Alternative sentencing in Nepal
If you were to envision an ideal punishment system what would its components be? Penal system is an important measure, a component of the broader system that ensures the wheels of justice are in motion. A robust punishment system is integral in turning justice from a vain ideal to a pragmatic reality but with time, it is also important to change the modality and the very aim of the punishment system itself. As important as it is to ensure that justice is done to the victims, it is equally important to be prudent in the reform and rehabilitation of the perpetrator.
A much-needed solution to the prison problem?
In Nepal, the prevailing mode of our penal system has relied on financial sanctions and incarceration. As per the Prison Reform International, financial sanctions such as fines are prone to criminalizing poverty and further over-representation of an impoverished minority. In provisions where the person can either pay fines or face incarceration people who are pushed into crimes because of poverty have no choice but to face incarceration and their jail term that further jeopardizes their economic status thus, even though sentencing is done-it is not a rehabilitative measure. Thus, it is important to acknowledge that financial sanctions have a disproportionate effect and often, may confer an adverse effect to the rehabilitative intent of the criminal justice system.
This puts out a question on the efficacy of our incarceration system. The recidivism rate is ever so higher in the year 2019, as per a report by the Kathmandu Post the crime rate too had increased by 40 percent. Similarly, the physical infrastructures of our incarceration systems are exhausted beyond their capacity. A report presented by The Prison International showed that Nepalese prisons were occupied and exhausted beyond their capacity as the occupancy rate was 153 percent. The budget for prison is scant as it is and when the designated resources are already in a state of severe scarcity in the prisons, such undercutting is bound to compromise the living condition standards in prisons. Whereas, increasing the funding causes an unnecessary exhaustion of the state’s economic resources at the expense of its taxpayers—so in this scenario, an alternative sentencing measure can be the economically efficient and effective measure to the problems our penal system is riddled with. The state of internal mismanagement along with plethora of problems such as drug use inside prison have riddled our prison system with a plethora of problems making it a brewing ground for chaos.
But is incarceration the only norm when it comes to punishing the offenders? It is necessary to debunk these assumptions on the incarceration system by facts not mere assumptions and necessary frameworks are required for a penal system that is effective and just to both victims of the crime and conscious of tenants of rehabilitative and restorative justice.
Sentencing policies: Incentives or sanction based?
A way to connect sentencing policies with community is by incentivizing community integration i.e., rather than modes of imprisonment and confinement the justice system has to rely on a mode of incentives and rewards so that the rehabilitative intent of the criminal justice system can transform into a practical reality. Policies on sentencing have advanced community-based approaches in contrast to conventional modalities of punishment that inform a pragmatic and theoretical basis as to why community-based sentencing ought to be prioritized. The Criminal Offenses Sentencing and Executing Act, 2074 governs provisions regarding sentencing modalities—the very act in its preamble lucidly puts that the legislation has been provisioned for the intent of creating a just, peaceful and safe society. The very act in its section 13 (d) and (e) lay out two of the primary principles behind punishment. On one hand it emphasizes that the intent of punishment is to rehabilitate and assist to improve and the consecutive section e. emphasizes on keeping the offender astray or separate from the society thus, it puts out a preventive and a rehabilitative intent.
The emphasis on policies that focus on the role of communities in rehabilitation and restoration by incentivizing community integration as a correctional measure is a step for making our punishment system more efficient and humane. In Nepal, the Criminal Offences Sentencing and Execution Act, has envisioned the provision for community service for offenses with up to six months of imprisonment. The act has embraced a modern reform to our criminal justice system by envisioning provision for open prison, parole and probation. Despite the provision of the act, the system of parole has been implemented from 18 Oct 2023 and it is also to be taken to note that parole is not an absolute right-it is a privilege extended to prisoners who meet the conditions prescribed. As per the department of prison some 1,600 prisoners are eligible for parole which indicates a positive policy measure on the part of the government to address the overcrowding issue of prison.
Although, alternative sentencing practices mark a reformist approach to conventional sentencing modalities that emphasize sanctions as opposed to incentive and a more holistic goal that aims to punish the perpetrators whilst being prudent of their necessity to rehabilitate and reintegrate into society. However, alternative sentencing too has to make place for victim centric justice and should be a measure to promote the common good as opposed to the interest of certain political kittas and their aides. Prisons, fines or other alternative modalities should be perceived as correctional facilities and measures rather than an inescapable oblivion and sentencing term should be a journey of redemption as opposed to an institutional purgatory.
