Hinduism were the Magar, Sunwar, and Rai peoples. Hindu influence was less prominent among the Gurung, Limbu, Bhote, and Thakali groups, who continued to employ Buddhist monks for their religious ceremonies.
The judicial system initiated under the Ranas, despite some limited reforms, remained traditional in character in the early 1990s. The Muluki Ain of 1854, the legal code introduced by the first Rana prime minister, Jang Bahadur Rana, combined ancient Hindu sanctions and customary law and common laws modeled on the British and Indian codes with the rules of behavior that had evolved over the centuries among the Newars in the Kathmandu Valley.
The Muluki Ain was amended several times and was completely revised in 1963. Over the years, the Muluki Ain blended royal edicts, proclamations, and piecemeal legislation. The entire corpus of law was consolidated in a compilation called the Ain Sangraha. Customs were applied in the absence of legislative provisions or judicial procedures.
The revised code sought to promote social harmony and declared all persons theoretically equal in the eyes of the law, thus ending legal discrimination based on caste, creed, and sex. The code granted the right to divorce, permitted intercaste marriages, and abolished the laws sanctioning untouchability. These provisions were drafted at the behest of the king. A uniform family law was applicable to all religious communities and was contained in the Muluki Ain. When the code was silent, however, the custom of the particular community applied. The code remained the existing substantive law in 1991.
INCIDENCE OF CRIME
The crime rate in Nepal is very low compared to industrialized countries. An analysis was done using INTERPOL data for Nepal. For purpose of comparison, data were drawn for the seven offenses used to compute the United States FBI's index of crime. Index offenses include murder, forcible rape, robbery, aggravated assault, burglary, larceny, and motor vehicle theft. The combined total of these offenses constitutes the Index used for trend calculation purposes. Nepal will be compared with Japan (country with a low crime rate) and USA (country with a high crime rate). According to the INTERPOL data, for murder, the rate in 2000 was 2.93 per 100,000 population for Nepal, 1.10 for Japan, and 5.51 for USA. For rape, the rate in 2000 was 0.77 for Nepal, compared with 1.78 for Japan and 32.05 for USA. For robbery, the rate in 2000 was 0.9 for Nepal, 4.08 for Japan, and 144.92 for USA. For aggravated assault, the rate in 2000 was 1.26 for Nepal, 23.78 for Japan, and 323.62 for USA. For burglary, the rate in 2000 was 2.51 for Nepal, 233.60 for Japan, and 728.42 for USA (Burglary data for Nepal are from 1999 - missing from year 2000 report). The rate of larceny for 2000 was 0.84 for Nepal, 1401.26 for Japan, and 2475.27 for USA (Larceny data for Nepal are from year 1995 - mission from year 2000 report). The rate for motor vehicle theft in 2000 was not reported for Nepal. The rate for all index offenses combined was 9.21 for Nepal, compared with 1709.88 for Japan and 4123.97 for USA (noting that data for motor vehicle theft were not provided for any year).
TRENDS IN CRIME
Between 1995 and 2000, according to INTERPOL data, the rate of murder increased from 2.49 to 2.93 per 100,000 population, an increase of 17.7%. The rate for rape increased from 0.66 to 0.77, an increase of 16.7%. The rate of robbery increased from 0.53 to 0.90, an increase of 69.8%. The rate for aggravated assault decreased from 7.97 to 1.26, a decrease of 84.2%. The rate for burglary increased from 0.69 to 2.51, an increase of 263.8%. The rate of larceny of 0.84 per 100,000 was only provided for 1995. The rate of motor vehicle theft was not provided by Nepal for any year. The rate of total index offenses decreased from 13.18 to 9.21 , a decrease of 30.1%.
The legal system of Nepal is based on Hindu legal concepts and English common law.
The promulgation of the constitution in November 1990 opened a new era in Nepalese civil-military relations. Under the Ranas and the two monarchs of modern times, King Mahendra Bir Bikram Shah Dev (reigned 1955-72) and Birendra Bir Bikram Shah Dev (reigned 1972- ), military and national defense decisions were the sole prerogative of the palace, acting on the advice of a small coterie of retainers and senior military commanders. Decisions were not ordinarily subject to the approval of elected bodies other than the narrowly based Rashtriya Panchayat, or National Panchayat, which served as a rubber stamp for the palace.
Under the new constitutional order, the king retains his traditional authority as the supreme commander of the armed forces. The king, however, is not the sole source of authority in Nepal but rather a symbol of national unity. In a major break from past constitutional experiments, sovereignty is vested in the people, not in the person of the king. The distinction is important in that the military no longer acts solely as an instrument of the king but also is in principle subordinate to the authority of the popularly elected Parliament.
During the protracted discussions that occurred in 1990 over the outlines of the new constitution, King Birendra, fearing that a future civilian government might radically undercut the military's prestige and with it the monarch's power or very existence, reportedly insisted on retaining ultimate authority over the military. Having to contend with independent centers of power that were beyond his direct control, Birendra realized that the military was his only reliable institutional base of support. Military commanders, for their part, feared that civilian politicians might attempt to politicize the army and undermine discipline. Consequently, the 1990 constitution represents a compromise between the king, who still retains many avenues to power should he choose, and a newly empowered civilian government.
Several provisions circumscribe the palace's previously unfettered right to employ the army as it sees fit. Unlike the legislature under the 1962 Panchayat Constitution, Parliament has real authority to determine and approve the annual defense budget. Although the role is not specified in the constitution, the civilian minister of defense oversees the day-to-day operations of the military. Conceivably, an assertive Parliament could hobble the king's authority over the army by denying funds. Day-to-day decisions affecting national security and military affairs are implemented by the king only with the advice and consent of the elected civilian government.
The power to appoint a chief of army staff, another traditional royal prerogative that afforded the palace direct control over the military, also is subject to the recommendation of an elected prime minister. This provision has the potential to precipitate a constitutional crisis should the king refuse the recommendation of the prime minister. The constitution offers no guidance should such a disagreement arise. In the first test of this clause, however, the newly elected Nepali Congress government of Girija Prasad (G.P.) Koirala assented to the appointment of General Gadul Shumsher Jang Bahadur Rana to head the Royal Nepal Army within days after assuming office in May 1991. The prime minister, the king, and the army were anxious to demonstrate that the new constitutional order was working.
