TRIAL PROCEDURE:CHALLENGES AND PROSPECT OF
ENHANCING THE PROCEDURES IN ASIAN CRIMINAL JUSTICESYSTEM S
Yubaraj Sangroula, Ph.D.

I. GENERAL INTRODUCTION
As introduced in the presentation on investigation procedure, the criminal justice system as acoordinated system comprises a series of coherent actions of various agencies.Smooth and meaningful
operation of these agenciesʼrespective functions requires an entrenched coordination between them.
The criminal justice system,in the adversarial setting in particular,operates in a paradigm ofa ladder ofmultipleagencies,thejudiciaryat thetop and theinvestigating agencyat thebottom.In thisladderparadigm,
the oversight by the agencies on top of the action of those in the lower-line is not only necessary but
also indispensable in order to ensure utmost degree of fairness of the entire proceedings.The functionof trial agency―the trial court―is a bottleneck.The verdict of the trial court comes out as a result of
the totality of the functions of all agencies involved.The possibility of a fair and impartial verdict isalmost none had the investigating and prosecuting agencies been unable to secure the same.It is thus
a serious reason,the trial court in the adversarial setting plays crucial role of overseeing the fairness
and impartiality in proceeding of the lower-line agencies, i.e., the investigating and prosecuting
agencies.The oversight is generally maintained through (a)process of remand,in which the trial court
exercises jurisdiction to place the suspect or accused in judicial custody or on bail;(b)entertaining thepetition of the suspect and accused concerning treatment given to him/her by the investigators andprosecutors;and (c)hearing the claims of the suspect or accused concerning discovery of evidence.
The trial courtʼ
s role in overseeing the investigation process comprises two basic functions:firstly,
it closely monitors, by help of the remand hearing, the powers and functions of the investigatorsconcerning process and methods applied in collating evidence;and secondly,it censors the unlawful andimproper acts of the investigators in relation to the collection of evidence and treatment of the suspect.
The purpose of such censor is to preserve and ensure fairness and impartiality of the criminal
proceeding from start to the end.It shows that,as opposed to the traditional belief,the trial courtʼ
s rolein ensuring fair and impartial trial begins quite before the criminal charge is instituted by theprosecutor for trial. The trial courtʼ
s failure to play this role will necessarily result in violation ofsuspectsʼprocedural rights and inclusion of evidence obtained improperly and illegally. Section 15,
through various sub-sections,of the State Cases Act,1993,of Nepal,for example,provides for a systemof remand,according to which the investigating officer has to approach the court for extension of theremand if has he/she not been able to complete the investigation in the given time. The request for
remand must be supported by reasonable grounds for the necessity of such extension. The remand
motion enables the suspect and accused to bring any fouls being committed by the investigators to theattention of the court.In some countries,such as Hong Kong and Australia,the oversight power of thecourt is instrumental for rejecting the legality of evidence, which is known as the exclusionary rule.
The process is called voir dire,in which the questionable evidence is excluded from the process of trial.
In South Asia,the criminal justice system suffers from a serious set-back,as the practice of voir dire
is not entertained, so that the questionable evidence exists in the process un-removed. The remand
motion is however effectively used in Nepal and India in order to ensure proper treatment of suspects
and accused by the investigators. Section 15(3) of the State Cases Act of Nepal enables the detained
person to request the court for the privilege of medical examination by a doctor during the detention.1
Section 15, including sub-section (3) in particular, of the State Cases Act of Nepal and the IndianSupreme Court verdict on D.K.Basu v.State of Bengal together establish an important jurisprudence
Professor in charge at Kathmandu School of Law and former Attorney General of Nepal.Email,sangroula195＠gmail.
com.

18

158TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
with regard to ʻ
oversight jurisdictionʼof the trial court in South Asia, by which the trial courts are
empowered to apply strict conditions for continuity of the detention of the suspects,to conduct enquiry
about suspectʼs condition in detention,to censor the recalcitrant investigators for his/her improper orillegal indulgence in obtaining evidence, the extraction of confession in particular,and to prevent theinvestigators from engaging in abuse of power or corruption. Unfortunately, the trial courts are notseen as adequately prepared or conscious to use this benign jurisdiction effectively.2 This newly
developed jurisprudence emphasizes several important aspects of fairness and impartiality of justice.
Some of these aspects can be highlighted as follows:a. Exercising this jurisdiction, the trial court may prevent investigators to prolong, without any
reason or for an intention of making the detention itself a punishment, the timeframe of crime
investigation and detention of suspects for that purpose.The court may require justification for
the extension of remand and seek concrete grounds before agreeing to the request of extension.
This jurisdiction is evidently important to ensure speedy trial.
b. By this jurisdiction,the trial courts are able to consciously monitor the progress ofinvestigation,and urge to expedite the same without letting unnecessary excuses prevail and contaminate thefairness and impartiality.An implicit sanction is built against the improper or illegal indulgenceof investigators in matters of collecting evidence.
c. Proper attention to the need of protecting human rights of suspects by detaining officials is
ensured. The jurisdiction is able to make prompt and continuous enquiry of the situation ofsuspects in custody. The jurisdiction is thus important to enforce the right of presumed innocence, and, most importantly, to prevent the miscarriage of justice by condemning an innocent
person.
Trial procedure is a fundamental constituent of the fairness and impartiality in criminal justice.
However,the brief discourse herein before suggests that ʼ
the fairness and impartiality of justiceʼbegins
quite before the actual trial process begins. The fairness and impartiality of trial is contingent upon
several elements before the actual trial procedure starts. The oversight jurisdiction of the trial courtover investigation process and treatment of suspects during detention is one important element likeother elements such as the pre-trial conference,the specialized court,the application of diversion,pleabargaining and the continuous hearing of the case.Looking from this broader perspective,considering
the utmost and undeniable necessity of fairness and impartiality,the effectiveness and efficiency of thetrial procedure can be approached from different stages. The fair and impartial procedure in all stages,
however,is marked by certain indispensable constituents,3 such as (a)adequate and unrestricted accessof the accused to his/her defense by representation of legal counsel,(b)concrete and explicit charges
supported by a set of categorical evidence, (c) promptness on the part of the prosecutor to produce
witnesses for testimony,(d)pro-active control of trial process by competent judges,4 and (e)functioningof the court with notion of speedy trial,which enables the trial judge to effectively prevent unfounded
and unreasonable adjournments by counsel, tampering with evidence and testimony of witnesses,
1In India,in D.K.Basu v.State of Bengal (AIR 1997,SC 610),the Supreme Court of India has laid a charter to follow by

the investigator during the detention, which includes the medical examination of the body of the detained person when
he/she is in detention. This provision has been effective in many ways to protect the physical integrity of the detainee.
The provision also helps in securing the right of detainee against forced, coercive and deceptive interrogation,which is
generally used to obtain confession.Section 15(3)of the State Cases Act of Nepal and the Indian Supreme Court judgmentin the D.K. Basu v. State of Bengal are considered important developments in attempts to reduce reliance of theinvestigators on confession as proof of conviction.
2For detailed discourse See;Mandeep Tiwan,Human Rights and Policing,Commonwealth Human Rights Initiative,2005,
New Delhi.
3V.S. M ani, et al. (eds.) Handbook of Human Rights and Criminal Justice, South Asian Human Rights Documentation
Centre, Oxford University Press, 2007 (2nd Edition), pp.85-92.
4In accusatorial systems,the role of the judge is often defined as that of umpire.It implies that the presiding judge comesto the conclusion based on logical and evidence-based arguments of legal counsel.What it means is that the judge has torely on evidence not on his/her knowledge or discretion. Nevertheless, as Lord Denning has said, “His (judgeʼs) object
above all is to find out the truth,and to do justice according to law;and in daily pursuit of it the judge plays an honorable
and necessary role”. Jones v. National Coal Board (1957).

