Category: Notes

The Draft Code aims to codify all the offences which were scattered or were unregulated. The main purpose of the Draft Code is to provide uniformity and consolidate laws into one single enactment.

The Draft Code does not define Public Justice, however, it provides for 14 instances when an act is deemed to be offence against public justice. The acts of forgery and perjury have been given utmost importance in the provisions relating to offence against the public justice. And they have come with new perspectives.

Punishing any act which obstructs judicial or investigation procedure is punishable under the Draft Code. The Draft Code further requires all citizens to report to concerned authority when there is commission of any crime. Failure to do so might be an act punishable under the Draft Code. A person instituting a malicious or frivolous complaint/suit is to be punished under the Draft Penal Code.

The laws concerning public interest, health, morality and safety were scattered in various legislation. Some acts were not criminalized or remained unregulated. The Draft Code consolidates all the acts relating to public interest, health, morality and safety in one single statute. Some of the acts put together by the Draft Code include acts of polluting water, forcing someone into begging, assisting and abetting prostitution and gambling etc. One of the new features of the Draft Code is that it criminalizes act which involves display of pornography in the public place. Further, any act or gesture which undermines social integrity or integrity of women, children of ethnic minority may be punishable under the Draft Code.

The Draft Code also has provisions regarding compensation. One can be skeptic regarding effective implementation of the provisions which have been main problem in Nepalese judicial system. The provisions are not victim sensitive. The compensation that is levied from the guilty person/convict goes to state treasury instead of victims. There are many cases where people institute malicious and frivolous suits to implicate or harass other person. There are measures to curb such practices but were unsuccessful. Many people fall prey to such ill practices and are subjected to confinement. These people must be strictly punished as their action has curtailed and infringed his personal liberty. The actions relating to domestic violence are regulated by a separate Act but the Act is not capable of discharging justice to victims. If the provisions relating to domestic violence could be consolidated into this chapter then there might be a possibility that those provisions can be effectively implemented. Further, the compensation aspect does not bear any correlation with imprisonment. The compensation or fine must be increased as the amount stipulated in the Draft Bill is not deterrent enough. Beside, judges tend to impose only fine rather than resorting to imprisonment.

The person who forces or asks another person to make fake document gets a lesser sentence/imprisonment than the person who is making fake document on behest of someone else. Further, the provisions only punish sexual activities which have been seen by public. She was of the opinion that if it comes to knowledge that sexual activities had taken place in a public place all guilty parties must be punished.

 Dr Bipin Adhikari

The Draft Code is a major departure from the Muluki Ain. The language used is very simple and easily understandable by a layman. Section 211(2) of the Draft Code recognizes the right of fetus to inherit property. Further, Section 212 states that any child born out of void or voidable marriage or divorced parents will have the right to inherit property from their parents. Son and daughter both have been allocated responsibility of care of parents. Section 215 states that if a husband/father has already taken his share from the ancestral property during partition then his wife or children’s can only claim a share from husband/father’s property. The wife and children are barred from making any claims from the ancestral property of their husband/father after partition. 

The Draft Code provides for infrastructural development such as road and sewerage aspect to be taken into consideration.



One can express concerns regarding exclusion of provisions when a coparcener is a person who has renounced the world. The existing Code has a provision wherein if a person renounces the world then the person loses his/her right to claim a share from the parental property. Likewise, the present Draft Code is silent regarding the expenditure incurred during marriage of children. Further, the Draft Code has completely overlooked good provision such as casting responsibilities on single parents (widow/widower) in maintaining and providing quality education and health facilities of their minor child until they reach the age of majority. Such expenses may be deducted from the share of the minor if the parents are not capable of meeting such expenses by themselves. As such, the provisions regarding Partition need serious consideration which cannot be improved by minor alterations.



I wonder if there is contradiction between laws relating to partition of property and laws relating to Wills. Does Section 252 relating to ‘Will’ override Partition provisions? The section states that a person by way of a Will can exclude their children’s from inheriting any property from parents. The existing provisions have defined ancestral property as an inherent right and many landmark judgments have been delivered by the Supreme Court on the basis of this inherent right over the property. However, the Draft Code deviates from age old concept regarding property rights of a person which might have consequences. It maybe good or bad, only time will tell. Further, the definition of coparcenaries must be expanded to include brothers and sisters. 

The Draft Code is being enacted to replace the Muluki Ain. It does not however disclose why the change or overhauling of the Muluki Ain was needed. 

The Draft Code regulates the acts which were earlier regulated by Muluki Ain and does not have any radical change in legal provisions.It criminalizes 8 acts including acts of espionage.



The Draft Code aims at repealing the Espionage Act, 2018. However, it criminalizes act of accumulation of arms and treasury in two separate provisions. This repetitive criminalizing of same act is inconceivable.



The act of treason is punishable with incarceration for life or 15 years. However, the terms of life sentence or 15 years should be avoided. The drafter should either use life sentence or imprisonment up to 15 years.



The drafting of the Draft Code is fundamentally flawed as two acts of different degree of offence are clubbed together. Further, the Draft Code punishes many acts but fails to define the offence per se or the element constituting the offence.



The Draft Code criminalizes 14 acts as offences against the Public tranquility. It is clear that most of the acts there are interrelated and very similar in nature. There was no law to regulate unlawful assembly before. Hence the provision regarding unlawful assembly is a welcome move as much needed provision. The provisions regarding offences against public tranquility are also important.



