Ordinances endorsed on Acid attack
With a significant rise in the number of cases of acid violence, President Bidhya Devi Bhandari has issued two ordinances, which has been published in Nepal Gazette on 28th September 2020, with an aim to control these offences and to impose a harsh punishment against the perpetrators. ‘Acid and Other Lethal Chemical Substances (Regulation) Ordinance, 2077’ and the ‘Ordinance to amend few acts relating to Criminal Offense and Criminal Procedure, 2077’ were issued concerning the control and regulation of production, export, import, storage, distribution, use and disposal of acid and other lethal chemical substances.
The aforementioned ordinances have the force and effect as the statutory laws unless dismissed by either one of the Houses of the Federal Parliament, or by the President. Upon promulgation, the ordinances shall be tabled at the session of both Houses of Federal Parliament after the promulgation and if both the Houses of Federal Parliament pass the ordinance, these ordinances will get the permanent status of statutory laws. However, in the event where the ordinances are not dismissed or tabled at the session of both Houses of Federal Parliament, these ordinances shall cease to be effective upon the expiration of 60 days from the date on which a meeting of both the Houses of Federal Parliament is held.
- Acid and Other Lethal Chemical Substance (Regulation) Ordinance, 2077
The long-awaited ordinance on Acid and Other Lethal Chemical Substances (Regulation) (hereinafter referred to as the ‘Acid Ordinance’) has defined ‘Acid’ as an inorganic acid which burns, corrosively damages or adversely affects parts of a human body, animals or any living or non-living things. It also includes nitric acid, sulphuric acid and hydrochloric acid and any other lethal chemical substances as prescribed by Nepal government by publishing notice in Nepal gazette.
The Acid Ordinance mandates a license to be acquired in order to produce, sell, import, export or distribute acids or any kind of lethal chemical substances to specific industries. In order to obtain the license, an application must be submitted to the concerned authority (Ministry of Home Affairs in case of production, import, export and Chief District Officer (hereinafter referred to as “CDO”) or Officer of District Administration Office specified by CDO in case of distribution) and the authorities shall issue the license as prescribed. Those industries which have not acquired the license prior to this ordinance should now acquire a license in 3 months after the enforcement of this ordinance. The license is subjected to renewal after 5 years.
In addition, the Acid Ordinance has envisaged following provisions:
- The sellers are restricted from selling such lethal substances to a minor (under the age of 18 years) and are required to keep the details of the buyers.
- The manufacturer is required to provide an informative logo and information about the particular chemical(s) or acid in the packaging, along with its purpose of use. For importing any chemicals or acid, a license must be obtained specifying its purpose along with the information of the exporter.
- The Ordinance also deals with the disposal of chemicals and acids, which if needed to be disposed of, without hampering the environment, birds and animals along with the human beings. So, to control all these activities related to the chemicals and acid, the Central Acid and other Lethal Chemical Substances Control Committee (Committee) is to be formed. The Committee may establish other committees as District Acid or other Lethal Chemical Substances Control Committee in each district for controlling the use and sale of acid and any other lethal chemical substances.
The Acid Ordinance has provisioned following punishment to the perpetrator along with the fines:
|1.||Producing, selling, distributing, importing or exporting of acid or other lethal chemical substances without license||50 thousand rupees to 1 lakh rupees fine and 3 months to 1 year of imprisonment|
|2.||In case of failing to mention informative message or sign of danger as precaution in the label||50 thousand rupees to 1lakh rupees or upto 3 months of imprisonment or both|
|In case of selling or free distribution of acids or any other lethal substances to a minor (under the age of 18 years) by the license holders.
If the seller, holding license, fails to keep the details of the buyers,
In case of failing to destroy acids or any lethal chemical substances as specified by ordinance
|10 thousand rupees to 40 thousand rupees as fine|
|If the license holders fails to meet the conditions prescribed by the ordinance at the time of production, storage, distribution and sale etc of acid and chemical substances||10 thousand rupees to 50 thousand rupees fine or one imprisonment upto one month or both|
In addition to the above mentioned compensation provisions, at the time of manufacturing, importing, exporting, storing, selling and distributing, disposal or if the terms and conditions as mentioned by the Acid Ordinance are not met resulting in an accidental harm and damages the body parts, life or property of someone, such injurer shall be fined and the amount of fine is compensated to the victim. And, in the event of the death of the victim, a reasonable amount of compensation is provisioned to the victim’s family.
Regarding the jurisdiction to adjudicate cases, the concerned custom offices shall have jurisdiction over the cases related to import and export of lethal and chemical substances. Regarding other offences except importing and exporting, such as producing, selling or distributing acids or any kind of lethal chemical substances without license among others, the concerned CDO shall have the jurisdiction. The person can appeal in the district court if he/she is not satisfied with the decision of such authorities. Additionally, Nepal government shall be a plaintiff to the case initiated against the perpetrator of an acid violence.
