ALTERNATIVE MARKETS FOR
LEGAL IDENTITY:
A Cost Benefit Analysis



P
           ublic demand for legal identity      by ex...
In addition to the highly informal          may also be referred to as a “letter of
         substitutes, various formal a...
ties. However, a variety of other quasi-        mandatory retirement ages, and to serious,
official alternative documents ...
districts bordering India. Indian citizens
                                                                               ...
“grease” or “speed” money, to bypass                 For those seeking fraudulent docu-
official procedures and get faster...
fake supporting documents.6 This tactic,       country using the same passport and visa.
         which requires the invol...
uniform nor transparent. However, the
research discovered anecdotal evidence of
price information based on interviewing
kn...
in Phnom Penh were well informed of              from Tk80,000–125,000. Additionally, like
         the alternative market...
officials. In response to sus-
pected offenses, the CIAA may
take two types of action: It
may file charges in special
cour...
crime. As a result, few cases are reported.      discovered that the local registrar was
         Interestingly, those cas...
external brokers. In a recent case, the
     The Bhaktapur DAO issued 78 pass-
     ports without duly verifying the authe...
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Transcript of "A Cost Benefit Analysis"

  1. 1. ALTERNATIVE MARKETS FOR LEGAL IDENTITY: A Cost Benefit Analysis P ublic demand for legal identity by examining available alternatives. These depends on a rational calcula- alternatives, which vary in terms of tion that compares the per- legality, include legitimate substitutes as ceived benefits of obtaining well as documents obtained through identity documents to the perceived costs alternative or “black” markets. involved in the registration process. In deciding whether or not to register, people ask themselves the following Legitimate Substitutes questions: A wide range of substitutes for legal What do I get out of registering? (Or identity documents may be accepted in what are the repercussions of not practice, depending on the intended registering?) purpose. Legitimate alternatives to identity What does registration cost? documents vary in their degree of formal- Is there an alternative that is cheaper ity. For example, in the rural areas of or involves less hassle? Bangladesh and Cambodia, government officials, who are personally acquainted In answering these questions, individu- with members of the local community, als generally rely on a subjective analysis, are frequently lenient in interpreting based on the cumulative impact of their identity requirements, and their own perceptions, impressions, and experiences. familiarity with a particular family be- If the costs outweigh the benefits, indi- comes a highly informal legitimate substi- viduals will naturally be disinclined to tute for birth certificates or other identity register. If the benefits outweigh the costs, documents. In Bangladesh, local govern- registration documents will be desirable. ment officials report that they often However, if less expensive, more acces- estimate an applicant’s age if no formal sible, and equally effective substitutes are proof is available. In many cases, in the available, many will opt for alternatives. absence of a birth certificate, a sworn The first two of the questions listed declaration provided by the individual in above are explored in the preceding question or a relative or neighbor may be chapters, which provide a detailed analysis sufficient for many purposes, such as of the benefits and costs of registering. enrolling in school or obtaining social This chapter focuses on the third question, welfare benefits. LEGAL IDENTITY FOR INCLUSIVE DEVELOPMENT 61
  2. 2. In addition to the highly informal may also be referred to as a “letter of substitutes, various formal and quasi- certification” or a “certificate of national- formal alternatives may also be accepted. ity and character.” Among the three countries, Cambodia Despite the lack of consistency, this stands out for its flexible approach to semi-formal form of legal identity is establishing proof of identity. Cambodia’s commonly used, and is often essential various identity documents are generally when seeking employment. No support- interchangeable for most purposes. If a ing documentation is required, though a birth certificate is not available, often a local ward member must vouch for the family book, lodging book, or NIC will applicant. These semi-formal documents do. generally feature the same minimal per- In Bangladesh, in addition to official sonal information, including the applicant’s citizenship certificates, which are governed name, parents’ names, village of residence, by the Citizenship Act of 1951, a second and post office, while birth dates are not type of semiformal citizenship attestation included. More importantly, however, is regularly issued by various levels of these certificates testify that the bearer is government authorities, from city corpo- of good character, has not been involved rations and mayors down to the lowest in any anti-state activities, and that he or level rural officials. Despite serious effort, she is a permanent citizen of Bangladesh this research could not identify any legal (though one city corporation attests only authority governing the provision of these to permanent residency). These certificates documents, which may explain the are usually provided free of charge, inconsistency in the procedures for although bribes are common. obtaining them. They are also referred to In Nepal, citizenship certificates are in different ways: Aside from being called strictly required to access many of the a “citizenship certificate,” this document most important benefits and opportuni- 62 ALTERNATIVE MARKETS FOR LEGAL IDENTITY
