VOL. 05, NO. -4, Aug. 05, 2011 (Shrawan 20, 2068)]

VIEWPOINT

Khanal Working For Peace, Statute

By PRAKASH JWALA

Nepal has been passing though a very critical time and it is the duty of all political parties to support any move to conclude the peace process and draft the new constitution. We have now less than a month left to meet the deadline for promulgating the new constitution. With the best interest of the people and country in view, Prime Minister Jhalanath Khanal has been working now. After a meeting with Prime Minister Khanal on Monday, UCPN-Maoist leader Pushpa Kamal Dahal Prachanda also came out with a strong message to conclude the peace process. This is a positive development. If integration of Maoist combatants is carried out, the peace process will near conclusion.

 The commitments and schedules announced by Maoist leader Prachanda in the press conference are positive towards that direction. Political parties in Nepal have shown that they are much matured and that they agree on the issues of national agenda. Four years ago, all the political parties joined hands against the autocratic rule of monarchy. It is the unity of political parties which ushered in the new era in Nepal establishing it as a federal democratic and secular republic.

We signed the 12-point agreement with the Maoists and launched the joint agitation in April 2006. Due to the joint agitation, Janandolan II brought about the historic change.  Given the past experiences, I still believe that we can make a change for the betterment of the country.

Prime Minister Khanal has been pursuing the cause of constitution and peace. This is one of the reasons the prime minister wants to constitute a national consensus government under his leadership. He proposed this to the main opposition party, Nepali Congress. If Nepali Congress leaders agree, Prime Minister Khanal will take necessary further steps. During the signing of the five-point agreement, Prime Minister Khanal said that he would quit if once there is any possibility in forming a national consensus government. He still holds the view that if political parties bring a proposal for the national consensus government he is not going to create any obstacle.

I don’t understand any reason behind blocking the parliamentary procedure by the main opposition Nepali Congress without any valid reason. Such steps will create more gaps and misunderstanding among the country’s major political parties. I think this is the time for writing the new constitution and concluding the peace process. There is the need to develop greater consensus and harmony among the political parties so they can write the constitution. Minor irritants can create more trouble in future. Prime Minister Khanal has already made it clear that he will abide by the five-point agreement. This is his bottom line. He made this clear in meetings with Nepali Congress leaders. So far as the resignation of Prime Minister Khanal is concerned, it is not a political solution at all. He preferred a consensus government at this crucial juncture rather than a majority government. We have already seen that a majority government cannot solve the country’s burning problems. This is the reason Prime Minister Khanal has made it clear that if the situation for national consensus government emerges, he will be ready to make sacrifices.

I am very much ashamed the way some of our party leaders have been trying to misinterpret the decision of standing committee and central committee. The standing committee and central committee gave a clear cut mandate to Prime Minister Khanal to take necessary decisions in favor of peace and constitution. As long as Prime Minister Khanal’s action is directed towards the constitution and peace, nobody can raise any question. Every individual has the right to speak his or her mind. This is a democratic right and our party leaders too can exercise such rights.

So far as taking the decision regarding the government is concerned, it is Prime Minister Khanal’s prerogative to reshuffle the cabinet. As per his prerogative, Prime Minister Khanal has reshuffled the cabinet, inducting nine ministers in it. Even our central committee and standing committee said so. Prime Minister Khanal is not only our party leader but he is also the prime minister of Nepal and it is the duty of the prime minister change and induct ministers in his cabinet. I don’t think irresponsibility of some of our party leaders will not pay to strengthening our party but it will further weaken our party organization.

After induction of new Maoist ministers in the cabinet by Prime Minister Khanal, Maoist leaders have to show their commitment towards peace and constitution making. UCPN-Maoist leader Prachanda has already declared that he will show some tangible change within ten days regarding the peace process and constitution making. I don’t think the words of leaders like Prachanda will vanish in the ears. By inducting Maoist ministers in the cabinet the prime minister has already completed his task and now it is the task of Maoist leader Prachanda to translate his commitments to reality.