- Ordinance Amending Few Acts Relating to Criminal Offense and Criminal Procedure, 2077
This Ordinance Amending few Acts Relating to Criminal Offense and Criminal Procedure, 2077 (hereinafter referred to as the “Amending Ordinance”) introduces additional punishment against the perpetrators of acid attack by amending the existing legislation on acid violence. It has made several changes concerning the punishment to the offenders and compensation to the victims. Further, the law has made several provisions relating to the compulsory licensing to be obtained prior to any kind of acid-related dealings.
The Evidence Act, 2031 has also been amended by the Amending Ordinance. Hereby, the clause reading “if any person throws, sprays, pours or uses other means to bodily damage or makes to consume acid to other person, than the court shall assume that the person intentionally commits such act to kill or physically damage the other person” has been added to section 6 (i) of the Evidence Act, under the presumption by the court of law.
In addition to aforementioned laws, the Amending Ordinance has amended the Administration of Justice Act, 2073 as well. The ordinance adds the provision providing first priority to a case related to homicide or physical damage or bodily damage due to acid attack.
The Amending Ordinance makes an amendment to the Muluki Criminal Code, 2074 thereby restricting people or organizations to ask and take any kind of fund or conduct fundraising programmes, services, and other kinds of help through social media or other means with or without posting the photos in the name of helping the victims. Any one performing such a restricted act shall be imposed three months of imprisonment or five thousand rupees as fine. However, the help or facilitation provided by the Government of Nepal, Federal Government or the local level or by any social organization, or any help sought by the victim or her/his family member(s) from anyone willing to help on their own, shall not be considered as a criminal offence. Similarly, as per the amendment, in deciding the case by the court, reasonable compensation shall be calculated and provided to the victim considering the damage incurred by the victim be it physical or mental. Also, if any Nepali citizen commits an offence related to the physical or bodily damage caused by the use of acid against any Nepalese citizen outside Nepal, then such person committing the offence shall be punished as per the Muluki Criminal Code, 2074 as if such offence has been committed within Nepal.
The Amending Ordinance has provisioned following punishment to the perpetrator along with the fines which are to be provided to the victim in the form of compensation. Taking into account the severity of the crimes, the following offences are categorized under the non-bailable offences.
|1.||Attack with harmful chemicals or acid (cause damage in eyes, ears, nose, face, breasts(woman/girl), private parts||20 years of imprisonment and a fine of rupees 10 lakhs|
|2.||Causing blindness in one eye, deafness in one ear, causing damage to one breast of a woman/girl, damage to a part of head, back, limbs||15 to 20 years of imprisonment and a fine ranging from rupees 7 lakhs to 10 lakhs.|
|3.||Causing injuries to other parts of the body||7 to 10 years of imprisonment and a fine ranging from rupees 5 lakhs to 7 lakhs.|
|4.||Death of the victim within a year of such attack||Life imprisonment|
|5.||Any person attempts to throw, spray, pour or use other means to bodily damage to another person or make to consume acid to another person||5 to 7 years of imprisonment and a fine ranging from rupees 1 lakh to 3 lakhs|
All amounts received as fine as per S.N. 1, 2 and 3 above shall be provided to the victim as compensation.
Amending the Muluki Criminal Procedure Code, 2074, the Amending Ordinance has restricted the withdrawal of cases related to the physical or bodily damage caused by the use of acid. Likewise, the punishment of the offender who committed the offence of homicide, physical or bodily damage caused by the use of acid cannot be deducted, changed, adjourned or the offender cannot be granted pardon.
The Amending Ordinance has also amended various provisions of the Criminal Offense (Punishment Determination and Implementation) Act, 2074. As per the amendment, the punishment should be determined on the basis of physical and mental damage incurred due to the damage made on the body by the use of acid. The ordinance has restricted the suspension of imprisonment (except offence committed by a child) of the offender who has committed homicide or caused bodily damage by the use of acid and other lethal chemicals. Similarly, the person who has been punished in the offence of homicide or caused bodily damage by the use of acid and other lethal chemical cannot be kept in parole. Likewise, the imprisonment of such offenders cannot be deducted.
These groundbreaking ordinances surely spell the major steps taken by the government and concerned law makers in regard to acid violence. Ensuring a stricter punishment to the perpetrator and a better compensation scheme to the victims, with better precautionary concerns, these ordinances create a better regulatory mechanism in controlling acid violence. These laws not only provision the duties of the manufacturer, seller, and/or distributor, but enunciate the duties vested to the Government of Nepal in ensuring social and economic justice to the victims of acid violence.