Movies Law Students Should Watch

As teaching faculty in law school, I often use references to movies in my class. I have a huge appreciation for the things the movie can teach us. At times a good movie can teach you to lot more than the lecture in law school. Though most of the movie's reflection of court procedure, proceedings and technicalities are far from the real court proceeding, they do help us in understanding justice system and other aspect associated with it. I do not argue that 'movies' should be primary learning reference but movies definitely can teach you a lot.

I have often been asked about the movies I'd personally recommend for law students or anyone in the legal field and I tend to name few movies that strike my mind at that point. I have decided to list out my recommended movies for law students along with its short description (available in imdb.com) of the movie. The trailer of the movies is also included as this will give the general idea of if you want to watch the movie.

I have listed 26 movies that I have seen. I am sure that I have missed out on other movies. The list of movies is based on my choice of movies and my idea of its relevance to law students. The list is arranged in alphabetical order.

Please feel free to add your favorite movie to the list and do let me know about the movies I have missed out.

     i.         12 Angry Men

A jury holdout attempts to prevent a miscarriage of justice by forcing his colleagues to reconsider the evidence.

https://www.youtube.com/watch?v=fSG38tk6TpI

   ii.         Anatomy of a Murder

In a murder trial, the defendant says he suffered temporary insanity after the victim raped his wife. What is the truth, and will he win his case?

https://www.youtube.com/watch?v=IAVLvGP25uQ

 iii.         Class Action

Jed Ward is an attorney who specializes in whistleblower, David vs. Goliath, type cases. He finds a client who is suing an auto company over a safety problem that has had a severe effect on his life after the accident. He must replace the current attorney and be ready for trial quickly, and then he finds that the defense attorney will be his estranged daughter.

https://www.youtube.com/watch?v=p1_EqTja4Pk

iv.         Disclosure

A computer specialist is sued for sexual harassment by a former lover turned boss who initiated the act forcefully, which threatens both his career and his personal life.

https://www.youtube.com/watch?v=lhukT5fEN3M

  v.         Erin Brockovich

An unemployed single mother becomes a legal assistant and almost single-handedly brings down a California power company accused of polluting a city's water supply.

https://www.youtube.com/watch?v=-6RIqCq4-2c

vi.         Find me Guilty

Based on the true story of Jack DiNorscio, a mobster who defended himself in court for what would be the longest mafia trial in U.S. history.

https://www.youtube.com/watch?v=qKr2ot6LMMw

vii.         Fracture

An attorney, intent on climbing the career ladder toward success, finds an unlikely opponent in a manipulative criminal he is trying to prosecute.

https://www.youtube.com/watch?v=1KQ37j6cRJM

viii.         In the Name of the father

A man's coerced confession to an IRA bombing he did not commit results in the imprisonment of his father as well. An English lawyer fights to free them.

https://www.youtube.com/watch?v=04ZYTB2ZXVc

ix.         Jolly LL.B

A small time lawyer files a PIL in court against his own idols case.

https://www.youtube.com/watch?v=cIIExNPgXm0

  x.         Judgment at Nuremberg

In 1948, an American court in occupied Germany tries four Nazi judges for war crimes.

https://www.youtube.com/watch?v=RfOgZXIQ6fo

xi.         Law Abiding Citizen

A frustrated man decides to take justice into his own hands after a plea bargain sets one of his family's killers free. He targets not only the killer but also the district attorney and others involved in the deal.

https://www.youtube.com/watch?v=qsR8-zxV-3E

xii.         Michael Clayton

A law firm brings in its "fixer" to remedy the situation after a lawyer has a breakdown while representing a chemical company that he knows is guilty in a multi-billion dollar class action suit.

https://www.youtube.com/watch?v=5kJRYBhG43Q

xiii.         My cousin Vinny

Two New Yorkers are accused of murder in rural Alabama while on their way back to college, and one of their cousins--an inexperienced, loudmouth lawyer not accustomed to Southern rules and manners--comes in to defend them.

https://www.youtube.com/watch?v=SL4HdaZXuOw

xiv.         No One killed Jessica

A journalist, who is more of an activist team up with the sister of a murdered model, as she gets interested in the case and wants to bring justice to her case.