Overall, the offences based on the nature and degree of crime must be segregated with appropriate punishments. Further, the provisions must define the crime and the elements constituting them for effective implementation.



Regarding the offence relating to arms and ammunition, the definition of arms and ammunition must be widened to include tools which cause physical or grievous hurt.



Any act which obstructs a government or state function must be brought under the offences against public tranquility. This step will widely help land acquisition process and assist in rapid development of the country. The concept regarding common intention must be clarified to prevent innocent individuals from being victimized.

The reason why only attack on the President constitutes offence against the state was mainly because the President is regarded as the head of the state. However, even Prime Minister and other constitutional heads must be included. 

Dr Bipin Adhikari

Everyone is aware that women have been denied justice and have had to bear added injustice due to certain trends and behaviors that are in common practice aimed at women solely due to the fact that they are women. Equality between men and women is much discussed about, but in general equality has not been achieved because the focus remains on maintaining the official equality based on the principles of equality. Due to the prevalence of patriarchal thought, even the law of the land which is supposed to provide justice is lacking unknowingly in giving gender justice. Unless the legal framework can address the special status and needs of women as a result of their natural characteristics and the biological body processes, justice will not be balanced.

In addition if the discrimination created from the social gender is defined as culture and used as a resource or the basis of creating laws, it will not be able to achieve equality. Until a century ago there were provisions in the law that allowed for women who were accused of practicing “witchcraft” to be forced to consume human feces. From the gender perspective it is proof that the laws are completely unjust because discriminatory clauses within currently prevalent laws of Nepal have been clearly identified. 



A taskforce to correct, update, and incorporate Nepal’s criminal law according to the needs of time, was formed as per the Council of Minister’s decision taken on 3 December 2008. Among the methodologies adopted by the taskforce were the review of periodic legal principles by the Supreme Court, international conventions on human rights that Nepal is signatory to.



In the changed context of Nepal, the draft Criminal code, Criminal Proceedings Code, Criminal Offence (Punishment and implementation) Act, is expected to give full justice from the gender perspective. The Criminal Code is a united a substantive law that has related to criminal offence. Criminal proceeding code is the process that should be used in terms of criminal offence. In the context of the changes that have taken place in giving and administering punishment, the Criminal Offence (Punishment and Implementation) Law was made to punish the offender according to the gravity of the crime and the role of the offender.



In light of this, the Draft Civil Code 2068 was brought forward to provide protection for women against the prevalent ills in the society. Historically, marriage was been defined as: “A ceremony, civil or religious, that creates the legal status of husband and wife and the legal obligation arising from that status,…parties to marriage must be respectively male and female as determined at birth sex change operation have no legal effect must not be already married to someone else and must enter into marriage freely.” However, modern day conceptions of marriage have been broadened to include unions between a man and another man or a woman and another woman. The validation of gay rights has led to the legalization of gay marriages in various jurisdictions around the world. 



Similarly, CEDAW (Art. 16) has provided equal rights for marriage for men and women and equal rights to choose their respective life partner as well as equal rights for consensual marriage. In light of this, according to the presenter, the proposed bill is a welcome step in the right direction. Similarly, in the context of abortion, Roe v Wade has been identified as a landmark decision. The historic Supreme Court decision overturning a Texas interpretation of abortion law and making abortion legal in the United States has had subsequent knock on effect on various jurisdictions around the world. This has been further codified in subsequent international treaties as well as domestic legislations of various states. In light of this, Nepal’s efforts to provide adequate abortion laws, to protect both the mother and the unborn child, have to be commended. However, the presenter acknowledged the need for amendments to the provisions mooted in the Draft Civil Code, 2068.



In light of this, some of the recommendations for the proposed bill on “Marriage related Offences” and ” Abortion related Offences” are as follows: 



1. As per the current bill, (Sec 176) the legal age for marriage for male and female are 22 and 18 respectively. Experts have advocated for equal age restrictions to be put for either male or female. Similarly, experts stressed the need for an adequate definition for marriage in the draft bill (Sec 173) as well as mandatory provisions for registration of marriage. This will deter the parties from entering into a marital bond for devious purposes. In addition, this will provide protection to the parties in seeking their rights granted to them post marriage.



2. Experts highlighted the need to institutionalize marriage through an eligibility license system. According to him, just like driving license, law practicing license, medical practitioner’s license, there should be an evaluation system to ascertain the eligibility of citizens to marry. This has many benefits: Firstly, it will institutionalize marriage. Secondly, it will gradually eradicate the prevalence of child marriages. Thirdly, it will create awareness among the contracting parties of their rights prior and subsequent to marriage. And finally, it will create an even standard for citizens of any gender to enter into a marital bond.



3.Further, experts stressed the need to have stringent laws to deter perpetrators from remarrying (Sec 178). In addition, it is suggested that even under circumstances which grant legal rights to couples for remarrying (e.g. sexually transmitted disease such as HIV AIDS), there should be finalization of the first marriage, i.e. divorce, prior to entering into second marriage [Sec 178 (2) ] . In terms of limitation, there is a need to clarify whether the stipulated 3 month period is to file a case at the local police station or whether it is to go to court. Also, the limitation section needs to declare what would be the outcome in case the limitation period has been exceeded in terms of polygamy/endogamy. Would the court validate either? 



