Indigent Defense in Kathmandu

I confess that Adam Heyman '03, public defender at Brooklyn Legal Aid Society (Criminal Practice), is one of my favorite public speakers.  His presentations at the Law School on the work of indigent defenders are highly informative and inspiring.  He has never turned down an invitation from the Public Service Center and in the last few years, has traveled to Charlottesville to speak, recruit, and conduct mock interviews at the Law School.  He has also helped students and graduates find internship, permanent, and winter pro bono opportunities at the Legal Aid Society.  Our Law School would not be the extraordinary institution it is without its amazing alumni such as Adam. 

But this posting is not a paean to my good friend. In April 2010, Adam took a sabbatical from the Brooklyn Legal Aid Society to work in Nepal with the International Legal Foundation (ILF), a New York-based NGO established in 1997 to ensure that reconstruction efforts of post-conflict justice systems includes indigent defense.  In 2009, ILF helped establish a public defender office to provide representation to indigent defendants before all courts in Kathmandu.  A summary of this project is available on ILF's site here.

Before he left, I asked Adam to periodically send updates of his work.  His dispatches (his first, after the jump) reaffirm at least three things we've insisted at the Public Service Center in the past several years: (1) public interest lawyering  primarily involves impact work; through advocacy and direct representation law students and lawyers make invaluable contributions to the communities in which they live; (2) think local, think international: you can use your law degree and legal training to work abroad; and (3) public interest lawyers have the most fun.

To hear a podcast of one of Adam Heyman's presentations on the work of public defenders, click here. I should add a disclaimer: the following is not an endorsement of Adam's or the ILF's work as well as the organization's positions respecting the Federal Democratic Republic of Nepal's human rights practices.  For information on Nepal and the various political and human rights challenges facing the country, please refer to the U.S. Department of State's latest Human Rights Report (Feb. 2009). All photographs were taken by Adam Heyman.

By Adam Heyman

A brief background on legal services in Nepal:

The ILF has a terrific summary on the ILF's work and I'll borrow language on its website to introduce the project I am involved in.  While a number of NGOs in Nepal are providing legal aid services, criminal defense remains timid. Lawyers are reluctant to challenge established practices that often result in arbitrary pretrial and pre-verdict detentions. Without proactive defense lawyers asking the courts to apply and abide by new and existing rules, there can be no change.

A joint committee of the Nepal Bar Association and the Judiciary Committee issued a recent report concluding that "the interim political period in Nepal has seriously affected the judiciary and the court system."Over the past couple of months, the political situation has worsened in Nepal. Just as the Interim Constitution (IC) was supposed to be finalized at the end of May, 2010, the Maoists  instituted a nationwide strike, forcing the shutdown of the government, businesses and roads.  The strike, or bandh in Nepali, has seriously disrupted the constitutional process.  While the Maoists agreed on May 28, 2010 to extend the IC for another year, there remain serious doubts as to the viability of a new constitution for Nepal.

The work of the Public Defender's Office

And in the midst of all of this political instability, I, along with another International Fellow, am supervising a public defender's  office in Kathmandu consisting of 8 lawyers, along with 2 lawyers in Janakpur (in the Terai region of Nepal).  We have earned a number of recent acquittals, in cases ranging from murder to bigamy, drugs to theft.  In addition to supervising their day-to-day caseload, we are managing to change a few well-established practices.  For instance, it used to be the case that every time a client was accused of a crime, the court, upon arraignment, would force the client to speak. 

As a result of ILF-Nepal's efforts, we have been able to ensure that a client's right to remain silent is followed by the courts.  In addition, we have had made successful challenges to many of the unconstitutional sections of criminal statutes.  For instance, under the Human Trafficking and Arms and 
Ammunition statutes, the burden of proof is placed on the defendant (unlike in all other crimes, where the burden of proof in a criminal case is constitutionally placed on the prosecution).  ILF-Nepal is currently in the process of challenging such unconstitutional burden-shifting statutes by filing Public Interest Litigation motions (PILs) in the Supreme Court of Nepal.

We are also currently working on an appeal to the Supreme Court of Nepal challenging the monetary value placed on one's day spent in prison. Currently, if a client is sentenced to a fine and cannot afford to pay it, the client must serve such fine in prison, valued at 25 rupees per day (approximately 33 cents). This 25 rupee value was set 24 years ago, and has not been adjusted at all for inflation (taking into account inflation, the present day value of 25 rupees in 1986 is 190 rupees). So, for example, in a theft case where the client is accused of stealing a motorbike, the client's sentence is a fine based on the present day value of the motorbike (for a used one, approximately 100,000 rupees), and not what the bike was worth 24 years ago. As a result, the client has to sit in jail until the fine is paid, being credited for only 25 rupees per day served. While many of the district court judges (the lower courts) are sympathetic to this issue and our arguments (we argue this at the sentencing phase to reduce the fines), the judges say that their hands are tied until the legislature acts and changes the Punishment Act. We have found precedent where the Supreme Court has stepped in on certain issues (e.g., prohibiting the sexual harassment of women in the workplace) without waiting for the legislature. We will argue that they must do the same here. It is unjust that the value of a client's day spent in jail is so outdated and needs to be changed. 

I envision the day that our motion prevails, and hundreds if not thousands of Nepalis walk out of jail as free men and women. The office is providing representation in all courts in Kathmandu with a special focus on providing representation to defendants appearing in the quasi-judicial proceedings before the Chief District Officer (CDO), who has jurisdiction over all misdemeanors and arms and ammunition cases - most of the cases in Kathmandu. ILF-Nepal has obtained favorable rulings in the district and appellate courts to make criminal defense possible. It is clear that only intense and continued mentoring of lawyers, with constant and continuous pressure on the courts through repeated applications, will lead to systemic changes in the criminal justice system. 

We are also spending time sensitizing judges to the role of defense counsel and the responsibility of the judiciary in protecting the right to counsel, and meeting with international aid organizations, seeking their participation in our cause. Needless to say, the work is at once rewarding and at the same time quite challenging.  Even today, there are still cases where a client sits in jail for months (if not years), and is ultimately convicted of serious crimes without ever having access to a lawyer.  It is my sincere hope that I will leave Nepal having made some contribution on both the micro and macro levels.