https://www.youtube.com/watch?v=IzGZ9oL9Lv0

xv.         North Country

A fictionalized account of the first major successful sexual harassment case in the United States -- Jenson vs. Eveleth Mines, where a woman who endured a range of abuse while working as a miner filed and won the landmark 1984 lawsuit.

https://www.youtube.com/watch?v=jXkVQm0QPyY

xvi.         Philadelphia

When a man with AIDS is fired by his law firm because of his condition, he hires a homophobic small time lawyer as the only willing advocate for a wrongful dismissal suit.

https://www.youtube.com/watch?v=cl4B9AU45P4

xvii.         Pink

When three young women are implicated in a crime; a retired lawyer steps forward to help them clear their names.

https://www.youtube.com/watch?v=AL2TShb6fFs

xviii.         Provoked: A True Story

It's the true story of a Punjabi woman named Kiranjit Ahluwalia who leaves India to marry a London-based guy, only to be badly abused. She ends up in prison for murdering her abusive husband.

https://www.youtube.com/watch?v=PXUSrFEPzy8

xix.         Shahid

The account of Human Rights lawyer Shahid Azmi, an ordinary citizen with an extraordinary commitment to justice.

https://www.youtube.com/watch?v=LhOqoeL0v3M

xx.         Talvar

An experienced investigator confronts several conflicting theories about the perpetrators of a violent double homicide.

https://www.youtube.com/watch?v=aQNMsw8Ljjc

xxi.         The Insider

A research chemist comes under personal and professional attack when he decides to appear in a "60 Minutes" expose on Big Tobacco.

https://www.youtube.com/watch?v=5rkvxi5hdbA

xxii.         The Pelican Brief

A law student uncovers a conspiracy, putting herself and others in danger.

https://www.youtube.com/watch?v=N7seUNbY1_w

xxiii.         The People vs. Larry Flynt

A partially idealized film of the controversial pornography publisher and how he became a defender of free speech for all people.

https://www.youtube.com/watch?v=FbvZtbeC0EM

xxiv.         The Rainmaker

An underdog lawyer takes on a fraudulent Insurance company.

https://www.youtube.com/watch?v=SapUva6f_b0

xxv.         The verdict

A lawyer sees the chance to salvage his career and self-respect by taking a medical malpractice case to trial rather than settling.

https://www.youtube.com/watch?v=7je8_a7chkg

xxvi.         To kill a mockingbird

Atticus Finch, a lawyer in the Depression-era South, defends a black man against an undeserved rape charge, and his children against prejudice. 

https://www.youtube.com/watch?v=KR7loA_oziY

A good movie can teach you more than same duration lecture.

Enjoy the movies :) 

Nepal Tops South Asian Rule of Law Index

The recent findings of World Justice Project Rule of Law Index 2016 present us with encouraging findings. Among the South Asian countries Nepal ranks first in rule of law index. Which means, the observance of rule of law in Nepal ranks top among the South Asian countries. Nepal ranks 63rd among 113 countries with an overall score of 0.52. This rule of law index and ranking is based on consideration of Constraints on Government Powers, Fundamental Rights, Civil Justice, Civil Justice, Order and Security, Criminal Justice, Open Government, and Regulatory Enforcement. Nepal’s ranking with the overall score of 0.52 despite being in the low-income group can be considered positive despite the fact that Nepal ranked 48th among 102 Countries in 2015 with an overall score of 0.53.

The concept of rule of law as it reflects the overarching principle that demands the fair and just administration of the law as a minimal requirement. The World Justice Project has derived its definition of rule of law from internationally accepted standards, the World Justice Project’s definition which includes accountability under law, just legislation, effective and efficient implementation of the legislative provision, and delivery of justice in a timely manner by an independent judiciary. Hence, the concept of rule of law encompasses the totality of a fair and just process from legislation to enforcement of judgments. The adherence to rule of law is primary requisite for peace, justice, and equality.

The track record of Nepal in justice and human rights commitment is not very encouraging. The government of Nepal is criticized at home and abroad regularly for its failure to comply with human rights obligations. In this context, findings from the rule of law index give hope in terms of the role of judiciary towards the compliance with rule of law. The findings this shows Nepal need do improve on the issue of corruption and civil justice.

