11 Oct 2017
10 min read
1396 words
From the Archive (Jul, 2016): VMAG talks to District Court Judge Tek Narayan Kunwar, who pioneered the implementation of the Nepali anti-trafficking law

District Court Judge Tek Narayan Kunwar pioneered the implementation of the Nepali anti-trafficking law while maintaining a victim-centered approach. He has been at the forefront of the efforts in Nepal to counter human trafficking by fully implementing the Human Trafficking and Transportation Control Act of 2007, while upholding the rights of victims. For his efforts, he was given the 2014 Trafficking in Persons (TIP) Report Hero Award by the US Department of State. M&S VMAG’s Alok Thapa talked to Judge Kunwar about his work. Excerpts:

How is trafficking defined today?

Previously in Nepal, human trafficking was chiefly associated with the commercial sexual exploitation of women who were taken to brothels in India.  However, its dimension has changed over time. Today, it encompasses forced migrant labour, sexual slavery and other emerging trends such as fake marriages and organ trafficking. Whether these things happen internally or across the border, trafficking is now acknowledged as a problem that affects women, children and even men.

How have you gone about combating trafficking?

When I was stationed in the District Court in Makwanpur, I realised that individuals seeking or wanting to seek judicial redressal for crimes that affected them had to wait for a long time, for up to five years, before their case would be brought to court. So I initiated a Fast Track Court System to decrease the length of time that survivors had to wait. We also allowed survivors to choose a court date, and ensured that hearings proceeded continually until a case was decided. I have also been vocal about the state’s responsibility in compensating the victim, as it was the state’s inability to protect its citizens that led to this state of affairs. I also made efforts to raise awareness about the fact that human trafficking is prevalent in foreign employment as well.

Providing rehabilitation and compensation are two areas that need to be addressed. Why do you think the state needs to get involved with these issues?

In most cases, the traffickers themselves come from poor economic backgrounds and are unable to pay the full fine, so I ruled that the Government of Nepal’s Rehabilitation Fund should come up with half of the fine. This was done not only to safeguard the victim’s right to ‘adequate compensation’, but also to ensure that the state channeled funds in a proper manner, as they were rarely used for providing compensation for trafficking victims. See, by the time the convicted trafficker who was sentenced to many years in jail comes out, there is a chance that the victim (may not) be around to receive the compensation. There is a crucial need to provide immediate compensation and relief to the victim. Today, the Supreme Court has ordered all the courts to adopt this process. In summary, the state has initiated and implemented various laws to combat trafficking, and the judiciary has also interpreted them stringently.

Tell us something about your victim-centered approach.

Victims who come forth and tell their story and testify as a witness are key to effective human trafficking investigations and prosecutions. When you encounter a potential victim, it is important to remember that the victim may not be comfortable working with law enforcement; he or she needs to feel stable, safe and secure. A victim-centered approach to investigation and prosecution is essential for identifying, assisting and protecting trafficking victims. As the victims or witnesses start engaging with the public prosecutors, it is important to empower them and provide them with victim-friendly spaces from which, if they so wish, they can interact with the court.

How do you combat trafficking holistically?

The protection of victim goes beyond generic aspects like providing shelter or livelihood; a successful reintegration can only start when there’s a change in the victim from victimhood to personhood. The rehab process should focus on identifying the survivors as persons, and help them regain their dignity and identity. When it comes to prevention, it is not always enough to punish the offender. Many a time, the root cause is only seen from the victim’s angle, while that of the offender is overlooked. Some of the major factors leading to human trafficking are economic vulnerabilities, aspirations (for example the victims’ wanting to get a job abroad) and social vulnerabilities like discrimination against caste, class and gender. We might not be able to completely stamp out the causes leading to such crimes, but we can at least try to change the realities that lead to trafficking.

How do you go about creating an environment that will promote the attitude needed to implement the new strategy?

To be honest, it is very tough. A lot of factors come into play—such as limited resources, lack of awareness in people (about helping law enforcement) and lack of trained human resources; also our government employees are still stuck in the old ways. The main problem is that we don’t have proper planning, and there’s a lack of vision to properly implement plans. Of course, a judge or a registrar can’t do anything alone; for a change to occur, the whole judiciary system should be united. This can’t be achieved without proper training and motivation and without inspiring every individual within the system. This is the reason that we have started the Man or Woman of the Month award at our court. I’m a firm believer in practicing the ‘thank you’ culture; we have to appreciate the hard work of every individual. The process is all about changing our perspective, and seeing things differently than we currently do. Until and unless a judicial official takes his or her job seriously and honestly, you cannot bring about any positive changes in society.

Do you also mentor young lawyers?

Yes, I do. The new generation is educated, and most importantly, they have new ideas; but they do lack experience and practical knowledge. It’s very important to encourage them. Usually, when the fresh lawyers come to court, they complain that the judges are partial to senior lawyers. This shouldn’t be the case, and I make sure it doesn’t happen in my court. Everybody should get an equal opportunity. As in any profession, young lawyers should be studious and spend as much time as possible on developing their knowledge and skills. The kids these days are bright and employ a more systematic approach in their work. They need to be encouraged to keep doing so and be provided with proper guidance. I do enjoy being a mentor to a variety of people, especially young lawyer’s clerks, with whom you develop very close relationships.

How has the TIP Hero Award impacted the judiciary system?

For my efforts in implementing the victim-centered approach, the Fast Track Court System, providing compensation for the victim and pushing for severe sentences for traffickers, I was recognised with TIP Hero 2014, which I received from the US Secretary of State John F Kerry. Of course, this has been a big boost to my morale, but more importantly, it has also gone on to promote awareness about trafficking in general. If you examine the recent decisions on human trafficking cases from different courts, you’ll find that there have been severe punishments handed down to traffickers on multiple accounts, which was unheard of before. The lasting impact of this has been the implementation of continuous hearing, which has resulted in the closure of cases within a month, as opposed to years. Trafficking is a gross violation of human rights and freedoms and is a threat to individuals and state security.