Access to justice: There’re barriers galore
Govind Prasad Thapa
Oct 22, 2018, The Himalayan Times
Women and children are often subjected to criminal victimisation inside and outside their homes. These types of violence usually include harassment, torture, abuses, and sometimes murder in most deceitful manners. The problems of exploitation of women and children for commercial sex through illegal smuggling and trafficking in Nepal are bizarre examples of how women are oppressed.
Amongst many victims, very few venture out for justice without adequate counselling and medical, legal and economic support. The way the case of rape and murder of Nirmala Pant of Kanchanpur was handled is one the bizarre examples of how sometimes crime investigation is mishandled in Nepal and why there is a need of course correction. The UN Declaration of Basic Principles of Justice for Victims of Crime and Power has made provisions for access to justice and fair treatment, restitution, compensation and assistance. It has recommended that the victims of crime and power be “treated with compassion and respect for their dignity” and has recommended several victim-based approaches for redresses of loss. Justice for the victims of violence and crimes is a primary right enshrined in our constitution too. The criminal justice enforcement system is meant for ensuring “the ability of people to seek and obtain a remedy through formal or informal institutions of justice, in conformity with human rights standards.” However, our system is often ridiculed for being insensitive to women’s concerns.
The proceedings of justice begin from the initial investigation of police and government attorney. There are fundamental weaknesses on the part of government attorney and police while investigating violence against women and children. First, the victim has to go through a series of interviews by police, attorney, medics, private lawyers and judges while “ascertaining” the facts and collecting physical evidences. Most of these officials are males which make it difficult for woman victim to face them. Second, over the time the investigating officers are often replaced by new persons. This means the victim has to narrate the whole story again. It makes the victim re-victimised. Third, the privacy and safety and psychological, mental, medical, physical and financial needs of victims are often ignored. Fourth, the victims are not updated with the progress of their case by police and attorney office, meaning they feel excluded in the justice process. Police and attorneys are more trained and focused to deal with the legal procedures, physical evidences and suspects, but they are less oriented and attuned to handling of the victims’ concerns.
Quite often the police and government attorney may treat victims with suspicion and interrogate them when confronted with “gaps” in their story. Therefore, whenever victims are required to attend court to testify, there is a tendency to treat them as “an item of evidence” and “non-person.” The other barriers to access to justice appear in many forms. At times family members, societies, lack of victim-friendly environment, inappropriate legal frameworks and discriminatory practices also stand as barriers. The most prominent and detrimental of these barriers are the societal dogma and taboo. The practices of religious, cultural and traditional values endorse “culturalisation of violence” in the society. All these factors discourage victims from lodging complaints with police. There is no doubt that the criminal justice enforcement system should be victim-friendly. It should help victims to seek legal redress for the crimes committed against them in a timely manner and they should be treated in an equal, fair and impartial manner. They should obtain legal assistance, restitution and compensation for their loss without much hassle. They should have access to participate effectively in the court proceedings through access to police, attorney, courts, tribunals and alternative dispute resolution units.
The victims must be safe and secure from any threats. For all these to turn into reality, police and other law enforcing actors should adopt a humanistic approach. In addition to actors from the criminal justice enforcement system, health, community services, security and protection sectors as well as other individuals also have important roles to play in responding to the rights and needs of victims. All those who work with victims should know their own responsibilities and those of others involved in providing support to victims/survivors of sexual and gender-based violence. Effective collaboration between police and various agencies and community groups that work with sexual assault survivors is viewed as an essential component of a concerted approach.
The recent #MeToo and #WhyIDintReport movements in America (now in neighbouring India as well) are encouraging examples of women coming forward against violence and injustice to them. Furthermore, police and other organisations should pay extra attention to the vulnerable groups: children, physically and mentally disabled, single women (unmarried, widow and divorcee), trafficked victims, migrants, refugees, child brides, tribal women and women belonging to minority groups, illiterate, ignorant, and the poor. These are the weakest and vulnerable sections that face victimisation and violence.