The judiciary and other stakeholders must analyze the findings of the world justice project and look into the ways to improve the existing concerns. This shall help our judiciary become more effective and efficient. This sort of studies is very important and is expected to be conducted on regular basis. However, our legal academia has failed us in research activities to diagnose the concerns and analyze the context. The study conducted by World Justice Project should initiate academic discourse in Nepal country findings so the rule of law observation would be the basic norm.

There have been various concerns relating to the performance of judiciary and corruption within the judiciary. On the basis of study reports specific recommendation and plans can be formulated to strengthen the judicial institution of Nepal as we are presented with the information we are in dire need of. Further, those working hard in Judiciary needs to be applauded for the observance of rule of law and needs to reminded that we still have a long way to go.

The findings from the report should not be exaggerated but it can be taken as a positive indication towards Nepal’s commitment towards rule of law. We obviously have substantive issues on hand to deal with that would determine nation's compliance with the human rights and rule of law standard in days to come. However, we need to take positive message regarding our judiciary, the legal framework, and commitment towards the value of rule of law.

It must be understood that the report is specific to rule of law index and is does not reflect the performance index of the judiciary. However, the in-depth analysis of the findings offers insightful information for the areas that needs reform for the effective judiciary. In absence of specific research on the matter in domestic academia, the judiciary needs to refer to this study and identify the areas of improvement.

Full report available at http://worldjusticeproject.org/rule-of-law-index

Pursuing legal studies? Read these books before making a decision.

Must Read for Prospective Law Students. (Equally Relevant for Law Students and Recent Graduates)

The legal education is one of the popular choices on the undergraduate level students in recent years. The increasing number of students, law school and changing perspective towards the legal studies clearly indicates that going to law school is the thing now. There are various factors that have an influence in making any decision relating to an academic pursuit. Through this write-up, I am bringing into discussion the few books that might be helpful for the prospective students and freshmen to better understand legal studies and expand their thinking beyond the textbook and conventional lectures, obviously.

The listed readings are where we can start, it does not follow any hierarchy, and the list is based on my personal opinion. The listed readings are equally relevant to anyone who enjoys a good book and is not an exclusive read for someone in the legal fraternity.

i)                             On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and unethical Profession by Patrick J. Schiltz

This is a journal article publicly available in  http://faculty.law.miami.edu/mcoombs/Schlitz.htm

This article is in the top of the list because of the subject matter and its relevance. This is a plain, simple and short article which discusses the discontent in the legal profession and offer bits of advice to overcome it. The article is divided into three parts which discuss the wellbeing of the lawyers, the Poor Health and Unhappiness of Lawyers, the Ethics of Lawyers, and being a Happy, Healthy, and Ethical Lawyer respectively.

The article is very well written and offers invaluable insights for anyone in and planning to get into the legal profession. 

ii)                          Tomorrow's Lawyers: An Introduction to Your Future by Richard Susskind

This book is not easily available in Nepal but is a must-read for law students, graduates and essentially everyone in the legal fraternity. This book explains how the legal profession is changing and how can that changes be adopted by legal professionals. This book explains what a future lawyer can expect in form of opportunities and challenges.

The simplest way to explain the book, "The legal profession is changing in an unprecedented way. Fellow young lawyers, want to time travel and see what FUTURE is going to look like? Do read this amazing book."

More information and reviews about the book on:  https://www.goodreads.com/book/show/16673373-tomorrow-s-lawyers?ac=1&from_search=true

iii)                       Letters to a Law Student by Nicholas Mcbride

This book can help a law student from day one to graduation and beyond. This book comprises a series of letter to an imaginary law student, Alex. The books gives very practice advice on various issues of legal education including but not limited to how to study law, how to write legal essays/dissertation, and how to revise for exams.

The book includes chapters very relevant to those considering studying law and those doing a law degree. The book will help you do better in law school as it teaches various skills required to succeed in law school. This book undoubtedly is the best book that gives orientation on legal education. It also is must have book throughout law school. This book can teach you what you exactly need to know about legal education in your early days.

More information and reviews about the book on:  https://www.goodreads.com/book/show/2139878.Letters_to_a_Law_Student?ac=1&from_search=true

iv)                       What About Law? Studying Law at University by Catherine Barnard, Janet O'Sullivan, and Graham Virgo

To get into a law school is a huge career decision. This book offers insight on if you really want to make that decision for yourself or your child. This book authored by those having long experience in teaching law gives the best advice and insight to prospective law students.