19

RESOURCE MATERIAL SERIES No. 95
improper and illegal assertion of rights by any party, and biased and improper influences by anyone,
including the media.

II. SIGNIFICANCE OF TRIAL PROCEDURE:FUNDAMENTALS OF FAIR AND
IMPARTIAL TRIAL
The criminal justice system is an important instrument of safety of the society against violence andcrimes―a wayofholding offenders accountable for their criminal acts and protecting their fundamental
rights.However,as argued by M oor,a professor of law,it is important to understand that the second
idea could constitute a stand-alone justification for process of criminal justice system.This school ofthought holds that the criminal justice system has not got to show that it produces any practical effect,
such as reduction of crime;it is enough that it produces justice.5 The component or attribute of justiceis,therefore,the lifeline of the criminal justice system of any society.Minus the attribute,the criminal
justice system is nothing but a repressive instrument of the State. The significance of the trial
procedure is thus self-evident.6 Trial is a process of discovering the truth by holding the balance
between the contending parties. The partiesʼrole in the trial is uninterrupted and they definitely
exercise their freedoms. The misconduct of parties is however not acceptable to the trial process.
Simply speaking, a trial is the process by which a court decides on the innocence or guilt of an
accused person. This process may be governed either by the adversarial system or the inquisitorial
system. Historically, most Asian countries in the past followed the inquisitorial system, where themodern trends show most developing countries in the world have opted to go for the adversarial
system.South Asia unexceptionally followed the adversarial system,like Japan,Hong Kong,Malaysia
and many other countries.In the adversarial system,the prosecution,on behalf ofthe State,accuses thedefendant, and must convince an independent judge (or maybe a panel of judges or a jury) of thepersonʼs guilt beyond reasonable doubt.7 The accused is given a fair opportunity to defend himself/
herself. In most Western countries, with adversarial systems, the trial is judged by a panel of jurors
under procedural guidance of the presiding judge. In most Asian countries, the trial is independently
presided over by the judge and the verdict too is passed by him/her. In most countries, the trial ispresided over by a single judge.In countries where the single judge presides over the trial,his/her roleis active8―as he/she takes part in examining the witness,refereeing motions,and deciding on the meritof the case by weighing the facts, evidence presented, and relevant laws. The trial process is also
important for the reason of necessity of protecting the public interest and the human rights of theaccused person. The court in this sense is considered the protector of the accused because the whole
State is involved against him in the trial process.The role of the presiding judge in this context differsfrom country to country.In Nepal,for instance,the judge has nothing to do except to adjudge the case
based on evidence furnished by the prosecutor.The charge is fully controlled by the prosecutor.Hence,the court accepts the charge without any change or suggestions to change in what the prosecutor has
submitted to the court.9 The practice in India is different.The trial court in India has power to frame
the charge against the accused, taking into account all of the circumstances of the case.10 Likewisecertain offences cannot be compounded without the consent ofthe court.11 The court also has the power
to summon and examine any person as a witness,even if that person has not been called byeither party
as a witness,12 and to examine the accused at any time to get an explanation from him/her.13
All these procedures applicable to trial in the adversarial system have evolved out of a belief thatthe truth will emerge from the disputed facts through effective and constant challenges.The adversar-

5M oore, 1997, p. 50.
6Ibid.
7V.S. Mani, et al. (eds.) Handbook of human Rights and Criminal Justice, South Asian Human Rights Documentation

Centre, Oxford University Press, 2007 (2nd Edition), p. 85.
8This was stated by the Supreme Court of India in Ram Chandra v. State of Haryana (1981)3 SCC 191.
9 CeLRRd, Comprehensive Analysis and Reforms of the Criminal Justice System of Nepal, Kathmandu, 1999, pp. 110
10 Section 228, 240 of the Code of Criminal Procedure, 1973.
11 Section 320, Ibid.
12 Section 311, Ibid.
13 Section 313, Ibid.

20

158TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
ial trial is, to look from these perspectives, a contest between ʻprosecution and the defenseʼ
―specifically speaking a contest between the prosecutor, on behalf of the State, and the defense counsel, on
behalf of the defendant. This contest is, however, systematic, well framed and fully guided by preestablished rules of procedure. The contest is fought on the basis of admissible evidence and theirconstruction and interpretation.The court functions as an umpire,though it controls the entire processof the trial. The judgeʼ
s ruling in the following matter is final:
Issue of admissibility of evidence presented by any party. The party objecting to the admissibility of the evidence must, however, give reasons.
Issue of special motion demanded by a party.The trial process often requires need of a special
motion to settle some legal issues. This is however a privilege of the trial judge to agree ordisagree.
Admissibility of a witness produced by a party.The judge may accept or reject such witness.
Adjournments of trial process. Agree or disagree to the adjournment of trial process is theprerogative of the trial judge.
The discourse above amply sheds light on the nature of the trial process. The rules and values
discussed above are important not only in view of the procedural formality,but also from the point ofview of protecting the ʻinterests of public and human rights of accusedʼ. Forsaking those rules andvalues will result in injustice. A trial procedure in this sense is a neatly developed system of fairness
and impartiality of justice. A trial procedure cannot allow any such things to happen or behaviors totake place that will overshadow,forsake,or deny the possibility of fairness and impartiality of justice.
The following discourse on fundamentals of the trial procedures will further elucidate the importanceof fairness and impartiality in the trial process.
A. Presumption of Innocence
As pointed out herein before,the right to fair trial is a fundamental human right of accused persons.
The ultimate objective of the ʻ
criminal justice procedures and valuesʼdiscussed above is to provide foran opportunity of fair trial, and consequently the concept of fair trial is pervasive throughout thecriminal proceedings. The criminal procedure is thus devised in a way that the accused is considered
and treated as innocent during the trial. He/she is presumed to be innocent until the prosecution has
proven his/her guilt beyond reasonable doubt.14 The burden of proving the guilt lies on prosecution;thedefense must not make attempt to prove his/her innocence. The defense, however, can attempt todisprove the contentions made by the prosecution.15 The presumption of innocence is the core principleof the fair trial, which the trial process must zealously protect. The principle of innocence underlies
that the detention is a last resort.The accusedʼs right to obtain bail must be considered liberally.In thiscontext, the presumption of innocence provides the basis for a rule that the accused should not be
detained until he/she is proven guilty by a court of law.16
B. Right to Public Trial
The right to public trial implies that the court should be open to the public during the trial. The
importance of public trial lies on possibility of scrutiny of the trial by the general public, which
contributes to the assurance of fair trial, the first imperative of the dispensation of justice. The
principle of public trial has,however,several exceptions. Hence,a trial can be closed considering the
public interest.Similarly,the trial can also be closed if open trial is likely to result in prejudice to theaccused. Where the trial is of an offence involving crimes such as rape, the trial can be conductedbehind closed doors.17
14 International Covenant on Civil and Political Rights, 1966 (ICCPR).
15 This principle was established by the Indian Supreme Court in Kali Ram v. State of Himachal Pradesh (1973)2 SCC 808.
16 “
Bail not jail”was the rule prescribed by the Supreme Court of India in State of Rajastan v. Balchanda, AIR 1977 SC