Article 118 of the constitution mandates the formation of a three-person National Defense Council consisting of the prime minister, who chairs the body; the defense minister; and the chief of army staff, the nation's senior uniformed officer. According to this provision, the king "shall carry out the administration and deployment of the Royal Nepal Army on the recommendation of the National Defense Council." Although as of late 1991 there was no clear indication of the role this hybrid body performed, its formation underscored the insistence of King Birendra and the army that Parliament must not be solely responsible for national defense. Accordingly, the National Defense Council will probably act as an intermediary body between the Parliament and the king where decisions affecting the military will be debated and negotiated. Under this arrangement, the army, still a critical component of political stability, also retains a formal say in national security affairs.
Despite Nepal's transition from an absolute monarchy to a democracy, the king retains formidable emergency powers that, if activated, would decisively tip the political balance of power in his favor. Article 115, "Powers to Remove Difficulties," grants the king the unilateral right to proclaim a state of emergency in the event of a "grave crisis created by war, external attack, armed revolt or extreme economic disorder." Under a state of emergency the king assumes direct rule and "may issue necessary orders as are designed to meet the exigencies." Authority to implement this provision is not clearly spelled out, but the king is specifically authorized to suspend fundamental rights, except for habeas corpus and the right to organize political parties and unions. The proclamation of an emergency must be submitted to the lower house of Parliament within three months for approval by a two-thirds majority, after which it may remain in effect for six months, with one six-month renewal period. Although this provision was untested as of September 1991, the king clearly has the authority to dissolve the government and muster the nation's security forces to enforce royal decrees, if the situation warrants.
Provisions relating to the conduct of foreign affairs also have national security implications. Under Article 126, treaties with foreign governments must be ratified by a two-thirds majority of both houses of Parliament as opposed to the simple majority required for other bills. Specifically, the constitution mandates a two-thirds majority parliamentary assent to treaties bearing on "peace and friendship," defense and strategic alliances, the demarcation of national boundaries, and "national resources and distribution in the utilization thereof." One provision forbids passage of any treaty or agreement that "compromises the territorial integrity of Nepal." The rationale for these restrictions, although not spelled out in the constitution itself, clearly reflects widespread suspicions on the part of political parties and, in particular, the Nepalese public that an overbearing India might press for, or even dictate, treaty terms unfavorable to Nepal.
Until the middle of the nineteenth century, police and judicial functions in many areas were in the hands of local princes (rajas), who were virtually autonomous rulers of their people. The central government ruled outside the capital and delegated authority to the local governors, later known as bada hakim, who in turn depended on village heads and village councils to maintain order in their respective communities. The scope and intensity of police and judicial activities varied largely with local leaders and customs. Caste status and standing with the authorities also greatly influenced court judgments and police attitudes. Efforts by the central government to enlarge its authority over local affairs generally were regarded by the isolated tribal groups as encroachments on their traditional independence. Thus, old practices tended to persist in the hinterland despite changes in the government and government policy in Kathmandu.
The Ranas did not establish a nationwide police system, although Prime Minister Chandra Shamsher Rana, who served from 1901 to 1929, somewhat modernized the police forces in Kathmandu, other large towns, and some parts of the Tarai. Police functions in outlying areas, because of the relative isolation of most communities, generally were limited to the maintenance of order by small detachments of the centrally controlled police personnel supplemented by a few locally recruited police.
Following the anti-Rana revolt that began in 1950, the government began to modernize the police system and improve its effectiveness. Assistance was requested from India, and an Indian police official was sent to Kathmandu to help reorganize the police force. Some Nepalese police were sent to police training academies in India.
Nepal's police system in the early 1990s owed its modern origins to the Nepal Police Act, enacted by King Mahendra in 1955. Besides defining police duties and functions, the act effected a general reduction in the size of the police force and a complete reorganization of its administrative structure along Indian lines.
In accordance with the Nepal Police Act, Nepal was divided into three geographical zones (sometimes called "ranges" in Indian parlance). Each of the zonal headquarters, under a deputy inspector general of police, was responsible for several subsections composed of four or five police districts operating under a superintendent of police. A district superintendent was in charge of the police stations in his area. Each station normally was supervised by a head constable who was in charge of several constables performing basic police functions, such as crime investigations and arrests. Each constable was customarily responsible for three or four villages.
Under the constitution, law and order at the district level continues to be the responsibility of the chief district officer, who is selected from among senior cadre civil servants under the Ministry of Home Affairs. Other district administrative officers work in coordination with the chief district officer. Despite the abolition of the panchayat system, no significantly different alternative system had emerged as of mid1991 . During the interim, village and municipal development committees, consisting of persons nominated by chief district officers, replaced village and town panchayat, which had exercised administrative and some quasi-judicial functions at the local level. At the local level, maintenance of law and order is the responsibility of the chowki hawaldar (local police officer), who reports to the thana (station inspector). All local police officers work under the supervision of the chief district officer.
At the apex of the system was the Nepalese Police Force, centrally administered by the Ministry of Home Affairs. The Central Police Headquarters, commanded by the inspector general of the Nepalese Police Force, had a criminal investigation division; intelligence, counter-intelligence, motor transport and radio sections; a traffic policy branch; and a central training center.
The police system formerly had been overseen by the king and his advisers, with little or no public accountability. Under the partyless panchayat system, the public generally regarded the police as instruments of the king and his local political supporters. Nepalese police were poorly paid and poorly trained, even by Nepalese standards.
The administration of justice was often arbitrary and, according to international human rights organization, brutal. A 1989 United States congressional report on human rights in Nepal noted "continuing reports of beatings and other brutal treatment of prisoners by police officials, particularly in rural areas." The report also noted that arbitrary arrest and detention were "common. . . . Because communication links in Nepal are limited, local officials have a great deal of autonomy and exercise wide discretion in handling law and order issues."
Although the Nepalese police system in the early 1990s still was generally regarded as inefficient and corrupt, most observers believed that Nepal's transition from a feudal monarchy to a parliamentary democracy had greatly improved the chances for police reform and the curtailing of human rights abuses by the police. As in the case of the army, police loyalties were severely tested during the 1990 nationwide prodemocracy movement. Although acting under the guidance of the palace, the police generally did not take sides in the political standoff. Even though police excesses occurred, force discipline did not break down.
