THE EFFECTIVE ADMINISTRATION OF CRIMINAL JUSTICE TO TACKLE
TRAFFICKING IN HUMAN BEINGS AND SMUGGLING OF MIGRANTS:SITUATION AND SOLUTIONS IN THE CONTEXT OF NEPAL
Kiran Paudel*
I. INTRODUCTION
As we are going to discuss The Effective Administration of Criminal Justice to Tackle Trafficking in
Human Beings and Smuggling of Migrants, in the Nepalese context, it would be better to divide thesubject into two divisions:i.

The effective administration of criminal justice to tackle trafficking in human beings, andii.

The effective administration of criminal justice to tackle smuggling of migrants.

Though a lot of people are going outside the country for foreign employment, they do not intend to
migrate to that country. Here, it is necessary to say that each and every person going outside to seek
employment does not find himself in the same position as he had thought. Some of them are told that avery charming job is awaiting and they go there anyway. But getting there they find that the job ishazardous. A lot of agencies established for the purpose of exporting skilled and unskilled labour are
cheating the person whom they provide the service to.
On the other hand, there are a lot of people in different countries who are living illegally. Theyreach at the destination as a tourist or some other status, which is accepted, and are lost. The intentionof such people is not to be a migrant in that country. They only want to stay there to earn a lot of moneyand fly back, if they are not caught. These people are doing this by their own efforts.
Here I am mentioning these things because the number of people of the second category is
increasing gradually. It may be possible that a group of offenders may start to commit this offence in an
organized way. And in the meantime the people seeking foreign employment, changing their mind, may
come under the influence of such group. In the same way, the agency that is cheating its client may
change its role and start the smuggling of migrants. And, we are discussing here how such a situation
can be controlled.
While talking about the effective administration of criminal justice to tackle trafficking in humanbeings we are mainly concerned with the trafficking in women and girls. It is because male trafficking
is very rare in Nepal. That’s why this paper mainly concentrates on the present situation and thesolution of trafficking in women and girls. The main objective of trafficking is to sell them at the places
where prostitution is carried on in an organized way.
Thinking that it would be very interesting to know how we have been trying to tackle the problem
and are not achieving the goal, I will give a very short historical glimpse of both sides here.
II. HISTORICAL BACKGROUND
In the modern history of Nepal, the sale of human beings was restricted for the first time in 1808 A.
D. by declaring a ‘Rukka’ (a declaration by the King having legal status). But before the Declaration of
Eradication of Slavery in mid-April, 1925 A. D. (On the 1st day of Sambat 1982) the trade of humanbeings was alive as slavery. After this Declaration laws were also made according to the new situation.
In part three of the ‘Ain’, the only law at that time, there were also provisions in regard to murder and* Undersecretary,
Commission for the Investigation of Abuse of Authority,
Kathmandu, Nepal