2447 .
17 V.S. M ani, et al. (eds.)Handbook of Human Rights and Criminal Justice, South Asian Human Rights Documentation
Centre, Oxford University Press, 2007 (2nd Edition), p. 90.

21

RESOURCE MATERIAL SERIES No. 95
C. Speedy Trial
The speedy trial is closelyrelated with the principle ofʻ
innocenceʼ
.The speedytrial essentiallyvests
when the accused is placed in detention, and thus waiting for the trial at the cost of his/her liberties.
The delay in trial process is a serious problem in many Asian countries―the practice of staggering
trial sessions over a long period being the most vicious reason. The speedy trial thus demands
continuous hearing until the trial comes to an end. Obviously,the right to a speedy trial is particularly
vital to the protection of the accused personʼ
s human rights where they have not been granted bail andare waiting for trial in pre-trial detention. The trial court is thus always expected to consider thefollowing factors when assessing the timeframe of the trial:
Whether the accused is accountable for the delay; this situation generally occurs due tounnecessary adjournment motions of the defense counsel.In South Asia,the problem of delay
in justice is a severe problem.M any detainees are in some cases awaiting trial over a decade.
Whether the accused is prejudiced by such delay in any manner,recognizing that in some cases
the delay may itself amount to prejudice;18 and
The nature of the offence with which the accused is charged.19
D. Right of the Accused to Know the Accusation
The ICCPR guarantees each accused person the right to know about the accusation with promptness. The same is found reiterated in the constitutions of democratic countries. Like other rights,thisright is equally important for conducting fair trial because unless the accused is aware of andunderstands the offence of which he/she has been accused,he/she will not have an adequate opportunity to formulate the defense. The right to know of the accusation includes the right to obtain
documents from the prosecution.20
E. Right of the Accused to Be Present at Trial
The right to be present at the trial is a fundamental element of fair trial.This right is important for
the accused to allow him/her to adequately prepare for defense against the charge.This is because thepresence ofthe accused throughout the trial enables him/her to understand thedetails oftheprosecutionʼscase against them as it unfolds,and thus can effectivelyprepare rebuttals ofthe relevant evidence.This
right also implies that evidence in the trial must be taken in the presence of the accused.21
F. Right of the Accused to Cross-Examine Prosecution Witnesses
Cross-examination of prosecution witnesses by the accused is an important element of fair trial.
This right of the accused is an absolute right which is generally done by the accused through his/herlegal counsel.The trial which proceeds without giving opportunity to the accused to cross-examine thewitness cannot be a fair trial.
G. The Right to Remain Silent
The international human rights as well as the constitutions of democratic nations have unequivocally guaranteed the right to remain silent.Simply speaking,it would not be possible to prove innocence
for any person. On the other hand, the responsibility of prosecutors to discharge the onus of proof isabsolute. As a matter of fact, no accused person can be called as a witness, unless he/she chooses to
do so.If the accused declines to give evidence,this cannot be held against him/her,and should not becommented on by parties to the trial.22
18 Ibid., p. 91.
19 Ibid.
20 ICCPR.
21 V.S. M ani, et al. (eds.)Handbook of Human Rights and Criminal Justice, South Asian Human Rights Documentation

Centre, Oxford University Press, 2007 (2nd Edition), p. 92.
22 This rule has been absolutely protected by nations who have followed the AngloAmerican adversarial system.In India,
the rule has been provided for by Section 315 of the Code of Criminal Procedure, 1973. A number of Supreme Court
judgments have upheld too. In Nepal, though Article 24 of the Interim Constitution of Nepal, 2007, has explicitly
guaranteed the right to remain silent, so the practice is different. The prevailing trial procedure of Nepal begins bymaking the accused a deposition concerning the charge made upon him.

22

158TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS

III. EFFICIENT SPEEDY TRIAL AND THE PROSPECT OF BETTER PROTECTION
OF FAIRNESS, IMPARTIALITY AND HUMAN RIGHTS
Faith in formalism often leads to dogmatic adherence to rules,which ultimately results in denial offair trial. In most developing countries, the attitude that ʻ
the system is designed for benefit oradvantage of personsʼis overlooked,and,rather with greater emphasis,an attempt to apply procedural
rules is mechanically resorted to.In such a situation,a person becomes a victim of the rules and suffersfrom injustice from rules of justice. Efficient trial is thus secured by (a) ensuring promptness andcontinuous pursuit of trial proceeding, without breaking it into staggering sessions, (b) conducting
pre-trial session among the representative counsels of the parties and agreeing on certain motions andprocedures, which otherwise will take a long time in the courts, (c) developing diversion programs,
which therefore will protect the court and the parties through a lengthy process,and (d)following fast
track procedures,which relieves the court and parties from undergoing a lengthy,tedious process andalso ensures justice objectively.
A. Prospect of Using Informal M eans of Justice in Criminal Proceedings
Historically, the criminal justice system in most parts of the globe is found essentially retributive
in character;it has been moved with a sense of putting the criminals into vengeance in the name ofpunishment as ʻ
harsh as it could beʼ.23 The atrocious nature of the criminal justice system continued
without mitigation during the medieval era and even during the advent of the ʻmodern eraʼ.One of thefundamental reasons behind such callousness and atrocity in the criminal justice system can be tracedout ʻ
in the underlying general perception of the people to the crime itselfʼ. Until recently, the generalperception of the people was that ʻ
the criminals were genetically or mentallyborn felonsʼ.24 Hence,they25deserved no ʻ
leniencyʼ
. The suppression of criminals was thus considered an ʻ
unavoidable responsibility of the State to good citizens and thus the State could not stay back without satisfying an obligationof dealing crimes and criminals with all possible high-handsʼ
.
After renaissance,in the wake of emergences of divergent socio-economic and political philosophies
and the advent of science and technologies,the outlook ofthe societytoward crimes and criminals havesubstantially been changed.26 The biological theories of crimes have been superseded by sociological
23 Ibid.
24 Victor Hugoʼ
s Novel ʻ
Les Miserablesʼ(See,English Translation by Norman Denny,Penguin Books,reissued in 1982)is

