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Photo by: © Letizia Mariotti for the International Legal Foundation

Decriminalizing Poverty and Marginalization in Nepal: ending unjust fines and debtors' prisons

 

The Problem
Across Nepal, courts routinely impose fines as a punishment for petty misdemeanor offenses. Those who cannot pay are forced to "pay it off" in prison at a rate set by law, resulting in a debtors' prison for children from poor and marginalized communities. A 2021 survey conducted by Public Defender Society (PDS)-Nepal of 917 juveniles held in detention found that 440 of these juveniles were serving a sentence, and of those, 107 juveniles had fines imposed. Only eight of those juveniles had been able to pay their fines. Of those who weren’t able to pay, 76% were from historically marginalized communities and 61% were 16 or younger.

The Approach
COVID-19 lockdowns disproportionately impacted poor individuals from marginalized communities and those who couldn’t afford to stay home from work. PDS-Nepal sprang into action, advocating against these unjust and unsafe practices, focusing on juveniles. Through strategic litigation, PDS-Nepal secured a Supreme Court ruling allowing children to be resentenced to home confinement during COVID-19.

PDS-Nepal also launched a nationwide survey of every young person being held in juvenile detention centers. Armed with this data, the campaign intends to bring about systems change with Supreme Court litigation challenging the constitutionality of these laws, and advocating that the government repeal them.

The Impact

  • Conducted a survey of all children in detention, the first of its kind in Nepal.
  • Between March 2020 and December 2021, secured the release of 57 people from overcrowded detention centers, who are primarily poor and/or members of marginalized communities.
  • Secured a ruling from the Supreme Court allowing children sentenced to prison to be resentenced to home confinement.
  • Brought habeas corpus petitions on behalf of seven juveniles who were being detained in violation of Nepali law, and secured their release.
  • PDS-Nepal and the International Legal Foundation (ILF) litigated the issues of illegal detention of children under unjust laws, imposing fines without a hearing on ability to pay, and requiring their continued detention to the Supreme Court. The Supreme Court recognized the merit of the argument and invited PDS-Nepal to bring a case to the full Constitutional Bench.

The Future
PDS-Nepal lawyers and ILF are developing a Public Interest Litigation case challenging the constitutionality of fines keeping children in detention. They will engage in a policy reform campaign advocating that the Government repeal laws imposing fines on children. The ILF and PDS-Nepal will encourage stakeholders in other countries with similar laws to join.