  3. 3. ties. However, a variety of other quasi- mandatory retirement ages, and to serious, official alternative documents are some- violent crimes such as human trafficking. times accepted for limited purposes. One Some applicants face difficulties in alternative that is widely used, particularly obtaining identity documents due to in areas that have been hit hard by the exclusionary laws and practices, such as insurgency, is a letter of recommendation discriminatory treatment or overly bur- from a VDC or municipality. These letters densome requirements for supporting are sometimes, though not consistently, documentation. These applicants may accepted in place of migration certificates resort to alternative markets because they or for school admissions. Other alternative cannot access the official system to obtain documents sometimes accepted in practice identity documents, even if they are legally include hospital cards, affidavits, and entitled to do so. family records. Traditional Hindu religious While the alternative market provides documents, which are prepared by a local relief to applicants that cannot obtain priest, may also serve to establish age since identity documents these documents note the astrological from the official A focus group participant in Nepal re- indicators of birth. system for one ported that she had a child as the result reason or other, the of incestuous rape. After the child was high fees it charges born, she decided to leave the country Alternative Markets may render alterna- to avoid the ensuing stigmatization. The tive markets out of local registrar refused to register the The existence of alternative markets is reach for vulnerable child’s birth, however, because the ap- perhaps the truest gauge of both public populations. plication did not attach a copy of the father’s citizenship certificate. The case demand for legal identity and the barriers Despite prices went up to the ministry level, but the to obtaining it. The market price signifies higher than those authorities refused to issue the child a the value of the document, in terms of for an official passport without a birth certificate. As a the benefits and opportunities it confers, document, docu- result, the mother was compelled to turn as well as the degree to which the official ments procured to the alternative market, where she system fails to deliver efficient services. through alternative managed to get a birth certificate for Thus, the emergence of a thriving alterna- markets are in high NRs 6,000.1 tive market reflects the costs and benefits demand, even of identity documents. among those who can obtain bona fide documentation. The processes associated REASONS FOR ENTERING ALTERNA- with obtaining official legal identity TIVE MARKETS documents can be discriminatory, inconsis- tent, lengthy, unpleasant, confusing, and The most common reasons applicants inaccessible. In contrast, alternative mar- enter the alternative market are: (1) the kets offer relative efficiency and accessibil- applicant is eligible in principle, but ity. Those seeking documents through excluded from the official system; (2) the alternative markets can count on receiving alternative market provides more efficient them in less time, with less hassle. service; (3) the applicant is ineligible to In other cases, the alternative market receive an official document; or (4) the provides services to prospective applicants applicant needs a false document to who are ineligible to receive the document facilitate illicit activities. The third and in question. The ultimate goal of such fourth categories capture a graduated scale applicants is often to obtain documents of culpability and deceit in terms of the that are necessary to earn a living. In intended use of falsified documents— Nepal, for example, the bulk of alterna- from illegal migration, to working beyond tive market activity occurs in the terai LEGAL IDENTITY FOR INCLUSIVE DEVELOPMENT 63
  4. 4. districts bordering India. Indian citizens One researcher in Bangladesh recounts often turn to the alternative market to the story of a man applying for a visa to obtain Nepalese identity documents so visit a country notoriously strict about that they can conduct business and pur- issuing visas. The gentleman became chase property in Nepal. It is unclear to so exasperated by the embassy’s de- what extent the insurgency has curtailed mands to submit various documents, this interest. including a birth certificate, that he pro- Tibetan refugees also access Nepal’s duced both his birth and his own death alternative market for citizenship docu- certificate to demonstrate the futility of relying on such documents.4 ments and passports and use these docu- ments to obtain work overseas. Interest- ingly, it is perceived that officials are generally more inclined to provide fraudu- for example, fraudulent and counterfeit lent or question- documents are used to