In Nepal, the weaknesses of the legal system have been exposed after the criminals who were pardoned by the President committed serious crimes like murder again.
What you should know
Incident 1On the occasion of Constitution Day, 34-year-old Suresh Kumal of Nawalpur Gaindakotak was one of the 72 people who received amnesty from the then President Bidya Devi Bhandari on 3 October 2079 on the recommendation of the Council of Ministers. On October 11, 2069, he was sentenced to life imprisonment for the murder of his grandmother and aunt, and received amnesty from the President on the basis of 'good conduct' on the recommendation of the Ministry of Home Affairs.
But within a month and a half of missing, Suresh killed Jeevan Nepali of Chitwan Madi on 11 October 2079. Suresh and Jeevan, who became friends after meeting while in jail, have been working together since they left. Suresh killed his life when there was a fight between them.
Incident 2
Sujan of Butwal was sentenced to 16 years in prison for murdering Koiralaledaju. On the recommendation of the Council of Ministers, after serving 9 years of imprisonment, he also got the remainder of his imprisonment on the occasion of Constitution Day on October 3, 2078, on the recommendation of the Council of Ministers. But he killed his ex-wife and 2 daughters last May, not even completing four years of separation.
Incident 3
Ramnath Das of Mahottari got amnesty from President Bhandari on 15th June 2079 on the basis of the same 'good conduct' on Republic Day after serving seven years in prison for the crime of murder. Even his 'good behavior' claimed by the government did not last for many days. Within two months of leaving, he killed his own uncle, 60-year-old Ramnath Das.
Incident 4
Lokendra Bahadur Wik returned to his village after receiving amnesty from President Ramchandra Paudel on Constitution Day two years ago. 33-year-old Lokendra of Rukum Paschim Saniveri-9 was jailed for seven months on charges of polygamy. On the recommendation of the Council of Ministers, the President granted amnesty to him on the basis of good conduct. On 1 October 2080, on the twenty-fifth day of his escape, he killed 28-year-old Bhavna Vick of Musikot Municipality-7 Sakh. Bhavna, who was closely related, used to visit Lokendra even when he was in jail. Her husband was abroad.
The culprits of these four incidents are now in prison after being found guilty again. Although their life stories are different, they all have a common background - a pardon from the President on the recommendation of the government with claims of 'good conduct'. After the pardon, they were released and even after being released, they committed a heinous crime like murder and are currently in prison again.
Among the characters of these incidents, there are also criminals of 'murder', which are included in the list of 11 types of crimes that cannot be granted amnesty under the law, so the pardon given by the president was unconstitutional, and the recommendation made by the government that it was a 'good practice' based on access was proven false by their criminal activities.
Although there is a negative list in Article 159 of the Criminal Procedure Code, which states that people convicted of heinous crimes cannot be pardoned, crime cases have increased again in the society when the President illegally pardoned prison sentences on the recommendation of the government over the Republic and Constitution Day.
While this fact is confirming that there is a need for further reform and tightening in the system of amnesty, the government is preparing to introduce a new legal system by removing the 'negative list' of 11 types of crimes/misdemeanors that cannot be amnestied. The government is trying to make a law so that people who have been imprisoned by any level of court for any crime can be given amnesty if they want.
"Bringing in a law that grants amnesty to do whatever one wants is not only against international treaties and agreements and its recognition, it is also against the principle guaranteed by our own constitution," says constitutionalist Bhimarjan Acharya, "This state runs under the constitution and the rule of law, it cannot be done according to what the two parties and their leaders want, such a law cannot be made." Acharya says that even though it is a South Asian country, it cannot create a law that deviates from the principle that the law should be used equally and the right of the victims to get justice. Based on the ratification of the same human rights treaties, 32 fundamental rights have been placed in the Constitution of Nepal. This includes the right of crime victims to justice. He commented that since the victim has the right to get justice just as the perpetrator has the right to a fair trial, bringing a law to violate it is not only a violation of international treaties and agreements but also of our own constitution.
"As the accused has the right to get all the facilities of trial, if he is found guilty by all three levels of courts, he must pay the prison sentence, because to punish the guilty is to give justice to the victim and every citizen has the right to get justice," says Acharya, "it is not possible to make a law to nullify it." "Giving amnesty is not to reverse the court's decision by using the president, but if the evidence of wrongdoing is found later, even if the decision is made by the three levels, the right to pardon is used to prevent injustice to the imprisoned," says constitutionalist Bipin Adhikari, "Giving amnesty to those convicted of heinous crimes in an arbitrary manner is wrong from the point of view of both international and national law. Corruption, rape, murder and Officials say that granting amnesty to those guilty of heinous crimes such as human trafficking violates international human rights law, international criminal law and principles of jurisprudence.
The provision of amnesty in the draft of the proposed bill will violate various international treaties and agreements signed by Nepal. The United Nations Convention against Corruption states that people involved in the crime of corruption must be prosecuted and punished. Nepal is a party to it. Freeing the perpetrators of corruption would be a violation of this treaty. Similarly, the Palermo Protocol against Human Trafficking has made a mandatory provision to ensure punishment for the perpetrators of human trafficking and justice for the victims. Removal of the negative list will result in termination of this arrangement.
The UN International Covenant on Civil and Political Rights provides victims with the right to justice and effective remedies. Amnesty for crimes such as rape, kidnapping and murder deprives victims of their right to justice, which is contrary to Article 2(3) of the Convention. Likewise, the Geneva Conventions and the Rome Statute clearly stipulate that those involved in war crimes and crimes against humanity (such as murder, rape, torture) should be prosecuted. According to the official's analysis, granting amnesty to such crimes is a violation of international customary law and principles of justice.
The Supreme Court ruled in 2072 that amnesty cannot be granted to people involved in serious human rights violations (murders, rapes, disappearances) during the Maoist conflict. This judgment was based on principles of international human rights law and victim-oriented justice. The proposed law seems to violate both this judgment of the Supreme Court and Nepal's international obligations.
"If the amnesty law is passed in violation of the national and international order, Nepal's international reputation will suffer," says Senior Advocate Acharya, "The move to grant amnesty to such crimes not only weakens the victim's right to justice but also weakens the rule of law and the principle of accountability." It has been mentioned that The proposed draft seems to violate this law as well.