one of the classic documents in this regard. In a dialogue between Valjean, the main character of the novel, who is aconvicted criminal turned virtuous man, and Javert, the police inspector, the latter suggests that ʻ
the leniency towards
criminals cannot be considered as ʻ
the criminals are born as ʻ
criminalsʼ
. In this novel, the writer has made hard efforts
to ʻ
demonstrate that the moral virtues continue even with hardened criminals and their transformation is possible byteaching reintegration within them the ʻsense of moral good as a human beingʼ. The State on the other hand has
persistently resisted the ʻideas of reforms and transformation of criminals into good human beingsʼ
.The story has been
repeated in Fyodor Dostoevskyʼsʻ
Crime and Punishmentʼ(See,English Translation,reissued in 2003,Penguin Classic).In
both of these superb ʻliterary worksʼ
,the crimes have been presented as outcomes of the ʻ
ill-structure of the society andits failure to address the need of cohesion in interests of its membersʼ
. They are significantly capable of revealing the
dynamics of the crime and criminality in an ill-structured society, which in our era is named as ʻtroubled societyʼ.
25 The notion of retribution has been pervasive in the criminal justice system since its very inception in all parts of the
globe and in all centuries.Immanuel Kant in hisʻ
Die Metaphysische Anfanggrunde der Rechtslehre(M etaphysical Elementsof Justice)has argued that ʻ
retribution was the only possible justification for punishing lawbreakersʼ.In his own words:“
Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or forcivil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime
He must first be found to be deserving of punishment before any consideration is given to the utility of this punishment
for himself or for his fellow citizens”. See Immanuel Kant, Metaphysical Elements of Justice (John Ladd trans.,2nd ed.
1999 )at 138
26 Again, ʻLes Miserablesʼand ʻ
Crime and Punishmentʼare two best classical representatives of the changed outlook of
the society to crimes. Victor Hugo, for instance, in ʻ
Les Miserableʼtalks about the ʻlabyrinth of social earthʼ, in which,at the lowest bottom ofit,the human beings are left to live with all forms ofmiseries.Theyare exposed to absence,hatredand immoral conducts which drag them to the world of crimes. His description of France after revolution in thisnovel is heart-piercing. The similar depiction of the Russian society of the time is found in ʻ
Crime and Punishmentʼ
.
The social wretch and its consequence is depicted in such a way that ʻ
the main character of the novel with full ofhallucination of utopia moves out to fix the societal wrongs bykilling ʻ
oppressorʼ
,a ladywho pawns things to exploit poorand needy. A law student, the main character of the novel, who has undergone acute depression because of wants andensuing frustration and darkness of future that causes harms to his vanity,commits a gruesome crime with a belief that23

RESOURCE MATERIAL SERIES No. 95
theories, and criminology, a psycho-social analysis of crimes and criminality,has emerged with morethan one reason for crimes.In this changed context,the ʻlex talionisʼnotion of punishment has lost its
gravity.27 By the advent of new research findings,the criminal justice system,along with attitudes ofsocieties towards criminals, has changed significantly. American society played a pioneering role inthis change.28
In most developing countries,the criminal justice system evolved customarily.The moral aspect of
the crime got emphatic attention of the system,which required stringent enforcement of law and strict
penalty. M ost countries in South Asia, for instance, before colonial regime was established practiced
a kind ofʻ
rudimentary inquisitorial systemʼwhich invariably required the ʻaccusedʼto prove their own
innocence.29 Japan and China also practiced the inquisitorial system in the past.
While most countries in Asia have ratified the ʻinternational human rights billʼ,the standard of thecriminal justice system is still far from meeting the threshold of fair trial. The prevailing criminal
justice systems in Asian countries possess some common aspects:30 (a)the procedures are staggeringly
lengthy and time consuming thus protracting trial for a tediously long time,31 (b)most accused persons

ʻkilling a person with loathsome qualities and characters, is simply a killing of principle that hinders society to flourish
ʻjusticeʼ. He thinks killing such a person can never be a crime because it is a revolution.In both of these great classicalworks, the socio-economic and moral wretchedness of the society are portrayed as the factors of heinous crimes anddepravity of human individualsʼ
. In the oriental societies, the Gautam Budhha, two millennia ago, described similarreasons of the wretchedness of the society.
27 See, supra note 2.
28 In the 1950s and 60s, the American society came to encounter social issues unprecedentedly. The status qou waschallenged by the emerging tide of the civil rights movement.And,in this tide of change the ʻ
crime rates also soared up
which, in turn, pressed the US Government to ponder upon the rising trend of the breakdown of the ʻ
status quoʼandensuing challenges. The US Government hence came out with added focus on the ʻneed of studies on causes of crimes
followed by policies and laws on crime controlʼ. The ʻWarren Courtʼ
s contribution is significant in this regard. The
ʻ
Warrant Courtʼissued a series of rulings which redefined citizensʼrights and substantially altered the powers of policeand courts. The ʻ
Warren Courtʼ(it refers to the US Supreme Court between 1953-69, when Earl Warren served as Chief
Justice leading a liberal majority and used the judicial power in dramatic fashion)expanded civil rights,liberties,judicial
power and federal jurisdiction. The Warren Court invalidated ʻ
the school segregation (Brown v. Board of Education),
protected freedom of speech (Brandenburg v.Ohio),struck down poll taxes (Harper v.Board of Elections),required one
person one vote system (Reynolds v.Sims),and protected accused against police abuse (Miranda v.Arizona).These newdevelopments made a sweeping change in the notion of governance and criminal justice system.The decision in Miranda
v.Arizona ended theʻconventional stereotypical attitude of police and courts regarding ʻ
integrity of suspects or accusedʼ.
The criminal justice system thus acquired ʻ
new rails of sliding aheadʼ. For detail discourse See;Cass Sunstien,ʻBreyerʼs
Judicial Pragmatismʼ
, University of Chicago Law School, 2005 at 3-4.
29 Nepal for instance promulgated the ʻever first code of laws in 1336,named ʻManabnyaysastraʼ(Code of Human Justicerefers to a system oflaw and justice to be carried out byhuman authorities).The code presented a notion ofʻ
tougher penal
systemʼ. Similar to Western societies, it resorted to the model of ʻlex talionesʼ
. Hence, the offender acquired the ʻsameharm he/she had committed to victimʼ
. Most importantly, the accused had to prove his innocence. See, CeLRRd, The
Baseline Survey of the Criminal Justice System of Nepal, 2002.
30 These characters are outcome of several reasons.Painfully,most Asian countries still regard the justice system as an
unproductive sector of expenditure.The reform and modernization is not yet a matter priority sector of good governanceand development expenditure. The Government expenditure in justice sector is less than 1.5 percent of total GDP (See,CeLRRd ʻ
The Trial Court System in Nepalʼ
, 2002:This study shows that the justice sector in Nepal is fully pauperized
and alienated). Further, the justice system is considered to be a strictly formal sector, hence the ʻrules are consideredsacrosanctʼ
.These outlooks obviously push the sector of justice in the shadow of development endeavors.A UN study on
crime trends reveals a ʻvery sorry state of affairs in the sector of justice in Asiaʼ
. The ratio of police personnel (inpopulation of 100,000)in South and South East Asia,including China,is 202 and 299 respectively.The ratio of prosecutors
and judges in both regions is 2.5 persons per one hundred thousand populations, whereas this ratio is 10 and 8.6 persons
in one hundred thousand in the USA (See, UNODC, ʻInternational Statistics on Crime and Justiceʼ, HEUNI Publication
series 64, 2009. The acute shortage of human resources is one of the causes of ʻ
delay in proceedingsʼand ʻ
obsessed
formalismʼin the sector of justice.
31 The delay in criminal proceeding leaves ʻaccused languishing in prison for waiting date for trialʼ. On the other hand,the victims are deprived of justice as the trial is a never ending process. Waiting for judgment of the court,the victims
of crimes have to spend years with nothing at hand.The reparation or complementation too becomes a matter of illusion.
Eventually, the victims of crimes have nothing at hand but to forget the ʻ
painful pastʼand the accused is simply locked
up and forgotten. In Nepal, over 14,000 people are incarcerated in prisons having total capacity to accommodate 11,000
inmates.The dilapidated buildings with no basic facilities make lives of inmates a ʻcurseʼ.In India and Bangladesh,over24

158TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
come from rural or shanty urban-poor youths, generally from those communities that are abjectly
marginalized in terms of development opportunities,32 (c) the overwhelmingly larger proportion of
accused or offenders have poor literacy or educational backgrounds,33 and (d)the poor and marginalized communities suffer most heinously from the prevailing crime patterns.
The relevance of the ʻformal system of criminal justiceʼis, thus, widely suspected, at least in thecontext of developing countries of South Asia. It suffers from myriad problems. The lacking of trustof people about ʻ
fairness and objectivityofthe investigation,prosecution and adjudicationʼis incredibly
deeper. The clever offenders never feel deterred by the system whereas innocents think their lives
would be irreparably destroyed once they have fallen in the hands of the system.The prisons of South
Asia are overcrowded by those waiting for trial. The prisons lack even the minimum facilities, andeven those rare supplies are shared by an implausibly huge number of inmates.34
The failure of the prevailing modalities of criminal justice in some developing countries points out
the urgent need of rethinking on its prevailing procedures and methods.The need of change shows thatʻ
the viability or capability of the conventional approachʼapplied by criminal justice systems is neither
effective to prevent crimes nor has it been able to redeem the harms sustained by victims of crimes.It
is expensive and susceptible to be tainted by abuse of power and corruption.It is neither politicallysafe
nor economically efficient and sustainable.In poor or developing countries,the criminal justice system
has been a source of violation of human rights and its reforms or improvement demand ʻhuge amountof revenuesʼ
.In the developed countries,the growth of crimes has been a serious problem for maintaining the safety of the society and social cohesion.In the developing countries,the ill-functioning of thecriminal justice system is posing a serious threat ofʻ
impunity and breakdown of the societyʼ,whereasin developed countries the ʻ
the criminal justice system has failed to address the sophistication of
criminal phenomenology, an ever increasing growth of criminal activities and its dire impacts on
economy and social equilibrium.
Building competencies to address the problems of impunity, the increasing threat of crimes to thesecurity of social structure,the wider lacking of the accessibility of poor to the mechanisms of criminal
procedures and the redemption of harms of crimes are on the agenda for its reform. The reasons forreforms are several:a. The criminal justice system is monopolized by the state as a means of ʻ
redressing violence ofindividuals against the societyʼ. When crime enters the purview of the system, it becomes themonopolized ʻprovidence and dutyʼof the judicial authorities.35 The operation of the criminal
justice system is rendered confined to the ʻ
public sectorʼas an agency of State to impose
punishment.

300,000 and 75,000 accused respectively,are waiting for trial for a long period of time.M anyofthem are simplyforgotten.
The pathetic situation appears when ʻmost of these accused are acquitted
after a long wait for trialʼ. The ratio ofprosecution success in Nepal,India,and Bangladesh is less than 50 percent.It means that ʻeither these 50 percent acquitted
are able to tamper the course of justice or they are victims of human rights violationʼ
.In any case,this is a miscarriageof justice.See,ʻ
Locked up and Forgottenʼ
? The Report of the ʻ
Conference on Penal Reform in Developing Countriesʼ, 6-7
October, 2010, Dhaka Organized by GTZ.
32 A Survey of Prisoners conducted by CeLRRd ʻ
0n Accessibility to Legal Aidʼin 2010 reveals that ʻover 90 percent ofprisoners［are］poor.The literacy rate is negligible.M ost prisoners have committed crimes under pressure of desperate
want. A considerable number of such prisoners were found involved in ʻ
crime of human traffickingʼ, logging andtrafficking of drugs. Those who were found guilty of committing crimes of trafficking girls and women for prostitution
had victimized ʻanother poor personʼwho too was poor and deprived.The poverty in developing society is thus ʻcriminalizedʼ
.
33 Ibid.
34 India in South Asia has the largest number of prison population.About 300,000 people are incarcerated in jails of India,
and significantly large number of these inmates await trial.As reported by the M inistry of Law and Justice in 2010,over
92,000 prisoners waiting for trial are set free by end of April 2010.It was said that another 10,000 inmates were supposed
to be freed by the end of July,2010.The scenario is self-evident of the state of criminal justice system.See,I Government:
Enabling the Governance (Online information Service)at http://www.igovernment.in>.
35 See, Zeng Ge, ʻ
Which Kind of Party? Role of Role of Victim In Chinese Criminal Procedureʼ; 38 Hong Kong Journal493, Sweet and Maxwell Asia, at 1.