facilitate crimes, able legal identity such as fleeing the country to escape An official interviewed at the Commis- documents to prosecution and human trafficking. sion for the Investigation of Abuse of Tibetans than to Similarly, in Cambodia and Nepal, traffick- Authority, Nepal’s anticorruption watch- dog agency, shared that it took him 3 Indians. Since ers often use false marriage certificates as a days to register the transfer of a piece Tibetans tend to pretense to entice and transport victims. of land simply because everyone in the leave the country, land revenue office was aware of his whereas Indians MODES OF OPERATION position and did not dare suggest that remain and he go through the alternative market. compete for The modes of operation of alternative Had he done so, his documentation limited business markets reflect the creativity and entrepre- would have been processed within a opportunities, neurial spirit of those involved. Through single day.2 providing falsified collaborative working relationships, sound documents to incentive structures, and well-organized Tibetans is viewed as having a less harmful procedures, the alternative markets are socioeconomic impact on local Nepali able to deliver fast and efficient services. communities.3 Key players in the alternative markets are Other applicants enter the market for middle persons or “fixers,” who work false documents with more devious together with corrupt bureaucrats and/or intentions, ranging from manipulating the criminal rings of counterfeiters to produce system of public benefits to engaging in illicit identity documentation for a large criminal activities. In some instances, and diverse clientele. The falsification of applicants seek falsified identity documents documents that are difficult to replicate to take advantage of various benefits that (e.g. passports and driving licenses) is are otherwise mutually exclusive. For more likely to involve public officials. The example, multiple identity documents research gained some insights into how noting differing ages may allow an these alternative markets operate within individual to collect retirement or old age the three countries by examining reported allowances, while at the same time con- cases and interviewing a range of partici- tinue to work beyond the mandatory pants, including middle persons, govern- retirement age. False identity documents ment officials, and clients. may also facilitate international travel. Alternative markets provide a range Researchers in all three countries also of services, depending on the client’s noted the potential connections between particular situation and needs. The most false documents and serious, violent basic service offered simply involves crimes against the person. In Bangladesh, paying a bribe, commonly known as 64 ALTERNATIVE MARKETS FOR LEGAL IDENTITY
  5. 5. “grease” or “speed” money, to bypass For those seeking fraudulent docu- official procedures and get faster docu- ments, the alternative market consists of ment delivery. Applicants may pay govern- several major modes of supply: (1) ment bureaucrats directly. However, in producing genuine documents based on many cases, officials prefer to work false information or supporting documen- together with mediators or “fixers.” Even tation, (2) obtaining and manipulating though they take a percentage of the preexisting documents, and (3) outright bribe, mediators screen applicants and counterfeiting. provide a useful buffer that can serve to A common mode of falsification reduce risk. involves obtaining bona fide identity In Bangladesh, those seeking to have documents on the basis of false informa- false identity documents commonly avail tion. Mediators can facilitate this process of the services of middle persons, or by ensuring that officials required to sign dalal. According to a dalal who was off turn a blind eye and have sufficient interviewed, an efficient system has incentive to do so. Providing false infor- developed where applicants pay an mation in an additional fee to avoid the hassle of going application form is The most basic service through the official procedures, particu- fairly straightfor- larly for procuring passports. The dalal ward, but produc- offered simply involves paying pays the relevant issuing officer, who in ing supporting a bribe, commonly known as turn pays the special branch of the police documentation may for the required verification. Such verifica- be required to “grease” or “speed” money, to tion is generally issued regardless of minimize the risk of bypass official procedures and whether the information provided is detection. correct or not. While the dalal spoke In Nepal, get faster document delivery. disparagingly about fraudulent passports falsified supporting documentation is and lamented the country’s widespread sometimes generated by manipulating corruption, it seemed he considered his judicial or translation service procedures. own enterprise to be perfectly legitimate. An applicant may file a claim in court, In Nepal, mediators, who can be which identifies a third party as possessing found in the vicinity of relevant govern- a certain status or relationship. The official ment offices, regularly approach prospec- court documents are then used as proof tive applicants to offer assistance in of the false status or relationship.6 Oppor- obtaining their desired documents. The tunities to obtain falsified supporting