Shortly after his election to office, Prime Minister G.P. Koirala pledged that improving law and order and protecting human rights would be his administration's top priorities. Koirala's critics noted, however, that his tough law-and-order stance was intended less to promote human rights reforms and more as a political signal to communist elements threatening to mount street protests against the new democratic government. In April 1991, Nepal acceded to the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment.
State-supported penal institutions, including the central prison in Kathmandu and jails in most district capitals, had long been targets of considerable criticism on the part of human rights activists. According to various reports on human rights, prison conditions were unsanitary and degrading. Prisoners were segregated into three categories. Class C prisons, the lowest and most numerous type of prison, were populated with common criminals who often were subjected to beatings and abuse at the hands of police jailers. The higher prison categories were reserved for persons with political connections or higher social status. Conditions in these facilities generally were better than in Class C prisons. Women were incarcerated separately from men although in equally poor conditions. Mentally ill persons often were placed in jails because most communities lacked other, more appropriate, long-term care facilities. In an effort to address some of these problems, the Koirala government shifted prison administration and management from the police to the Ministry of Home Affairs shortly after assuming office in 1990.
Today, the National Police Force maintains internal security and is subject to effective civilian control. Local Chief District Officers (CDO's), who are civil servants in the Home Ministry, have wide discretion in maintaining law and order. An Act passed by Parliament in August provided for the establishment of the paramilitary Armed Police Force. Although police reaction to the "People's War" insurgency has led to incidents of unwarranted force, the number of such reports declined during the year 2001. The Royal Nepal Army, which traditionally is loyal to the King, is beginning to assume a domestic-security role in responding to the Maoist insurgency. Following the declaration of a state of national emergency November 26, the Army was mobilized to fight the insurgency in a number of districts. The police committed a number of serious human rights abuses. The police at times used unwarranted lethal force and continued to abuse detainees, using torture as punishment or to extract confessions. The National Human Rights Commission (NHRC), established in 2000, investigates allegations of police brutality and recommends compensation for victims and penalties for police officers who commit abuses. While the Government has begun to pay compensation to some victims, the police officers involved seldom are punished. The disappearance of persons in custody is a problem. The authorities use arbitrary arrest and detention. Public Security Regulations promulgated in June giving local authorities broader discretion in making arrests on the suspicion of terrorist activities were rescinded November 9. Following the November 26 state of emergency declaration, the King promulgated the Terrorist Ordinance of 2001 that defined a number of crimes, including taking up arms against the sovereignty and security of the country, as acts of terrorism. The Ordinance also allows the Government to declare individuals as terrorists for up to 90 days without charges; to hold persons under house arrest; and to set up special courts for terrorists. The King also promulgated a second order designating members of the Communist Party of Nepal (Maoists) and individuals involved with or assisting the Maoists as terrorists. Lengthy pretrial detention, judicial susceptibility to political pressure and corruption, and long delays in trial procedures remain problems. The Government at times imposes some restrictions on freedom of expression, and the media practices self-censorship. After the November 26 declaration of the state of emergency, several individuals working for Maoist-affiliated newspapers were arrested and the newspapers closed down. Freedom of assembly was one of the constitutional rights suspended after the declaration of emergency; however, the Government subsequently clarified that only rallies and demonstrations by Maoist-affiliated organizations are banned during the emergency.
The police continued to commit extrajudicial killings. Most reports of extrajudicial killings by police involved police efforts to control violent demonstrations, or occurred while suspects were in police custody. On February 3, police in Baguwa, Gorkha District shot and killed Nar Bahadur Ale Magaar and Rita Banjara as they were preparing a stage for a mass meeting to be held by the Maoists. According to one local human rights organization, police shot and killed suspected Maoist Madan Shrestha on May 4 in Yangshila, Mooring District, as he was being brought to jail. On May 13, police shot and killed suspected Maoists Kul Bahadur Malla, Chandra Jumari B.K., and Tika Kumari Khatri in Tatopani, Dailekh District, as they were being arrested. On June 5, police shot and killed suspected Maoist Prakash Ojha of Tetariya, Morang District.
The disappearance of persons in police custody is a problem. According to the INSEC, 130 civilians have disappeared in police custody since 1996. According to Amnesty International (AI), Shiva Prasad Sharma disappeared after three men, believed to be plainclothes policemen, took him into custody in Nepalgunj, Banke District, on February 24. A habeas corpus petition filed by his relatives was dismissed by the appellate court judge in March on the grounds that police denied arresting him.
The Constitution prohibits torture, and the Civil Code prohibits acts such as beating and mutilation; however, the police at times use torture and beatings to punish suspects or to extract confessions. According to AI, torture methods include boxing of the ears, beating of the feet, and the rolling of weights over the thighs. AI noted that torture apparently was used to intimidate or punish detainees and to extract information and/or confessions, and that torture often occurred while detainees were held incommunicado and unable to contact family members, doctors, or lawyers. The situation appears to be improving somewhat since the establishment of the NHRC, but it is unclear to what extent the improvements are the direct result of the establishment of that body. Nonetheless, the Government sometimes fails to conduct thorough and independent investigations of reports of police brutality and generally does not take significant disciplinary action against officers involved.
Police often are unwilling to investigate and to discipline fellow officers, and persons are afraid to bring cases against police for fear of reprisals. The Government has begun human rights education for the police force. On February 26 the Dolokha District Court sentenced a police officer to a 4 year prison term and ordered him to turn over half of his assets to an 18-year-old woman he raped at gunpoint the previous year.
The Constitution and the Torture Compensation Act provide for compensation for victims of torture. According to the Center for Victims of Torture (CVICT), 7 persons filed for compensation under the act during the year 2001, compared to 10 claims during 2000. CVICT says that a total of five cases previously filed were awarded compensation. Among those, a 14-year-old arrested on suspicion of theft, was awarded approximately $135 (Rs. 10,000) by Saptari District Court on March 21.
Amnesty International conducted an official visit to the country in November 2000. As a result of that visit, AI recommended amendments to the Torture Compensation Act, including changes to the penal code that would make torture a specific offense under criminal law. The Government has taken no action on suggested changes to the law. Human rights groups have reported instances of torture in areas affected by the "People's War." Dozens of male detainees reported having been tortured by the police; women in these areas have reported instances of rape and sexual abuse by the police.