This book also provides an introduction to the main subjects taught in the law degree. This book is can be considered as a trailer of a law degree or a must read before pursuing a law degree. The book will also be very hand for parents and those seeking to understand the legal education in general. The book also has made a brief analysis of significant cases for prospective students to have a taste of it.

This book obviously helps a prospective student to decide if or not to enroll in a law degree.

More information and reviews about the book on:  

https://www.goodreads.com/book/show/2908633-what-about-law?ac=1&from_search=true

v)                          The Fountainhead by Ayn Rand

Yes, the book is about an architect and revolves around the peripheral issues. This is a 700+ page novel which vividly shows how being different and authentic in a profession where compliance with conventional standards is an easy way to flourish. The books reflect on difficulties of being honest, dedicated and unconventional in a particular profession. The courtroom, case and presentation of the case before the jury by the lead character Howard Roark is fascinating. The adaptation of the book into a movie came in 1949.

And to the prospective law students, if you think the book is too bulky and complicated, maybe you need to revisit your career options.  The book offers the challenges faced in a profession when you are not a mainstream follower.

More information and reviews about the book on:  https://www.goodreads.com/book/show/2122.The_Fountainhead?ac=1&from_search=true

vi)                       Freakonomics: A Rogue Economist Explores the Hidden Side of Everything by Steven D. Levitt, Stephen J. Dubner

This book has the capacity to redefine the way we view the world. The cause and effect relationship might be lot different than what common mind can comprehend. The book sets the new height to reasoning and shows how fragile and false conventional wisdom might be. Upon answering each question, the book leaves you in awe!!! The beauty of reasoning beyond conventional wisdom is the essence reflected in the book.

This book helps in developing the critical thinking approach and tells us not to rely on comfortable conventional wisdom. This lesson is a much-needed lesson for prospective law student and practicing lawyers.

More information and reviews about the book on:  

https://www.goodreads.com/book/show/1202.Freakonomics?ac=1&from_search=true

vii)                    Just Mercy: A Story of Justice and Redemption by Bryan Stevenson

Yes, finally a book about a lawyer, and No, it is not "To Kill a Mocking Bird." This book offers a true story of a real-life Atticus Finch. The story simultaneously shows have huge difference can a lawyer make, and how frustrating it can be at times. The book is move along with the story of Bryan Stevenson (one of the most brilliant and influential lawyers of our time), from law school to the unparallel feat of legal reform in the US through litigation.

If you wish to have a career in the pro-bono area and human rights area or something close this books offers how it looks likes in real. The book will reshape your understanding of criminal justice system in the US and gives you an answer to a basic question i.e. As a lawyer who to do you look up to?

More information and reviews about the book on:  

https://www.goodreads.com/book/show/20342617-just-mercy?ac=1&from_search=true

u

viii)                 Outliers: The Story of Success by Malcolm Gladwell

You wish to become the best and the brightest, the book tells you how. The book examines how success is attained and how good become great. This book provokes the thought process and challenges the conventional wisdom. The answer to simple questions may actually resemble a pattern and know which might be in your favor. 

The inclusion of the story of Joe Flom, the last living named partner of one of the most prestigious law firms in New York, “Skadden, Arps” makes the book more interesting for prospective students and lawyers. This is the book you cannot afford to miss. The book will expand your thinking to a new horizon.

More information and reviews about the book on:  

https://www.goodreads.com/book/show/3228917-outliers?ac=1&from_search=true

In closing, these reads will help you understand important things regarding the career choices you are making and about to make. There can be better books which might not have been listed but these books are where we can start with. These books can help you understand your decision in a better way and provide you information to make an informed choice.

Happy Reading!!!

A humble submission to the Supreme Court of Nepal: Please leave activism to activists

‘The end cannot justify the means, for the simple and obvious reason that the means employed determine the nature of the ends produced.’ Aldous Huxley

A clarification in the beginning: The opinion expressed in the matter does not intent to undermine judicial integrity and competence.

The context

On 2nd October 2016, the Supreme Court of Nepal organized a “National Programme on Violence Against Women”. The chief guest of the program was Rt. Honourable President of Nepal and list of guests/participants included Rt. Honourable Prime minister, Rt. Honourable Chief Justice, Supreme Court Justices, head of security agencies, and other dignitaries.