4. Under Sec 174 (3): The registration of Marriage should be conducted in the presence of both husband and wife. In light of the prevalent abuses in Nepal, it is suggested that the bill should include provisions for women to register their marriages, on their own, at the registration agency upon the reluctance of the husband to do so. This, according to experts would prevent husbands to abuse the law through non-registration.



5. Further, Under Section 174, Subsection 5 should be added which includes the responsibility for the marrying pandit, priest, and pastor (depending upon respective religions) to document the marital ceremonies of each couple. Further, the subsection should oblige the priests to keep a register of all the marriages undertaken with witness signatures and provide that to the marriage registration agencies on an annual basis.



6. Under Section 176 (2): Age limit of men and women for marriage to be 18, if consent is granted by the parents. This, according to experts, should be extended to 21 years for both men and women. Keeping in mind the reproductive health of the women, it is widely accepted scientifically that conception during teenage years could pose a risk to the mother’s health. In light of this, the proposed bill should increase the age limit even if the consent is granted by respective parents.



7. Under Section 176, Subsection 5 should be added, which provides protection to the identity of the “marriage related offence” informant.



8. Under Section 177, Subsection 2 should be added, that provides equal inheritance rights to son as well as daughter and prohibits dowry altogether.



9. Under Section 178 (Prohibiting Second Marriage) , Subsection 5 should be added providing protection to the born child given that the second marriage has taken place without wife’s knowledge. The child born out of wedlock should be able to claim inheritance from both the mother and father, subsequent to the termination of marriage. In addition, the child’s nurturing aspects such as: nutrition, education, health care should be undertaken by both parents equally. In case, the mother is unable to take care of the child, then the father should bear the responsibility for the child’s nurture.



10. Under Section 178, Subsection 6 should be added that protects the inheritance rights of the first wife and their children in case the husband marries a second wife. In such wedlock, the second wife will not be entitled to any inheritance at the exclusion of the first wife and her children. However, if the second marriage has taken place in which the second wife had no knowledge of the first marriage, then, the second wife will be entitled to compensation from the husband’s potion of this property, ascertained after partition with the first wife and her children.



11. Section 179 should be added penalizing civil servants from multiple marriages. In such cases, it is advocated that such perpetrators should be terminated from their services with immediate effect.



12. Under Section 190 (6), regarding abortion, the sentence for intentionally causing abortion through physical or mental distress, to the pregnant woman, should be increased. Please find below the existing provision and, in bracket, the suggested penal sanction:



i) If the pregnancy is 12 weeks, then the punishment should be 1 month ( Increased to 3 months)



ii)If the pregnancy is 25 weeks, then the punishment should be 3 months ( Increased to 6 months)



iii) If the pregnancy is more than 25 weeks, then the punishment should be 6 months ( Increased to 1 year) 



13. To minimize unsafe abortion which is still persisting in villages, messages about legalization of abortion should be well informed by media and women should be educated to seek services as early as possible.



14. Abortion related cases should be conducted in closed in camera proceedings. In addition, even if the perpetrator of abortion is the pregnant woman herself, she should not be discarded from receiving the adequate nutritional and health care services provided by the state.



It is suggested that, in addition to enacting laws, there should be other implementation aspects initiated by the state. For example, school curriculums need to incorporate “marriage” as a taught module. Village Development Committees need to make youth clubs mandatory in every regions. The awareness program regarding the enacted laws should be widely conveyed to the public through radios, television etc.



After internationally committing to end all types of discrimination against women, Nepal must try to maintain gender justice from all angles in its state administration. For this it is important to analyze all policies, laws, and regulatory mechanisms through the gender perspective. In this context some of the newly made clauses of the criminal offence Act draft have been analyzed from the gender perspective. 

 Dr Bipin Adhikari

After internationally committing to end all types of discrimination against women, Nepal must try to maintain gender justice from all angles in its state administration. For this it is important to analyze all policies, laws, and regulatory mechanisms through the gender perspective. In this context some of the newly made clauses of the criminal offence Act draft may be analyzed from the gender perspective. 

A task force to revise, update, and incorporate Nepal’s criminal law according to the needs of time, was formed as per the decision of the Council of Minister taken on 3 December 2008. Among the methodologies adopted by the task force were the review of legal principles laid down by the Supreme Court, international conventions on human rights to which Nepal is a signatory.



Therefore, it is logical for anybody to expect the draft Criminal Code, Criminal Procedure Code, Criminal Offence (Punishment and Implementation) Act, to be reassuring in the gender perspective. 



The Criminal Code has unified the substantive law related to criminal offences hitherto this day. Criminal Proceeding Code lays down procedures that should be used in the matter of all criminal offences. In the context of the changes that have taken place in giving and administering punishment, the Criminal Offence (Punishment and Implementation) Law was made to punish the offender according to the gravity of the crime and the role of the offender.



In light of this, the Draft Civil Code 2068 was brought forward to provide protection for women against the prevalent ills in the society. Historically, marriage had been defined as: “A ceremony, civil or religious, that creates the legal status of husband and wife and the legal obligation arising from that status,…parties to marriage must be respectively male and female as determined at birth sex change operation have no legal effect must not be already married to someone else and must enter into marriage freely.” However, modern day conceptions of marriage have been broadened to include unions between a man and another man or a woman and another woman. The validation of gay rights has led to the legalization of gay marriages in various jurisdictions around the world.