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the sale of humans (Jiu Masne Bechane ko). Those provisions not only declared trafficking in humanbeings illegal but also made it punishable. According to the provisions the buying and selling of humans
in the name of slavery was prohibited. No one was allowed to buy slaves even from outside theKingdom. Sending or taking human beings to foreign countries for the purpose of selling or forced andhazardous labour was restricted.
On the contrary, at the same time a lot of girls were entering inside the huge gates as maids. Most of
the girls came from certain races living in certain parts of the country. One of their duties was toentertain their master. In addition some religious and social customs stipulated that the duty of thewomen of certain groups was to entertain the elite by any means.
After democratization of the country in 1950, people started to think about themselves in new ways.
Individuals became conscious about their rights. New acts were enacted giving more rights to women.
The Act of Country (Muluki Ain) was promulgated in 1963. In the eleventh chapter of the fourth part ofthis Act it stipulates that no one can sell any human being and can not take any human being outside
the Kingdom with the intention of selling. But the problem of trafficking became worse. To tackle theproblem more efficiently a new special act was enacted and promulgated in 1986.
More detail, concerning existing laws is given later.
III. CAUSES OF THE CRIME
Causes of the crime can generally be divided into three groups:
A. Social Causes
B. Economic Causes
C. Other Causes
A. Social Causes
Because of illiteracy and lack of awareness, the women and girls in remote areas and villages
believe any stranger in a very short time’s interaction. Offenders have identified the races and tribes
where making physical relations with consent is not a big thing. But, the girls of such societies are notin the position to differentiate between sexual exploitation and physical relations with consent. And
this helps the offenders to influence these innocents.
Family destruction is another cause that makes women want to leave their native place but at thesame time they do not realize the person who is being their friend is going to ruin their life. The root
cause of family destruction is polygamy. Sometimes it may happen by natural disaster.
This does not mean that our laws allow these practices. The people of such societies do not know
about these laws. And even today they do not know that the laws of the country can manage their social
behavior. Some people, who know, do not want to go that way.
According to the statistics published by the Police Headquarters of Kathmandu 90% of thosetrafficked are uneducated.
B. Economic Causes
Most of the women do not have access to economic activities. They are dependent on theirguardians. The woman who wants to earn money herself can easily be mislead by offenders.
Poverty and unemployment force the people to seek jobs in new places. Most victims of trafficking
believed the person who told them that they would get a very nice job.
According to the statistics published by the Police Headquarters of Kathmandu, 60% are traffickedin temptation of work

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On the other hand, unemployment with poverty is making people do anything for their livelihood.
These days this offence is being committed in an organized way. Such organizations are using theunemployed people from poor families for this purpose.
C. Other Causes
There are two very wrong beliefs in some parts of society, even these days.
(1) The first wrong belief is a religious one. In the Far Western part of the Kingdom people offer
their daughter to the God. These children have to live in the temple. There is also another wrong
thinking about these children that they cannot marry. Even educated and so-called modern
young boys do not want to be married with such a girl. (I am not talking about the living
Goddess, ‘Kumari’ and about Buddha she monks.) The society has accepted them as a prostitute.
The organizations involved in trafficking easily convene their agent that by trafficking them
they are not doing wrong.
(2) In the same way there is a tribe that has been considered for centuries, that their job is toentertain people. In the name of entertainment they are also being used as prostitutes. In otherwords, it is not wrong to say that they are prostitutes made by culture. Except prostitution, they
do not have another occupation. And the organizations apply the same theory to convince theiragent for trafficking of these people. Because male prostitution is not in existence in the society
the females are only the victims of this mal-culture.
(It is necessary to say that these two types of people are struggling to get rid of their religious
and cultural malpractices.)
IV. ACCESS OF THE OFFENDER
The problem of trafficking is being more complicated day by day. Some years ago the crime wascommitted in a personal way. But these days it has developed as an organized crime. About three orfour years ago it was reported in the news that one of the chiefs of such criminal organizations hadcome to a village chartering a helicopter. It is very shameful for me to mention here that the fellow wasa Nepalese national and a female.
Investigations have revealed that these days offenders are completing their offence partially. Someof them go to villages, and look for persons whom they can influence. They use the appropriate means to
influence. For example a person who is suffering from family destruction they offer to marry. For the
person seeking their fortune they say that they can arrange an appropriate job. They assure the victim
that they can help them and they really want to help them. They come back to the town with the victim
where another group is waiting for them. They hand over the victim to this second group. The victim istold that these men are friends of the previous group and now this second group will take him/her to thesaid place. The second group takes the victim up to the border and hands him/her over to the thirdgroup, which takes them to the destination.
A few years ago, the destinations of offenders were only Indian cities. But these days they are also
taking the victims to other countries.
For centuries, the border of Nepal with India has been open. That’s why the victims are easily
trafficked outside the country. Because of the open border sometimes victims are send to a third country
using Indian airports. As mentioned above, the victims are totally influenced by the offender, whilecrossing the border with India; they pretend to be close relatives. The victims themselves don’t disclose
the reality of the situation and don’t give true information. They tell the guards at the checkpoint only
the information they are taught to say. And very simply and by the very easiest way, offenders cross theinternational border between Nepal and India.
V. METHODS USED TO INFLUENCE THE VICTIMSThe offenders use different types of methods to influence the victim before committing the crime.