The Government generally respected the privacy of the home and family. Search warrants are required before searches and seizures may be carried out, except in cases involving suspected security and narcotics violations. The law empowers the police to issue warrants for searches and seizures in criminal cases upon receipt of information about criminal activities. Within 24 hours of their issuance, warrants in misdemeanor cases must be approved by the CDO. Court judges must approve them in felony cases. Following renewed violence after Maoist insurgents unilaterally broke a 4-month ceasefire, on November 26, the King declared a state of emergency nationwide, in which many constitutional rights, including the right to privacy, were suspended. Since that time travelers have been stopped and subjected to vehicle and body searches by security personnel at roadblocks in many areas of the country.
The Constitution stipulates that the authorities must arraign or release a suspect within 24 hours of arrest, but the police at times violate this provision. Under the law, the police must obtain warrants for an arrest unless a person is caught in the act of committing a crime. For many offenses, the case must be filed in court within 7 days of arrest. If the court upholds the detention, the law authorizes the police to hold the suspect for 25 days to complete their investigation, with a possible extension of 7 days. However, the police occasionally hold prisoners longer. The Supreme Court has, in some cases, ordered the release of detainees held longer than 24 hours without a court appearance.
Detainees have the legal right to receive visits by family members, and they are permitted access to lawyers once authorities file charges. In practice the police grant access to prisoners on a basis that varies from prison to prison. There is a system of bail, but bonds are too expensive for most citizens. Due to court backlogs, a slow appeals process, and poor access to legal representation, pretrial detention often exceeds the period to which persons subsequently are sentenced after a trial and conviction.
Under the Public Security Act, the authorities may detain persons who allegedly threaten domestic security and tranquility, amicable relations with other countries, and relations between citizens of different classes or religions. Persons whom the Government detains under the Act are considered to be in preventive detention and can be held for up to 6 months without being charged with a crime. The authorities may extend periods of detention after submitting written notices to the Home Ministry. The police must notify the district court of the detention within 24 hours, and it may order an additional 6 months of detention before authorities file official charges. Human rights groups allege that the police have used arbitrary arrest and detention during the "People's War" to intimidate communities considered sympathetic to the Maoists.
Other laws, including the Public Offenses Act, permit arbitrary detention. This act and its many amendments cover crimes such as disturbing the peace, vandalism, rioting, and fighting. Human rights monitors express concern that the act vests too much discretionary power in the CDO, the highest-ranking civil servant in each of the country's 75 districts. The act authorizes the CDO to order detentions, to issue search warrants, and to specify fines and other punishments for misdemeanors without judicial review. Few recent instances of the use of the Public Offenses Act have been reported, since it has become more common, particularly with the Maoists, to arrest persons under the Public Security Act. In 2000 local authorities in Biratnagar arrested Laxmi Mudbari, the central member of the Maoist-affiliated All Nepal Women's Association (Revolutionary), under the act; Mudbari remained incarcerated at year's end 2001. Human rights commission officials reported several other cases of arrests or detentions under the act, but were unable to provide details of the cases.
Public Security Regulations, which implemented powers already conferred by the Public Security Act, came into effect June 4. The Regulations expand the discretionary authority given local officials to make arrests based on the suspicion of subversion or intent to commit subversive acts. The Home Ministry reports that 33 persons had been arrested under the Regulations and subsequently released by mid-October. The Government rescinded the regulations on November 9. On November 26, the King promulgated the Terrorism Ordinance of 2001 that allows suspected terrorists to be detained for up to 90 days without charge. According to a December 23 statement by the Secretaries of Defense and Home, 2,971 suspected Maoists have been arrested since the November 26 emergency declaration. Of that number, authorities plan to file cases against 481. To date none of the cases have been tried.
There have been several reports of police re-arresting persons on court premises immediately following their release by the courts. According to human rights activists, the arresting policeman usually is in plain clothes, and police habitually deny any knowledge of the re-arrest or of the subject's whereabouts. On March 5, political activist Khadga Bahadur Devkota was ordered released by a Sindhuli district court but immediately was re-arrested within yards of the prison. Human rights activists state that police continued to claim ignorance of Devkota's whereabouts until his release April 23. The NHRC has cited a former head of the Information Department of the Home Ministry and a police official for their failure to cooperate in the investigation. On June 17, Asha Khanal, a Central Committee member of the Maoists' All Nepal Women's Association (Revolutionary), was ordered released by the appellate court in Pokhara. Upon her release the following day, she immediately was re-arrested by plainclothes police while still on court premises. She later was released August 29. In December 2000, Indra Prasad Dhungel and Yuddhasingh Kunbar were ordered released from prison in Rajbiraj, Saptari district. They immediately were re-arrested the same day while still on court premises and subsequently released.
Authorities detained journalists and their advocates on occasion, on suspicion of having ties to or sympathy for the Maoists.
The police have arrested or illegally detained some suspected Maoist insurgents and held them incommunicado. On September 17, the Government announced that it was dropping cases against 41 Maoists, including one of several against Baburam Bhattarai, the number two person in the Maoist hierarchy. On September 18, the Government made public the names of 188 Maoists imprisoned nationwide, along with 96 others arrested on charges such as extortion and hooliganism, but not identified as Maoists. On October 16, the Government released two Maoist prisoners, one of them Matrika Yadav, the only Central Committee member in government custody.
On September 28, Maoist leader Prachanda pledged to release all captives in his group's custody. The same day the Maoists released former Member of Parliament Dev Raj Joshi. From late September to mid-October the insurgents released 48 police prisoners; 25 of those to the ICRC. Other purported releases of captives held by Maoists have not been verified. According to government estimates, Maoist insurgents are holding 166 civilian and police prisoners at various locations.
The Constitution prohibits exile and it is not used.
An independent judiciary, unencumbered by the executive branch of the government and palace interference, was a stated goal of all political parties. Of the many changes which have taken place since the fall of the Ranas in 1951, among the most striking have been the growing autonomy of the courts and the gradual liberalization of many basic judicial principles. Despite major improvements, however, the judicial system has suffered from serious impediments in providing speedy, expeditious, and equal justice. The independence and integrity of the judiciary were repeatedly questioned in the press; intervention of political figures and government officials in the judicial process was a frequent occurrence; and caste and economic status were important determinants of the availability of justice.
The court system formerly was one of many instruments used by the prime minister to maintain the authoritarian rule of the Rana family, and the concepts of law it applied were arbitrary, punitive, and oppressive. After an initial attempt to keep the judiciary subordinate when the monarchy was restored, it was allowed to become a relatively independent branch of government. Reforms in the legal system rendered both substantive and procedural law progressively more systematic.