Similarly, CEDAW (Art. 16) has provided equal rights for marriage for men and women and equal rights to choose their respective life partner as well as equal rights for consensual marriage. In light of this, the proposed bill is a welcome step in the right direction. Similarly, in the context of abortion, Roe v Wade has been identified as a landmark decision. The historic Supreme Court decision overturning a Texas interpretation of abortion law and making abortion legal in the United States has had subsequent knock on effect on various jurisdictions around the world. This has been further codified in subsequent international treaties as well as domestic legislations of various states. In light of this, Nepal’s efforts to provide adequate abortion laws, to protect both the mother and the unborn child, have to be commended. However, the the need for amendments to the provisions mooted in the Draft Civil Code, 2068 must be acknowledged.



There are some additional comments. There is a need to re-evaluate the legal age for marriage. As per the current bill, the legal age for marriage for male and female are 22 and 18 respectively. What if there is equal age restrictions for both male or female. Similarly, the need for an adequate definition for marriage in the draft bill as well as mandatory provisions for registration of marriage is also there. This will deter the parties from entering into a marital bond for devious purposes. In addition, this will provide protection to the parties in seeking their rights granted to them post marriage. 



Again, what about the need to institutionalize marriage through an eligibility license system? Just like driving license, law practicing license, medical practitioner’s license, what is there is an evaluation system to ascertain the eligibility of citizens to marry. This has many benefits. Firstly, it will institutionalize marriage. Secondly, it will gradually eradicate the prevalence of child marriages. Thirdly, it will create awareness among the contracting parties of their rights prior and subsequent to marriage. And finally, it will create an even standard for citizens of any gender to enter into a marital bond.



There is also a need to have stringent laws to deter perpetrators from remarrying. Even under circumstances which grant legal rights to couples for remarrying (e.g. sexually transmitted disease such as HIV AIDS), there should be finalization of the first marriage, i.e. divorce, prior to entering into second marriage. In terms of limitation, there is a need to clarify whether the stipulated 3 month period is to file a case at the local police station or whether it is to go to court. Also, the limitation section needs to declare what would be the outcome in case the limitation period has been exceeded in terms of polygamy/endogamy. Would the court validate either? 

 Dr Bipin Adhikari

The provisions regarding debtor-creditor relationship is scattered all over Muluki Ain. There is no specific chapter in the Muluki Ain which deals with relationship between creditor and debtor. The present Bill keeping that in mind has made an attempt to compile all the provisions relating to debtor-creditor relationship into one single chapter.

There is definition of debtor-creditor relationship in Section 495 of the Bill. It is defined as the relationship between two or more people in lieu of exchange for money or goods. Further, Section 496 slightly deviates from existing provisions when it defines any liability in terms of money or goods to create relationship of debtor and creditor.

The provisions of the Draft Code seem to be reader friendly and usage of simple language has made the understanding of law more comprehensible to laymen.

The present provisions builds on the old and existing provisions of the Muluki Ain. The provisions are refurbished in a simpler language without conducting any scientific study about the problems and the challenges faced during the implementation of the present provisions. There is a fear that the existing problems in the laws have not been properly addressed by the present Draft Bill.

It is wrong to believe that the Draft Code will revolutionalize the Nepalese legal system. The provisions do not fully address the prevailing loopholes in the law. For example, there is a provision attempting to regulate interest. It is well within its right to regulate interest rates when one of the parties is State but interest amongst the private parties should be left upon their discretion. Private parties must be free to determine their own interest rates.

The parties especially Creditor tends to keep the interest rate ambiguous by using various phrases such as ‘interest rate as per the market rate’. This kind of practice has led many Debtors being victimized. The Draft Code should strictly ask the parties to enter into a written agreement which clearly states the interest rate and duties of the parties. Section 508 of the Draft Code states the Karta/Head of the Family may enter into an agreement wherein the common property may be kept as collateral with the Creditor. However, the term karta or head of the family is not defined in the Draft Code. The Draft Code should clearly state who can be termed as a head of the family and what are his/her duties towards the property against which loan amount is secured.

The usage of term ‘competence’ and ‘quasi competence’must also be clear.

 Dr Bipin Adhikari

Historically, Nepalese community always had a notion of adopting their relative’s son/daughter if they were childless although adopting a child out of their community or relatives was an inconceivable notion. This notion can be closely attributed to religious sentiment that parents would get a safe passage to heaven if their last rites were performed by a son.

Further, the concept of adopting a child within family/community was strengthened by the feeling that their property will devolve within the family. Ultimately, adoption was seen as a pious and a generous gesture. Often, adopting families were greeted with much respect and appreciation within the community. However, there are instances where the adopted children were treated very poorly and the whole adoption charade was a hoax to get a household servant.

In many countries, especially in South-Asian countries, adoptions are done for different reasons, rather than due to the natural feeling and want of a child or children. Then there are own reasons for adopting a boy and a girl. Generally, in these countries, adoptions of boys were more common and preferred than the girls because of some age-old traditions, customs and beliefs. In case of absence of own son, wealthy and rich people often adopted male children as their rightful heir to protect their properties and carry on their family business.

