US embassy cable - 04KATHMANDU654

UNCLAS SECTION 01 OF 03 KATHMANDU 000654 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR G/TIP, G, INL, DRL, PRM, IWI, SA/RA, SA/INS 
STATE ALSO PLEASE PASS USAID 
LONDON FOR POL/GURNEY, NSC FOR MILLARD 
 
E.O 12958: N/A 
TAGS: KCRM, PHUM, KWMN, PREF, ELAB, NP, Trafficking in Persons 
SUBJECT: THE LEGAL ENVIRONMENT IN NEPAL FOR TRAFFICKING IN 
PERSONS 
 
REF: 
 
1. Summary.  Existing legislation governing human 
trafficking in Nepal provides severe punishments for 
traffickers and their associates and shifts the burden of 
proof, in many cases, to the accused rather than the victim. 
Draft legislation that would address victim rights and 
protections expired after the dissolution of Parliament in 
May 2002.  The current laws have several shortcomings, 
mostly related to the treatment of victims, while the legal 
process usually involves lengthy delays with opportunities 
for the accused to use bribery and threats to forestall 
prosecution.  In the Nepali year 2002/2003, only 19 percent 
of prosecutions resulted in convictions, down from 26 
percent the year before.  Reporting of cases to the police 
also declined to 40 cases in 2002/2003 from 92 cases and 125 
cases the two preceding years.  In March, two incidents were 
reported in the media of former and current policemen 
involved in prostitution rings, but details remain unknown. 
End Summary. 
 
--------------------------------- 
Existing Laws Against Trafficking 
--------------------------------- 
 
2. Anti-trafficking legislation in Nepal has a long history. 
Human trafficking was first declared an offense by King Rana 
Bahadur Shah in the year 1749 and was codified into law in 
1853.  The current laws governing trafficking are a chapter 
on "Trafficking in Human Beings" in the 1963 Country Code 
and the 1986 Human Trafficking (Control) Act. 
 
3. According to national law, trafficking is defined as 
 
     "An act of selling human beings with any motive, to 
     take away any person abroad with intent to sell, to 
     compel any woman to engage in prostitution through 
     allurement or enticement, deceit, threat, intimidation, 
     pressure or otherwise, and to hatch a conspiracy for 
     committing any of these acts, or to assist in or abet 
     such acts, or attempt to engage therein." 
 
Punishments under the law are strong and delineated as 
follows. 
 
-- Traffickers may be punished with 10 to 20 years 
imprisonment. 
 
-- Any person who takes another person outside the country 
with the intention of selling that person may be imprisoned 
from 5 to 10 years. 
 
-- Any person compelling any woman to engage in prostitution 
may be imprisoned from 10 to 15 years. 
 
-- A person who conspires in trafficking may be imprisoned 
for up to 5 years. 
 
4. Another strength of the 1986 legislation is its extra- 
territorial application.  Even a person who has committed a 
punishable act under the law outside Nepal can be prosecuted 
and punished as if s/he had committed the crime in Nepal. 
However, the existing extradition treaty between Nepal and 
India, the primary destination, does not include human 
traffickers, effectively nullifying the extraterritorial 
provision.  The law also shifts the burden of proof to the 
accused in cases involving cross-border operations. 
However, if the accused is a guardian or relative, the 
burden of proof remains on the victim. 
 
----------------- 
Draft Legislation 
----------------- 
 
5. In 2001, the draft Trafficking in Human Beings (Control) 
Bill was submitted to Nepal's Parliament.  The bill had 
passed through committee and was ready for a floor vote when 
the Parliament was dissolved in May 2002.  Civil society 
organizations and the Ministry of Women, Children and Social 
Welfare anticipate the bill will be resubmitted once a 
national parliament is re-elected.  Unfortunately, the 
ongoing Maoist insurgency and political impasse between the 
King and political parties have prevented rescheduling 
national elections. 
 
6. If enacted, the new law would provide stronger protection 
for trafficking victims, which is neglected under current 
law.  The draft bill protects the victim's privacy through 
prohibiting the media from publishing information relating 
to the victim without his or her consent; allowing for in- 
camera hearings at the victim's request; and determining 
that the victim need not reconfirm his or her statement in 
court after s/he has given it in the first instance.  The 
victims are also granted the right to act in self-defense 
even if the trafficker is injured or killed in such an act. 
The bill also mandates creation of a "rehabilitation fund" 
and establishment of rehabilitation centers. 
 