The content of the program among others included a special address by the ‘acid incident’ victims Sangita Magar and Seema Basnet and felicitation of the victims of violence against women. The programme also included a play portraying violence perpetrated by state security officials against women.

The concerns

As reported by the media, Rt. Honourable President Ms Bidya Bhandari has expressed concerns over the content of the program and same has been communicated to Rt. Honourable Chief Justice. Inspector General of Police Upendra Kant Aryal left the program before closing as he concluded that the play tarnished the image of Nepal Police and it was demoralizing for the security institution. Further, justices of the Supreme Court also expressed their dissatisfaction towards the inclusion of the speech of victims’ address (whose case is sub judice in the Court) and content of the program in light of integrity of the Honourable Supreme Court.

Further, President of Nepal Bar Association, Sher Bahadur KC has commented that Supreme Court organizing program under the management of I/NGOs in presence of victims of sub judice case is dishonourable. He also stated that Nepal Bar Association will communicate its concerns in the matter before the court.

Did the Apex Court get it wrong?

Judiciary is the branch of government which administers justice according to law. The courts apply the law, and settle disputes and punish those in conflict with the law all in accordance with the prevailing law. The judiciary applies the law to factual situations and provides a just resolution for the parties as well as for society.  Article 128 of the Constitution of Nepal recognizes Supreme Court as the apex judicial court/judicial institution.

The Supreme Court is recognized as a court of record. The administration of justice and interpretation of the laws is among the basic functions prescribed to and expected from the Supreme Court. The Supreme Court may inspect, supervise and give necessary directives to it and to courts, specialized courts or other judicial bodies under its jurisdiction, in matters relating to the judicial administration or management.  The customary practice and constitutional prescription envision the role of the Supreme Court in judicial administration and judicial management.

Activities of the Court reflecting a form of ‘activism’ does not fall under its mandate and is actively discouraged. The Courts have an essential role that has been guided by the various statutes and regulations related to the court, including Constitution of Nepal 2015, Administration of Justice Act, 1991, Supreme Court Act, 1991, Supreme Court Regulations, 1992, Appellate Court Regulations, 1991 and District Court Regulations, 1994 and none the legislative arrangements includes activism as role of judiciary. The Supreme Court of Nepal organizing a programme in an activist institution fashion is not something that is expected from the apex court of the country.

Further, the Supreme Court organizing the program with the financial assistance of I/NGOs reflect another concern. Adequate funding of the judiciary is a key element in ensuring and safeguarding the independence of the judiciary and judges because it determines the conditions in which the courts and judges perform their functions.

The funneling of external funding in the substantive programme of the Supreme Court is not desirable as similar instances of external funding in the court in different countries have resulted in allegations against court’s integrity.  The adequate funding for the activities of the court must be derived from government. The apex court using I/NGOs’ funds to organize a programme doesn’t reflect the judicial best practice. If the budget of the judiciary is inadequate, this needs to be addressed as a prime concern of judiciary’s financial independence.

When a case is sub judice, reference to the case which might influence the outcome may be open to contempt of court charges. Participation of the victims in a sub judice case in the programme organized by the Supreme Court for special address even in good faith is not a considerate act. Felicitating the victim of violence against women by the Supreme Court does reflect that nature of programme conducted by the court as an activist programme. The involvement of the Supreme Court in felicitating victims, providing space for victims to share their stories, inviting victims of sub judice case as guest speakers, and showcasing play portraying the use of violence by state security officials appears inappropriate.

The voices of victims must be heard and their struggle and stories must be brought forward but this function can and shall be carried out by I/NGOs working in the area. Had the programme been organized by an activist organization in presence of appropriate audience, it would have been appreciable. This is exactly the nature of programme I/NGOs should design and conduct among the general public, academicians, advocates, representatives of NGOs, and other stakeholders. The fact that the Supreme Court was the organizer of the programme and the audience were justices makes the program inappropriate irrespective of all the other aspects of the programme.

Humble submission

In Nepal, various organizations are working on various human rights issues including violence against women. The past experience has shown that they are competent in their activism in various forms. These organizations should be trusted by the Supreme Court in conducting activism for change. Activism programmes are important and significant in their own ways but aren’t within the scope of the judiciary.