In ancient Rome adoption was classified into two categories: adoption of Roman child (abrogatio) and adoption of a child who is not a Roman (adoptio). This system was misused to propagate child trafficking forcing the government to establish an institute to oversee the whole process of adoption. The practice of adoption was very rare in West, however, the concept was reintroduced in 17th century in France where the law stated that any a person who has attained the age of 28 years can adopt a child and the adopted child would acquire all the rights that of a biological child. Meanwhile, Germany, incorporating adoption laws provided that an eligible German can not only adopt a child but also person who is elder than the person adopting, i.e. they can even adopt parents. On the other hand, Islamic law does not recognize adoption. However, to some extent Pakistan, Jordan and Egypt have provisions regarding adoption.

In terms of Britain, the British law requires the child to live with the adoptive parents for a period of 10 weeks before a competent court could formally decide the fate of the adoption. The British law prohibits adoption of child from Nepal, Haiti Guatemala and Cambodia due to corruption while processing documents. The American laws are very liberal as Americans can adopt as well as be adopted. Around 2 million children are annually adopted by Americans. Due to corruption in documentation and verification of documents, even, America has suspended adoption relationship with Nepal.

International Adoption:

Often, foreigners adopt Nepalese children either with the direct approval of the natural parents or from children’s homes after fulfilling certain legal procedures and formalities, as prescribed. But in the both situations, approval of concerned government authority is a must. As of 2005, there were about 958 adopted Nepalese children believed to be staying with their adoptive parents in different countries. Of these, 425 are boys and 533 are girls. In Italy alone, there are 226 adopted Nepalese children. That number has surely risen in recent years in light of active globalization and liberalization of adoption laws around the world.

Hence, it would not be wrong to say that adoption has gone international and has equally become more complicated and an issue of great concern to all involved in this sector. In case of inter-country adoption, it is no more a matter of concern between just two individuals, two families or two parties, but has rather become a concern of the governments of the countries involved in the process. International adoption is a very sensitive and complicated issue as it not only ties relationship between individuals/families of two countries, but also establishes relationships between the countries involved.

In terms of Nepalese adoption law, the existing provisions in the Muluki Ain have religious sentiment. The provisions of Muluki Ain are slightly liberal in the sense that the Code allows adoption of child not only from relatives but also from other sources and allows foreign national to adopt a child in Nepal. The present Bill attempts to meet the international standards set by Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption (or Hague Adoption Convention) in 1993. In light of this, we look at some of the suggested amendments to the proposed bill:

Recommendations:

1. Experts have advocated for the establishment of a national wide institute, similar to the one in UK, which would keep record and track of all the cases of adoption, national and international. The institute would register all the children whose parents plan on giving for adoption or children who have been orphaned or abandoned. This streamlining of the process will to some extent solve problem of fake documentation and children trafficking issues.

2. Experts have been highly critical of Section 190 (2) wherein any person guilty of offences involving moral turpitude is ineligible to adopt a child. The term ‘moral turpitude’ is very vaguely and lacks uniform definition. The term sounds good but does not have practical use as very rarely anyone is said to have committed or guilty of offences involving moral turpitude. Instead of using such ambiguous term. It is thus suggested that any person convicted under national law (Penal law) should be ineligible for the adoption process.

3. Under Section 189, the limitation of 90 days for eligibility of children to be put up for adoption should be increased to at least 1 year. This, according to experts would reduce the amount of manipulation of children considerably.

4. As per experts, great discretion must be used in cases of second adoption. Further, provision which states that a person, citizen of state where there is gender inequality, shall not be eligible to adoption should be deleted. This criterion eliminates rich gulf countries such as Bahrain, Kuwait, Saudi Arabia and Qatar. Deletion of such provisions doesn’t mean that a child may be sent to a nation where gross violations of human rights are observed.

5. There should be clarification as to why the age difference between child and adoptive parents has been reduced from 30 years to 25 years.

6. The formation of a board on whose recommendation adoption process will be carried out and monitoring mechanism are laudable steps. However, the criterion illustrated in Section 191(2) needs few more addition such as consensus between biological and adoptive parents regarding adoption of the child, a probation period whether the child can adapt in the new environment and regular visitation/interaction between the child and biological parents at the cost of the adoptive parents.

7. Assisting celebrities in adoption process should be discouraged. Everyone must be treated equally and same criterions must be afforded to everyone irrespective of their celebrity status.

8. Section 202 (8): The provision for appeal on foreign adoption matters should be scrapped in light of the issue being of national interest. Also, the jurisdiction of Nepalese Court to hear matters when the child adopted from Nepal is ill treated or not properly care for even though the Bill empowers Nepalese Courts to do so is questionable at best. The power to hear such matters rest exclusively upon the local courts and inserting provisions which empower Nepalese Courts to hear such matters will merely create confusion.

9. Adoption of provisions wherein the adopting parents will have to bear the responsibility of maintaining relationship with biological parents for example via Skype and also bear the cost of reuniting the child with biological parents.

10. The current Bill only emphasizes on Nepali child being adopted by foreign national and not of a situation where in a Nepali can adopt a child of foreign nation. Experts have questioned the motive behind such oversight and warned that nation should condemn such adoption where the sole motive is to generate income.

11. Under Section 187, 190: The provisions relating to adoption of foreign children residing in Nepal by other foreign nationals need to be clarified. In terms of determination of the foreign children’s familial status, state’s responsibilities towards the children and liabilities need to be accessed before hastily putting forward in a proposed legislation.

