NEPAL: Plan to withdraw criminal cases against rule of law

NEPAL: Plan to withdraw criminal cases is a serious blow to the rule of law

The Asian Human Rights Commission (AHRC) wishes to express its concern regarding the Attorney General of Nepal's recent announcement that the government is preparing to go ahead with its plan to withdraw cases filed against members of the Maoist and Madesh movements.

This announcement comes in the wake of an agreement signed between the Maoist party and the United Democratic Madhesi Front prior to the election of Baburam Bhattarai as the Prime Minister of Nepal in which both parties have agreed to withdraw cases pending against those involved in the Maoist party, the Madhesi, Janajati, Tharuhat, Dalit, and Pichadabarga movements.

Voices from all sides of the human rights community, including from the national human rights organisations and individual activists, the OHCHR, the NHRC and foreign diplomats, have recalled that provision of amnesty for human rights violations would be contrary to Nepal's human rights obligations, promote impunity in the country and violate the victims' fundamental right to a legal remedy. The AHRC notes with appreciation that in response the Prime Minister sought to give assurance that his office would only seek to withdraw political cases without touching upon criminal or human rights cases.

Nevertheless, the Attorney General's declaration that it will seek to withdraw the case for which Maoist Constituent Assembly member Balkrishna Dhungel was convicted of murder casts doubts about the commitment not to touch upon criminal cases in the withdrawal process. Balkrishna Dhungel was convicted of the 1998 murder of Ujjawan Kumar Shrestha, a shopkeeper from Okhaldhunga, by the District Court of Okhaldhunga and sentenced to life imprisonment and confiscation of his property. On September 2010, the Supreme Court found that commitments to the Truth and Reconciliation Commission did not supersede the criminal justice system authority to judge this case and upheld the life sentence. Nevertheless, Dhungel remained a member of the Constituent Assembly and remained free, although the Supreme Court found in June 2011 that there were no obstacles to his arrest.

The Attorney General was quoted as saying "We ask national and international human rights watchdogs to abide by provisions incorporated in the CPA" Indeed, the CPA contains provisions to withdraw cases who were obviously politically motivated, but it also incorporates several provisions in which the parties committed not to condone impunity. Both parties have stated "that necessary investigation will be undertaken against any individual involved in violating the rights mentioned in the agreement and action will be taken against ones that are found guilty. Both parties also ascertain that they will not protect impunity and along with it, the rights of the people affected by the conflict and torture and the families of the people who have been disappeared will be safeguarded." (Article 7.1.3).

Abiding by the letter and spirit of the CPA therefore entails acknowledging that the CPA endorsed accountability and justice as essential components to the peace process and rigorously limited withdrawal of cases to those of a strictly political nature. In so far as the government plan includes reconsidering convictions of murder upheld by the Supreme Court, there are serious concerns that the withdrawal will not be restricted to political cases and extend amnesty to criminal cases, possibly pertaining to human rights cases. Amnesty for human rights violations such as rape, extrajudicial killings, torture or enforced disappearances would constitute per se a violation of international human rights law, as the State is mandated to provide victims of human rights violations with an effective remedy and hence to ensure that criminal proceedings are made available when human rights violations have occurred.

Ujjawan Kumar Shrestha's case is illustrative of what is problematic in the government decision to withdraw criminal charges. If the case was to be reconsidered, it would be a grave denial of the rights of the victim's family to a legal remedy after having had to wait for 12 years and facing innumerable obstacles to see the murderer of their relative convicted. Now a governmental decision could turn back the court verdict and officially authorize the convict to remain scot free, effectively dismantling their right to justice. That situation could concern many more families as newspapers report that hundreds of applications to withdraw cases have already been filed to the Home Ministry. This decision would come and topple the long list of irremovable obstacles that those families face to access justice and contribute to entrench more deeply the impunity which benefits the perpetrators.

Moreover, the government's questioning of decisions rendered by the highest judicial authority raises concerns on the reality of the independence of the judiciary, a fundamental principle inscribed in the 2007 Interim Constitution. Judging which cases are politically motivated and which cases are indeed criminal cases, in other words judging the veracity of the nature of the accusations brought against an individual, is not a governmental prerogative but falls within the authority of the courts of justice. By intervening in that equation, the government is altering the principles of the separation of the judiciary and executive powers, a founding principle to the notion of rule of law and democracy itself. It denies the law of its role as a shield against abuses of power.

The argument that that case should be withdrawn and reviewed by the yet-to-be-established Truth and Reconciliation Commission is flawed and with no legal basis, as was repeatedly found by the Supreme Court. As per international best practices, the TRC does not have a vocation to supersede or overlook decisions taken by the criminal justice system but should limit itself to play a complementary role to help the truth to emerge and to smoothen the reconciliation process. On the contrary, its role is not to reopen the scars of society or to further debilitate the regular justice system by overruling judicial decisions already made.

In its address to the journalists, the Attorney General referred to previous waves of cases withdrawals since Nepal first established democracy in 1990. Indeed, since the end of the conflict in particular, governments have repeatedly withdrawn cases pertaining to that era, including criminal cases, causing long-term damages to the country's rule of law and criminal justice system and eroding public confidence in the State. Prime Minister Baburam Battharai has been elected on commitments to complete the peace and constitution drafting process. Upholding the rule of law framework has been long recognized as one of the major task which would determine the outcome of that double-process and the government is therefore expected to devote more energy to strengthen it than to shield its supporters from prosecutions.

In light of the above, the AHRC therefore urges the government to make sure any withdrawal of cases will be done according to the procedures stated in the law and in conformity with the Supreme Court jurisprudence and guidelines and that it will be subjected to permission from the concerned District Court concerned. Cases amounting to human rights violations such as torture, extrajudicial killings, rape and enforced disappearance cannot be withdrawn under any circumstances. In addition, those commitments must be coupled with guarantees that all the human rights cases filed will be thoroughly investigated, that the perpetrators will be prosecuted and that all court orders will be duly implemented as promptly as possible.

The responsibility is now incumbent upon the new government to decide on which track it will put Nepal's peace process, a decision which will be significant to shape the future of Nepal. The peace process can remain on the track of impunity, instability and insecurity or it can be built upon concerns for the rights of the victims, accountability, rule of law and justice. Experience has shown that the latter proves the longest-lasting.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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