The Modified Criminal And Civil Codes

Uttam Maharjan

New criminal and civil codes will come into force from August 17, 2018. These codes are a replacement for the existing Muluki Ain (National Code), 2020 BS. The Muluki Ain has put both criminal and civil codes together, whereas the new version treats them separately.
Based on the motto of ‘prompt justice and justice for all’, the new legal codes will be implemented in a simplified manner. The new codes are required to make improvements in the legal system of the country, which has been governed by the Muluki Ain introduced over half a century ago. There is no gainsaying that the legal system, like any other system, needs to be modified keeping abreast with the changing times. Over the last fifty years, both civil and criminal issues have changed a lot, prompting the need for adopting a new legal system.

Predecessor
The Muluki Ain of 2020 BS is based on its predecessor, the Muluki Ain of 1910 BS introduced by Rana Prime Minister Jung Bahadur Rana. Globally speaking, the French civil code of 1804 is considered the first modern legal code. The modern form of legal codes prevalent in the world is derived from the French civil code.
With the introduction of the new legal codes, the civil code, civil procedure code, the criminal code and the criminal procedure code will come into effect. Based on international law, human rights and provisions relating to human rights prevalent in the world, these codes are expected to make remarkable improvements in the legal system of the country. These codes have some new provisions, which may be acceptable or debatable.
The criminal code has a provision which does not allow confiscation of all property in any crime no matter how grave or heinous that crime is. The code has a provision for life imprisonment for grave crimes like cold-blooded killings, torture, plane hijackings, killings by poisoning food and beverages, ethnic killings and rape. The life imprisonment runs for 25 years. Abolition of forfeiture of property is a great relief for criminals perpetrating grave crimes, which is a kind of encouragement for them to commit crimes. This provision, therefore, needs to be incorporated in the criminal code.
The criminal code has provided for sentencing children on the basis of age. As per the provision, no child aged up to ten will be sentenced for any offence. Children aged eleven to fourteen will be sentenced up to six months for their offences. They may also be put in a reformatory for one year. Similarly, children in the 14-16 age group will be handed down up to 50 per cent sentence for their offences, whereas children in the 16-18 age group will get up to two thirds of the sentence.
The criminal code has a crime-commuting provision for those criminals involved in a crime who provide information leading to the arrest of his/her co-criminals or who help in the investigation of the crime or prosecution. Such criminals will get a 50 per cent reduction in the sentence. This provision aims at controlling crimes and arresting those involved in a crime in no time.
The criminal code has provided for life imprisonment for crimes against the state. Crimes against the state include armed rebellion and attacks on the polity, sovereignty or territorial integrity of the state. Those who advocate disintegration of the country should, therefore, be arraigned on charges of treason and imprisoned for 25 years without any waiver or commutation.
The criminal code has also provided for life imprisonment for genocide, the first of its kind in the country, and attacks on the President and Parliament, which are considered an act of treason.
The criminal code has criminalized many misdeeds like obstructing work to be done by government office-holders, blocking public transportation, breaching orders given by government office-holders, providing wrong evidence or information, filing lawsuits on wrong charges, intentionally transmitting grave diseases like HIV AIDS and hepatitis, adulteration of foods, polluting the environment, producing radiation, eve-teasing at public places, insulting the national anthem and national heroes, polygamy, killing cows and bulls and treating birds inhumanly.
On the other hand, the civil code has made many new provisions. The code includes rights to body checkups and transsexuality. The code has also provided for rights to donate organs for specific purposes after death. Likewise, the code has provided for getting married with or without a ceremony, bearing children out of wedlock and considering a man and a woman husband and wife on account of the children they produce. On the partition of family property, every member of a family is entitled to inherit the property. The will system, which was initially proposed to be encapsulated in the code, has been dispensed with.
On the medical front, negligence of doctors leading to death or maiming of or physical damage to patients has been considered a grave offence under the criminal code with life sentence for the death and imprisonment or compensation in other cases. This provision has enraged the medical community. If this provision is enforced, doctors may refuse to treat serious cases. What is more, they may agree to treat even minor diseases after full-fledged diagnosis through various lab tests, whether required or not. Further, treatment may get delayed, contributing to the progression of the disease. Doctors may also refer patients to other hospitals. This will affect patients adversely. The Nepal Medical Council has taken exception to this provision and threatened to stage protests all over the country
from August 17 if the provision is enforced. The Council has demanded amendments to the provision ensuring that negligence of doctors is dealt with under the civil code and that such medical negligence be investigated by a team of experts.
The country has adopted a federal system of governance. The system is costly for an undeveloped country like Nepal. The government is finding it heavy going to carry on federal affairs. Now, the new legal system is set to be in place. This will certainly make a financial impact on the country. Training programs, awareness campaigns, logistics arrangements, etc. will entail an additional financial burden on the country.

Public opinion
Although the government claims that it has taken a long time to formulate the codes, the opinion or suggestions of the general public and other stakeholders have not been sought. Most people are not aware that the new codes are coming into force. In a democratic setup, such an attitude on the part of the government is undesirable. In the course of implementing the codes, it may be necessary to amend some provisions, which is but natural. Anyway, it is incumbent upon the government and the concerned bodies like courts and the Nepal Bar Association to implement the codes honestly and make amendments to any provision that turns out to be impracticable or inappropriate in the course of enforcing the codes.

 

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