1. Introduction

Every political community or state must accept a punishment system although it is a complicated issue. This is an essential pre-condition for any organized political community to evolve into a state. A state will not be able to fulfill its responsibilities and continue itself without legal/official punishment systems. It is a controversial issue that must be settled politically. Punishment is therefore a global characteristic of a state. As punishment itself is a response or a result it is associated with the definition of crime. With the evolution of the state, it is established principle that the state is the only authority to exercise punishment and that no other than the state has legal rights to exercise it. Definition of crime, its nature, punishment decision process and options, regular and timely correction and amendment of different sectors, modern concepts, and global standards are being developed slowly. Due to the advent of new principles such as democratic values, rule of law, human rights and individual development which are taken as global standards, it is bound to affet any democractic state’s punishment system and policy. It is also the same for Nepal.


As the new constitution of the country is currently being formed and the state has accepted various international laws and responsibilities related to human rights, the “Penal Code Amendment and Correction Taskforce” coordinated by Honourable Justice of the Supreme Court Kalyan Shrestha, has prepared drafts that have recommended amendments and corrections in the various penal systems and policies such as as the Crime Code 2067, Criminal Offense Code, 2067, Criminal Offense (Punishment Determination and Execution) Act, 2067 and presented it to the Legislative Assembly which is currently reviewing it.


An attempt to codify penal codes in Nepal  

Attempts to unify, codify, correct and amend the different penal codes and punishment systems of Nepal have been made on various occasions. These can be summarized as follows: Nepal Punishment Bill 2012, Penal Code and the Penal Process Code 2034, Penal Code prepared by the Commission formed on 2019/2/19, 2030, Criminal Act Code 2034. Suggestions on these were prepared separately and published in the Nepal Gazzette. The third attempt was made in the form of the Penal Code and Criminal Activity Code 2058/59. The currently proposed penal code is the fourth attempt.


Major parts of the proposed Penal Code (Punishment Determination and Execution) Bill


The proposed bill for the Penal Code (Punishment Determination and Execution) Act, 2067, is a new concept to accept Nepal’s crime and punishment system. Before this there were no special laws or systems in place to determine punishment and execution. This bill (with the preamble) was proposed as it was deemed important to establish proper punishment determination system for criminal offences. The Bill has taken into account general principles related to punishment, provisions related to fines, jail term, alternative options and compensation provisions. The special characteristics are as follows:


6.1 Definition: For the implementation of the proposed act terms such as: offender, law, probation officer, probation and parol board, social worker, have been clearely defined.


6.2 Implementation of the Act: The Act shall only be implemented in cases of offences where the court has to decide punishment and its implementation. It cannot be implemented in cases of contempt of court, in cases where the Legislative Assembly has taken action, and in cases where it is written that the provisions in the Act may not be applicable. The Act can only be used in implementing punishments imparted as per the judicial model where a certain law has provisioned for a certain fixed jail term, fine or punishment for a certain offence.


6.3 Provision for separate hearing: It has provisioned for a separate hearing while determining punishments for an offender and is not applicable for offences where the offender is jailed for three years or has to pay a fine of Rs 30,000/-. When providing separate hearings for such offences unless the hearing judge dies, is retired, or is unable to fulfill his/her responsibility due to serious illnesses, the same judge has to sit through the hearing and determine the punishment.


Provisions included in the Bill that need to be amended or corrected:


There can be no debate that the Penal Code (Punishment Determination and Execution) Act, 2067, which is coming as a special act to determine punishments for offences, has a special importance. However the Act should only come into effect when it is able to adequately address and include acceptable principles and exercises in its use. The final draft of the bill already tabled in the Legislative Assembly is seen to be incomplete. There are still places for improvements. Although there are always provisions for timely corrections and amendments in the law, bringing the law into affect when the spirit of the preamble and acceptable values itself are in opposition might be controversial. The necessary corrections in the bill have therefore been summarized as follows:


Name of the Act: The name of the proposed bill is “Penal Code (Punishment Determination and Execution) Act, 2067”. The name itself does not represent the Act and is incorrect. It would be advisable to name the act as “Punishment Determination and Implementation in Criminal Offences Act, 2067”. As the Act is related to deterimining punishments and its implementation it is not necessary to put them in brackets and instead keep it open.


Definition: Although terms defined in the Definition section have been correctly defined some terms such as “criminal offence”, “punishment determination”, “execution of punishment” must also be defined. This will reduce possible complications during its implementation. Likewise the terms defined under Article 15(2) “abominable offences” and “grave offences” must be kept under Article 2.


General Principles Related to Punishment: Under this all the objectives of punishment have been kept inside objectives of offence. Concepts of punishment perspective and correction perspective when dispensing punishment which have evolved radically must be included. Corrective aspects of punishment must be prioritized when dispensing punishments so that the offender has an opportunity to improve and rehabilitate in society. If there is no visible possibility of the offender improving or correcting, there should be provisions under Punishment Determination Objective (Article 13) to identify, segregate from society, and discourage such offenders.