Never clearly demarcated, the jurisdiction of the courts became further complicated with the introduction of the panchayat system, which at the local level exercised some quasijudicial functions. Therefore, the fundamental role of the judiciary and its position within the government became a subject of national focus during the prodemocracy movement.
According to the constitution, the courts comprise three tiers: the Supreme Court, appellate courts, and district courts. In addition, courts or tribunals may be constituted for the purpose of hearing special types of cases.
The Supreme Court is the highest court. All other courts and institutions exercising judicial powers, except the military courts, are under its jurisdiction. The Supreme Court has the authority to inspect, supervise, and give directives to all subordinate courts and all other institutions that exercise judicial powers. The Supreme Court has both original and appellate jurisdiction and consists of a chief justice and fourteen other judges.
The chief justice is appointed on the recommendation of the Constitutional Council. Other judges of the Supreme Court, appellate courts, and district courts are appointed on the recommendation of the Judicial Council. All appointments are made by the king. The tenure of office of the chief justice is limited to seven years from the date of appointment. Supreme Court justices can be impeached in the House of Representatives for reasons of incapacity, misbehavior, or malafide acts while in office. The Judicial Council, presided over by the chief justice of the Supreme Court, makes recommendations and advises on appointments, transfers, and disciplinary actions of the judges and other matters relating to judicial administration.
All appointments, promotions, transfers, and disciplinary actions of the judges of the appellate and district courts are under the jurisdiction of the Judicial Council. An independent Judicial Service Commission, appointed by the king, and with the chief justice of the Supreme Court serving as ex-officio chairman, appoints, transfers, promotes, and provides departmental punishment of the gazetted officers of the civil service.
An Abuse of Authority Investigating Commission is empowered to investigate the misuse of authority or corruption by public officials. Members of the commission have no specific party affiliation and are appointed by the king on the recommendation of the Constitutional Council.
The Supreme Court is the supreme judicial authority of the nation. All orders and decisions made by the court are binding. Any interpretation of a law or any legal principle laid down by the court is binding on all, including the king.
As a guarantor of personal liberty and fundamental rights conferred by the constitution, the Supreme Court has the authority to declare a law as void ab initio if it finds that the impugned law contravenes the provisions of the constitution. The Supreme Court also has the power to issue appropriate orders and writs, including habeas corpus, mandamus, certiorari, prohibition, and quo warranto.
The official text of the Muluki Ain was published in Nepali; few statutes were available in English. Statutes were cited by the years of enactment. The Nepal Raj Patra, the government gazette, issued at irregular intervals, published all new legislation. Official texts of Supreme Court decisions were published monthly in the Nepal Kanoon Patriki (Nepalese Law Journal), which also contained the official texts of new legislation and articles on legal topics. The Nepal Act Series, published by the Law Book Management Board in Kathmandu, by arrangement with government ministries, was a compilation of all Nepalese laws and statutes.
Under the vague instrument of the Muluki Ain prior to its 1963 revision, magistrates and justices had wide latitude in deciding cases according to their own interpretations. There was a motive for caution, however, in the provision that if a higher court reversed the decision of a lower court, the magistrate of the lower court was liable to a fine, corporal punishment, or even execution. Court procedures varied greatly. The accuser was placed in jail along with the accused. Writs of habeas corpus were not issued. Prisoners often waited many months before trial. The onus of proof of innocence rested on the accused, who was tried without a jury.
Under the rules, no one could be convicted of a criminal charge without a confession, but confessions were commonly extracted by torture. The Rana courts had both executive and judicial powers, and the prime minister was the supreme judicial authority whose decision on a given case was final.
Reforms enacted under the constitution of 1948 and in the first years following the 1951 overthrow of Rana rule modernized many features of the feudal-based legal system. The prime minister was divested of judicial powers and no longer functioned as the highest court of appeal. The Supreme Court Act of 1952 established the Supreme Court as the highest judicial body, with powers and structure corresponding generally to those of the Supreme Court of India. Special traveling courts were organized and were sent into the districts to provide citizens easier access to the legal system. These courts were empowered to audit public accounts, hear complaints of all kinds, make arrests, hold trials, and impose sentences. An important step toward a unified judicial system came in 1956 with the establishment, mostly in the Tarai, of a series of district courts that heard civil and criminal cases. Appeals courts were set up in Kathmandu. The 1962 Panchayat Constitution stipulated that the king was solely responsible for appointing judges and providing judicial overview.
Under the Panchayat Constitution, the court system was headed by the Supreme Court, composed of a chief justice, nine judges, and a small secretarial staff. Below the Supreme Court were fourteen zonal courts, which, in turn, oversaw seventy-five district courts throughout the country. All the lower courts had both civil and criminal jurisdiction. Although the judiciary technically was independent, in practice the courts never were assertive in challenging the king or his ministers.
The constitution promulgated in 1990 reorganized the judiciary, reduced the king's judicial prerogatives, and made the system more responsive to elected officials. Under the new system, the king appointed the chief justice of the Supreme Court and the other judges (no more than fourteen) of that court on the recommendation of the Judicial Council. Below the Supreme Court, the constitution established fifty-four appellate courts and numerous district courts. The judges of the appellate and district courts also were appointed by the king on the recommendation of the Judicial Council. The Judicial Council, established in the wake of the prodemocracy movement and incorporated into the constitution, monitored the court system's performance and advised the king and his elected government on judicial matters and appointments. Council membership consisted of the chief justice of the Supreme Court, the minister of justice, the two most senior judges of the Supreme Court, and a distinguished judicial scholar. All lower court decisions, including acquittals, were subject to appeal. The Supreme Court was the court of last resort, but the king retained the right to grant pardons and suspend, commute, or remit any sentence levied by any court.
The new judicial system still was in its infancy as of 1991. Some observers noted that judicial appointments had remained a source of patronage by which the elected government rewarded its supporters. Others feared that Nepal lacked the legal resources to staff an expanding and modern judicial system. The growing backlog of legal cases, many of them initiated during the 1990 prodemocracy upheaval, also threatened to overwhelm the system. Despite these drawbacks, however, most observers of the legal system felt the changes were forward-looking and progressive.