The Honourable Court shall concern itself with justice administration and management. The core of judiciary’s role has been and shall be imparting justice. The Supreme Court of Nepal shall perform its role as envisioned in the constitution, as apex judicial institution and the guardian of the constitution. Activities of the Supreme Court marking national programme, if necessary, shall be academic and research-based rather than activism-oriented. Activities of the Supreme Court shall aim at strengthening the integrity of judiciary and capacity building of the Justices.

The program resembling I/NGOs activism shall be discouraged within the judiciary.

___________

Initially published in lokaantar.com on 9th October 2016. 

Link: http://lokaantar.com/en/articles/humble-submission-supreme-court-nepal-please-leave-activism-activists/ 

Question of Jurisdiction, Competence, and Procedural fairness: CIAA's Investigation Against Social Science Baha and ASD

“Outraged by the allegations!!! How can nation’s prominent academic institution do this?” was my initial reaction to the allegation of financial irregularities by Social Science Baha and Alliance for Social Dialogue. However, considering the issues in broader context, I realized that we should be offended by the act of Commission for the Investigation of Abuse of Authority (CIAA).

It is an irrefutable fact that corruption/financial irregularities are zero-tolerance offenses. Anyone culpable in such offense shall bear the legal liability as per applicable laws.  However, the investigation, prosecution, and adjudication of the charges against corruption must be carried in accordance with existing legal provisions. The notion of ‘rule of law’, ‘procedural fairness’, and ‘jurisdictional competence’ cannot be undermined while pursuing charges of abuse of authority, corruption or financial misappropriation.

The concept of rule of law is well recognized universal value which requires that the government, its officials, and agents, as well as individuals and private entities, are accountable under the laws applied evenly by competent, ethical, and independent representatives. The adherence to rule of law requires conformity with the prescribed laws and its scope. Thus, any act by the government and its officials not in conformity with the legal prescription defeats the foundation of ‘rule of law’.

The notion of procedural fairness concerns with the procedures used by a those in authority rather than the actual outcome reached. The fair and proper procedure while making a decision is a prerequisite irrespective of the expected outcome. Any action undertaken without complying with a fair procedure is unjust and does not yield fair and correct outcome. Further, the procedural fairness requirement is basic in case of an investigation. The investigation undermining the procedural fairness fails the legality test. The government and any institutions exercising authority must follow the procedural fairness while doing so. 

In a democratic country, all State apparatus are provided with authority and responsibility which are clearly defined by applicable laws. The authority to exercise such power is limited to the mandate of the state apparatus. The exercise of authority beyond the provided scope is considered as a violation of jurisdictional competence. All state organ must limit the exercise of authority within the substantive scope envisioned in the legislative arrangement. The State apparatus are bound to limit themselves with the sphere of activity over which the legal authority is entitled. The exercise of jurisdiction over issue or subject beyond entitled by law amounts to the violation of jurisdictional competence. The overriding of jurisdictional competence not only merely illegal, it also undermines the notion of division of power and authority in a democratic system.

The CIAA is an apex constitutional body established to curb corruption in the country. The constitution of Nepal has empowered CIAA to investigate and probe cases against the persons holding any public office and their associates who are indulged in the abuse of authority by way of corruption. The CIAA has a clear constitutional mandate with a well-defined scope and jurisdictional competence. The overstepping of jurisdiction by CIAA defeats the constitutional provision and challenges the sanctity of rule of law. The constitutional body performing its duties and responsibilities must abide by the governing laws. The above-discussed concepts of ‘rule of law’, ‘procedural fairness’ and ‘jurisdictional competence’ is applicable to CIAA. The institution with the constitutional mandate is expected to abide by the founding values of justice.

The recent instance of CIAA alleging Social Science Baha and Alliance for Social dialogue (ASD) for financial irregularities upon its investigation has raised some serious questions. This instance has stirred the jurisdictional competence of CIAA, followed by the requirement of procedural fairness, and adherence to rule of law. So has CIAA violated these norms in the matter concerning the investigation of Social Science Baha and ASD?

The CIAA is empowered to investigate and probe cases against persons holding any public office and their associates who are indulged in the abuse of authority. As per the constitutional arrangement, CIAA is not authorized to investigate private or non-government institutions. It is clear that attempt by CIAA to investigate private or non-governmental institutions is beyond its mandate and amounts to overstepping its jurisdictional competence. Both Social Science Baha and ASD being a non-governmental institution does not fall within its jurisdictional scope.