----------------------------------------- 
Shortcomings in the Law and Legal Process 
----------------------------------------- 
 
7. Most criticisms of the current law involve the lack of 
protection for trafficking victims and the gender bias of 
the law towards women and girls.  Victims are required to be 
present at all court hearings involving their case, making 
it difficult to resume a normal life during the 2-3 year- 
long judicial process.  The law also fails to criminalize 
the act of purchasing a human.  Others in Nepali civil 
society have commented that the law takes a moralistic 
approach to trafficking, and government authorities often 
treat victims poorly, contributing to social stigmatization 
of the victims. 
 
8. Still others are critical of the legal process, which 
provides many opportunities for the accused to use bribery 
and intimidation to forestall prosecution.  The Nepal Police 
are the first actors in the enforcement process.  To 
initiate an investigation, the victim must file a First 
Information Report (FIR) with the police.  Subsequently, the 
police must obtain permission from the nearest district 
court to initiate an investigation.  Unfortunately, in many 
districts, the Women and Children Police Service Center, 
which is empowered to handle these cases, lacks the 
resources (e.g., vehicle or means of communication) to file 
a case quickly.  The district headquarters -- and the court 
-- can sometimes be several days away by foot.  Police 
cannot collect physical evidence, which in many instances is 
time-sensitive and critical to successful prosecution, 
without first reaching -- and obtaining permission from -- 
the court.  Moreover, anecdotal evidence suggests that both 
the police and court officials can be subject to bribery and 
threats from the accused. 
 
9. Once the court grants permission, the police officer 
investigates the crime under the direction of a public 
prosecutor appointed by the Office of the Attorney General. 
Inadequate police training on how to conduct a criminal 
investigation may contribute significantly to the low 
success rate of prosecutions against traffickers in Nepal. 
The public prosecutor is authorized to direct the 
investigator; file charge-sheets with supporting evidences; 
and oversee witness testimony to the police.  After a charge- 
sheet is filed in the court, the court records the statement 
of the accused and the lawyers of both parties begin 
pleading the case.  The investigation and prosecution of a 
case typically lasts between 2-3 years. 
 
---------------------------------- 
Low Conviction and Reporting Rates 
---------------------------------- 
 
10.  Considering the delays and hurdles in investigating and 
prosecuting trafficking cases, it is unsurprising that the 
success rate of convictions for the Nepali year running from 
April 2002 - April 2003 was only 19 percent.  Out of 142 
cases completed in 2002/2003, only 19 cases were considered 
"successful" with 11 cases considered "partially 
successful."  In most cases, partial success implies that 
the case involved more than one accused, but not all were 
convicted. 
 
11. The lengthy legal process and the requirement that 
victims be present in all hearings contribute also to a low 
reporting rate.  The Maoist insurgency has led the police to 
withdraw from most rural areas, making it more difficult for 
victims to file cases and participate in the judicial 
process.  In 2002/2003, only 40 cases were filed with the 
police, down from 92 cases and 125 cases the preceding two 
years.  In the same period, between 200-300 women and 
children were rescued from trafficking situations, including 
nearly 100 from brothels in India. 
 
----------------------------------- 
Police Involvement in Prostitution? 
----------------------------------- 
 
12.  Although two recent press reports indicate corrupt 
involvement of the police with prostitution activities in 
Nepal, there is no evidence linking police with trafficking. 
On March 15, a former Assistant Sub-Inspector of Police was 
arrested for running a prostitution ring in Kathmandu.  The 
media also reported, on March 16, that three police 
constables were arrested on charges of looting and 
kidnapping a restaurant owner at the behest of Deepak 
Chitrakar, owner of the Friendship Dance Restaurant in 
Kathmandu.  [Note.  "Dance restaurants" are a kind of 
indigenous nightclub and hostess bar where female employees 
often are encouraged to engage in off-site prostitution. 
End Note.]  Post will seek further information on these 
cases and the possible involvement of police corruption in 
prostitution. 
 
------------------------ 
Comment: The Way Forward 
------------------------ 
 
13. Trafficking of women and children will continue to 
plague Nepal until the underlying causes of illiteracy, 
insecurity, extreme poverty and social/cultural values 
degrading the status of women are addressed over the long 
term.  The absence of a sitting parliament also prevents the 
passage of new legislation to improve victims' rights and 
protections.  However, a stronger legal environment, through 
enhanced capacity of the police and increased coordination 
between law enforcement agencies, might deter traffickers 
from operating in Nepal.  Post looks forward to initiating 
an INL-funded program this year that will assist in this 
effort.  End Comment.