One of the latest achievements of the criminal justice system is the acceptance of repentance, serf-reformation, and reconciliation, drifting from the classical concept of strict punishment as a measure against crime. The concept of providing amnesty emerged in the past as a means to correct any error in the judgment of courts, is now practiced as a reformative justice system. Accordingly, the Constitution of Nepal provides the President with the power to grant pardons, suspend, commute or remit any sentence passed by any Court, judicial or quasi-judicial body, in accordance with the law. Similar practices have been observed in several countries. However, the power conferred by the constitution is being misused by the government resulting in state-sponsored impunity, thereby threatening the rule of law.
In Nepal, every year on special occasions like Democracy Day, Republic Day, Dashain, the President on the recommendation of the government grants pardon, suspend, commute or remit sentences of prisoners. This year too, on the occasion of Democracy Day, on February 19th, the President, Rt. Hon. Ms. Bidya Devi Bhandari granted pardon to 595 individuals. Among them, 15 were such people who didn’t meet the criteria prescribed by law.
While the power of granting pardon has its roots in reformative justice, the same power has a vulnerability of being misused for several reasons, which calls for limiting those powers explicitly by the legislations, which has also been affirmed by the Nepalese constitution. Accordingly, the power of the president to grant pardon is subject to the Criminal Offense (Sentencing and Executing) Act, 2017 and Criminal Offense (Prison Term Remit) Regulation, 2019. The Sentencing Act has provided three criteria for suspending the sentence of a convict i.e. firstly, there must be an improvement in the conducts of prisoners, secondly, he/she must have bared three fourth of their sentence, and lastly, should not have been punished for offenses like rape, an offense punishable by life imprisonment, corruption, human trafficking and transport, abduction, etc. Also, the regulation issued by the Cabinet has prohibited granting pardon for crime of polygamy and to those whose sentence, fine, or compensation is due.
Despite the clear legal provisions, the President has ascended to remit the sentences of culprits, who didn’t even spend a single day in jail. For instance, as reported by The Nayapatrika Daily, Ashok Yadav, and Upendra Yadav, residents of Sarlahi District, didn’t spend even a single day in prison. Along with him, Surendra Yadav and Vilas Yadav, who were in prison for the same crime, received a pardon. In addition to them, Som Lal Chaudhary, Kushal Ram Chaudhary, Hari Prasad Chaudhary, and Sher Chaudhary, convicted for murder, received pardon without spending a single day in prison, though the law requires three fourth of their sentences to be bared. In the case of Dilip Kumar Sah, who is a province assembly member from the ruling CPN (UML), the sentence on the charge of polygamy was also remitted without spending a single day in prison. The government amended the regulation to remit his sentence.
The act of granting pardon, commute, or remit punishment is a reformative approach to the criminal justice system. It has been well established that a punitive approach is not enough to deal with crime in society. Prisons should be a reformation center, where a culprit can be changed into a responsible citizen, who can contribute to the development of society and nation. In principle, amnesty is granted when the culprits repent for their wrong deed and have improved their conduct, and when the administration is convinced that society has no longer a threat from them. Therefore, those who defy the court orders shouldn’t be entitled to his benefit. Philosophically, it has a direct nexus with the principle of separation of powers, as it narrows down the judiciary power unnecessarily.
The remittance of sentences of these prisoners shows that the government has breached the existing law to favor few people. It is also a clear misuse of presidential power by the government. President under the constitution is a titular head of state, whose functions are performed either by recommendation of the council of the minister or as provided by federal law. The use of presidential power to grant amnesty to such culprits is against the fundamental principles and norm of constitutionalism, which thrives to end impunity.
In Nepal, the government has been using its political power to pardon such convicts. The pardon of CPN (Maoist) leader Bal Krishna Dhungel is a prominent example. Dhungel was sentenced to 12 years in prison, by the Supreme Court, for the murder of Ujaan Shrestha, in 2016 during armed conflict. Despite the judgment of the apex court, he was living a free life and became a member of the constituent assembly, minister of government, etc. Later in 2012, the government of Babu Ram Bhattarai recommended his name for pardon from the president. The Supreme Court intervened by stating that pardon can only be granted to those who have submitted themselves to the jurisdiction of the court and have shown some respect. Court held that the power to remit sentence cannot be exercised for those who haven’t spent even a single day in prison. He was finally arrested and sent when a contempt case was filed against Nepal Police for disobeying the judgment, by not arresting Dhungel. But within one year, his sentence was remitted by the president on the recommendation of the government.
These arbitrary uses of presidential power to meet the political interest ultimately hamper the dignity of the court and the rule of law of the nation. It also boosts confidence in culprits against impunity, while, demotivates the general public’s faith in the criminal justice system, ultimately raising the threat of insecurity. Further, it also defeats the objective of the reformative justice system which aims to reform a culprit.
Due to the abuse of such power, the culprits are now moving freely in society. There is unequal treatment between citizens in society. The common Nepalese citizens are subject to painstaking punishment, while the one with political influence and power nexus receives special immunity from it. If not refrained, this selective application of laws will loosen the faith of the public in the rule of law and justice system, pushing the nation into more chaos and injustice.
Courts are supposed to ensure justice with their decisions. The execution of such judgments is the duty of the government. This form of denial and delay by the government in the execution of judgments raises concern about the finality of its judgment and its independence. State with its criminal justice system has a responsibility to maintain peace, order, and security in the nation, however, the way the state itself is using constitutional power, in a political way, to favor their close one’s is raising the threat of state-sponsored impunity in Nepal.
It is also evident from the fact that while the Nepalese laws have well recognized the concept of parole, probation, and other reformative approaches to reform the country’s criminal justice system, instead of prioritizing its implementations, the government is proactively using amnesty as a tool to fulfill its mala fide interests.
Suraj Ray is a law student at Nepal Law Campus, Tribhuwan University, Nepal.
Suggested citation: Suraj Ray, A State-Sponsored Impunity: The Case of Nepal, JURIST – Student Commentary, April 5, 2020, https://www.jurist.org/commentary/2021/04/suraj-ray-impunity-nepal/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