Today, the Constitution provides for an independent judiciary and the Supreme Court has demonstrated independence; however, lower level courts remain vulnerable to political pressure, and bribery of judges and court staff is endemic. The Supreme Court has the right to review the constitutionality of legislation passed by Parliament. In the past it has ruled that provisions in the Labor Act and in the Nepal Citizenship Act are unconstitutional. In 1995 the Court also decided that the dissolution of the Parliament at the request of a former Prime Minister was unconstitutional, and ordered the body restored. On September 20, the Court found Prime Minister Deuba's August 16 decision to freeze land sales unconstitutional.
Appellate and district courts have become increasingly independent, although sometimes they remain susceptible to political pressure. In Rolpa, one of the districts most affected by the "People's War," human rights groups have accused the district courts of acting in complicity with CDO's in violating detainees' rights. Human rights groups allege that arrest without a warrant, prolonged detention without trial, and police torture occur in Maoist-affected areas.
The judicial system consists of three levels: District courts, Appellate courts, and the Supreme Court. The King appoints judges on the recommendation of the Judicial Council, a constitutional body chaired by the Chief Justice. The Council also is responsible for the assignment of judges, disciplinary action, and other administrative matters. Judges decide cases; there is no jury system. In December 2000, the Government established a Special Court with jurisdiction to hear cases related to narcotics trafficking; trafficking in women and girls; crimes against the state; and crimes related to foreign currency, such as counterfeiting and money laundering.
Delays in the administration of justice are a severe problem. According to the latest statistics, the Supreme Court has a backlog of 16,488 cases; the appellate courts 15,138; and district courts 32,537. Under the state of emergency, the right to constitutional remedy (except habeas corpus) is suspended and the Supreme Court has temporarily suspended accepting new cases.
The Constitution provides for the right to counsel, equal protection under the law, protection from double jeopardy, protection from retroactive application of the law, and public trials, except in some security and customs cases. All lower court decisions, including acquittals, are subject to appeal. The Supreme Court is the court of last appeal, but the King may grant pardons. The King also can suspend, commute, or remit any sentence. On the recommendation of the Government, the King often pardons up to 12 prisoners on national holidays, if they have served 75 percent of their sentence and shown good behavior.
Although prisoners have a constitutional right to legal representation and a court appointed lawyer, a government lawyer or access to private attorneys is provided only on request. Consequently, those persons unaware of their rights may be deprived of legal representation.
There have been reports of cases in previous years in which authorities allegedly penalized attorneys involved in the defense of human rights. In 1999 lawyer and human rights defender Rajendra Dhakal was arrested reportedly because of his alleged involvement in Maoist violence. He has not been seen since then. Kathmandu newspapers reported that in 1999, four lawyers pleading for a group of three detained journalists were ordered detained themselves by a district judge as they tried to express their views on the judicial order to detain the journalists. After other attorneys came to protest the arrests, the attorneys were released .
Military courts adjudicate cases concerning military personnel, who are immune from prosecution in civilian courts. Military courts do not try civilians for crimes involving the military services.
The authorities may prosecute terrorism or treason cases under the Treason Act. Specially constituted tribunals hear these trials in closed sessions. No such trials have occurred during the past 6 years.
In districts where Maoists have gained effective control, the insurgents have set up "people's courts." Although these courts generally decide civil cases, eight policemen summarily executed after surrendering in Dailekh had reportedly been found guilty of crimes against the people by a hastily constituted "people's court".
There were no reports of political prisoners.
Prison conditions are poor. According to INSEC, on November 26, Jit Bahadur Ghatri was arrested by the RNA in Dang District. He subsequently died in the hospital on November 30. The cause of his death is unknown.
Overcrowding is common in prisons, and authorities sometimes handcuff or fetter detainees. According to the Department of Prisons, there are 5,995 persons in jail, of which approximately 50 percent are awaiting trial. Women normally are incarcerated separately from men, but in similar conditions. Due to a lack of adequate juvenile detention facilities, children sometimes are incarcerated with adults--either with an incarcerated parent--or as criminal offenders. On November 20, the Government began transferring children detained in jail to two residential facilities that provide education in accord with a provision in the 1992 Children's Act. By the end of November, 28 dependent children of inmates and 7 juvenile offenders had moved into the residential facilities and begun school. At year's end 2001 12 children remained in jail or custody as suspected or convicted criminals, and approximately 36 noncriminal dependent children were housed along with their parents.
In 2000 the Government established separate juvenile benches in district courts where youth are tried. As a result, trials of persons under the age of 18 now occur in a separate room in the courthouse, though there are no separate juvenile courts as such.
The authorities are more likely to transfer sick prisoners to hospitals than they were in the past. However, due to the inadequacy of appropriate facilities, the authorities sometimes place mentally ill prisoners in jails under inhumane conditions.
The law prohibits trafficking in persons and prescribes imprisonment of up to 20 years for infractions; however, trafficking in women and girls remains a serious problem in several of the country's poorest areas, and borderguards commonly accept bribes from traffickers.
The Government permits local human rights groups and the ICRC to visit prisons. Prior to November 23, the ICRC had full access to all prisons and police stations nationwide. However, from November 23 until year's end, the Government has not allowed ICRC to visit detainees.
Violence against women is a serious problem that receives limited public attention. In a 1996 survey, 50 percent of respondents stated that they knew someone who was the victim of domestic violence. Respondents to another 1996 survey listed the perpetrators of violence in 77 percent of incidents as family members, and 58 percent reported that it is a daily occurrence. There is no law against domestic violence.
Rape and incest also are problems, particularly in rural areas. Laws against rape provide for prison sentences of 6 to 10 years for the rape of a woman under 14 years of age and 3 to 5 years for the rape of a woman over the age of 14. The law prescribes imprisonment for 1 year or a fine for the rape of a prostitute. The law does not forbid spousal rape. A survey conducted during the year 2001 by SAATHI, a local NGO headed by the Prime Minister's wife, found that 39 percent of rape victims who reported the crime to police were under the age of 19. Of those victims who reported the crime to the authorities, 25 percent said the perpetrator was convicted and jailed.
The dowry tradition is strong, with greater prevalence in the Terai region. The killing of brides because of defaults on dowry payments is rare, but does occur. More common is the physical abuse of wives by the husband and the husband's family to obtain additional dowry or to force the woman to leave to enable the son to remarry.
