Creative Litigation is Protecting Vulnerable Communities Amidst COVID-19

By Holly Hobart, Senior Program Director  with the ILF &  Ajay Shankar Jha Rupesh, Executive Director of PDS-Nepal

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Ajay pictured arguing in front of the Supreme Court. The hearing was broadcast due to restricted room capacity.

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Five years ago, the earthquake that devastated Nepal exposed the injustices faced by poor and vulnerable detainees trapped in overcrowded, unsafe, and unsanitary detention facilities. Today, the situation has only worsened and is compounded by a new threat: COVID-19.

High-level justice officials in Nepal have voiced support for reducing jail populations and have taken some steps to prevent a COVID-19 breakout in prisons, understanding that jail and prison conditions create an environment ripe for infection. However, most of Nepal’s justice system has not taken the health crisis seriously. This week saw Nepal’s largest increase yet in positive COVID-19 results, yet, many police, prosecutors, and courts have not implemented the guidance issued by the Attorney General urging wide-scale release of detainees.

This pandemic is unprecedented and defending human rights requires a creative legal approach. The Public Defender Society of Nepal (PDS-Nepal) in coordination with the International Legal Foundation (the ILF), are doing just that. We are taking the fight to the Supreme Court...and winning. As a result, we’re laying the groundwork to protect vulnerable communities in times of crisis.

Preventing Illegal Detention

We successfully challenged the suspension of remand hearings and resulting illegal pretrial detention.

On March 25, 2020, the Supreme Court of Nepal announced the suspension of remand hearings, which must take place within 24 hours of arrest and bail hearings. They also announced a suspension of speedy trial rights which generally require the prosecution to file charges within 25 days of arrest. On March 29, 2020, we filed a writ of habeas corpus with the Supreme Court on behalf of our client who, as a result of the remand hearing suspension, was detained longer than allowed by Nepali law without a hearing or filing of charges. The petition rested on the non-derogable right to liberty and right to a hearing on any extension of detention. On April 9, 2020, The Supreme Court granted the writ and released our client. The next day, the Supreme Court lifted its suspension on remand hearings and is allowing defendants to immediately appeal any orders of detention by the trial courts.

Getting Children Out of Detention

We won a ruling that children who have been convicted and sentenced to a juvenile detention center have the right to request resentencing to home confinement.

On March 23, 2020, a petition for resentencing to home confinement was filed on behalf of a convicted juvenile. On March 26, it was denied by the District Court of Kailali. On April 17, 2020, we filed a writ of habeas corpus to the Supreme Court. We argued that children’s rights to life, liberty, and special protection under the law were being violated, and that already convicted children were being denied the right to equal access to justice as judges were only agreeing to sentence children whose cases were still pending to home confinement. On April 26, 2020, the Supreme Court granted the writ and released our client to his parents, finding that the District Court’s decision was contrary to the best interests of the child. The Supreme Court reminded the justice sector that “it shall be the responsibility of everyone to instantly help children whose lives are at risk.” ​​

While the decision paves the way for more children to be released from detention during the pandemic, release is not automatic. Individual petitions will still need to be filed. We have shared this decision widely on lawyer networks and with juvenile correction centers across the country so that other legal practitioners can cite the case to build stronger arguments for the release of children.

Curbing Police Abuse

Shortly after a strict stay-at-home order was announced in Nepal, instances of police using violence and abuse to enforce lockdown measures began to surface. Our strategic litigation and advocacy led the government to establish a watch group to monitor and prevent the abuse of citizens in lockdown.

On April 20, 2020, legal representatives from the PDS- Nepal, THRD Alliance, and Advocacy Forum jointly filed a writ petition to multiple government offices including the office of the Prime Minister, the Ministry of Health and Population, and the Human Rights Unit of Nepal. The petition shared examples of the police brutality against essential workers and people leaving their homes for food and medicine. It clarified that the stay-at-home order from the High-level COVID-19 Prevention and Control committee included exceptions for people leaving their homes for essential work and needs. In particular, the petition highlighted Article 22 of Nepal’s constitution which stipulates that people in custody shall not be subjected to physical and mental torture, or cruel, inhuman, and degrading treatment and called for the creation of an effective mechanism to ensure that nobody is subjected to such treatment.

On April 23, 2020, during the hearing for interim order at the Supreme Court, it was raised that the Nepal Human Rights Commission’s (NHRC) was not effectively monitoring Human Rights violations during lockdown. The Supreme Court, in their interim order, called on each agency and officials to respect human rights. Following the order, NHRC circulated letters across the country to formulate a watch group. The group is now actively monitoring and preventing further abuse.

Especially in times of crisis, we must be vigilant against threats to our most vulnerable communities. With persistence and creative legal approaches, we can help ensure vulnerable people are released from jail and that government actions do not infringe on the rights and safety of citizens.

If you are an advocate or legal aid provider and have questions about the strategies discussed here, please contact us at info@theilf.org or info@pds-n.org