district administrative office (DAO), land documentation also exist in the translation revenues offices, transport management processes of Nepal’s LBMB. This scheme offices, and Law Books Management involves submitting false papers to the Board (LBMB) are among the more LBMB for translation, and then obtaining notorious examples of agencies where a certified translation to use as an original getting things done through a commission document. The LBMB is not equipped to agent or broker has become standard check this abuse because it lacks any means practice. A Committee for the Investiga- or procedures to ascertain the veracity of tion of Abuse of Authority (CIAA) documents submitted. official interviewed explained that even Another common practice in Nepal when the middle persons have to resort to that facilitates the issuance of false docu- official formalities, these channels provide ments, while reducing the risk of detec- efficient service and the client is not tion, involves removing the complete file required to do anything except pay the or record of an identity document that price and wait for the result.5 was issued based on false information or LEGAL IDENTITY FOR INCLUSIVE DEVELOPMENT 65
  6. 6. fake supporting documents.6 This tactic, country using the same passport and visa. which requires the involvement of public After arriving in the United Kingdom, the officials, is facilitated by poor record- genuine passport holder sent the passport keeping practices. In a case investigated by back to Nepal, where the photograph was the CIAA, the production of the official changed and the immigration seal was record behind the issuance of a citizenship distorted. certificate was ordered. The concerned Outright counterfeiting of documents DAO responded that the official record is another frequent method of falsifica- pertaining to the questionable citizenship tion. Inadequate security features, like the certificate could not be found, although a lack of serial numbers on Nepal’s citizen- search was under way. The CIAA’s only ship certificate holograms, make counter- recourse was to direct the Ministry of feiting fairly easy. In Bangladesh, however, Home Affairs to be more vigilant in the introduction of modern technology, maintaining records in a secure manner.7 such as machine-readable passports, is A second method of falsification is to making it increasingly difficult to produce alter or manipulate preexisting official counterfeits of the more heavily regulated documents. According to the dalal inter- documents. viewed in Bangladesh, criminal syndicates provide what is known as gola kata (or COST STRUCTURES FOR COMMONLY cut-neck) passports. These forgeries rely FALSIFIED DOCUMENTS on replacing the original passport holder’s photograph with the purchaser’s. Such The alternative market for identity docu- passports often contain unexpired visas, ments is a reflection of supply and and are bought and sold in the black demand. Both the pervasiveness and the market. price of fraudulent identity documents Similar tactics are also used in Nepal. vary, depending on the document in- In the case of HMG v. Som Bahadur Junjali volved. The research suggests that coun- and others, the CIAA found that a tries with robust alternative markets are passport with a visa to the United King- those where: (1) obtaining identity docu- dom, which had been used by the original ments takes a long time; (2) offices in holder, was purchased and manipulated so charge of providing identity documents that the purchaser could also enter the impose burdensome evidentiary require- ments as preconditions to releasing these documents; and (3) identity documents are In 2004, the Cambodian authorities widely recognized to facilitate access to busted a major criminal ring that pro- more opportunities and benefits. Com- duced counterfeit and forged civil regis- mon examples of documents that meet tration documents. Among the evidence these criteria are passports, academic confiscated were computer equipment, certificates, and driving licenses. The cost scanners, and thousands of fake docu- of false documents generally depends on ments. In over 2 years of operation, this group provided at least 30 foreigners the urgency and means of the service with illegal Cambodian passports and seeker, the nature of the document, and citizenship documents. The group also the risks associated with the specific type issued several land titles and business of document falsification. Rates tend to licenses, which were fabricated with be higher if the document yields signifi- such precision that court officials re- cant benefits or if obtaining it entails ported that the forgeries were indistin- considerable risks.9 Due to the illicit nature guishable from the actual documents of the business, prices charged even for through an eye examination alone.8 the same document tend to be neither 66 ALTERNATIVE MARKETS FOR LEGAL IDENTITY