12. Section 204: Accountability and Transparency needs to be institutionalized through proper implementation of the monitoring mechanisms by respective embassies and foreign ministry.

On a brighter note, Nepal is the only country in the country in the world where laws regarding adoption are incorporated in country’s civil code. No other country has such provisions in their civil code. In terms of Nepali citizens adopting children from other states, the current bill seems to be silent on the issue. That is because adoption laws of the host country are applicable in such instances.

If a Nepalese person wants to adopt a child from India then Indian laws have to be complied with and making laws for such instances is redundant and beyond Nepalese jurisdiction. Further, the Bill has two committees; one to keep track of all adoption cases and another to recommend adoption after thorough scrutiny of documents and situations. The Bill prescribes a detailed procedure regarding the adoption which as per experts is exhaustive enough to control corruption and child trafficking. As per legal experts, the present Bill is set to meet the international guidelines and is gender sensitive.

Moreover, the reason behind prescribing age of the parents and stipulating age difference between the child and parents is to ensure that the parents are mature and old enough to bear the responsibilities of the child. The past monitoring procedure had failed miserably but a local body of the adoptive parents with the responsibility of monitoring the condition of the child would enhance future monitoring mechanisms. The adoption procedure involves the concerned embassy for monitoring along with the Office of Nepalese for the purpose of monitoring the child’s status. Moreover, if the adoption laws of a state are in contradiction with the law of Nepal then in such situation the child will not be given for adoption.

In reality, the members of constituent assembly are unaware of the provisions of Bill and pass the Bill without really knowing the contents of the Bill. Sometimes, even though there are discussions on the provisions of the Bill, experts have been skeptic about drafting committee implementing the suggestions made by the members.

In light of this, it is suggested that members of parliamentary drafting committee, expert draftsperson and stakeholders be brought together to put forth their respective suggestions. Merely enacting new laws will bear no fruit if the government is weak or cannot implement the provisions. The provisions of the laws should not be confined or limited within the texts in the statute books.
 

 Dr Bipin Adhikari

Adoption can be defined as the process whereby people (usually without kids) assume the parenting responsibility of another’s children. In doing so, they permanently transfer all the parenting rights and responsibilities from their biological counterparts.

Historically, adoption has been governed through specific laws in different societies; however, there are states that have regulated the process through less formal means. Modern systems of adoption though, more often than not, tend to be governed by comprehensive statutes and regulations.

In terms of Nepal, the spirit of the constitution of Nepal is depicted into practise by means of specific laws under Chapter 15 (Adoption) of the Muluki Ain. Chapter 15 sets out the specific criteria for eligibility of adopting parents, adoption procedures and monitoring mechanisms. As terms of the adoption rules, infertile couples married for four years or even single women, widow, divorcee are eligible to adopt a child. In terms of age, there should be a gap of at least 35 years between the parents and the adopted children. However, the gap should not exceed beyond 55 years. In terms of the number of children allowed to be adopted, at least one children of each sex is allowed, however, an exception can be made in terms of twins. In case the adopting parents have a child of their own, adoption of another of opposite sex is allowed provided that the adopted child is aged less than the offspring.

In terms of the process, The Ministry of Women, Children and Social Welfare (WCS) is the Nepalese Government office responsible for adoptions in Nepal. Officially, the Ministry has recognized the Nepal Children’s Organization (NCO), also known as Bal Mandir, to process adoptions, although adoptions through other orphanages are possible.

Adoption Procedure:

An application has to be submitted to adopt a Nepali son or a daughter. In case of married couples, the application should also include the infertility report, marriage certificate, family and economic condition statement, health, character certificates, copies of passport and visa and a letter of consent to adopt a Nepali child authorized by the officer of the concerned country.

In the case of unmarried, divorced, windowed single parent, a guarantee letter written by the government of his/her country or the Embassy of his/her country in Nepal has to be submitted confirming that he/she who is taking the child in adoption shall bear the whole responsibility including nourishment and education of the child including the authorized evidence.

Upon the approval of adoption, the child could travel to the country of the adoptive parents. Until the adopted child attains majority, the adoptive parent should inform the concerned orphanage, Royal Nepalese Embassy or Mission located in the concerned country and Ministry of Women Children and Social Welfare of His Majesty’s Government, in writing, on the child’s growth, diet, education and health every year.

The Royal Nepalese Embassy or Mission will also, on the basis of the documents submitted by the adoptive parents and information sent by the Government of Nepal, submit a monitoring report confirming the growth, diet, education and health of the adopted son/daughter, until he/she attains majority, is in accordance with the conditions to the Ministry of Women, Children and Social Welfare.

Criticisms of the Muluki Ain:

Despite formalizing the adoption provisions into the country’s civil code, the proper implementation of fair, transparent and consensus based adoption process has failed to transpire. Till date, adopted children have had to bear injustices created by the legal system and as a result the adoption movement has lost its reputation despite its pious reputation in the past. Nepal, although party to all the conventions and treaties related to human rights, continues the legacy of different contradictory laws. The current legal provisions discriminates an adopted child based on origin and birth, discriminates the right to equality. Further, the current law empowers the adoptive parents who might manipulate with the legal status of that innocent and vulnerable child and provide immunity for treating the child as a commodity to be enslaved and discarded as per their convenience.

In light of this, the amended adoption provisions have been proposed in the Draft Civil Code, 2063 with a view to addressing some of the concerns as well as aligning Nepali legal provisions with the International standards.

