(Ed. Note: The Centre for Legal Research and Resource Development, CeLRRd, organised a meeting to release findings of the survey on "Impact of Corruption in Criminal Justice System on Women" on 8 October 1999. Conducted in Katmandu ,Sindhupalchok and Nuwakot the survey was jointly commissioned by Center for Legal Research and Resource Development, CeLRRd and The Asia Foundation-Nepal. The survey was carried out by a team of lawyers headed by Yubaraj Sangroula covering criminal cases on rape and trafficking of women and girls for sexual exploitation. )

Corruption : Major Hindrance of Justice

In offences like trafficking and rape, the victims identify the offenders with full precision. The victims, as the most direct and knowledgeable witness, also provide direct and concrete evidence for conviction of the offenders. However, despite this advantage as revealed by the study over 41% of cases at trial end at complete failure of the prosecutors. The rampant prevalence of corruption at every stage of the criminal proceedings can be attributed as one of the most serious causes to such a miscarriage of justice. The following results of the study help to establish the prevalence of corruption in criminal justice system:

• The prosecution depends on partial evidence in 59% of cases, and consequently it leads to complete failure of prosecution in 41% of cases despite the fact that victims provide precise identification of the alleged offenders in all the cases.
• 21% of victim respondents reported about release of suspects before investigation was completed. In most of these cases, the victims' participation in investigation had been effectively ignored. The seclusion of victims from investigation and the decisions of release being not founded on grounds plainly indicate to the role of corruption during investigation.
• Police is alleged by 57% of victims hesitate to initiate investigation promptly after the FIRs were lodged. And 21% of victim respondents alleged that police never arrested the suspects allegedly involved in committing the offence.
• As alleged by prisoners, police, government attorneys, lawyers and judges are involved in extracting bribe from the accused in 2683 and one percent of cases respectively.
• The government attorneys are disinclined to exercise legally warranted power of requiring additional investigation of offences in 96% of cases. Obviously, random and unscrutinized prosecution remains as phenomenon in criminal justice system.
• 54% of victims report harassment during investigation.
• In almost 60% of cases victims failed appearing in the court for testimony. as the government attorneys failed to inform them of the court's notice.
• 83% of victims received threat to life and physical assault for their appearance in the court. However, the prosecutors remain indifferent to such threats. The complaints made by victims against such threats are never acted on.
• Quite a number of victims volunteering appearance in the courts complain about pressure given by police, government attorneys, politicians, local government authority, accused persons' relatives and friends, court personnel and family members of their own to give hostile testimony in the courts.
• 56% of respondents report about long and humiliating cross-examination by defense lawyers, and lack of efforts on the part of the judges and government attorneys to object such harassment.
• The judges are absent in their courtrooms in 41% of cross-examination.

These weaknesses of the criminal justice system founded on direct or indirect corrupt practices put huge obstacles for women to have unrestricted access to fair trial. The gender insensitivity of the authorities, the corruption in favor of the offenders and gender based harassment during every stage of criminal proceeding effectively marginalize the women from fair access to justice.

As a result the restrain themselves from approaching the courts to provide testimony of the initial deposition. They are also reluctant to approach the police and help in the investigation to avoid revenge of offenders and harassment by the police.

They also become hostile in testimony to the initial deposition, so that they can protect themselves from additional social humiliation.

Responses and Commentaries:

Devendra Raj Sharma, Judge of Bhaktapur District Court,Nanda Bahadur Subedi, Senior Government Advocate, Attorney General Office and Parvati Thapa, DSP, Women Cell, Police Headquarters were invited to present their commentaries, and make recommendations.

According to Judge Sharam any negligence of responsibility is close to corruption in impact. The prevailing practice of cross-examination of the victims is potentially sexually harassing while medical and forensic evidence are generally neglected. He also suggested the system to be revamped for providing unrestricted access for women to justice, and build their confidence on it.

He said "the findings will be of great help for judges and all other concerned authorities to improve the standard of Justice".

Nanda B. Subedi ventured to go into details of the findings, and thus presented his remarks academically in a brilliant way. He also made a series of suggestions to improve the standard of the report, along with recommendations which, in his view, were of great value for reforming the existing system of criminal justice.

Some of the remarks he made are as follows:

• There are series of studies carried out by NGOs for no purpose at all. The practice of digging the problems up without solution or guidance for improvement should not be encouraged.
• Professionals have number of problems to face the situation. The deficiency of working equipment, inadequacy of knowledge and skills of handling proper investigation, constant political pressure and politicization of the crimes create obstacles for functioning independently.
• The study has made attempt to see problems plunging down into the reality, however it may not be enough to cover three districts to give a nationwide and total picture of the problem or situation.
• The conclusion that the government advocates fail to exercise authority of requiring police for additional investigation in 96% of cases, should not be attributed as a reason for failure of prosecution.
• However, indicating to such issues, the study has made valuable contribution to aware the institutions to their role for strengthening the system.

Subedi agreed to the findings of study reflecting on gender insensitivity of actors of the criminal justice. He said " the prevailing form of cross examination of victims perpetrates sheer harassment and is beyond limits". He noted that the victims are forced to testify hostile in the court, and the reason, as he points out, is the lack of "witness protection scheme". These irregularities and inconsistencies will prevail "if the closed camera court is not established to try the sexual offences".

Finally, he suggested to strengthen the recommendation part of the study to render it helpful to the mission of reforms of criminal justice system.

Last commentator was Ms. Parvati Thapa, a police DSP working in the Women Cell at Headquarters. She was concern with the finding that the police is not properly helping the victims. However, she agreed that the investigation has weaknesses and shortcomings. She also agreed that the investigators are not truly professional- the security or maintaining the law and order is taken as prime responsibility by police instead of crime investigation. Separation of police as investigators and security personnel is therefore a pre-condition for improvement of the investigation system, she pointed out. If there are 26% police involved in corrupt practices, then why there are no complaints lodged against such elements? She questioned.