Thapa, a retired additional inspector general, is associated with Centre for Security and Justice Studies, Nepal
Govind Prasad Thapa
Oct 22, 2018, The Himalayan Times
Women and children are often subjected to criminal victimisation inside and outside their homes. These types of violence usually include harassment, torture, abuses, and sometimes murder in most deceitful manners. The problems of exploitation of women and children for commercial sex through illegal smuggling and trafficking in Nepal are bizarre examples of how women are oppressed.
Amongst many victims, very few venture out for justice without adequate counselling and medical, legal and economic support. The way the case of rape and murder of Nirmala Pant of Kanchanpur was handled is one the bizarre examples of how sometimes crime investigation is mishandled in Nepal and why there is a need of course correction. The UN Declaration of Basic Principles of Justice for Victims of Crime and Power has made provisions for access to justice and fair treatment, restitution, compensation and assistance. It has recommended that the victims of crime and power be “treated with compassion and respect for their dignity” and has recommended several victim-based approaches for redresses of loss. Justice for the victims of violence and crimes is a primary right enshrined in our constitution too. The criminal justice enforcement system is meant for ensuring “the ability of people to seek and obtain a remedy through formal or informal institutions of justice, in conformity with human rights standards.” However, our system is often ridiculed for being insensitive to women’s concerns.
The proceedings of justice begin from the initial investigation of police and government attorney. There are fundamental weaknesses on the part of government attorney and police while investigating violence against women and children. First, the victim has to go through a series of interviews by police, attorney, medics, private lawyers and judges while “ascertaining” the facts and collecting physical evidences. Most of these officials are males which make it difficult for woman victim to face them. Second, over the time the investigating officers are often replaced by new persons. This means the victim has to narrate the whole story again. It makes the victim re-victimised. Third, the privacy and safety and psychological, mental, medical, physical and financial needs of victims are often ignored. Fourth, the victims are not updated with the progress of their case by police and attorney office, meaning they feel excluded in the justice process. Police and attorneys are more trained and focused to deal with the legal procedures, physical evidences and suspects, but they are less oriented and attuned to handling of the victims’ concerns.
Quite often the police and government attorney may treat victims with suspicion and interrogate them when confronted with “gaps” in their story. Therefore, whenever victims are required to attend court to testify, there is a tendency to treat them as “an item of evidence” and “non-person.” The other barriers to access to justice appear in many forms. At times family members, societies, lack of victim-friendly environment, inappropriate legal frameworks and discriminatory practices also stand as barriers. The most prominent and detrimental of these barriers are the societal dogma and taboo. The practices of religious, cultural and traditional values endorse “culturalisation of violence” in the society. All these factors discourage victims from lodging complaints with police. There is no doubt that the criminal justice enforcement system should be victim-friendly. It should help victims to seek legal redress for the crimes committed against them in a timely manner and they should be treated in an equal, fair and impartial manner. They should obtain legal assistance, restitution and compensation for their loss without much hassle. They should have access to participate effectively in the court proceedings through access to police, attorney, courts, tribunals and alternative dispute resolution units.
The victims must be safe and secure from any threats. For all these to turn into reality, police and other law enforcing actors should adopt a humanistic approach. In addition to actors from the criminal justice enforcement system, health, community services, security and protection sectors as well as other individuals also have important roles to play in responding to the rights and needs of victims. All those who work with victims should know their own responsibilities and those of others involved in providing support to victims/survivors of sexual and gender-based violence. Effective collaboration between police and various agencies and community groups that work with sexual assault survivors is viewed as an essential component of a concerted approach.
The recent #MeToo and #WhyIDintReport movements in America (now in neighbouring India as well) are encouraging examples of women coming forward against violence and injustice to them. Furthermore, police and other organisations should pay extra attention to the vulnerable groups: children, physically and mentally disabled, single women (unmarried, widow and divorcee), trafficked victims, migrants, refugees, child brides, tribal women and women belonging to minority groups, illiterate, ignorant, and the poor. These are the weakest and vulnerable sections that face victimisation and violence.
Thapa, a retired additional inspector general, is associated with Centre for Security and Justice Studies, Nepal