Adoption Provisions in the Draft Civil Code, 2063 (Features):

1. The definition has been simplified: “If a person accepts a son or daughter of another person as his/her son or daughter, such a son or daughter shall be deemed to be an adopted son or daughter.”

2. The rights of the adopted children have been prioritised. “No person shall effect adoption contrary to rights and interests of a child.”

3. Eligibility criteria have been put in place under Sec. 170 to effect the adoption of the child.

4. Section 171 puts a restriction on adoption under certain circumstances. For example: (a) One who completes fourteen years of age.

5. Section 173 (2) Adoption of a child whose father and mother are not traced or surviving or a child whose father and mother are surviving but who has been maintained or cared by a person or organization following the solemnization of another marriage either by father or mother may be effected by obtaining consent in writing of the person or organization so maintaining or caring a child.

6. Where adoption was effected by a husband or a wife living separately after obtaining partition in property or by separation of bread and board from other coparceners or judicial separation and the husband and wife live jointly after effecting adoption, the adoption effected before living so jointly shall be deemed to have been effected by both the spouse.

7. Section 175 enables the Court to give order for adoption.

8. Section 176 set that the rights, powers, obligations and responsibility of an adopted child shall be equal to that of the biological son or daughter of the adoptive parents.

9. Section 177 guarantees the right of the adopted children to choose the surname as per their wish. This is in line with the legal right within the Children Act, 2048.

10. Section 179 sets out the obligation of the adopting parents.

11. Section 181 provides that the adoptive parent shall have to provide facility to the adopted child to visit to or make correspondence with his/her biological father, mother from time to time.

12. Finally, Section 185 provides that any person aggrieved by an act carried out pursuant to this Chapter may file a complaint within one year from the date of carrying out of such an act.

Recommendations:

1. The definition can be further solidified by adding the word “legal”: “If a person legally accepts a son or daughter of another person as his/her son or daughter, such a son or daughter shall be deemed to be an adopted son or daughter under law.”

2. Under Section 168: “No person shall effect adoption contrary to rights and interests of a child.” This section should include the specific rights and interest of the children.

3. Section 169 (2): Prohibition on adoption by a person having child: This section should allow divorced parents who don’t have the custody of their own kids to go on and apply for adoption.

4. Section 170: The age limit for adoption should be brought down from forty-five years to thirty five years at the very least.

5. Section 170 (2) : (1), the following person cannot effect adoption:

a)One who is of unsound mind: What qualifies as unsound mind should be coherently expressed within the legislation. Further, the section should also include criteria as child rights offender, child abortion offender, child labor offender etc.

6. Section 175 (2): The court giving order for adoption. Under this section, provisions for appeal should be incorporated.

7. Section 178 (2): Where he/she has already received partition in property at the time of adoption, he/she may receive such property as well. This provision could create complications in the future as far as inheritance is concerned and as such should be avoided altogether.

8. Section 179: Obligation of the Adopter: It should include provisions discouraging discrimination among the biological children and the adopted ones in cases where adopted parents possess both. Further, it should provide safeguard the rights of the adopted child to choose either the religion of their own choice or of that of their adopted parents.

9. Section 181: The adoptive parent shall have to provide facility to the adopted child to visit to or make correspondence with his/her biological father, mother from time to time. This section could be further solidified by adopting the words from Section 9 of Children’s Act, 2048.

10. Section 182: If a person effects adoption in contravention of Section 169, sub-Section (1) and clauses (a) and (b) of sub-Section (2) of Section 170 and Sections 171, 172 and 173, such an adoption shall ipso facto be void. In this instance, the jurisdiction of the courts should be expressed clearly. Also, there should be facilitation for compensation in cases where adoption is declared void.

Conclusion:

The newly proposed Adoption provisions in the Draft Civil Code are commendable for many reasons including being gender neutral. However, there are persisting problems relating to implementation of the specific laws.

As a result, there are a lot of gaping holes that need to be addressed such as child exploitation, human trafficking, and slave trade. Legal experts and child rights activists often claim that Nepali laws are little more than a detailing of procedure and do not protect children from being exploited. The fees charged by brokers and facilitators, and ‘donations’ solicited by orphanages during adoption process are in a grey area: nothing in Nepali adoption law specifically prohibits financial transactions. These activities violate article 21 of the Child Rights Convention, which says that that “states must take all appropriate measures to ensure that, in inter country adoptions, the placement does not result in improper financial gain for those involved in it.” It is not just enough to have extensive legislations on paper but there should be proper implementation mechanisms.

Children are the future of the nation and thus the state should do anything in its power to protect their rights and interests whether it is enacting stringent laws, executive orders or pro-child judicial reviews. The promulgation of adoption in the Draft Civil Code is, however, a step forward in the right direction.
 

 Dr Bipin Adhikari

There is nothing to disagree with Professor He Baogang’s presentation on hybrid federalism in Asia. I believe that what has worked is a system that deals with the local context, and does not just imitate what are described as the fine classical federal examples. 

Baogang has quoted Hale (2004) to to explain that federal states in which component regions are invested with distinct ethnic content are more likely to collapse. He has quoted May (2007) to argue that, for the Philippines, special autonomy is better than wholesale federalization to deal with the existing problem in Mindanao because it can solve the problem without changing the whole system.



