Nepal-India Sign Mutual Legal Assistance Treaty on Criminal Matters

Kathmandu. An agreement between Nepal and India is currently under discussion in the parliament for ratification. On Tuesday, Minister of Law, Justice and Parliamentary Affairs Sobita Gautam presented the 'Mutual Legal Assistance Treaty on Criminal Matters' signed with India for discussion in the parliament. Once passed by the House of Representatives, the agreement will come into implementation. The government had registered this agreement in the House of Representatives for ratification on April 14. The agreement was signed between the two countries on February 5. On behalf of the Government of Nepal, Joint Secretary of the Ministry of Law, Justice and Parliamentary Affairs Binod Kumar Bhattarai and on behalf of the Government of India, Indian Ambassador to Nepal Naveen Srivastava signed this agreement. Article 279 of the Constitution of Nepal stipulates that treaties on serious matters such as peace and friendship, security, borders, and sharing of natural resources must be ratified by a two-thirds majority of the parliament, and other general agreements by a simple majority. In accordance with this provision, this agreement has been presented in the parliament. In India, such agreements are implemented directly, so ratification is not required.

What are the provisions of the agreement?

The main objective of this agreement is to provide maximum cooperation to each other in criminal investigation, prosecution, and judicial proceedings, as stated in the agreement. The agreement includes matters ranging from collecting statements and evidence to exchanging banking information.

1. Collection of Statements and Evidence: This agreement opens a legal path for gathering evidence related to crimes, taking statements from witnesses or victims, and exchanging documents.

2. Use of Technology: Clause 12 of the agreement provides for the use of video conferencing technology for the examination of witnesses or experts. This will allow experts or witnesses present in each other's country to appear via video conference. The government has stated that this will reduce geographical distance and security challenges.

3. Freezing of Proceeds of Crime: To prevent the hiding of assets in one country derived from criminal activities in another, the agreement states that both countries will cooperate in the process of identifying, freezing, and confiscating assets acquired through crime or instruments used in crime.

4. Prevention of Terrorist Financing: Clause 14 of the agreement specifically emphasizes the investigation and confiscation of funds collected or used for terrorist activities.

5. Joint Investigation: The provision in clause 18 of the agreement allows for the formation of a 'Joint Investigation Team' to work on specific cases with the consent of both countries.

6. Access to Banking Information: During investigations, provisions have been made to exchange details of bank accounts and financial transactions of suspicious individuals.

The agreement is broader than an extradition treaty

Many people associate this with an extradition treaty, but the scope of this agreement is broader than that, according to former Law Minister and criminal law expert Govinda Bandi. 'An extradition treaty only covers the transfer of absconding fugitives who have committed a crime in one country and are hiding in another. But this agreement covers the entire process of legal assistance,' Bandi says, 'It includes matters such as evidence collection, witness statements, authentication of documents, and management of assets acquired from crime, which are not included in extradition.' According to him, this agreement helps bring not only criminals but also evidence and financial structures related to crime under the legal framework. Nepal has already signed a similar mutual legal assistance treaty with China, making this agreement with India a balanced step for Nepal's foreign policy and legal security.

What will be the impact?

Former Nepali Ambassador to India, Shankar Sharma, considers this agreement a milestone in reducing cross-border crime. 'Cooperation has been ongoing between the security agencies of Nepal and India,' Sharma says, 'but without an agreement, it was only informal. Now this path will be legally open, which is a positive step.' Due to the lack of an agreement, there was a compulsion to publicly announce that individuals arrested in India were apprehended at the border or airport. Now this process appears to be formal and transparent. In addition, it will formalize the exchange of other legal and technical assistance. Experts say that this will greatly help in controlling serious crimes such as human trafficking, drug smuggling, and counterfeit currency. This agreement does not include matters of political and military crimes. Clause 5 of the agreement gives both countries the right to refuse assistance in cases of political crimes or 'military crimes'.

Why the delay in the agreement?

Efforts to sign this agreement have been ongoing for a long time. However, it has been delayed for various reasons. Former minister Bandi recalls that he expedited this process when he was a minister. The border dispute between Nepal and India, the issue of reviewing the 1950 treaty, and internal political instability have caused this to be overlooked. As there is no ideological opposition from the opposition parties to this agreement, there is a possibility of the agreement being ratified smoothly. Earlier, in 2078 BS, the Millennium Challenge Corporation (MCC) agreement was ratified by the parliament, which was quite controversial. The BIMSTEC Charter was ratified in late 2080 BS. Now the legal assistance agreement is being ratified.