Furthermore, it has been alleged that CIAA selectively used details contained in documents furnished by the Social Science Baha and ASD and has released the charges through a well versed public statement with the aim to defame the institutions. The nature of CIAA probe is inconsistent with the norm of procedural fairness. The investigation subject for CIAA must have been those abusing power in Social Welfare Council (SWC). Under the social welfare council Act, SWC is responsible for the promotion, facilitation, co-ordination, monitoring and evaluation of the activities of the non-governmental social organizations in Nepal.

The CIAA hold jurisdiction and mandate to investigate those exercising authority in SWC if required. Such investigation would have ultimately disclosed the issue of irregularities in NGOs if any. This approach would have been procedurally fair and would have covered the issue of irregularities in a generic manner. However, the press statement of CIAA reflects Social Science Baha and ASD as a primary culprit in the allegation rather than the SWC officials. This approach obviously raises eyebrows on the ulterior motive of CIAA in the investigation.

The approach of investigation and overstepping of the jurisdiction of CIAA in large defeats the notion of rule of law. If the constitutional organ responsible for the investigation of abuse of authority itself undermines the jurisdictional competence and procedural fairness requirement, this is outrageous in a democratic society.

The issue of accountability of NGOs is an important concern and legislative measure has envisioned to ensure the accountability. In this context, it is uncalled for any State institution to overstep its jurisdiction and play ‘Robin-hood’. The least we expect from the State institution is adherence to rule of law, procedural fairness, respect to its jurisdiction, and mandate. It is important that State does ensure accountability from different actors and it is equally important that such is attained by proper means.

The leadership of CIAA and its activities have been subjected to widespread public scrutiny in recent times. There have been instances of ‘fast-till-hunger protest’ with demand for the impeachment of the head of the CIAA with allegations of abuse of authority (ongoing presently as well). There also has been raising allegations that the activities of the CIAA are being directed by personal bias and ulterior motives. The controversy involving the constitutional body entrusted to mitigate abuse of authority is very unfortunate and ultimately weakens the public's trust over the institution.

 In this pretext, CIAA’s newborn interest in investigating institution beyond its jurisdiction certainly raises questions beyond the legality of the action. Any personal bias and ulterior motive should not cloud the judgment of those in the position to exercise power as it tends to undermine the basic norms of legality, rule of law, institutional mandate, natural justice and good governance. The institution like CIAA with constitutional mandate among all must reflect the values entrusted upon it.

In closing, the CIAA’s investigation of alleged irregularities by Social Science Baha and ASD is beyond its jurisdictional competence and mandate. This also violates the norm of procedural fairness and undermines the notion of rule of law.  The CIAA shall apologize for overstepping its jurisdiction and guarantee non-repetition such actions in future. 

We must understand what ‘Aldous Huxley’ understood long before — 'The end cannot justify the means, for the simple and obvious reason that the means employed determine the nature of the ends produced.'

__________

P.S. Initially published on barunghimire.com.np which no longer exisits due to technical reasons. 

Questions raised by Col Lama’s Trial

The case of Kumar Lama is a significant case from various perspectives. Lama is the first person to be tried outside Nepal for crimes committed during the Nepalese civil war that lasted from 1996-2006. Furthermore, it is the first case in Nepal’s history that a serving security officer was arrested in a foreign land. The case is a rare instance of an arrest of the member of the security force in an alleged human rights violation case under universal jurisdiction in the UK. Since the case began, it has drawn huge media attention both home and abroad. The trial ended on September 6, with Lama’s acquittal. But it has raised some serious question that cannot be overlooked.

Firstly, the decision to acquit Lama came with the decision of the Prosecution Service stating, as reported by The Argus, "that it would offer no further evidence against Lama" since they no longer see a realistic prospect of conviction in the case. Was the case appropriately researched and documented? It is the fundamental duty of the prosecution office to evaluate the evidence relating to the cases beforehand and determine the course of action and presentation of the case in the court. However, in this case, the office of prosecution services decided that there was no possibility of conviction. This raises a question regarding the preparation of the case and the evidence prosecution office relied on to establish its charges.  What is the underlying reason for prosecution services to reach to that conclusion? In a significant case like this, where prosecution and the Human Rights Organization well prepared, and had evidence to establish the charges against Lama as required by law? Do the prosecution services and the organization involved owe an answer to such outcome of the case?