  7. 7. uniform nor transparent. However, the research discovered anecdotal evidence of price information based on interviewing knowledgeable informants and reviewing reported cases and relevant news items. Based on the analysis of the benefits and costs of legal identity, it is not surpris- ing that among the three countries in this study, Nepal has the most robust alterna- tive market for identity documents. Identity documents, particularly citizenship certificates, are strictly required in Nepal to access a wide range of advantages—from land ownership to employment opportu- nities. At the same time, they are difficult to obtain. Together, these incentives and identity documents are often involved.14 In obstacles to procuring official legal identity HMG v. Binod Kumar Sharma, a senior documents combine to create a thriving public officer and others were charged alternative market. Nepal’s alternative with corruption for seeking bribes of markets for falsified identity documents NRs22,000 from each of 15 people in are estimated to generate millions of exchange for fake citizenship, passports, rupees. and migration certificates.15 In Nepal, the cost of false birth Compared to Nepal, Cambodia falls registration reportedly ranges from in-kind on the opposite end of the spectrum in gifts, such as alcohol and goats, to cash terms of public demand for identity payments of up to NRs10,000.10 Pass- documents. Since by and large the ports and letters of recommendation for country’s various identity documents are citizenship are both significantly more interchangeable, citizens can generally expensive and more likely to be falsified, access the few available benefits and though their prices vary greatly. On the opportunities, provided they have at least high end, the accused in one case investi- one form of identity. The Government’s gated by the CIAA claimed that he paid flexible approach of permitting the use of over $6,000 for a falsified passport with a identity documents interchangeably visa to the United Kingdom. In a case diminishes the incentive to obtain identity filed at the Supreme Court, a foreigner documents, which in turn reduces the married and residing in Nepal paid only demand needed to fuel a thriving alterna- $200 for a falsified passport.11 Another tive market. Among the FGD participants, Supreme Court case, which involved staff only one reported any direct experience of the Nepalese Embassy in New Delhi, with alternative markets for identity reported that fees of $900 were charged documents. FGD participants could not for the processing of falsified passports.12 provide information on the cost of these Reported cases on fake citizenship falsified documents. documents also reveal a wide disparity in The majority of Cambodia’s alterna- prices charged; service recipients paid fees tive market activity is concentrated in ranging from NRs4,000–60,000. In one passports. This is not surprising since this is case, for example, the accused paid the one document for which substitutes NRs6,000 for a local authority’s recom- are not acceptable. While FGD partici- mendation for citizenship.13 Cases re- pants outside of Phnom Penh were barely ported by the CIAA indicate that multiple aware of the concept of a passport, those LEGAL IDENTITY FOR INCLUSIVE DEVELOPMENT 67
  8. 8. in Phnom Penh were well informed of from Tk80,000–125,000. Additionally, like the alternative market for faster delivery Cambodia, Bangladesh has a well-devel- of official passports. This service, which oped market for the delivery of official unofficial agents with connections to passports through unofficial mediators or passport staff facilitate, appears to have a agents. For example, the official fee for an standardized, transparent scale of gradu- urgent new passport is Tk5,000. However, ated prices, depending on the purchaser’s an applicant can avoid the hassle of the desired time frame. Passports are deliv- official procedures by paying a dalal ered in 1 month for a fee of $120, in 3 Tk6,500, of which Tk700 or Tk800 is weeks for $150, in 2 weeks for $170, in 1 reportedly paid to the officer, who then week for $200, and in 3 days for $250. allegedly pays a share to the police official. In Bangladesh, there does not seem to be an active market for fraudulent birth certificates since alternatives are so readily Challenges in Preventing Alter- accepted. It can be expected, however, native Market Activities: Nepal that this will change as soon as birth Case Study registration becomes a mandatory precon- dition for accessing benefits and opportu- The research in Nepal included a thorough nities under the 2004 Registration Act. review of ongoing and reported cases Increasing technological sophistication involving false identity documents. It and anti-fraud measures make passport provides a picture of the challenges faced counterfeiting quite difficult, and has led to in government efforts to curb alternative an apparent decrease in this activity. market activities. However, false passports appear to Nepal has a range of legal provisions remain available through illegal manpower that criminalize the creation, provision, agents, offering package deals which sale, and use of fraudulent identity docu- include passports, visas, and employment ments. Various authorities are responsible abroad. Packages to Saudi Arabia, for for initiating legal action against fraudulent example, are offered for prices ranging activities involving identity documents. Most cases of fraud involving private individuals are subject to prosecution A market for Cambodian passports also appears to have emerged since the Min- through normal legal channels under the istry of Interior started issuing standard State Cases Act of 1992. Other laws, such Kingdom of Cambodia passports in Au- as the Citizenship Act, the Passport Act, gust 1995. It appears that the clients of and the Country Code, criminalize the this market are