Statement by Dr. Henning Karcher, UNDP Resident Representative at the Workshop on Penal and Criminal Procedure Codes

Sep 29, 2001

Statement by Dr. Henning Karcher, UNDP Resident Representative at the Workshop on Penal and Criminal Procedure Codes,
29 September 2001, at Hotel Himalaya

Right Hon’ble Chief Justice, Mr. Keshav Prasad Upadhyaya, Honourable Attorney General Mr. Badri Bahadur Karki, Mr. Udaya Nepali Shrestha, Secretary, Ministry of Law, Justice and Parliamentary Affairs, Distinguished Representatives of His Majesty’s Government, Ladies and Gentlemen,

It is a great honor and pleasure for me to address you today on the occasion of the opening ceremony of the workshop on the drafting of Criminal and Criminal Procedures Codes.

This workshop represents an important milestone in the broader context of close cooperation between His Majesty’s Government and UNDP aimed at Strengthening the Rule of Law and Reforming the Judiciary. Of all the many areas requiring reform in Nepal to realize the vision of the Constitution none is perhaps more important and urgent than the Rule of Law.

The Constitution provides for an open society organized around the principles of fundamental rights, elimination of social and economic inequalities, establishment of harmony among various castes, religions and communities, transparent use of resources and participatory governance and development.

We all know that much time and effort will be required to realize the vision of the Constitution of a society characterized by freedom from want and fear, a society characterized by equality, a society in which each member can realize his and her full potential.

It is in their encounter with the law and their encounter with the courts of law more than in any other area that citizens, feel either supported or let down by the State as a whole.

Opinion polls show that a large percentage of the population in Nepal has little confidence in the courts and many feel the delays customarily experienced in tribunals amount to a situation where justice delayed equals justice denied.

Our joint programme foresees work at many entry points including improved citizen access to justice, particularly of the poor and disadvantaged through the establishment of Arbitration Boards at the village and municipal level to settle minor disputes in accordance with the Local Self Governance Act of 1999.

Improvements through demonstration projects by streamlining administration and case-flow management.

Raising civic consciousness on rights and responsibilities including the "Right to Justice" through a media and civic education campaign which would gradually lead to greater public demand for "quality justice". And enhancing transparency, accountably and competency in the legal/judicial system through reform of substantive and procedural laws, strengthening of codes for judicial appointments and disciplinary processes, training of judges, capacity building in legislative drafting at the Ministry of Law and Justice and strengthening the ability of parliamentarians to participate in the policy and legislative process.

Promulgated in 1910 the Muluki Ain represented at the time an important step towards modernization of the legal system. Looking at it from today's perspective it seems highly unusual and indeed impractical combining in one code criminal and civil law as well as criminal procedural and civil procedural law.

Formulating four different codes with clearly defined objectives and principles - and these differ to a considerable extent for civil and criminal law - will go a long in streamlining the entire legal system and making it more transparent and easier to understand for the ordinary citizen. And let us not forget that one of the most important functions of the law is normative that is to guide and lead society in the direction foreseen in the Constitution.

Adjudication in cases of violations of the law is only secondary and applicable if the first function has failed.

Laws carry only weight and make a difference if they are supported by those who are supposed to apply them. Participation by key stakeholders in all phases of the research and drafting process is therefore of paramount importance. I would like to congratulate the Attorney General Mr. Badri Bahadur Karki on the participatory approach he has adopted in bringing together a broad based Task Force to work on the two codes. Regional Workshops held in Biratnagar and Butwal offered opportunities for discussions and inputs by a broad range of practitioners. Today's workshop with the participation of the Right Honourable Chief Justice Mr. Keshav Prasad Upadhyaya and the Secretary of the Ministry of Law and Justice Mr. Udaya Nepali Shrestha will offer opportunities for inputs at the senior most level of the Judicial and Administrative System.

Many foreign criminal and criminal procedures laws have already been studied by the Task Force. A consultant will have an opportunity to give inputs. Foreign systems will be studied before the laws are finally completed.

I have had a chance to take a look at the draft codes and find that they contain features in line with the most recent research and findings of criminological and judicial science.

Laws will never be perfect. Drafting laws and applying the law is an ever-evolving process very much in line with the evolution of society and mankind itself I am, however, convinced that the formulation of these two codes represents a momentous and indeed revolutionary step towards a system of justice that is characterized by more openness, transparency, effectiveness and efficiency.

I wish you success in your deliberations.

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