Secondly, the defense lawyer Jonathan Grimes stated (as reported by The Guardian) that “The reliance by British police and the CPS on evidence gathered by a human rights organization, Advocacy Forum, has proven to be a mistake.” Has the organization representing the victims, Advocacy Forum committed mistakes that cost the trail, as alleged? If Grimes’ statement is not ipso facto dismissed as speculative and baseless, does this allegation raises questions on the preparation made for the case by the human rights organization? Did the Forum do enough to represent the case, provide the evidence, and facilitate the prosecution services? The lessons learned in this case process offer rare insight on how human rights organization can better represent the interest of victims in the trial.

Thirdly, should human rights organizations pursuing cases on behalf of victims weigh the merit of the case beforehand using the available expertise before resorting to legal action? The Court relies on concrete evidence while deciding a case. The case can be won or lost on the ground of jurisdiction or on the ground of merit. In this particular case, was the merit of the case and available evidence convincing enough to establish the charges? Or was it convincing enough to convince the prosecution service to pursue the trail with full effort? As the trial's conclusion suggests that there was a lack of material evidence in the case, this raises a doubt that the prosecution service was initially convinced that conviction was possible in the case.

In the legal world, the “benefit of the doubt” is a basic principle of the criminal law with universal acceptance. The alleged charges must be established beyond reasonable doubt. This principle in translated in all legal documents and is accepted principle in all jurisdiction. “The benefit of doubt” always plays in favor of the alleged. Hence, the lack of convincing evidence leads to the acquittal of Colonel Lama. Does the organization representing the victim in cases like this need to assess the case in realist manner before dedicating their scarce resources and time in the case? I am in no way, negating the importance and significance of the case but does organization have to be more cautious on the merit of the case beforehand? This is more of a strategic question that needs to be answered by the organizations working on issues like this.

Fourthly, if the court decision was to reaffirm that universal jurisdiction works, is it worth three and half years of legal proceeding and one million pounds? This is the first case of exercise of Universal Jurisdiction derived from Nepali case. However, this is not the first case of exercise of the principle of universal jurisdiction and obviously is not going to be the last. Following the court verdict, the founder of the Advocacy Forum, Mandira Sharma commented that “Regardless of the decision not to re-prosecute Mr Lama, the case has already established that the door of universal jurisdiction for the victims of torture and other gross violations is open in the UK and beyond.” However, this prospect has always been open and is not a resultant development arising out of the case. After more than three and half years of litigation and expense of 1 million pound in the case, if the acquittal is merely to confirm that universal jurisdiction actually works and perpetrators might be prosecuted (if enough evidence to establish the charge is available), we need to ask our self, was the win worth the effort?

Lastly, how efficient can we consider the trial be when all the evidences and witnesses are in Nepal and speak the local language? Was the case lost due to such complexities or due to the merit of the case itself? The case also has brought one of the inherent challenges to the exercise of universal jurisdiction. The judge, Mr Justice Sweeney, regarding the case stated that it was “relatively rare for so many witnesses to require interpreters and indeed for so many problems to arise in one case”. This is not an unforeseeable challenge in the case being heard under the principle of universal jurisdiction. This case has reflected the need of preparedness required in the cases like this. Further, both the aspect of “jurisdiction” and the “merit” of the case must be evaluated and assessed in cases like this. The mere exercise of jurisdiction without required merit of the case can only play the role of deterrence on a short-term basis. Colonel Lama’s case has reminded the legal minds to look at both the ‘jurisdiction’ as well as ‘merit’ of the case. If the exercise of jurisdiction is not the end we are seeking, we need to focus on the merit of the case. This shall avoid similar hitch in the prosecution in other cases, which concluded Lama’s trial.

The decision of the court ought to be respected by all parties involved. A critical appraisal is necessary in cases like this. This case and its conclusion should steer discourse on various issues of universal jurisdiction and related issues. As an academic involved in human rights domain, I see the legacy of the case to lie in having attained what it did given the underlying challenges. The effort of all those involved is a mammoth one, which should be commended.

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P.S. Initially published in setopati.net

Link: http://setopati.net/opinion/16729/