Federalism presupposes two things: the maintenance of unity and the satisfaction of the desire of minorities. It is here that Nepal stakeholders have problems.

 Dr Bipin Adhikari

Local governance is a set of institutions, mechanisms and processes through which citizens can express their interests and needs, mediate differences, and exercise their rights and obligations at local levels. 

Local governance includes not only the machinery of state but also other actors and their interactions with local government institutions. Civil society organizations, non-government organizations, local bodies, private sectors, international community and government at the centre have important roles in local governance.



Historically, some form of local governance was evident in Nepal from the Lichhavi era (300-700 A.D.). Subsequently, the Malla dynasty, which stretched from (1100- 1678 A.D.) also inherited aspects of local governance. However, those practices were seized understandably during the unification period led by Prithvi Narayan Shah. Subsequently, during the Rana regime, the practices of local governance were re-introduced, albeit at a rudimentary level. Despite the efforts made at a political level to establish an efficient local governance mechanism, the current situation in Nepal has seen too much power vested in the central government with little to no autonomy for the local entities. As a result, the regions outside of the centre have been alienated and disillusioned from the process.



Subsequently, the Local Governance Act 1999 evolved the conceptualizations of decentralization. It provided much needed clarity and geared towards devolutionary type decentralization. Similarly, the act provided for the continuation of a two tier system with some modifications. It established provision for the establishment of a council and executive committee in each of the VDCs, municipalities and DDC in its organizational structure. Similarly, the act provided for the roles, responsibilities and rights of each unit. It advocated for the representation of the weaker sections from the perspective of equity. It also strongly provided for the acceptance of the participatory planning process. It established provisions for the establishment of a local service and provided autonomy and legitimacy to local entities. Moreover, it established accountability mechanisms to make the process more transparent and encourage people’s participation.



Some of the major amendments proposed by the bill are as follows:



a) Section 10: Currently, The Ministry of Local Development has proposed that at least 40 percent women representations be ensured in local bodies such as the District Development Committee, Village Development Committee, Municipality committees and ward committees. The existing provision ensures women just one seat in each body at all levels.



b)Section 7 : Amendment to Sec. 75. Incorporation of two female members during the formation of committee rather than one.



c)Section 8. Amendment to Sec. 76. Inclusion of Dalits, Marginalized, Differently Able, Vulnerable groups. Minimum representation set at 2/3rd of the total members. In addition, 40% women representation within the “special group” ensured.



In light of the amendments proposed in the bill, the importance of efficient local governance mechanisms is critical during the massive restructuring of the nation. Firstly, there is a need for the mechanism for appropriate allocation of roles, responsibilities and personnel at the local level. Further, there is a need to identify aspects of local governance that need to be incorporated in the Constitution and separate them from provisions that can be regulated through legislations. Proximately, there is a need to establish a transparent electoral system to elect the members of the local bodies. Also, the need for the CA members to discuss the rights that should be provided to local bodies to enable them to function without political, infrastructural, or any other kinds of obstructions is key. Similarly, mechanisms to make the recruitment of local body members more inclusive are necessary. Finally, experts have proposed for adequate mechanisms for progress reports and transparent annual audits to make the local bodies accountable to the people they represent.



Some of the suggestions for amendment to the Bill are as follows:



a) Section 56 (Ga): The use of the word “Disabled” should be amended to ” differently able” to make it more politically correct.



b) The financial allocations and planning guidelines or directives provided by the government and NPC limits the freedom of the local bodies/authorities with regard to their planning responsibilities and authorities. Similarly, financial independence and audits for local bodies should be initiated.



c)The local leaders, because of fear of becoming unpopular among the voters prefer to have more grants coming from the government than on relying on their own resources. The income pattern has the direct bearing on the service delivery capacity of the local bodies. From the available information it becomes clearly evident that the VDCs and DDCs are dependent on the government for carrying out the development activities.



d)The LSGA has ensured the participation of the women, weaker and ethnic groups in the local bodies/authorities. Yet the number to be nominated is very small. Furthermore, it is not clear as to on what basis they have to be nominated.



e)If the present system of nominating the experts in the working committee of the DMIC from among ‘our persons’ by the minister from which political party s/he has been appointed can be cited as the example, the real interest of the weaker sections of the society would not be represented in the local body/authority no matter whatever the law requires as the qualification for the nomination.



f)In accordance with the LSGA, projects undertaken by the government or corporate sectors could be transferred to the local government units, which are to manage as per the transfer agreement. It would be quite interesting to observe how much the local bodies would be interested to take over the completed development projects other than the assets like the buildings etc.



g)In most of the districts where government has not been effective or local bodies/authorities are yet to reach, traditional organisations representing the interest of various groups including the gender or ethnic or occupational groups have been effective. Such organisations could have been used as the mechanisms to use in the nomination of the different groups in the respective council of the local body/authority.



Nepalese society is a power-oriented society. Therefore people go around those who hold the authentic chair. The changes recommended by the Bill are commendable. However there are inherent problems that have deep roots in Nepali traditions. There are problems relating to implementation of the modifications promulgated by the Bill. For example, despite timely auditing of accounts of local body/authority and actions by the respective councils against the irregularities shown in the audit reports emphasized by the Act, in practice, regular auditing of the accounts of the local government authorities has always been a major issue.

In light of this, appropriate implementation mechanisms to empower the local leaders and promote accountability are absolutely critical.