There is a general unwillingness among citizens, and particularly among government authorities, to recognize violence against women as a problem. In a survey conducted by SAATHI, 42 percent of the respondents said that in their experience medical practitioners were uncooperative or negligent in cases of violence against women and girls. This unwillingness to recognize violence against women and girls as unacceptable in daily life is seen not just in the medical profession, but among the police and politicians as well.
Folk beliefs about witchcraft, which are especially strong in the lowland Terai area on the Indian border, generally target women, particularly elderly and/or widowed women. Shamans or other local authority figures sometimes publicly beat and physically abuse suspected witches as part of an exorcism ceremony. On September 11, two men, including a local village official, were jailed in Simardahi, Mahottari District, after failing to post bond for charges relating to the August 14 beating of an elderly woman after publicly denouncing her as a witch. The two men had been charged under the Public Offense Act. On September 20, police arrested five men in Sirsiya Khalbatol, Parsa, for beating and forcefeeding feces to a 60-year-old widow suspected of witchcraft. On September 24, the Supreme Court issued a show cause notice to the Government for its failure to enact a law specifically to punish perpetrators of violence in witchcraft cases. On September 26, four villagers beat 60-year-old Malechhiya Devi to death in Bel Ekdara, Mahottari, on suspicion of witchcraft. On September 29, the victim's widower filed charges against the five suspects, who fled after the incident.
The police department has a "women's cell" in five cities, including Kathmandu, and in 16 districts. These cells include female officers who receive special training in handling victims of domestic violence. The police also have sent out directives instructing all officers to treat domestic violence as a criminal offense that should be prosecuted. However, according to a police official, this type of directive is difficult to enforce because of entrenched discriminatory attitudes. Even though the police may make an arrest, further prosecution often is not pursued by the victim or by the Government.
At least six NGO's in Kathmandu work on the problem of violence against women and on women's issues in general. SAATHI's assistance program includes a women's shelter and a suicide intervention center. The shelter provides housing, medical attention, counseling, and legal advocacy for the victims of violence.
Trafficking in women remains a serious problem in several of the country's poorest areas, and large numbers of women still are forced to work against their will as prostitutes in other countries.
Although the Constitution provides protections for women, including equal pay for equal work, the Government often has not taken significant action to implement those provisions, even in many state industries. Women face systematic discrimination, particularly in rural areas, where religious and cultural tradition, lack of education, and ignorance of the law remain severe impediments to their exercise of basic rights such as the right to vote or to hold property in their own names. Women have benefited from some changes in marriage and inheritance laws. The Citizenship Law discriminates against foreign spouses of female citizens, and denies citizenship to the children of female citizens married to foreign spouses, even if those children are born in the country. Many other discriminatory laws still remain. According to legal experts, there are over 20 laws that discriminate against women. For example, the law grants women the right to divorce, but on narrower grounds than those applicable to men. The law on property rights also favors men in its provisions for inheritance, land tenancy, and the division of family property. In 1995 the Supreme Court ordered the Council of Ministers to enact legislation within 1 year giving women property rights in regard to inheritance and land tenancy that were equal to those of men. Legislation to comply with this order was introduced, but was not approved in Parliament.
According to the 1991 census, the most recent statistics available, the female literacy rate is 26 percent, compared with 57 percent for men. Human rights groups report that girls attend secondary schools at a rate half that of boys. There are many NGO's focused on integrating women into society and the economy. These NGO's work in the areas of literacy, small business, skills transfer, and prevention of trafficking in women and girls. There also are a growing number of women's advocacy groups.
Most political parties have women's groups. Members of Parliament have begun working for the passage of tougher laws for crimes of sexual assault, but have had little success so far.
Education is not compulsory. Government policy is to provide free primary education for all children between the ages of 6 and 12 years, but the quality of education is sorely inadequate, many families cannot afford school supplies and clothing, and schools do not exist in all areas. Schools charge fees for higher education. Approximately 60 percent of the children who work also attend school. However, approximately 70 to 75 percent of boys who work go to school, compared to only 50 to 60 percent of the girls who work. Basic health care is provided free to children and adults at government clinics, but they are poorly equipped and too few in number to meet the demand. Community-based health programs assist in the prevention of childhood diseases and provide primary health care services. Poor or nonexistent sanitation in rural areas puts many children at risk from severe and fatal illnesses. The Government has made significant progress in improving basic community health care services over the past 5 years, bringing down the mortality rate of children under age 5 by 23 percent since 1996. A Vitamin A supplementation program operates nationwide, and immunization outreach has increased from 45 percent in 1996 to 60 percent this year. The lack of adequate antenatal care and widespread malnutrition remain problems.
Forced prostitution and trafficking in young girls remain serious problems.
Societal attitudes view a female child as a commodity, to be bartered off in marriage, or as a burden. Some persons, in fact, consider marrying a girl before menarche an honorable, sacred act that increases one's chances of a better afterlife. As a result, child brides are common. According to UNICEF's Regional Office for South Asia, 40 percent of all marriages involve a girl under 14 years of age. The age difference in marriage often is cited as one cause of domestic violence.
The Government incarcerates children with adults because it has not established adequate juvenile detention facilities. On November 20, the Government began transferring children detained in jail to two residential facilities that provide education in accord with a provision in the 1992 Children's Act. By the end of November, 28 dependent children of inmates and 7 juvenile offenders had moved into the residential facilities and begun school. At year's end 2001, 12 children remained in jail or custody as suspected or convicted criminals, and approximately 36 noncriminal dependent children were housed along with their parents.
There have been numerous reports that Maoists recruit teenagers to serve among their armed cadre.
