Legal aid is one of the effective tools to achieve access to justice. However, poor people do not have access to the tools, which they need to protect and promote their rights and interests. Legal aid is for the people seeking help on legal matters. The objective of legal aid is to provide free legal service to the weaker section of the community who cannot afford to pay for the legal services and other cost in connection with court cases. It enables people of small or moderate means to get help from lawyer. The person or family whose income rate is below the estimated amount only gets the legal aid service.
In 1984, Human Rights Committee in its General Comment No. 13 elaborated the right stating that every person has the right to be legally represented before the adjudicating authority even if s/he does not have sufficient means to pay for legal assistance. As per Legal Aid Act 1997, there should be District Legal Aid Committee in each district. However, only 48 District Legal Aid Committee have government employees presently as per information on 15 July 2015. Similarly, there is Socio Legal Aid Centre run by Rule of Law, UNDP in following districts namely Dailekh, Surkhet, Dadeldhura, Bardiya, Kailali, Taplejung, Khotang, Rukum, Saptari and Rupandehi. Legal Aid Act provides that party in litigation to reimburse the expenses of the concerned committee if he/she receives any property or economic gain in consequences of receiving of legal aid. This provision seems inappropriate as legal aid is a service to indigent and reimbursing the economic gain goes against the objective of legal aid. However, the act also provides that if it seems unfair for reimbursing the amount, then the committee can waive partially or fully the expenses. But no mechanism has been mentioned on how it evaluates or decides that the reimbursing is fair or unfair.
Legal aid service is one of the objectives of the Forum for Women, Law and Development (FWLD) which is mandated by its statute. FWLD is continuously providing legal aid services and working on pro bono issues on a wide range of issues. It has, from its inception, been providing legal aid service to indigent people to ensure their access to justice through its legal aid centers. Further, FWLD also provides legal aid services by taking issues of legal aid service and reforms to the Supreme Court to protect and promote the rights of individual or groups with the support of various legal service providers covering different parts of Nepal. For this, FWLD is collaborating and coordinating with support of various national and international development partners as necessary.
From its inception, FWLD has been providing its legal services to those individual or groups who need this kind of support to access justice and secure their rights or protect and promote their rights. Forum for Women, Law and Development’s legal aid cell provides legal support in cases of gender-based violence, violence against women and girls, sexual harassment, gender based discrimination, and related to the acquisition of citizenship. The legal aid cell provides support through legal counseling, filing cases, and litigating at the District, Appellate and Supreme Courts. Our legal aid cell consists of a Reproductive Rights Unit, a Citizenship Unit and Violence against Women Unit.
Brief detail of the cases where FWLD provided legal aid can be summarized as follows:
Case no: 1
Jawalekhel Gya (Name Changed)
Case: Attempt to Rape
Victim Jawalekhel Gya, student of Jana Udaya Higher Secondary School situated in ward no. 7 of Karyabinayak Municipality had gone to buy vegetable with her 8 years brother in vegetable garden maintained by defendant. Defendant asked victim to pick vegetable by herself. And while doing so, defendant touched private parts of her body pulling her to cottage nearby the garden. While struggling to escape, victim fell on the ground and the defendant with the intention of rape pulled her. Meanwhile, brother of the victim hit the defendant by stone and victim and her brother was able to escape the incident. FIR was filed on 2072/10/8 and charge has been filed against the defendant. Victim gave her statement in court and the case is ongoing.
Case no: 2
Sarita Timilsina’s dead body was found hanging by a tree in a state where she was burnt with hot water, wounds in her body, and marks of rope on her neck. However, complaint could not be filed against her husband and in-laws who are believed to have committed such crime. The case has been sent to local police office as police did not file the FIR of the case. Legal counseling was provided to the kin of the dead and help was provided in relation to writing of the complaint.
Case no: 3
Government of Nepal on behalf of Jograj Bhatta
Case: Human Trafficking
Complaint was filed by Jograj Bhatta in 2067 B.S. as his wife was trafficked to Saudi Arabia luring her to foreign employment. Kanchanpur District court gave verdict of imprisonment for the crime against section 3 and 4 (1) (a) and 4 (2) (a) and (b). However, appeal was filed against the decision and Appellate Court acquitted all 4 accused of the case. Therefore, appeal needs to be filed by the complainant against the decision in Supreme Court.
We are also preparing to file PIL from victim’s side in the case.
Case no: 4
Case: Human Trafficking
The plaintiff who filed FIR in the case is a lady who was doing her business of making carpets. She however took loan from Agriculture Development Bank to start business in agriculture. During monitoring, defendants used to go to the complainant’s house. Defendant made the complainant to take additional loan of 40 Lakhs on the security of the house of the complainant and used the same for his personal benefit. He did not pay principal and interest due to which the house was on the verge of auction by the bank. Defendant lured plaintiff that he will remission the principal and interest and therefore sexually exploited her by giving her drugs, made C.D. of it and blackmailed her by asking Rs. 1, 65,000/- Even after providing the money the C.D. was not destroyed and was made public. They continued to sexually exploit her. The victim then filed FIR and a case was registered in the defendant’s name. District court ordered one of the defendants to be kept in custody and released other on personal bail. Therefore, victim being unsatisfied by the decision has filed an appeal through no. 17 of the chapter on court proceeding of the civil code. The case is ongoing in the appellate court.
