Cross Border Conference Speech:
Prof. Dr. Shanta Thapalia
I would first like to thank the organization that invited me to interact at this conference. But I am also a bit confused, as the majority of the participants are Nepalese and only few foreigners. Anyhow I am going to talk about the newly enacted law. I will read this law in English slowly and we will all discuss and interact in Nepali, is this okay? All the participants agree.
Both Mrs. Durga Ghimire and Dinesh Tripathi have already talked about the law, the interim constitution, the political situation and why we have not been able to implement the discussed issue on women of our country. I will not go into these points as Dr. Ghimire has already covered most of these important issues out of her twenty years of experience working in this field, and is the right person to discuss as well.
We have all the same legal background and Ms. Sapana Pradhan is here as well to discuss more on the international instruments on controlling the trafficking, and I am going to talk about the national law, which was recently enacted.
Preliminary:
In pursuance with the commitment at the global and regional level, the Government of Nepal has taken initiatives to address the problem of trafficking at the national level. The good example of this is the newly enacted Anti-human trafficking and transportation (Control) Act-2064 (2007). We are all today talking about the weak government, but still I would like to say that this initiative is very positive for us.
The other example is a common written commitment to work on violence against women that has been made public by all the major political parties on the occasion of first national day against human trafficking. Government has programmed for three-rehabilitation centres in this fiscal year though there is no specific provision to support and care to HIV/AIDS affected person.
For the first time in Nepal Anti-human trafficking and transportation (Control) Act is framed on the principle of victimology. This is a special law where victim or survivors are taken into consideration for the first time. I would also like to add that Ms. Sapana Pradhan was also involved in the draft of this act.
Provision Relating to Offense and Investigation:
This Act covers a wide and large area of trans-border problems where people are daily crossing the border and have been transported for the sake of jobs and further education. This Act does not only talk about foreign countries but also talks about the internal transportation and migration, i.e. one city to another city, and rural to urban areas. This Act also covers the transportation of humans for sale, sale of human organs, and human slavery for any other purposes. Another important provision is the right to self-defense of the victim or survivor. Victims can even kill the offender during the period of her self-defense.
Notwithstanding anything contained in the prevailing law, where a person is accused of having committed an offense under this Act, the burden of proving that s/he has not committed the offense shall lie with him/herself.
If the victim desires to have his/her representation through separate practitioner in the hearing to be made in a court of law of a suit relating to the offense under this Act, s/he may appoint such legal practitioner.
Provision Relating to Rescue, Rehabilitation and Reunion:
The Government of Nepal shall make arrangements for rescue of a Nepali citizen sold in a foreign country. In order to provide physical or mental treatment to and socially rehabilitate the victim and to reunite him/her with their family, Government of Nepal shall establish rehabilitation centres according to necessity. Government of Nepal shall monitor this from time to time and may provide prescribed financial and other assistance to the centre.
As Mrs. Ghimire mentioned earlier about financial problems, the centre shall have to make arrangements for medical treatment and advisory service and facility to the victim according to necessity. The Government of Nepal shall establish a rehabilitation fund for operation of the rehabilitation centre.
Provision Relating to Punishment and Compensation:
This is also the first time that a person who sells or buys human beings shall be given an imprisonment of twenty years, and a fine of rupees two hundred thousand (Nrs. 200,000). This National Law provides the rights to bring back the offenders if they crossed the border or escaped to foreign countries. The punishment and fine varies looking at the nature of the victim or survivor.
If a person having failed to receive any assistance called for escaping or fleeing from a place after knowing or having reasonable ground to believe that s/he is about to be bought, sold or engaged in prostitution or has been taken for that purposes or is sold, bought or caused to be engaged in prostitution, shall not be punished, nor withstanding anything contained in the prevailing law.
The court shall have to make available, from the offender to the victim, a reasonable compensation not less than an amount equal to fifty percent of the fine imposed on him/her.
Property to be confiscated:
All movable and immovable property acquired by a person by commission of an offense under this Act shall be confiscated.
Reward:
There is a provision of security and reward to the first reporter or informer about the offence of trafficking and also for pre information about any such act, which is going to take place. The name and address of the informant shall be kept secret.
Wavier to the Claim of Punishment:
Where an accused charged of having committed an offense after admitting he/she has committed, rendered assistance to the police, government attorney or court to collect evidence in respect of that offense, to arrest other accused or gang or accomplices thereof and if s/he has committed the offense first time, the court may award punishment in such offense.
Claim may be Made:
While instituting a suit relating to the offense under this Act, the concerned government attorney may make a claim that the accused has committed an offense of moral turpitude.
Committee may be Formed:
The Government of Nepal may form as prescribed, one national committee and district committee according to necessity in order also to coordinate government agencies and non-governmental organizations in the act of controlling the offense under this Act and rehabilitating the victim.