primarily foreigners. Ac- creation, provision, and use of false cording to media reports, a Cambodian documents under their purview. The passport, which officially costs $100, Registration Act of 1977, for instance, can go for as much as $2,000. This is gives DAOs the power to bring charges easy money for Cambodians, who can replace a passport without great diffi- against fraudulent acts in vital registrations. culty by reporting the old one lost or sto- The DAO is subject to the procedures of len. Westerns appear to be doing the the Special Court Act of 2002 and its same thing, but with a much greater re- decisions may be appealed at the con- ward, as the going rate for an American cerned appellate court.16 passport is $25,000. Other anecdotal Also relevant is the Prevention of evidence from news reports indicates Corruption Act, which established the that forgery rings charge foreigners up CIAA. The CIAA has jurisdiction over to $40,000 for Cambodian citizenship and passports. cases of fraudulent identity documents involving corruption among public 68 ALTERNATIVE MARKETS FOR LEGAL IDENTITY
  9. 9. officials. In response to sus- pected offenses, the CIAA may take two types of action: It may file charges in special courts where the fraud is willful, or it may refer the matter to the relevant ministry where it is negligent. Despite adequate laws, however, the likelihood of detection, prosecution, and conviction for participating in Nepal’s alternative markets is low. This is especially so for the falsification of civil registration documents. The number of cases filed under the Birth, Death, and Other Personal Events (Registration) Act is strikingly low. Not a single case of fraudu- the production, sale, and use of forged lent birth registration could be found with documents are the ease of falsification and the DAOs in four of the five districts where forgery, the low rate of convictions, and this research was conducted.17 Among the light penalties imposed. Some of the three reported cases on vital registration filed challenges in trying to stem the tide of with the DAO of Kathmandu, two in- false document registration include a lack volved birth registration and one marriage of systematic record keeping; unsophisti- registration. Moreover, only a single case on cated investigation techniques; a dearth of vital registration could be found in all of human resources; and the mutually Supreme Court jurisprudence.18 beneficial web of relationships among A significantly higher number of politicians, bureaucrats, and black market fraudulent identity cases related to citizen- document brokers. The low conviction ship certificates and passports could be rate is not only a matter of incapacity, but found. These cases generally involve the also one of political will. On several illegal acquisition of documents by means occasions, the CIAA has directed the of providing inaccurate information in the government to take administrative action application form; submitting false recom- against violators of registration regulations mendations, falsified supporting docu- to no avail. Informers do not often step mentation, or fraudulent signatures; using forward in forgery/false document cases. false names; or producing counterfeit seals. In any event, the punishments imposed are The CIAA has recently investigated and generally quite low. prosecuted a number of cases, though their overall success ratio remains low. LOW REPORTING Despite the fact that the CIAA has established a special investigation unit on Procuring false modes of legal identity citizenship, passport, and vehicle registra- through the alternative markets is a tion, the trade in fraudulent identity mutually beneficial transaction between the documents remains a high-profit, low-risk buyer and seller that produces seemingly business. According to key informants few negative externalities. It is, therefore, interviewed, major factors that perpetuate generally considered to be a victimless LEGAL IDENTITY FOR INCLUSIVE DEVELOPMENT 69
  10. 10. crime. As a result, few cases are reported. discovered that the local registrar was Interestingly, those cases that are reported working in conjunction with other govern- are frequently due to internal family ment officials, including a section officer disputes over property. Since citizenship is of the home ministry, to produce and sell required to own property in Nepal, fake birth certificates to Tibetan refugees. invalidating the grounds for an individual’s The CIAA only ordered departmental citizenship is an effective strategy to action against those found guilty.20 In prevent one from receiving a share of another case, the CIAA discovered that family property. Out of the 21 Supreme the accused had purchased and manipu- Court citizenship cases reviewed, 12 lated a passport with a visa to the United involved people who reported their Kingdom. The penalty imposed in this neighbors or relatives for allegedly provid- case was cancellation of the passport and ing false information regarding lineal a warning to the immigration officials for descent in their citizenship applications, their negligence.21 thus effectively depriving them of their Often cases involving false documents right to own or inherit property. are treated with outright impunity. For example, in 1999 the CIAA ordered the LOW PENALTIES AND IMPUNITY Government to take action against a local official of Siraha district for