Appellate court gave orders to keep the defendant, Bhaicha Maharjan in custody in remand hearing. And the court upheld the order of District Court in the case filed as per No. 17 of Court Management of Civil Code.
Case no: 5
Rajya Laxmi Thakuri
Case: Obligation to perform Contract
Son ousted his own mother from his home after he managed to pass a house that was in his mother’s name to his name. There was a contract entered into between mother and son that the son will provide Rs. 5000 after the house is registered in his name. However, the son did not perform the obligation of the contract. Therefore, FWLD helped Mrs. Rajya Laxmi Thakuri to file case in the court for making her son to perform according to contract. Kathmandu District Court gave verdict in favor of Mrs. Rajya Laxmi and the Appellate Court also upheld the decision of the district court. Mrs. Rajya Laxmi then received lump sum of the amount mentioned in the contract and now has been monthly receiving Rs. 5000 from her son through FWLD.
Case no: 6
Case: Kidnapping & Rape
The victim, Parishar “kha”, who resided in Kathmandu with her brother and sister-in-law, got married to Mr. Khem Narayan Dhakal from Gunjanagar -5, Chitwan. The victim was told prior to the wedding that she will not have to give dowry “Daijo” to her in-laws’ family. On the contrary, immediately after getting married the victim’s husband started quarrelling with her while the husband’s family also mentally tormented her for not making available dowry amount.
The victim told her brother and sister-in-law about the sufferings she had faced at her husband’s home through telephonic communication. Parishar “kha” and her husband had to return to Kathmandu after their marriage that is why, the victim’s brother told her to visit him to talk on the matter while she stayed in Kathamndu. On the course of their journey to Kathmandu, Mr. Khem Narayan Dhakal called up the victim’s brother and threatened him that he would drop off his sister on the road and will continue the journey without her. It was only after repeated requests from the victim’s brother that Mr. Khem brought Parishar “kha” all the way to Kathmandu.
When Parishar “kha” tried to discuss about the violence caused by her relatives and family members with her husband, the husband instead threatened her, because of which, she decided to get divorced. Parishar “kha” and her brother visited FWLD’s office and did legal counseling after which, a paper related to divorce was prepared. The victim did not come to the office of FWLD on the day of registration of divorce in the designated court. Then after 2-3 hours, the victim’s brother came to FWLD’s office and informed that Parishar “kha” had gone missing.
A search application had been registered, and it was after continued follow-up on the pending matter that after 4 days a local person found a woman lying unconsciously in Tokha forest in the evening. The locals reported the case to the police and then the police rescued the unconscious woman (Parishar “kha”), after which, she was woken up and asked to give a statement.
The victim stated that Mr. Khem Narayan, his brother, and his mother were the ones who mutually decided to allow the abduction of Parishar “kha”. The victim was raped turn by turn by the kidnappers/abductors. On the 4th day, the victim became conscious and found herself in a forest where she could not get up nor walk, that is why, she dragged and rolled herself to a nearby settlement.
In the case which was initiated against Mr. Khem Narayan Dhakal, his brother, and his mother together, Kathmandu District Court sentenced Mr. Khem to 5 years of imprisonment and a fine amount, similarly, The Appellate Court of Patan gave a decision of payment of fine of Rs.25, 000 along with the years of imprisonment.
Case no: 7
Mangalbazar “Ka” (Victim)
Towards the end of the month of Poush, 2069 B.S., 69 years old Biku Aju took a 16 years old mentally retarded girl to a shop to let her eat momo, and after she was done eating momo Mr. Biku committed rape of the young child at 7:30 pm and dropped her off at her home. The child narrated the incident to her mother and so the mother filed a FIR, after which, investigation of the case began.
The child victim stated that Mr. Biku had committed rape in a similar manner previously as well. Mr. Biku used to treat the child with momo and chocolate and take her to an unknown person’s house, where she used to be taken inside a toilet and make her hands stick to the walls in order to allow Mr. Biku to rape her. Likewise, at a later date Mr. Biku had taken the child victim to an empty and silent alley after treating her with momo, and in that alley Mr. Biku took her clothes off and raped her. She stated that even after screaming and crying in pain Mr. Biku did not let her go. The child victim stated that she bled from her vaginal opening as well. Mr. Biku threatened to kill her if she told about the incident to any person, and so she was told not to speak of it to anyone.
Lalitpur District Court sentenced Mr. Biku Aju to 10 years of imprisonment and a fine of Rs. 50,000.
Case no: 8
CIB – 29, 30 ,31 (Victim)
3 children who had taken shelter in an adoption centre (balmandir) used to be repeatedly raped by one of the former students and the then Officiating Section Officer of the centre. The children used to be taken to bathroom or library and shown film on the computer, and be treated with Cadbury chocolate as well, after which, they used to be raped turn by turn. Sometimes both the culprits used to rape a child at a time through anal and vaginal penetration while they used to take bath in the bathroom.
The Kathmandu District Court heard this case and sentenced both the culprits to 16 years and 6 months of imprisonment and a fine of Rs. 1 lakh from each perpetrators to each of the victims.