Punishment for Causing Obstruction:
A person who causes an obstruction in the work and proceedings relating to the investigation of the offense under this act shall be punished with fine up to rupees ten thousand (Nrs.10, 000).
Not to be publicized:
Without obtaining approval of the victim no one shall print in a newspaper or publicize in other mass media his/her real name, picture or any statement adverse to his/her character.
Security Arrangement:
If a person who has filed a complaint to the nearby police for security, stating reasonable cause of a likeliness to be retaliated against for reason of having filed complaint before the police or having given statement of interrogation in an office or court, such police office shall provide security and police protection to him/her.
Proceedings to be carried out in Camera Court:
The proceedings and hearings of the suit relating to the offense under this Act shall be carried out in a camera court.
Government to be Plaintiff:
In this suit under this Act, Government shall be plaintiff and the suit shall be deemed to have been included into Schedule-1 of the State Cases Act, 2049 (1993).
Power to Make Rule:
The Government of Nepal may make rule required to implement the objective of this Act.
Conclusion:
Though there is a beautiful and nice law enacted in our country, which you have even seen the commitment of our political parties in a written document, there is the big question of its implementation that both Mrs. Ghimire and Mr. Tripathi has already raised earlier.
It is difficult to implement the above-mentioned laws without support of bilateral and multi-lateral cooperation, policy, treaty and agreement.
The provision of 'extradition' is in the new Act, but it is difficult to implement this provision without bilateral treaty or multilateral treaty among or between the country of origin and destination. Bilateral treaty is also important to implement the SAARC convention on trafficking, which is already ratified in Nepal.
Need to ratify the human rights instruments concerning human trafficking and transportation. The United Nation Convention on transitional organized crimes and the United Nation Protocol to prevent, suppress and punish trafficking in persons. So, I think whatever the law that existed earlier, it was based on the principal of the accused. Meaning how to make punishment less to the accused now, and how we can support the victim and get justice for them.
We all have welcomed this Act but it should not only be welcomed, nor should it be in a document only, otherwise this means nothing, and because the law has said that we can bring back the accused or the offender from the foreign country. Like Mrs. Ghimire mentioned earlier, only the law does not work, the awareness must be given to the people and then it will. This law must be taken to the grassroots level and to those who are really vulnerable to trafficking.
Prof. Dr. Shanta Thapalia was born in Terhathum, Nepal. She has communication skills as a Lawyer, an Academician and as a Legal Activist. She is Expert in Family Laws and Gender issues. Prof. Dr. Thapalia is a first woman Ph.D in Law and first woman Law Professor (recently she is retired from T.U).
Prof. Dr. Shanta Thapalia was appointed as a Member of various bodies of the HMG, Nepal. The Police Reformation and Recommendation Commission, HMG, Academic Council of Tribhuvan University, The Working Committee of CEDAW Reporting Committee, HMG / National Planning Commission and the Member of the Working Committee for legal affairs and participated in various activities of the MWSW, HMG/ Ministry of Women and Social Welfare.
She is the Regional President of the Women of Law South Asia Network (WALSAN), Founder Member of South Asian Association for Women's Studies (SAAWS), Founder Member of Asia Pacific Forum on Women Law & Development, Founder Member of the Nepal Law Society, Lifetime Member of Ashoka Fellowship, USA, Executive Member of SCOPE, Advisory Member of Women's Security Pressure Group, Executive Member National Pressure group for the Protection of Women's Dignity and the Life Member of the Central Committee Ama Milan Kendra, (Mother's Club). In 1987 She established the Legal Aid and Consultancy Center (LACC) as its founder president. She was also nominated as SAARC Prominent Women Personality in Autonomous Advocacy Group of Women Personalities (SAWAG) from Nepal by HMG in 2003 and recently she was nominated as member of National Judiciary Academy for two years.
She has got the Legal Drafting ability and she has always worked in co-operation and co-ordination with the Media and Press. Several publications concerning Family Laws, property rights of women and women related issues in Nepal i.e. Books, Articles, Journals are her credibility and devotion towards the development of the legal field. She has the International and national level lobbying experience. She has the opportunity to present papers and attend various National and International Seminars, Workshops, Conferences, Meetings and talk programs organized by the UN, WHO, FWCW, PAWLA, USIS, APWLD, SAARC, UNDP, UNIFEM, UNICEF, WFP, World Bank, CEDAW in various countries like USA., Dhaka Bangaladesh, Manila, Myanmar, New Delhi (India), Karachi (Pakistan), Shree Lanka, Beijing (China), Switzerland and Bangkok etc and almost all parts of Nepal.
Prof. Dr. Shanta Thapalia was nominated one of the coordinator to co-ordinate and guide the team of women from Nepal to the NGO forum, Beijing, the parallel event to the fourth World Conference on Women 1995. She has devoted her lifetime to the development of the legal field, Upliftment of women and providing valuable legal advisory services to the Country.