25

RESOURCE MATERIAL SERIES No. 95
b. Crime against a victim is considered an offence against society and eventually the State.36 As amatter of fact, the victimʼ
s role in the system is restricted to assist as a classic type of witness
to the prosecution upon request of the criminal justice agencies, such as courts and tribunals.
c. The institutions of criminal justice have become expensive enterprises. Neither victim nor
accused,having no adequate resources,can afford hiring lawyers for a ʻ
sophisticated intellectual
game of win and lossʼ
.37 The criminal trial in adversarial system is a ʻcompetitive game between
public prosecutor and defense lawyerʼresulting in ʻ
victory of one having capability convincing
the judge in his/her argumentsʼ
.38
d. The criminal justice systems of most developing countries suffer from a crisis of confidence ofthe people. The lack of credibility in police, prosecutors and judges as well as difficulties toreach police stations, lack of knowledge concerning the niceties of the justice system, lack ofresources to pay for lawyers, lack of state attorneys to guarantee deprived peopleʼ
s rights andlengthy proceedings are some entrenched problems tainting the system.These problems appear
to disregard that ʻaccess to justice and due process of reparation of harms meted out of crimesʼ
is indispensably basic human rights against the government.39
e. Criminal laws assert to protect or preserve ʻethico-moralʼvalues of humanity. The protection
and preservation of some ʻvalues of humanityʼsuch as ʻ
inviolability of life and dignityʼarealways cardinal in criminal justice systems. Some harm or damage of crimes cannot bemonetarily or materialistically repaired. The psychological trauma or loss of personal dignity
caused by crimes such as rape, trafficking and torture cannot be properly addressed without
adequate compunction made by the perpetrators and the participation of victims in the proceeding to the level of satisfaction besides adequate monetary compensation to the harms. The
current structure of the criminal justice system, in developing countries in particular, does notguarantee such reparation against harms of crime.The communityʼ
s participation in the criminal proceeding is therefore an important component of the reform of the system.
f. In most developing traditional societies,the formal structure of the administration of justice has
never had full control over the system of dispute or conflict resolution. In such societies, thesystem of local governance, security and means of dispute resolution are provided throughnon-state institutions.
g. Overcrowding of State judicial institutions is a serious problem in most developing countries.
The service provided by state judicial institutions is driven by an excess of formalism, whichmakes the system not only accessible but also lengthy and cumbersome to follow.
36 See, Alline Pedra Jorge Birol and Arno Dal Ri Junior, ʻThe Role of Organized in Informal Justice Systems: Brazilian

Caseʼ;International Journal of Security and Terrorism, Vol 2(1), 2011 at 59-80.
37 See, Alline Pedra Jorge Birol and Arno Dal Ri Junior, ʻThe Role of Organized in Informal Justice Systems: Brazilian
Caseʼ;International Journal of Security and Terrorism, Vol 2(1), 2011 at 59-80.
38 See,Gabriel Hallevy,ʻ
Is ADR (Alternative Dispute Resolution) Philosophy Relevant to Criminal Justice? Plea Bargains
as Mediation Process between the Accused and the Prosecutionʼ
;Original Law Review, Vol. 5 No. 1, 2009 at 4-5. Also
available online at http://ssrn.com/abstract＝1315984>.
39 According to Hofeldʼ
s theory of rights,claim-rights require duty bearers for enforcement. To consider victimʼ
s rights
to justice―adequate reparation to the harms ofcrimes―in the light ofclaim-rights theory,the victimʼ
s position maystandin awkward position, because in the criminal justice system, as it is conventionally established, the prosecutor is theholder of the claim-right against the defendant. In such a situation, how can the victim, who is actually suffering fromthe violation of rights,get the restitution of the violated rights?While it seems somehow tricky to materialize the system
can find out space for restitution or reparation of the violated rights of victims.Here,we need to identifythe dutybearers
against whom victims can make claims.As rightlypointed out byProf.Laurence H.Tribe,the victims owe claims against
the government. In his statement to Senate Judicial Committee, Laurence opined that victimsʼrights are indispensably
basic human rights against government,rights that any civilized system ofjustice would aspire to protect and strive neverto violate. These rights do not entail claims against private citizens;rather it is the government authorities themselves,
those who pursue (or release)the accused or convicted criminal with insufficient attention to the concerns of the victim,
who are sometimes guilty of kinds of violation that properly drawn amendment would prohibit”. See, Statement ofLaurence H, Tribe of Harvard University Law School in a “
Proposed Constitutional Amendment to Protect Victims of
Crimes: Hearings before the Senate Judiciary Committee, 105 th Congress 1st Session, 1997 .

26

158TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
The problems discussed above call for ʻ
fresh considerationsʼon norms, theories, principles andmechanisms of the criminal justice system.It is plain from the discussion above that the rate of crime
is increasing both in developing and developed countries severely affecting the social structure as well
the political and economic institutions. The crimes have become costly in terms of governmental
expenditure as well as harms sustained by victims.The remedy,however,is seen neither effective nor
efficient.The confidence ofpeople in the system has significantlyeroded.Thus,modern criminal justicesystems have to be able to seriously ʻrevisitʼtheir theories, principles and mechanisms.
Is informal justice procedure relevant to criminal proceeding?The answer is positive, though thereluctance on the part of State institutions and a considerablylarger part ofthe civil societyis massive.
Nonetheless,the scope of application of informal procedures or mechanisms in criminal justice is seen
as not impossible,if not easier to invoke.The following norms or principles of criminal justice systems,
the adversarial system in particular, possess a great scope for application of alternative dispute
resolution philosophy in settlement of conflicts of a criminal nature:a. In the adversarial(Anglo-American model in specific)model of criminal justice,the trial ofcases
takes the form of a legal confrontation between parties involved in the case.40 The court in thissystem is simply obliged to decide between their respective arguments. The court does notassume role ofʻdiscovering evidencesʼ.As a matter of fact,the parties in hearing have a pivotal
role during the proceedings,while the courtʼ
s role is relatively passive,and limited essentially todetermining the conflict between them.41 This adversarial approach applies to both civil andcriminal hearings.The principle of partiesʼcontrol of litigation proceedingsʼis being widelyusedin civil litigation,even if one of the parties is the Government or the State.The Government incivil cases is happily engaged in negotiation with the private party for out of court settlement.
The practice of the Government or the State being involved in negotiation with a private party
is not a new phenomenon in the system of adversarial justice.If it is so,why cannot prosecution
engage in negotiation with the accused?
b. Within the framework of this fundamental principle that ʻ
parties of the case are crucial players
in hearing at the courtʼ, the engagement of the informal mechanisms to settle the case seems
always possible because the parties, under this principle, are allowed to reach ʻsome decisionsʼ
independent of court on some issues of claims and possible liabilities.42 In such cases,the court
takes the obligation to execute the decision reached by the parties. The legal sanction of suchagreement is fully established by law.Within this same principleʼ
s framework,the law can allow
the parties of criminal trial to reach ʻsome agreementsʼindependent of the court on some issuesof criminal charge and punishment. Such autonomy granted to the parties will definitely
contribute to the ʻ
speedy trial,the success of prosecution and the timely,meaningful reparationof the harms sustained by victims of crimes.
c. In civil jurisdictions,the dispute is litigated between ʻplaintiff and defendant or respondentʼ
,andthe role of the court is to ʻ
determine the truth or legitimacyoftheir argumentsʼ
.In criminal trials,
the prosecution and the accused are the parties to the conflict. The court, on the other hand,hears the ʻpleas of the prosecutionʼand determines the ʻstrengths of evidence supplied by him/
her beyond reasonable doubtʼwhile issuing the verdict.In this process,there are some importantprinciples or rules to be followed.They are:(a)the trial should take place in the presence of bothparties as a mandatory rule, (b) each party must pass information to the other regarding its
motions, (c) the accuser must prove the allegation with the strength of evidence, and (d) each40 Roscoe Pound delivered a speech to the American Bar Association on The Causes of Popular Dissatisfaction with the

