On 23 March last year, the Kathmandu Post ran a front-page story titled 'Red Pole reduces crime, misconduct'. According to the story, an Area Reformation Committee was tying those convicted of crime to a red pole in a public place, humiliating them in front of the community, and getting them to renounce their behaviour.
This story reflects the erosion of the justice system during the current conflict. I spent six months travelling in Southern Nepal with a team of four other researchers, interviewing formal and informal justice providers. It was overwhelmingly clear that the justice system of Nepal had come to a halt.
Referring to the 'red pole' method, the chairman of a municipal committee declared that 'such punishment has really proved to be effective compared to the ones practised by the police and other authorities.'
Humiliation as a strategy has replaced international legal standards of justice. This has been made easier since most rural police posts have withdrawn to the city, leaving almost no state presence.
If a murder is committed in a village, and people are brave enough to report it, the police will ask the villagers to bring the body to the city themselves, along with any supporting evidence. The police, poorly armed and risking Maoist attacks, are afraid of being abducted or killed. The media, preoccupied with reporting the emergencies of the conflict, have also drastically reduced coverage of civil crimes. Crimes, therefore, now take place unchecked.
Because involved parties remove evidence from a crime scene to bring it to the police, the evidence becomes impossible to verify. The public prosecutors, despite having the authority to request more evidence, are also hampered by fear of the police, and concerns for their own safety. The police then act according to the evidence brought before them, often torturing suspects during interrogation without adequate background investigation.
Because there have been no elections, there are no elected officials in the village to sign documents. Elected officials had usually adjudicated petty disputes. Even when the case reaches a Court, the Court officials may not be able to follow up because of death threats from Maoists.
Informal justice providers, including community heads, are also afraid to perform their traditional functions. Politically active individuals have fled rural areas after repeated Maoist threats. Even disputes that have already made it to Court have been halted.
Justice providers, including both police and Court officials, struggle under the psychological impact of working in a paralysed system. The lack of both trust and coordination between the judiciary and the police further aggravates the problem.
Nepal’s current political stalemate is in some ways due to this resistance to working together on a common national vision. Institutions are deeply divided about how to proceed. That is perhaps why local initiatives like 'the red pole' take on such alarming popularity. The pole, seeming to promise action and justice, unites people in a way the police or the Courts never could.
The three metre long red wooden pole, which is chillingly reminiscent of the Chinese Red Army, has made its appearance not courtesy of the Maoists, but because of the absence of the lawful state institutions.
Nepal was closed off to the outside world until the '50s. Medieval forms of punishment and torture persisted till the '70s and '80s. But modern legal reforms slowly filtered into the country. A three tiered Court system - District, Appellate and Supreme - operated for decades before coming to a slow halt during the conflict. Norway provided short-lived funding to enable the Nepal Bar Association to give free legal aid. Advocates now argue that legal aid should be mainstreamed into the Constitution as part of a citizen’s right to a free trial.
The Maoists and state security forces, acting with impunity, equally terrorise ordinary villagers. The Maoists use children as soldiers, force people to provide labour, execute suspected spies and enemies, extort money and food, and practice torture. The state security forces 'disappear' suspects, conduct investigations under torture, extort money and food from hapless villagers, and rape and kill suspected Maoists. Both sides practice extrajudicial execution.
The population recognises that these two competing and embattled sectors, Maoists and the state, have dismantled and debased the justice system. Justice cannot be arbitrated with a gun. The government of Nepal remains reluctant to acknowledge that a strong judiciary and independent legal system could reduce the impact of the conflict. The fact that Nepal’s modern justice system has been rendered functionally useless, replaced by a medieval system of public humiliation, speaks volumes about the state of justice in Nepal today.