On the proposed bill of Penal Offence (Determination of Sentence and Implementation) Act 2067

(This is excerpt of welcome note delivered by Dr. Bipin Adhikari as Chairperson of Nepal Constitution Foundation in a Bill Review Programme on the Bill of Penal Offence (Determination of Sentence and Implementation) Act 2067 organized by the Foundation on June 23, 2011)

The Bill of Penal Offence (Determination of Sentence and Implementation) Act, 2067 is a new legislative initiative in Nepal. Popularly known as Sentencing Act in the local legal circle, the Bill, once passed, will have enormous impact in the way courts in Nepal determine sentences.

The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime. Those imprisoned for multiple crimes, will serve a consecutive sentence (in which the period of imprisonment equals the sum of all the sentences), a concurrent sentence (in which the period of imprisonment equals the length of the longest sentence), or somewhere in between, sometimes subject to a cap. Statutes often specify the range of penalties that can be imposed for various offenses, and sentencing guidelines sometimes regulate what punishment within those ranges can be imposed given a certain set of offense and offender characteristics. In some jurisdictions, prosecutors have great influence over the punishments actually handed down, by virtue of their discretion to decide what offenses to charge the offender with and what facts they will seek to prove or to ask the defendant to stipulate to in a plea agreement.

There is rich history of sentencing practices in common law. All such relevant practices have now been consolidated in the Powers of Criminal Courts (Sentencing) Act 2000. This Act enables the court to make an initial assessment of the seriousness of the offence. If the defendant pleaded guilty, the prosecutor will outline the facts of the case to the court. If the defendant contested the charge, i.e., pleaded not guilty, then the magistrates or judge would have noted the facts during the trial. When imposing a community sentence or custodial sentence: The court must take into account all such information about the circumstances of the offence(s) including any aggravating or mitigating factors as is available to it: Sections 36 and 87(4). If the offence was racially aggravated, the court shall treat that fact as an aggravating factor (that is to say, a factor that increases the seriousness of the offence): S 153.

The issue of sentencing has been talked about in Nepal frequently. There were attempts in the past to draft Nepal Penal Code 2012, Criminal Code of 2030, Criminal Procedure Code 2034, Penal Code and Penal Procedure Code 2058/2059 as well. None of these efforts materialized. For one or the other reason the efforts made in drafting these documents were ignored. Leaving this history behind, the government in 2008 commissioned a new taskforce in the convenorship of Hon'ble Justice Kalyan Shrestha to work on fresh drafts on Penal Code 2067, Penal Procedure Code 2067 and the present Penal Offence (Determination of Sentence and Implementation) Act 2067. They dealt with interrelated themes, and captured a big part of the criminal justice system of Nepal.

These drafts were accomplished as planned, trying to contribute to each other's themes, and submitted to the government. We must appreciate the fact that these drafts were presented to the legislature in the form of bills without delay. These Bills are certainly not going to be aborted the way their predecessors got aborted.

We are assembled here today to review the Bill of Sentencing Act, and not all these interrelated Bills, which is a gigantic task. This Bill is comparatively smaller and can be taken up in one session like this. I request you to examine the Bill in terms of its legal contents, coherence with the criminal justice system of the country and compliance with best international practices. The idea is to look at this legislation also in the perspective of gender, youths, women, Janjati, Dalit, Madhesi and other marginalized people. Whatever inputs we receive today, we will take it to the parliament, and try to persuade the members to consider them before finalizing the bill at the committee level, and sending it to the full house for remaining legislative process.

The jurisprudence of sentencing is definitely an important area of criminal justice system in Nepal. I am not a criminal lawyer. But I can state the obvious here that Nepal had not been able to look into this jurisprudence in the past with necessary focus that it deserves. The only provision of some jurisprudential significance in this regard in the legal system of Nepal at present is the Section 188 of Muluki Ain – the National Code Chapter on Court Procedures. This provision has conferred to the sitting judge a wide discretion in mitigating punishment due under law. This provision provides that if the judge after completing hearing feels that imprisonment for life for the accused is harsh in the given situation and that the circumstances of the case require some mitigation, s/he may reduce the amount of punishment as necessary as s/he thinks fit and refer the case to higher court for final approval.

We appreciate the fact that this is the first Bill in Nepal that uses the words like probation officer, parole board or social worker in the criminal justice system of the country. They herald the beginning of a new concept in the criminal justice system in the country. The Bill in Section 9 provides for separate sentencing hearing as part of every trial which exceeds a term of 3 years imprisonment or Rs 30,000 fine. This is also a point of departure from existing traditions. Section 8(2) states that sentencing procedure must be completed within thirty days since the guilty verdict.