Administration of Justice in 1906 on judicial administration. See generally Roscoe Pound, The Causes of Popular
Dissatisfaction with the Administration of Justice, in HANDBOOK FOR JUDGES (Kathleen M. Sampson ed., 2004). He
claimed that the Anglo-American legal system was plagued with an “
individualist spirit,”a focus on litigation as a
“
game”
.
41 Laura Nader, Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to ReForm
Dispute Ideology, 9 OHIO ST. J. ON DISP. RESOL. 1, 5-6 (1993).
42 See,Gabriel Hallevy,ʻ
Is ADR (Alternative Dispute Resolution) Philosophy Relevant to Criminal Justice? Plea Bargains
as Mediation Process between the Accused and the Prosecutionʼ; Original Law Review, Vol. 5 No. 1, 2009 at 5. Also
available online at http://ssrn.com/abstract＝1315984>.

27

RESOURCE MATERIAL SERIES No. 95
party has to justify its argument or plea on the strength ofevidence.The rules laid down bytheseprinciples plainly show that none of the parties singularly have any significance within theframework of the adversarial model. These principles or rules imply that ʻ
the parties in thecriminal proceedingsʼare treated on equal footing; hence the State cannot claim a special
privilege against the accused. The prospect of negotiation between the parties in criminal
proceedings is thus not ruled out.43
d. In civil suits where the State may sue or be sued and the State cannot be treated differently thanthe private party. This is also true in criminal proceedings. The State in criminal proceedings,
just as in civil suits,is a party to the case and as such contests the case against the private party.
Both in civil and criminal matters,the hearing of the cases does not grant a legal ascendency to
one or other party.The equality of opportunity to hearing is thus based on the notion ofʻ
equal
footingʼ. In civil matters the ʻ
the principle of equal footing in hearingʼgrants privileges to theparties to engage in out of court negotiations for settlement of all or some issues within theframework of law. The out of court settlement mechanisms include arbitration, mediation,negotiation and conciliation.The use of these alternative methods of conflict resolution in many
instances has the effect of transferring the burden of finding a resolution to the impasse to theparties themselves.44 The similar practice can be developed in criminal jurisdiction by application of the ʻConcept of Plea Bargainsʼ. The concept of plea bargaining is an alternative to
conducting a full criminal trial by offering a solution to the conflict in court, which is in a
broader sense the idea of alternative dispute resolution. The application of the concept of plea
bargaining is therefore a good example to show that an informal mechanism is possible to apply
in the criminal jurisdiction.45
The discussion above plainly shows that the ʻ
incorporation of informal mechanisms of dispute
resolutionʼin criminal justice is widely possible.Principles ofʻformal justiceʼsystems both in civil andcriminal aspects are founded on the same notions, i.e. the State in a judicial hearing is a party to thelitigation and as such enjoys no more privileges than the private party. Since there is a widely
established practice of ʻ
the State,as a party to the dispute,being engaged in negotiation with private
party in a civil suit,the same can be comfortably replicated in criminal matters.In this light,it can besafely argued that the ʻcredibility of, and confidence onʼ,criminal justice systems can significantly beenhanced by ensuring application of alternative dispute resolution mechanisms within its framework.
To that object, the following arguments of justification can be extended:a. The informal justice system is a non-state dispute resolution mechanism falling outside the ambitof the formal system. In the backdrop of massive failure of criminal justice systems across theworld,irrespective of the levels or degrees of economic,scientific and technological developmentof nations, the relevance of the non-state or informal system is obviously established.Informal
or non-state systems are already in common practice among communities in developing countries and countries in transition.Empirical research in many countries in this regard show that(a)the non-state or informal system provides easier access to justice and security to people whohave no access to a formal system;46 (b) the non-state or informal system is found to be an
43 See generally;Gabriel Hallevy,ʻ
Is ADR (Alternative Dispute Resolution) Philosophy Relevant to Criminal Justice? Plea

Bargains as Mediation Process between the Accused and the Prosecutionʼ
;Original Law Review, Vol. 5 No. 1, 2009. Also
available online at http://ssrn.com/abstract＝1315984>.
44 Laura Nader, Controlling Processes in the Practice of Law: Hierarchy and Pacification in the Movement to ReForm
Dispute Ideology, 9 OHIO ST. J. ON DISP. RESOL. 1, at 6 (1993).
45 See, Gabriel Hallevy, ʻ
Is ADR (Alternative Dispute Resolution) Philosophy Relevant to Criminal Justice? Plea Bargains
as Mediation Process between the Accused and the Prosecutionʼ
; Original Law Review, Vol. 5 No. 1, 2009 at 6. Also
available online at http://ssrn.com/abstract＝1315984>.
46 For instance, Raute and many minority indigenous communities in Nepal find it embarrassing to approach the court.
In M ustang, the community of Thakali people has court of their own,which is presided by a group of elderly.The trial
takes place in public. The parties can present witnesses for testimony. The judgment is awarded after an elaborate
hearing. The judgment is fully respected by the parties as there is a ʻstrong social pressure behind the judgmentʼ. The
Government institutions often feel embarrassed to take cognizance of cases from such communities because the enforcement of judgment without approval of the elder leaders of the community is virtually impossible.Hence,the government
institutions tacitlyallow the communityto settle disputes,except those which involve heinous crimes like murder,robbery

