Muluki Civil Code and Muluki Criminal Code are going to guide and punish our behaviors and conducts from August 17. What is there in these two codes?
Nepal is going to enforce new set of laws replacing century-old Civil Code, popularly known as Muluki Ain introduced by Rana Prime Minister Junga Bahadur. From August 17, conducts and behaviors of Nepali people are going to be guided and punished by Muluki Civil Code (2017) and Muluki Criminal Code (2017). Both of these codes have retained the name ‘muluki’ (meaning ‘of the country’), perhaps in acknowledgement of Nepal’s first legal document promulgated in 1853.
From now on, these new laws are going to guide our life style and shape our vision and our culture because they contain different vision, new provisions and new concepts. We are going to deal with the legal situations (at least some) which we had never faced in the past. So get ready.
The implementation of civil and criminal codes may help maintain rule of law in the society and may be a new milestone in justice delivery. But again there are big chances of misinterpretation and misunderstanding of the provisions because many of them are new. We might have to knock the door of the Supreme Court for clarity on a number of matters.
Crime and punishment
The new codes contain hundreds of new provisions. Under criminal code, it has introduced hundreds of new criminal justice principles. Section 40 (2) of the punishment chapter has abolished property seizure for any criminal offense even if such a provision is still prevalent in existing law.
The code has proposed a 25-year life sentence for murder, torture, hijacking of airplane, killing by poisoning food or drink, genocide and rape cases. The code has increased the quantum of punishment for the heinous crimes and also increased the sentences for professional criminals repeating the crimes.
Half of the quantum of punishment shall be added for those offenders committing multiple crimes at once or in different times while double the quantum of punishment may be awarded to repeat offenders, as per Section 44 of the punishment chapter.
No punishment shall be given to any child up to the age of 10 years for juvenile delinquency and there may be a six months jail sentence or stay in a reform home for up to one year for a child up to the age of 14 years. Half of the punishment shall be given for a child up to the age of 16 for committing a crime and two thirds of the punishment shall be awarded to any child up to 18 years of age.
There is a provision for lessening the period of sentence if the offenders surrender themselves before the investigating authorities and support the justice process. Up to 50 percent jail sentence shall be discounted for those offenders helping in investigations, prosecution and collection of evidence or helping in arresting the principal offender or co-accused or the criminal gang.
Significantly, Section 48 has introduced interim relief to victims of any crime for health checkup or for relief during the process of court trial if the court considers providing such relief. However, this provision contradicts with the principle of presumption of innocence until proven guilty and presuming guilty before independent and impartial trial may create problem in justice.
Life sentence shall be given for state offenses. Armed struggle or any other movement against political regime, threat to sovereignty and integrity and national interest etc are taken as offenses against the state with life sentence as punishment.
For the first time in the legal history, Nepal’s legal code has introduced a provision against genocide. Threatening the President and the Parliament is tantamount to treason and up to 25 years life sentence shall be lashed on the convicts of such offence.
Obstructing public office holders from doing their duty and disruption of public transportation, telecommunication and electricity has also been taken as a crime punishable with three years of jail term. Creating baseless rumors in the society is also a criminal offense with the punishment of up to one year jail sentence.
Disrespecting and violating the order of public authority is a crime and the convicts can be awarded up to one year jail sentence. Under this category summons, orders and other undertakings of a court of law must be respected by everybody. The code has also tried to make the public office holders abide by their oaths and promise. If any public office holder speaks against what he or she has pledged in his or her oath it will be a crime and may attract a fine of up to Rs 20,000.
Providing false information or evidence is also a crime deserving up to five years jail term. Prosecuting anyone with falsified charges will also be a crime and would bring a jail sentence of six months for those responsible for prosecuting anyone with ill intention.
Deliberately transmitting deadly diseases such as HIV and Hepatitis to others will be an offense against public health and morality and it can land you in jail for up to ten years.
Contamination of foods, adversely affecting environment by creating pollution or radiation or producing garbage may bring up to one year jail sentence. If anyone creates obstruction on roads, rivers or public places, they may be penalized with the fine of up to Rs 25,000. Eve-teasing of women in public places may bring a jail sentence of up to one year.
Involvement in sexual intercourse in public places or operating brothels have also been criminalized with a sentence of up to three years. This provision has been introduced in order to keep public morality. No one can show his or her private body part in the public place. This will be considered as a crime with three months of jail sentence.
Polygamy has also been strictly prohibited and those who practice it will be subjected to five years jail sentence. Interestingly, the code has proposed up to five years jail term for those who try to commit suicide or provoke others to commit suicide. Slaughtering cows or oxen has also been criminalized with a sentence of up to six months while cruel handling of birds may incur up to three months jail sentence.
The Muluki Civil Code has introduced a number of new provisions. Section 36 of the Individual Chapter says that every individual has the right to medical tests or to change one’s sex. Every individual has the right to gift his or her body for any particular use after death.
With or without formal ceremony, any individual can get married with any man or woman. If a child is born without marriage after sexual intercourse between a man and woman, such a couple will be recognized as husband and wife. In this particular case, the civil code has adopted popular Supreme Court verdict of 1995 in which it had legalized birth out of unmarried couples.
Good thing is that some of the provisions of the new civil and criminal codes are very progressive. What I worry about - will it be easy for Nepal to implement these provisions? In a number of matters, we may have to wait for the final and official interpretation of every provision from the court. We may have to hear a lot of contradictory and wrong interpretation in the days to come. Let’s wait and watch.