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A. In the Name of Employment
It is found that most of the victims trafficked are told they would be given a nice job. Very few ofthem were aware that they were going to India. Some were told that they were going to work in a circus.
But others didn’t know that they were being taken to India.
According to the statistics published by the Police Headquarters in Kathmandu, 60% are traffickedusing this method.
B. Pseudo-Marriage
In this method the agent of the trafficker wins the victims affections first. Then he makes amarriage proposal that is very easily accepted. After marriage a husband has the right to take his
spouse anywhere.
The statistics published by the Police Headquarters in Kathmandu shows that 25% of victims havebeen trafficked using this method.
C. Other Methods
Some victims have been trafficked by making them unconscious with drugs. Some have been taken
for trade, and some for medical care. Some of them have gone with an agent who has told them hewould take them to their relatives.
The statistics show that 15% have been trafficking using these methods.
VI. GOVERNMENT POLICIES TO CONTROL TRAFFICKING
The government has formulated policies to control trafficking.
Some of them are as follows:
1. A program for public awareness is to be launched.
2. Co-operation with NGOs and INGOs.
3. Efforts to control the problem will be made by bilateral and multilateral co-ordination with theinternational sector.
4. Appropriate steps will be taken to eliminate poverty and to promote employment for women.
5. A national co-ordination committee is to be established. Under this committee a district coordination committee will be established at the district level, which will work as a center forcontact.
6. Trafficking will be controlled by conducting an employment program through informal andvocational education.
VII. REGIONAL EFFORTS TO CONTROL TRAFFICKINGThe South Asian Association for Regional co-operation (SAARC), recognizing the seriousness of thissubject, has drafted a treaty on this subject and opened it for ratification.
The provisions made by the treaty are as follows:i.

The objective of the treaty is to release SAARC countries from being countries of origin, transit
and destination of trafficking.

ii.

According to the treaty its member states are obliged to:119RESOURCE MATERIAL SERIES No. 62(a) Define trafficking as a crime under their criminal law;(b) Punish persons, who provide a place, or rent their building for buying and selling persons andinvest knowingly in it; and(c) Make punishable the act of provoking such crime.
iii.

After ratification the treaty member states shall:(a) Co-operate with each other in the investigation, prosecution, hearing and other matters of thecrime under this treaty;(b) Extradite the offender (or otherwise prosecute him);(c) Make appropriate arrangements for the victims care and treatment before sending them back totheir country of origin; and(d) Establish a residential house and a protection house for the rehabilitation of the victims.
VIII. NATIONAL EFFORTS TO CONTROL THE PROBLEM

The Constitution of the Kingdom of Nepal 1990 in its Article 11 ascertains equal rights to Nepalesecitizens without any discrimination on gender basis.
In the same way, Laws discriminating women are being amended. An amendment is under process
in parliament to give equal economic rights to daughters. (During the period of training on 26 th
September, HM The King gave his royal assent to this Bill.) Just a few months ago the Supreme Courtof Nepal gave its verdict in one case that women have the sole right over their body and even a husband
cannot make physical relations with his wife without her consent.
Although, these efforts point towards the equal rights of women, it is clear that nearly all thevictims of trafficking are females. And one of the causes of this problem, as mentioned above, iswoman’s inaccessibility to property. That is why more economic and social freedoms are being secured
for females.
IX. THE ROLE OF NGOs AND INGOs
About ten organizations are active in this field. They have been focusing, mainly on two sectors: (a)Awareness and (b) Rehabilitation.
To make people aware they are using different means. Posters are very much being used for thispurpose. Beyond this they go to the villages, consult with people and manage cultural shows. By allthese means they teach the people the activities of the offenders and make them aware.
Under rehabilitation they have established hostels to house the rescued victims. Here they aretrained in various vocational subjects, which help them to survive independently in the future.
One of these organizations is ‘Maitee Nepal’. Not mentioning its contribution would be an injustice
to it. Including the above-mentioned activities it has also established its branch offices on the transit
points, which are mostly used to traffic, at the international border. They watch suspected people. They
take information from the people whom they suspect. And they have been able to recognize theoffenders various times.