(Jwala is Prime Minister Khanal’s political advisor. This is taken from what he told Radio Nepal)

Advocate Reena Pathak Bashyal

A victim is someone who suffers direct or threatened physical, emotional or financial harm as a result of commission of a crime. A witness is someone who has information or evidence concerning a crime and provides information regarding this knowledge to the law-enforcing agency.

It is a fact that witnesses play a crucial role in determining an offender's guilt. A study shows that every year thousands of cases are lost on their merits because they lack a witness. There have been instances wherein family members, lawyers and victims have been threatened and compelled to become hostile. The prosecution in such cases receives continuous threats from the accused, and as a result, witnesses decline to appear before the Court. In most cases victims become stigmatized and do not dare file complaints, fearing insecurity and difficulties at the police stations, in the courts and in society. Along with this, there is a rising trend in organized crime, human trafficking and drug trafficking which worsen the situation. In this context, victim-witness should have the right to be protected from intimidation and harm. In addition, they should have the right to reparations, the right to be treated with dignity and compassion, the right to counsel, the right to be informed concerning the criminal justice process and the right to privacy.

Different countries of the world have designed their own victim and witness protection program. These programs provide services to the victim-witness and ensure that the voices and needs of crime victims remain uppermost throughout the judicial process. These programs give information on how to get help after victimization.

In spite of the increasing crime rate in the country, the legislator has not adopted measures to protect victim-witness, and there is no comprehensive law on victim-witness protection in Nepal. However, there are few provisions regarding witness protection under States Cases Act, 2049, and in the State Cases Regulation 2055. These laws provide for the traveling allowance to the victim-witness. However, much more needs to be done. Besides these provisions, the Human Trafficking and Transportation (Control) Act, 2064 and its regulation,provide security to witnesses while traveling and in the course of attending the case’s proceedings in the court. These regulations also keep the witness under police protection for a period of time and provides for rehabilitation at a rehabilitation center.

Realizing the need of victim-witness protection laws in the country,the Forum for Women, Law and Development (FWLD) has filed a writ petition before the Supreme Court of Nepal. In response, the Supreme Court issued a directive order to the government to take necessary steps to prepare a separate law in order to create a victim-witness protection and assistance program. Further the court issued a writ of mandamus to the Ministry of Finance and Police Headquarter to provide a travel allowance to government witnesses according to the existing laws. The court also issued a directive order to the Ministry of Home Affairs and Police Headquarter to establish a taskforce to prepare an interim work plan on victim-witness protection and to execute it. The Court also ordered a Witness Protection Officer appointed, that a witness protection and assistance section at police headquarter be established, and that a witness protection and assistance committee in every district be established under the convener of Head of District Police Office.

If we look at international efforts on victim-witness protection, we find that the United Nations Convention against Transnational Organized Crime calls upon state parties to take appropriate measures to protect witnesses in criminal proceedings from threats, intimidation, corruption or bodily injury, and to strengthen international cooperation in this regard.

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by General Assembly Resolution 40/34 of 29 November 1985 discusses access to justice and the fair treatment of victims. Victims should be treated with compassion and their dignity respected. They are entitled to access the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.

Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

In 2007, the U.N. Committee against Torture (CAT) expressed its concerns regarding the lack of witness protection and recommended adopting appropriate legislative and administrative measures to ensure that all persons who report acts of torture or ill-treatment are adequately protected.

So we see that the Court has issued a remarkable decision in favor of protecting victims-witnesses, and now the question is how to implement this court decision and create these programs and laws. This is all dependent on the willingness of the state machinery. State should enact the law for the protection of victim-witnesses. State should educate victims and witnesses about the criminal justice system, escorts victims and witnesses from the reception area to the courtroom, assists victims with the prompt return of personal property, arrange accommodation and transportation services, informs victims and witnesses of the availability of witness fees and reimbursement of expenses, provide counseling support and advocacy within the justice system, etc. For this, everyone should take the necessary steps from their respective places to create the consolidated law.

In sum, the protection of victims and witnesses must be given top priority in our Legislative enactment and administrative policies. The State should develop a protection program that provides information and support to victims and witnesses. Presently, there is fear and impunity and a comprehensive witness protection is the need of the hour.