Contradiction to the provision of penal code: Article 44 of the code provisions for upto six months imprisonment for offenders above 10 years of age and below 14, for those between 14-16 half the punishment handed to adults, and for those between 16-18 one third the punishment handed to adults. However Article 16 (2) of the bill states that unless children commit abominable offences, grave offences, or repeated offences, children cannot be handed jail terms. The law contradicts itself in cases where a girl child who has committed offences liable to earn her three years jail term, she is only liable to get six months jail term unless the offence is abominable or grave. The provision in Article 44 that specifies the jail term for those offenders who cannot pay fine also contradicts with the system. As the proposed bill will determine the process it should not enter into the substantive laws. If substantive laws need to be changed it should be appropriated in the penal code.


There should be unanimity between the penal code and this act.


Provisions related to compensation: Article 48 of the Penal Code provisions for the court to order the indicted offender to immediately compensate the victim or dependent, however there are also provisions for the offender later cleared of charges to claim back the compensation paid. Even if this bill has not spoken about it, as the given provision is inappropriate, the provision must be amended to have the state fulfill the compensations for the defendee who has been cleared off the charges, taking the responsibility of being unable to safeguard the victims rights to itself. 


Provisions for monitoring: As per Article 24 of the proposed Act, when suspending jail term and giving a standing order, ordering residential stay, or sending the offender for social service, there is no provision determining who shall recommend and who shall monitor. Likewise there are no provisions or systems for officials or agencies to monitor those who have been freed on rehabilitation grounds (Article 24), those on parol freed after completing two third of their jail term. There should therefore be provisions enabling the creation of an agency to ensure that the objectives behind freeing them are met, there is regular monitoring and supervision and a regular report is prepared and submitted to the freeing authority.


Meaningless prohibitions should be removed: Although it seems as though the proposed Act has taken punishment as the last option in principle it is clear that the Act considers jail as the first option. However this does not depend on the offence or the jail term but the offendor. The Act has not been able to understand or accept this very important aspect of punishment dispensation.


Should not include subjects to be provisioned for by Substantive Laws:


Article 15 (2) (b) of the proposed Act provisions for double punishment of the last offence for repeat offenders while in subsection (c ) of the same act provisions for one third extra punishment of the offence for those who are in a government office, public or organized association or organization and misuse their authority or official power. As only the Penal Code can provide for punishments, additional provisions related to punishment must be included in the same code.


Lack of victims participation in hearing: Victims participation has not been given space in the punishment determination hearing. Victims participation is important in determining punishment for the offender and should be included in the Act. This will enable the victims assistance in determining punishment to the offendor.


Significance of departing from A B 188


The laws currently provisioned byA B 188  are special provisions of Nepal’s judicial system. This provision and its use can be criticized in many places. However it is not necessary to depart from the principles accepted by this provision. Considering the lack of capable human resources in the judiciary, in many of the cases where excellent decisions have been made, when recommendations are made to reduce punishment through the final decision of the Supreme Court, this provision has been seen to be used mostly in cases where a newborn child has been murdered by its mother, in cases where the principle arguments have not been used for general defence, and because no research has shown that it is time for the Nepali legal system to depart from this, its significance has not been established.  


Conclusion


Punishments must be metted out to the offender and not the offence. Only the punishment determination process can establish a qualitatively and quantitatively appropriate punishment. The individualization of punishment must be accepted as an important aspect of punishment determination in the criminal law system. Individualization of punishment means to assign the punishment as per the grieviousness of the offence rather than the offendor. This main principle of punishment determination is not clearly reflected in the preamble. All offenders jailed for more than three years may not have the capacity to correct themselves whereas those jailed for more than that period may correct themselves and become good citizens. Therefore jail term served should not be used as the only basis for determining punishment. In cases where there is no other option than jail term, and cases where the jail term is less than three years, a radicle hearing of the punishment must be accepted.


If the above mentioned points are included in the appropriate manner it will bear good results.


This research has been conducted by Prof. Dr. Ranjitbhakta Pradhanang and Shreprakash Upreti for the Nepal Constitution Foundation and finalsed with the input of women, indigenous communities, Madhesi, youth and pressure groups from other communities. The Foundation is grateful to Dr. Bal Bahadur Mukhiya, Sanj Lama, Lava Kumar Mainali, Rameshraj Pradhan, Dr. BK Raya, Dr. Shankar Kumar Shrestha, Advocate Surendra Kumar Mahato, Ganesh Bhattarai, Kiran Gupta, Anita Joshi, Gopi Biswakarma, Gyanendra Prasad Adhikary, Nirmala Shakya, Nirmala Poudel, Dilip Kumar Khawas, Yuvaraj Rayamajhi, BB Rai, Phurpa Tamang, Abhishek Adhikari and Dr. Bipin Adhikari.
This research has been conducted with the help of The Asia Foundation. However the opnions expressed here are solely of the writers themselves and do not represent the views of The Asia Foundation.