illegally Further undermining deterrence are the providing citizenship and passports. But as light punishments imposed for participat- of 2004, nothing had been done. Similarly, ing in the production and sale of fake in 1997 the CIAA decided to take action identity documents. For example, the against a government official in Chitwan, penalty for altering a document issued by but this has not been done to date. a government agency is imprisonment from 3 months to 2 years, a fine of up to BURDENSOME PROCEDURES AND NRs50,000, or both.19 Similarly, the HIGH STANDARDS OF PROOF TO destruction of a government document is ESTABLISH CORRUPTION punishable by imprisonment from 6 months to 1 year, a fine of NRs10,000– Filing charges in fake document cases 50,000, or both. This provision, however, involves lengthy and burdensome proce- is only applicable in corruption cases dures, including verification of the docu- involving public officials. The forgery of ments and an inquiry with the concerned government documents, not involving agency. These cases are also frequently corrupt public officials, is subject to 1 year delayed due to the nonavailability of imprisonment. Additional penalties, records. Officials involved often destroy including fines and increased prison time, the original registration records to obstruct may be imposed, depending on the investigations. Further undermining the specific characteristics of the offense. The risk of punishment is the high standard of punishment for acquiring or trying to proof needed to establish corruption. acquire a passport by providing false What constitutes sufficient evidence of information is imprisonment of up to 1 corruption is not clear, but the following year, a fine up to NRs500, or both. anecdotes illustrate that the bar is high. Even when harsh sentences are permissible, they are rarely imposed. In INVOLVEMENT OF ORGANIZED CRIME one case, the CIAA raided the residence SYNDICATES of a local registrar, where they recovered counterfeit government seals, registers, and This CIAA has found that the market for birth registration forms. Investigators fraudulent identity documents is highly 70 ALTERNATIVE MARKETS FOR LEGAL IDENTITY
  11. 11. external brokers. In a recent case, the The Bhaktapur DAO issued 78 pass- ports without duly verifying the authen- CIAA discovered that an organized ticity of the supporting documents. The network, which included brokers, media- CIAA later found that this was not a case tors, and a range of public officials, issued of negligence; the registrars involved falsified passports based on fake citizen- willfully failed in their duty to conduct ship and migration certificates. It was due diligence. Yet the CIAA could not established that 15 fraudulent passports prove that an exchange of money oc- were sold to residents of Darjeeling, curred, resulting in an acquittal.22 India. The CIAA initiated an investigation and prosecuted the case at the Special An assistant level employee, who was Court, but failed to convict the defendants the custodian of 28 passports “lost” in due to inadequate evidence of bribery. the process of distribution, admitted to The case illustrates how the alternative selling the passports for NRs70,000. markets operate through organized crime Despite this confession, the court found that the prosecution lacked sufficient syndicates, which makes it difficult to evidence of guilt, and dismissed the pinpoint the actual persons responsible case.23 and the exact modes of operation. Moreover, since those involved include organized, based on well-established, insiders, they are able to use sophisticated mutually beneficial relationships among means to obstruct law enforcement varying levels of government officials and efforts and protect one another. ENDNOTES 13 1 The affected person recounted her story during HMG v. Shila Shah Teli et al. (Ongoing case at a focused group discussion (FGD) held in Supreme Court of Nepal). 14 Kathmandu, September 2005. Interview with CIAA key informant and 2 Interview with a key informant working with review of CIAA case file and Annual Report the Committee for the Investigation of Abuse (2001–2004). 15 of Authority (CIAA), September 2005. HMG v. Binod Kumar Sharma, 2003(CIAA 3 Interview with a key informant working with 14th Annual Report, 2060, pp. 13–15). 16 the CIAA and DAO, Kathmandu, September Birth, Death and others Personal Events 2005. (Registration) Act (Nepal), sec. 15(1), (1977). 17 4 Shahnaz Huda, researcher in Bangladesh. No cases on birth registration were found in 5 Interview with the chief of the Special Team Nawal Parashi, Dang, Dadeldhura, and Dolka. 18 on Fake Certificates and False Citizenship and This case is related to death registration. 19 Passports in the CIAA, 22 November 2005. Prevention of Corruption Act (Nepal), sec. 11, 6 Raj Kumar Shaha vs. HMG Nepal, NKP, vol. (2003). 20 7, at 403–406, (1998). CIAA Annual Report for FY 2003/04, pp. 7 CIAA Annual Report, Fiscal Year 2002–20-03. 63–64. 21 8 2004. The Cambodia Daily. 9, September. HMG v. Som Bahadur Junjali. 22 9 Note 5. Interview with the concerned investigation 10 FGDs and interviews with key informants. officer of the CIAA, 20 November 2005. 23 11 Supreme Court (Nepal), writ No. 71, decision Note 22. No. 6212. 12 Supreme Court (Nepal), writ No. 57, decision No. 4463, (1991). LEGAL IDENTITY FOR INCLUSIVE DEVELOPMENT 71

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