By Purushottam P. Khatri

Kathmandu, Jan. 27: Mutual Legal Assistance (MLA) protocol in criminal matters signed between Nepal and China government is a foundation to exchange criminal records, collect proofs and establish criminal connection of individuals or groups of both the nations, security experts and government officials said.
“Prior to signing of this protocol, both the nations were facing legal hassles to share criminal records and information of the international suspects who usually stay abroad and do harm to their home country,” joint-secretary and spokesperson Dhanraj Gnyawali at Ministry of Law, Justice and Parliamentary Affairs said while talking to The Rising Nepal Sunday.
According to Gnyawali, the protocol signed during the visit of Chinese President Xi Jinping to Kathmandu on October 13, 2019, is now at the House of Representatives registered on January 17, 2020, and has been made available to all the lawmakers for their notice and accessibility.
Gnyawali said that the protocol didn’t need to be endorsed by the House as it was just presented to the House for a notice and accessibility of the draft of the protocol. The protocol was prepared and signed making no difference to the country’s separate Mutual Legal Assistance Act of 2014, claimed Gnyawali.
Following the agreement in the protocol, it will basically ease out the recurring problem that surfaces between Nepal and China government when criminal individuals or groups get arrested in Nepal.
In absence of this protocol, Nepal and the Chinese government, especially the security bodies, were facing problem in managing and collecting proofs, communication and formal documents that help to identify and locate criminal gangs active in both the countries, said Gnyawali.
Home Secretary Prem Kumar Rai also said that MLA protocol was not concentrated in bringing or exchanging criminals but it was about bringing and sharing criminal records and the proofs associated with specific cases.
Meanwhile, former Deputy Inspector General of Nepal Police Hemanta Malla Thakuri, who had studied the protocol’s provisions, shared that not much problem was seen in the protocol as it would be supportive to both the countries.
“The protocol has, however, left confusion somewhere among the stakeholders when it is about citizens of the third country beyond Chinese citizens,” Malla said.
He said that the protocol had not spoken clearly and concisely about case that involved third country’s citizen who committed a crime against China staying in Nepal. He also suggested that the protocol should not be understood or taken as extradition treaty signed between Nepal and China.
Malla said that the protocol would also be helpful in curbing inter-country criminal activities and conducting crime investigation in support of security officials of both the nations. “Such protocol can be reached between one or more countries, so Nepal can sign similar type of protocol with another nation as well,” Malla said.
What is in the Protocol?
According to Article 1 (Scope of Application) of the protocol, both the parties (Nepal and China), shall provide widest possible measures of mutual legal assistance in criminal investigations, prosecutions and judicial proceedings in criminal matters. Such assistance shall include: serving documents of criminal proceedings; taking testimonies or statements from persons; providing documents, records and articles of evidence; locating and identifying persons; conducting inspections or examinations; making persons available for giving evidence or assisting in investigations; transferring persons in custody for giving evidence or assisting in investigations; conducting inquiry, searches, freezing and seizures; assistance relating to proceeds from criminal activities and instruments of crime; notifying results of criminal proceedings and supplying criminal records; exchanging information on law; and any other forms of assistance which is not contrary to the laws of the Requested Party.
Furthermore, it mentions that the provision of this protocol shall deny any private person any right to obtain, suppress, or exclude any evidence, or to impede the execution of a request and shall not apply to the arrest or detention of any person with a view to the extradition of that person; the transfer of persons in custody to serve sentences; the transfer of proceedings in criminal matters; the enforcement in the Requested Party of judgments in criminal matters passed in the Requesting Party, except to the extent permitted by the law of the Requested Party.
Similarly, Article 3, with a provision of mandatory grounds for refusal of assistance, shall not be provided if the request relates to an offence punishable by imprisonment for less than one year under the law of the Requested Party; providing of mutual legal assistance causes adverse effect to the sovereignty, security or public order of the Requested Party.
Article 4 with Optional Grounds for Refusal of Assistance says that the Requested Party may refuse to provide assistance if one of the following circumstances arises: (a) the request relates to conduct which would not constitute an offence under the laws of the Requested Party; (b) the Requested

Party considers that the request relates to a political offence, except for offences as defined in the respective national laws or under any international convention to which both States are parties; (c) the request relates to an offence which only constitutes a military offence.
Likewise, Article 8 under confidentiality and limitation on use of the protocols says that the Requested Party shall keep confidential a request, including its contents, supporting documents and any action taken in accordance with the request, if so requested by the Requesting Party. The Requesting Party shall keep confidential the information and evidence provided by the Requested Party, if so requested by the Requested Party, or shall use such information or evidence only under the terms and conditions specified by the Requested Party. The Requesting Party shall not use or transfer any information or evidence obtained under this Treaty for any purpose other than for the case stated in the request without the prior consent of the Requested Party.
The protocol has altogether 25 Articles.