FWLD - Working for Non-Discrimination and Equality

An Evaluation of Right to Justice in Nepal: The relation between arrested person and lawyer from the time of arrest

Advocate Deepesh Shrestha

                                                                                                                                                                   Saroj Gautam, FWLD

There is a legal concept that an accused person should be assumed innocent until proven guilty. This right has been guaranteed by Constitution of Nepal, Article 20 (5) and International Covenant on Civil and Political Rights, 1966 (ICCPR) Article 14 (2), which Nepal is a party to. No person should be incriminated without grounds that prove his guiltiness until and unless the prosecutor has elements that stand as a proof of the alleged offenses beyond a reasonable doubt. English Jurist William Blackstone in his work expressed that, “It is better that ten guilty persons escape than that one innocent suffer.” This statement has been a core element in the criminal justice system which directs that wrongful conviction is far worse than guilty people going unpunished.

A lawyer defends his client not because he wants to, but because his client has right to choose a legal practitioner to defend himself. An arrested person has the right to appoint a lawyer of his choice from the time of such arrest and the duty of a lawyer to defend such arrested person also begin from the exact time. As provisioned in ICCPR, Article 14 (3) (b), “To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. It is a prime duty of any lawyer to provide legal assistance to his clients. If one is being ceased for consulting any legal practitioner of his choice, it is said to be violation of his constitutional rights which have been guaranteed by Constitution of Nepal Article 20 (2) Right relating to justice, according to which, “Any person who is arrested shall have the right to consult a legal practitioner of his or her choice from the time of such arrest and to be defended by such legal practitioner. Any consultation made by such person with, and advice given by, his or her legal practitioner shall be confidential.”

However, if any arrested person is incapable to appoint any lawyer, as his right guaranteed in Article 20 (10); the State has to provide him free legal aid in accordance with law. This provision has also been stated in ICCPR, Article 14 (d), which accordingly, “To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.”

One of the principles of criminal law is that an arrested person has the right to get meaningful defence and representation from his lawyer. While in practice in Nepal, the lawyers begin their legal assistance only from when a charge sheet is filed and it only limits to questioning around the periphery of investigating file prepared by police officers. Police officers hardly investigate any situational and well-founded facts of the case, which brings hindrance for defence lawyers to challenge such facts presented by police officers. If the government views lawyers as only an instrument to provide legal assistance to arrested persons, then the true essence of meaningful defence and representation from lawyers become delusional. Any lawyer should defend an arrested person from the time of such arrest. They shall conduct an effective and well-grounded investigation for the meaningful defence.

We can also observe the above principle from the landmark case decided by the “United States Supreme Court, Miranda v. Arizona, which is popularly known as “Miranda Rights” or the “Miranda Warning”, where the court ruled that when any suspect is taken into police custody, prior to any interrogation by the police, the suspect must be provided with warning advising the suspect of his constitutional rights secured through the 1st, 5th, and 6th Amendments. Any statements the suspect makes cannot be used at trial if the police fail to give these warnings or the suspect does not knowingly and voluntarily waive these rights.”

Any arrested person will not be divested from the right to be defended through lawyers. As provisioned in Constitution of Nepal, Article 20 (9), “right for having fair trial by an independent, impartial and competent court or judicial body”, the paramount point to be remembered is that every arrested person should be informed of the ground of his/her arrest and not be denied the right to consult with and to be defended by a legal practitioner of his/ her choice. The step of defending arrested person should begin as soon as one gets arrested so that no innocent person gets convicted out of baseless grounds and made up facts.