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X. THE EXISTING LAWS
While giving a short historical background I have mentioned a series of laws concerning the subject.
There are currently two laws in existence in parallel on this subject: (a) General law, and (b) The
Special Act
A. General Law
There are some provisions on this matter in the Act of Country, 1963. The eleventh chapter of the
fourth part of this Act deals with our subject. Number 1 of the chapter restricts the taking of humanbeings outside the country for the purpose of selling or trading in human beings. The buyer is also
punished if found inside the country. The punishment is twenty years imprisonment. If the offender isarrested before he has made a sale the punishment is ten-years imprisonment.
Number 2 of the chapter does not allow anyone to deprive the guardianship of a minor or a lunatic
without the consent of a guardian.
Number 3 of the chapter restricts servitude. Punishment is imprisonment from three to ten years.
And the court can order the offender to give appropriate compensation to the victim.
B. The Special Act
While retaining the above legal provisions, but realizing that these provisions are unable to control
trafficking in human beings, a special act was also promulgated on the same subject in 1986. This act ismainly concerned with three things:(a) Trading in human beings(b) Taking human beings to a foreign country with the intention of selling them(c) Forced prostitution(It is necessary to mention here that all forms of prostitution are illegal in Nepal.)
The first two things are almost the same in both laws. But there are some special features in theAct.
1. Special Features of the Act(i) The first special feature of this Act is the extraterritorial jurisdiction of the Act. Any person who
commits a crime under this act who is living outside of the country can also be prosecuted andsentenced according to this act.
(ii) The second special feature of this Act is the affiliation of the court of origin from the beginning ofinvestigation. According to this provision before starting the investigation the police, producing
a complaint to the court, has to get an order for investigation from the nearest court of first
instance. The person who wants to complain can make the complaint at any police station.
(iii)The third special feature of this Act is the provision for the verification of the statement of thevictim. If the person complaining is the victim of any offence according to this act, a written
statement of that person must be taken in the presence of a public prosecutor by theinvestigative officer. And that statement must be verified from the nearest court of first instancewithin twenty-four hours. A judge of the court has an obligation to verify the statement.
(iv) The last special feature of this act is the burden of proof is on the defendant. Generally theburden of proof is on the plaintiff. Section 25 of the Evidence Act, 1974 is very clear on thispoint. But this Act is an exception to the general provision.
These provisions oblige the offenders to prove the followings things:

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RESOURCE MATERIAL SERIES No. 62(a)If a complaint is registered with the police against them they have to prove the complaint iswrong.
(b)If there is a written statement of a victim verified by the court they have to prove thestatement is not correct.
All of these provisions are made to give strong protection to the victim and to punish theoffender. But the effect on the cases has not been satisfactory.
2. Results
Here are the comparative statistics of the disposed cases of trafficking in human beings for the last
three years, published in the latest Annual Report of the Attorney General of the Kingdom of Nepal.
Here are the statistics of the cases decided by the original court:
Cases RegisteredFiscalyear

Cases Decided

Carriedover

Of this
year

Total

1998/99

173

118

1999/00

192

2000/01

155

Total

Remaining
cases

%
Won

31

99

192

38.38

49

51

166

155

39.76

36

43

134

110

41.04

%
Won

Won

Partial
win

Lost

291

38

30

129

321

66

89

244

55

The statistics of the cases decided by the Court of Appeal are as follows:
Cases RegisteredFiscalyear

Cases Decided
Won

Partial
win

Lost

Total

Remaining
cases

126

6

4

20

30

96

20.00

138

234

26

59

69

155

79

17.42

73

152

20

10

46

76

76

26.32

%
Won

Carriedover

Of this
year

Total

1998/99

85

41

1999/00

96

2000/01

79

Here are the statistics of the cases decided by the Supreme Court:
Cases RegisteredFiscalyear