Section 10 provides that except for the trials which are lawfully to be closed from public view, all the other trials must be conducted in public view. If several crimes with different punishment have been committed, the crime with maximum punishment must be considered for the purpose of carrying out the sentence, though separate sentence must be given for each crime (S. 11). Section 12 gives the court the discretion to order a report on the convict's background, circumstances during the time of the crime, behaviour prior to the crime, age and other facts from the probation officer or social worker when the punishment exceeds 3 years imprisonment or Rs. 30,000 fine. Section 13 lays down the factors that the court must consider while determining the purpose of the sentence - discouraging others, protecting the society, justice to the victims, rehabilitation of the convict into the society and upholding the law.

Section 14 provides that prior to sentencing the court must consider - the sentence must be in proportion to the seriousness of the crime, previous sentences where the circumstances were similar to the case at hand etc. Serious offenders are to be given imprisonment, sentences involving children must consider their rehabilitation, repeated offenders are to be punished twofold etc.

Section 17 prescribes that the sentence passed by the court must reiterate - the reason for the sentence, deadline or other conditions regarding the payment of the fine, conditions regarding community service, conditions regarding reformation/rehabilitation centre, period of imprisonment, conditions for parole, suspension, compensation required and any other thing the court deems fit. While determining the amount of fine, proper regard must be given to the economic status of the convict and various other factors according to Section 18. The amount of fine must not adversely affect the compensation to be paid to the victim. Community service must be considered when the period of imprisonment does not exceed 6 months and if the court deems it unfit to place the convict in prison.

According to section 23, unless otherwise mentioned in the Act, imprisonment is to be given only when alternatives like fine and community service are considered inadequate. Suspension of sentence is possible under Section 24 except for serious offences like murder, rape, human trafficking, wildlife smuggling etc. Likewise the convict may be sent to reformation centre (S. 25) or rehabilitation centre (S. 26). Parole can be granted to prisoner who has completed two third of the sentence with good behavior except the recipient of life imprisonment, imprisonment on charges of corruption, rape, human trafficking (s. 29). Section 38 provides for the creation of a probation/parole board governing the recommendations, procedures and conditions regarding probation or parole. Section 46 provides for a Sentencing Advisory Committee to - develop standards of sentencing, recommending reforms of penal laws or policies, giving advice regarding punishing special kinds of offences and collecting data on convicts. Section 48 provides for a Victim Relief/Compensation trust. The government is empowered to make necessary directives in implementing this act or the rules made hereunder.

I am conscious not to make comments that I am not capable to make before this expert gathering. However, I must state the obvious that it has been suggested that Section 13 should prioritize the reformative aspect of sentencing and differentiate it from sentencing of criminals with little chances of reformation where the preventive aspect must be emphasized. Section 16(2) of this Act which provides that minor cannot be imprisoned except for serious or repeated offences, contradicts Section 44 of the new Penal Code which provides other standards for punishment to minors. The biggest criticism of this Act is that it prescribes alternatives for imprisonment like rehabilitation, reformation, suspension, and parole on limited kinds of offences which have considerably less prison terms of less than 3 years. So the provisions do not give the chance of reformation to convicts of more serious offences.

Regarding the increased penal sanctions on repeated offenders or public officials, the provision intends to supplant the criminal code which must lay down such conditions instead. No place has been given to the victim/complainant side regarding the sentencing process. Section 188 of Part 1 of the Muluki Ain which prescribes the conditions for reduction of sentence regarding life imprisonment based on several factors in the discretion of the judge, is a special provision in the Nepalese criminal law. In this regard currently Section 186 prescribes reference requirement to the appellate court for cases involving life imprisonment. If guidelines can be provided in the existing law, then principles of this Sentencing Act can be incorporated in the existing model. Similarly if victims are to be compensated by the guilty party, then law should provide for cases where the accused are not found.

Individualization of punishment whereby punishment depends more upon the convict rather than the crime committed, is the concept this Bill has not grasped. However, the positive aspects of the Bill do need to be appreciated.

I welcome you once again to this roundtable and encourage all assembled in this room to take part in this Bill Review Programme. We have Professor Rajit Bhakta Pradhananga with us today, who has kindly agreed to make a presentation on the Penal Offence (Determination of Sentence and Implementation) Bill 2067. The floor will be open for discussion after his presentation. Your inputs on his presentation or the bill under discussion will be highly appreciated by the concerned sector.

Thank you very much!

Bipin Adhikari
Nepal Constitution Foundation

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