TRAFFICKING IN PERSONS
The law prohibits trafficking in persons and prescribes imprisonment of up to 20 years for infractions; however, trafficking in women and girls remains a serious problem in several of the country's poorest areas, and borderguards commonly accept bribes from traffickers. The Government protects the rights of victims and does not detain, jail, or prosecute them for violations of other laws. Young women are by far the most common targets; trafficking of boys has been reported in rare instances. While the vast majority of trafficking is of women and girls for sexual exploitation, women and girls sometimes are trafficked for domestic service, manual or semi-skilled bonded labor, or other purposes. The country is a primary source country for the South Asia region; most women and girls trafficked from the country go to India. Local NGO's combating trafficking estimate that from 5,000 to 12,000 Nepali women and girls are lured or abducted annually into India and subsequently forced into prostitution; however, these numbers are not consistent and NGO's are seeking better estimates. Citizens reportedly also have been trafficked to Hong Kong, Saudi Arabia, and other countries in the Middle East. In some cases, parents or relatives sell women and young girls into sexual slavery. Hundreds of girls and women return to the country annually after having worked as prostitutes in India. Most are destitute and, according to some estimates, 50 percent are HIV-positive when they return. There is legislation to protect women from coercive trafficking, including a ban on female domestic labor leaving the country to work in Saudi Arabia and other countries in the Gulf; however, enforcement is not strict and penalties are modest. Women's rights groups have protested the ban as discriminatory: Government officials suspect that organized crime groups and "marriage brokers" are the primary perpetrators of trafficking in the country. The traffickers usually are from the country, but have links to brothels in India. NGO's report that approximately 50 percent of the victims are lured to India with the promise of good jobs and marriage, 40 percent are sold by a family member and 10 percent are kidnaped. These estimates have not been verified. NGO's have found that once prevention programs are instigated in a district, the traffickers move to other areas.
A children's human rights group states that 20 percent of prostitutes in the country are younger than 16 years old. Since 1996 active special police units have dealt with crimes against women and children.
Enforcement of antitrafficking statutes remains sporadic, but the Ministry of Women, Children and Social Welfare (MOWCSW) has introduced legislation to toughen penalties against traffickers. The Human Trafficking Control Act of 1986 prohibits selling persons in the country or abroad and provides for penalties of up to 20 years' imprisonment for traffickers. However, this legislation does not criminalize the separation of minors from their legal guardians with the intent of trafficking them. As a result, no crime occurs until the victim and perpetrators are outside the jurisdiction. There are many social and legal obstacles to successful prosecution, and convictions are rare. Border guards commonly accept bribes to allow contraband and trafficked girls in or out of the country.
According to the 1999-2000 annual report of the Attorney General's Office, 470 antitrafficking cases have been filed, of which 86 resulted in convictions and 53 in acquittals, while 331 remain undecided. A survey conducted of 3 jails in the capital by the Human Rights and Environment Forum (HUREF) found 180 convicted or alleged traffickers in jail. Those convicted were serving sentences of up to 20 years.
While the Government lacks both the resources and institutional capability to address effectively its trafficking problem, the Government has established a National Task Force at MOWCSW with personnel assigned to coordinate the response. There are programs in place to train the police and the MOWCSW works closely with local NGO's to rehabilitate and otherwise assist victims. However, the Government lacks the fiscal means to provide adequate training and resources to police, and the courts are overburdened and susceptible to corruption. Government welfare agencies generally are incapable of delivering effective public outreach programs or assistance to trafficking victims. As a result, antitrafficking efforts primarily have been the domain of NGO's and bilateral donors. While the Government has promulgated a "National Plan of Action" to combat trafficking, its implementation has been haphazard.
Nepal is not a significant producer of narcotic drugs. It is also not yet a major transit route, despite its proximity to the major heroin source countries of Burma and Afghanistan, and an apparent increase in narcotics related arrests. Drug traffickers can, however, easily travel between India and Nepal, because of the relatively porous border. It is a party to the 1988 United Nations Drug Convention, the 1961 Single Convention, the 1972 Protocol to the Single Convention and to the 1993 South Asia Association for Regional Cooperation (SAARC) Convention on Narcotic Drugs and Psychotropic Substances. Nepal is also now developing comprehensive money laundering and mutual legal assistance legislation. Customs control remains problematic, but cooperation between the U.S. Drug Enforcement Agency (DEA) and Nepal's Narcotics Drug Control Law Enforcement Unit (NDCLEU) has been excellent and has resulted in indictments in both countries.
Heroin from Southwest and Southeast Asia is smuggled into Nepal across the open border with India and through Kathmandu's international airport. While use of semi-refined "brown" (no. 3) heroin is rising in Nepal, abuse of locally grown cannabis and hashish, marketed in freelance operations, is more widespread. There has also been a recent increase in precursor chemicals trafficking and in the abuse of licit, codeine-based cough medicines.
Nepal is a party to the 1988 United Nations Drug Convention, the 1961 Single Convention and the 1972 Protocol to the Single Convention. Nepal has no extradition treaty with the U.S. The Government of Nepal (GON) has also developed a master plan for drug abuse control in association with the United Nations Drug Control Program (UNDCP), and is currently negotiating with UNDCP on a three-year program of action. As part of this program, NDCLEU is to be expanded into a narcotics drug control bureau. The GON has also prepared a package of money laundering, mutual legal assistance and witness protection legislation that will be submitted to Parliament shortly. The government is also scheduled to submit amendments to its Customs Act that will criminalize traffic in several precursor chemicals. No legislation on asset seizures or criminal conspiracy, however, has yet been developed.
Figures for the first six months of 1998 indicate that seizures of cannabis and hashish increased significantly in 1998, though heroin seizures were lower. (See tables below.) Arrests were also higher. The authorities seize most heroin and hashish in Kathmandu at Tribhuvan International Airport. NDCLEU has now developed an intelligence wing, but continues to be hampered by a lack of transport, communications and surveillance equipment. A lack of coordination and cooperation between NDCLEU and Nepal's Customs and Immigration services has also been a continuing problem.
Authorities believe that all heroin seized in Nepal originates elsewhere. There appears to be some cultivation of opium, but detection is complicated by small plantings among licit crops. Cannabis cultivation is substantial, particularly in the lowland Terai region, but it appears that little of this cannabis enters the international market. We have no reason to believe that cannabis cultivation in Nepal exceeds 5000 hectares, or has any significant effect on the U.S.
Narcotics security at Kathmandu's international airport is inadequate, and the GON hopes to address this situation by opening an NDCLEU office at the airport. Current narcotics seizures suggest that narcotics transiting Nepal move east and west in equal proportion. Increasing arrests of Nepalese couriers in third countries also suggest that Nepal's importance as a transit point may be growing.
During 1998, the GON continued to implement its National Drug Demand Reduction strategy in association with UNDCP, the Colombo Plan, donor agencies and NGOs. UNDCP and the Colombo Plan sponsored workshops for government officials and NGO representatives. The USG sponsored a middle school teachers training program and seminars in each of Nepal's five development regions.
Internet research assisted by David Cunningham and Ruth E. Miranda