Cases Decided
Won

Partial
win

Lost

Total

Remaining
cases

53

2

3

2

7

46

28.57

13

59

3

2

4

9

50

33.33

17

67

9

2

6

17

50

52.94

Carriedover

Of this
year

Total

1998/9936

17

1999/00

46

2000/0150

A special court has been hearing the cases under this special act since last year. (During the periodof the training, jurisdiction over these cases was given to the District Court, as it was in the past.)
The punishments under the special act are as follows:122122ND INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(a) On completion of the crime - ten to twenty years imprisonment.
(b) Taking any person to another country with the intention of selling - five to ten years
imprisonment.
(c) Attempt of the offence / provoking or providing assistance to the offender - imprisonment up to
five years.
Being fully conscious of the weakness of this act, a new act is being prepared. These days it is open
for discussion in general. This new act gives the investigative officer the right to arrest offenders andsearch related places without a warrant. There are other new provisions in the forthcoming act. Some ofthem are as follows:(a) Compensation to victims,(b) Establishment of a rehabilitation centre,(c) Establishment of a co-ordination committee.
XI. PROBLEMS OF CONTROLLING THE OFFENCE
A lot of effort has been made to control the offence, but the problem has become more serious. There
are many hurdles with every step towards controlling the problem. To describe the problems of eachstep clearly they are given under separate topics.
A. Problems in Detection
It is clear that without the help of people the problem cannot be solved. In the case of trafficking,the victims have not been able to recognize the offenders at first sight. After a few days the offenderinfluences the victim and they believe him blindly. As mentioned earlier, in most of the cases victims
cannot imagine what is going to happen. Therfore the offenders are able to cross the border with their
victims without any difficulty.
B. Problems in the Investigation
Many offences are not reported. The victims who are rescued after a few years of victimization
cannot recognize the offender. Many times they cannot give a clear picture of the offence. Sometimes
they exaggerate the truth. When the victim fails to identify the offender the situation becomes worse.
After hearing the news that the victim has been rescued the offender puts himself out of reach of theinvestigator. And most of the time the main offender is out of the country.
C. Problems in the Prosecution
At this stage there is always the problem of evidence/witness. Most witnesses do not feel safe fromthe offenders. Sometimes witnesses are under the influence of the offender.
As already mentioned, a written statement of the victims is verified by the judge at the very earlystage of the investigation. The courts summon the victim as a witness. The defendant’s lawyer pleads
the right to cross-examine the witness of the opponent.
D. Problems in the Execution of the Judgement
It is very clear that if the offender is not caught the judgement cannot be executed.
XII. PROBABLE SOLUTIONS TO CONTROL THE PROBLEM
A. Awareness
The most important thing in this context is awareness. First, it is necessary to teach the people how
the offenders are exploiting them. Second, they should be taught not to believe strangers until they
have complete information about them. Third, females should be told about their economic as well as
their legal rights. There is also a need to teach them to fight for their rights.

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The work of NGOs and INGOs in this area is very enthusiastic. But still there are a lot of things to
be done.
B. Opportunity for Work
It is clear that most of the persons are victimized in the name of employment. Most of them only
want to earn enough money to survive. To introduce opportunities in the villages is necessary. If work isavailable in their village they will not need or be tempted to go elsewhere.
C. Clear Laws
The laws of each country should declare trafficking and smuggling a criminal offence. There should
be a clear law of extradition. Amongst other things there must be a very clear provision in the domestic
laws on the situation where a country does not want to extradite it’s national.
D. Border Control
The number of these offences can be minimized through good border administration. In regards tothe problem of an open border like that between India and Nepal, a systematic recording system oftravelers, with their complete information must be introduced.
E. International Co-operation
The nature of these crimes is clearly transnational. To control such offences mutual co-operation
between the country of origin and the country of destination is necessary. And in the same way thecountry en route also has to be co-operative.
To obtain the goal, bilateral and multilateral efforts also need to be made on a regional basis.

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