The author is pursuing BA LLB at Kathmandu School of Law
A rethink on women’s representation
Claims of political equality are central to the normative theories of democracy as contemporary democracy has transformed from the ‘politics of ideas’ to the ‘politics of presence’. The Lincolnian aspirations of democracy as “by, for, and of the people” suffice no more, for the rulers are the same, the co-optation of whom the political institutions serve is narrow, and the encompassing diversity in social positioning renders it difficult for empirical democratic practices to mirror the norms on political equality. In such a scenario, the ideals of inclusive representative democracy are still fractured by the lack of gender parity in formal politics.
All over the world, politics has been a masculine domain and Nepal is no exception. The tussles between muscular presence leave minuscule space for women representatives. The positioning of women in society to a great extent corresponds to the political sphere, so the alienated experiences of women in the societal sphere seep their way into politics. Although some women representatives are presented at the forefront of politics, it’s men who still hold the strings. The structural positioning of women has indeed created biased experiences of political institutions against them, but it would be a reductionist statement to blame only gender by isolating other forces it interacts with as the stirring force of inequality in Nepali politics.
Intersectional forces
The fundamental goal of representation of women in politics is that “women bring to politics a different set of values, experiences and expertise” thus, the emphasis on equal representation of women and initiatives for affirmative action are taken. It justifies representation extended to women based on their essential identity rather than their social position. The former argument reduces women into a homogeneous group, who withhold similar interests—whereas, in the case of Nepal, this essential identity intersects with various dimensions of caste and class. Other variables such as ethnicity, religion, region, academic background, differed abilities, and sexual minorities purport these differences to create complex social positioning, which forms sectional and distinct identities of and as a Nepali woman. A Janajati woman, a Brahmin woman, and a Badi woman—all three will narrate to you three distinct experiences each has despite a compulsion to take up the universal identity of Nepali women; their narratives of oppression certainly differ.
The identity as a ‘woman’ does not exist in a single axis but it is interactive with other compounding variables that induce social stratification such as class, ethnicity, geographical location, etc. Such inter-sectional identities form “minorities within minorities”. Although gender acts as a common ground, there are other bases on which the subjugation of already marginalized demography is purported; thus, the provisions that aim to provide representation appear as one-dimensional and fail to encapsulate diverse categories existent within its presumptive category of “women.”
The space as a de-facto woman leader in Nepal is acquired by a Khas-Arya woman. She is likely to have undergone some of the same experiences as a Dalit or a Janajati woman, more women from the upper strata of society reap benefits from the provisions on gender equality and inclusivity than the marginalized women. The talks, the bold ambitions on countering gender parity lie neglectful to the spirit of equal representation in Nepal—which is to bring into discourse, tackle, and best represent their constituents and their problems. The mere fulfillment of a statistical requisite is hailed as a mark of gender equality or an attempt to it whereas equity becomes a lost cause in representation.
The contemporary spirit of representative democracy consists of the fundamental expectation that those who are being represented are mirrored by their representatives in terms of experiences of their respective socio-political life. Thus, an essential account of intersectionality as an ontology and method of ensuring representation is a prerequisite in the contemporary political scenario of Nepal.
Representation for recognition
The phenomenon of the convergence of politics with identity and recognition is something that has amassed mixed reactions. The mainstream Nepali nationalism is always resistant to the rise of ethnic and regional nationalism. Anything that challenges or merely lifts the smokescreen of a universal identity of a Nepali citizen shakes the very spine of our vain slogans on “Vividhata ma ekata.”
This pattern of creating a universal and reductionist identity follows a similar trajectory in creating the identity of a Nepali woman. What is woeful of the absence of recognition is not the lack of affirmation of identities but the captivity of distinct identities as one. Even within the groups that lie as subordinate, the existing inequality is fostered and a hierarchy is established within the subjugated categories of people. Such layered inequality is formed by an ever-present patriarchal bias at its foundation.
It is high-time recognition is viewed as a political goal. For a nation, which places diversity as a defining attribute, a rather paradoxical stance is held when it comes to acknowledging “ the politics of difference.” The very same diversity that crafts the vanity of being a Nepali is construed as a threat when it comes to its acknowledgment. Representation of diverse identities in mainstream politics gives autonomy over creating one’s identity, selecting a narrative for themselves, which they were devoid of in the course of historical schema.
Thus, recognition is an antecedent to the affirmation of identities. Equal representation for women representation in Nepal is no political epiphany but newer and broader discourses as to its necessity are in dire need to be entertained.