28

158TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
alternative in places or communities where the presence of formal institutions of the State islacking, or state has failed to fulfill its obligations;47 (c) the non-state or informal system isaccessible easily to poor people and the decisions of the such systems are more acceptable to thecommunity;48 and (e)non-state or informal systems are simple, comprehensible, and speedy.49
b. The formal system of criminal justice regards crime as a matter of State concern, and thus
asserts exclusive power of prosecution. Within this framework, crime against the victim isconsidered an offence against society or the State. As a matter of fact, victims of crimes havevery restricted roles in assisting the prosecution.Victims of crime are thus obliviously ignored.
Victims have no ʻ
say in prosecution at allʼ
. This typical principle of formal criminal justicemakes victims apathetic to the criminal procedure.
c. The concept of non-state or informal systems of justice is an outcome of social demand forunrestricted and easy access to justice,as well as a result of the movement for alternative formsof justice and conflict resolution which promotes more restorative solutions.50 The demand for
informal criminal justice has its roots in the penal law abolitionist movement according to which
the parties of disputes must resolve conflicts through mediation, conciliation and substituteprison and other forms of social control.51
d. The modern of trend of dispute resolution is that the ʻ
the conventional formal systems aresupplanted by the informal system. The formal system divides the society byʻmaking one to win
and other to loseʼ. The informal system of justice believes on ʻ
conciliationʼand thus gives
opportunity to the parties themselves.
Some risks are obvious in the non-state or informal justice system.These risks are mainly associated with abuse of power by ʻpeople involved in non-state or informal mechanismsʼ
. Undeniably, thenon-state or informal criminal justice system does reduce the cost and provides readilyavailable accessto justice and it is comparatively friendly to poor and marginalized groups of population.
B. Fostering Culture of Pre-trial Conference
M ost Anglo-American countries have a practice of using pre-trial conference for sorting out issuesof ʻtime-frameʼto be taken up at trial,the number of witnesses to be called,the number of lawyers to
be engaged in examination, cross-examination, and arguments and rebuttals. Pre-trial conference isespecially useful for ʻ
understanding of the gravity of the caseʼand the pleas of the parties.The cultureof organizing pre-trial conference is significantly low in Asian countries,South Asia in particular.The
same is the situation in most African countries.Without pre-trial conferences,the following problems
are obvious in Asian trials:
a. Uncertainty of trial is a serious problem in lack of understanding of the proceeding or motion
required by the case. The appointed timeframe is thus forsaken, because the prospect of trial

etc. For some years, some institutions have taken initiatives to provide skill training of mediation to leaders of thecommunity. In the community of Raute, which is still a nomadic community, no interference of any type from theGovernment is acceptable.The community has its own chief who has jurisdiction to try all civil and criminal cases.Not
a single case from this community has reached to the formal system as of now.The rate of crime,due to stronger social
sanction and societal security system, is negligible in these communities. Occasional incidents of violence are also
effectively dealt with by the ʻsocietal mechanismʼ. See generally; Johan Reinhard, ʻ
The Raute: Notes on a Nomadic
Hunting and Gathering Tribe of Nepalʼ
, 1974.
Online, www.thlib.org/static/reprints/kailash/kailash 02 04 01.pdf>. Visited on 20 October 2012.
47 See, Alline Pedra Jorge Birol and Arno Dal Ri Junior, The Role of Organized Crime in Informal Justice Systems:
Brazilian Caseʼ:International Journal of Security and Terrorism, Vol. 2 (1). 2011 ss 59-80.
48 See,ʻLinkages between State and Non-state justice system in eastern Afghanistanʼ, (A Survey Report),The Liaison Office(TLO),October 2012.Online,at www.usip.org/files/ROL/state-and-non-state-justice system>.Visited on 18 October 2012.
49 Ibid.
50 See, Alline Pedra Jorge Birol and Arno Dal Ri Junior, The Role of Organized Crime in Informal Justice Systems:
Brazilian Caseʼ:International Journal of Security and Terrorism, Vol. 2 (1). 2011 ss 59-80.
51 See, Alline Pedra Jorge Birol and Arno Dal Ri Junior, The Role of Organized Crime in Informal Justice Systems:
Brazilian Caseʼ:International Journal of Security and Terrorism, Vol. 2 (1). 2011 ss 59-80.

29

RESOURCE MATERIAL SERIES No. 95
without completing certain formalities becomes unlikely. In such a situation, the trial iscontinued to another time and the time of judge is wasted. This uncertainty also hinders theadequate preparation of the case, as lawyers may not be seriously engaged in preparation due
to uncertainty. The most serious impact is on the right of accused to have a speedy trial.
b. Possibility of manipulating witnesses and tampering with evidence is a serious problem too.
Without pre-trial session, the contest between the parties is unorganized;hence, the chance ofmanipulation of witnesses and evidence is greater. The pre-trial conference is important tomaintain courtroom discipline, which in turn is important for maintaining the dignity of theparties, the court, as well as the ongoing proceeding.
c. Without pre-trial conference, the prospect of developing strategy for defending the claims orpleas becomes an elusive act. Both parties prepare their part in speculation of the otherʼsstrategy. The pre-trial conference properly communicates the strategy of each other, thus
helping lawyers to concentrate on their defense rather than indulging on designing pretensions,manipulations and skipping attitudes.
The prospect of using pre-trial conference is in abundance in Asian culture as it emphasizes
dialogue or negotiation as a primary model of dispute settlement. Hence, promoting pre-trial conference between the parties,the trial process can be reduced in terms of time frame and also issues.M ost
issues which have no substantial importance for debate can be removed, thus saving the time of thecourt. The pre-trial conference is also an important platform for a ʻdeveloping diversion approachʼ.
Especially, the pre-trial motion can be the most suitable platform for juvenile justice process foragreeing about a possible diversion,thus protecting the interests of the child in the best possible way.
C. Fast-Track Trial Process
The fast-track trial process is an emerging alternative form of trial process.The fast-track trial isfound most useful in cases where the urgency of hearing evidence and witnesses is urgent for several
reasons such as security of witness or availability of witnesses. Offences such as rape, trafficking of
human beings and drugs, counterfeiting of currency, violation of immigration rules and so on cannot
wait for long to be tried through a tedious process.The procedures in fast track cases are simple,and,
most importantly, there is an agreement between both parties to expedite the process.The fast-track
trial is extremely important and meaningful for protecting the privacy of victims as well as suspects,
rehabilitating the victims, and correcting the offenders. Nepal introduced the system a few years
before,though the practice has not yet gained prominence mainly because of lack of knowledge of theparties.

IV. CONCLUSION
Fair trial is a ʻ
substance as well as processʼof justice.The maxim that ʻ
delayed justice［is］denied
justiceʼwarrants,among many other things,guarantees to parties the ʻright of speedy trialʼ
.The trial
process is vital becauseʻ
it pronounces the outcome of the entire criminal proceedingʼ.The trial process
in this sense is a product of fair investigation and prosecution.It scrutinizes the merit,properties andlegitimacy of evidence. However, a protracted trial ends up with injustice, at least with having no
impact of justice.
M ost Asian developing countries have nurtured a culture of ʻ
dogmatismʼ, i.e., an unexceptional
loyalty to the prevailing system and persistent denial to change. This attitude has been a serious
challenge to the reform initiatives in the criminal justice system. ʻ
Staggering trial sessionsʼis a maincause of protracted trial in Asian countries.Hence,the continuous process of trial is an urgent need forreformation of the criminal justice system.
Participation of victims in plea bargaining sessions in prosecution offices can be developed as adesired informal approach in expediting the trial process.Participation of victims in criminal proceedings through plea bargaining can ensure adequate compensation to the victims,and as such it will easethe process of trial.Once the negotiation is worked out between the accused and victim,there remains
hardly anything to contest during trial.

30

158TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
Pre-trial conferences and fast-track trials can also be effectively used to reduce the timeframe andcomplexity of trial.

31