On Asar 6, 2042, at around 1:30 pm, a bomb exploded at the entrance of the gallery meeting room of the National Panchayat Building inside Singha Durbar. The main accused in that incident was Ramraja Prasad Singh, a famous politician against the Panchayat system.

About two months later, on Bhadra 3, 2042, the then Panchayat government published the ‘Subversive Crimes (Special Control and Punishment) Act, 2042’ in the Gazette. This Act was not only for controlling future crimes. Its Section 11, Sub-section 2, provided that this Act would also apply to incidents that occurred before the promulgation of the Act.

‘The legal proceedings and punishment to be taken in relation to any subversive crime that occurred before the commencement of this Act, but for which a case has not been filed in a court under the then prevailing Nepal law, shall be deemed to be in accordance with this Act,’ the Act stated.

Historical records show that the purpose of this act was not only to prosecute the accused in the bombings. According to a study published by researcher Mary Des Chen in 1998, the Subversive Crimes Act of 2042 was not used only to prosecute the accused in the ‘Singh Durbar Bombings’. Thousands of people were arrested across the country using the act and the Public Safety Act. Based on the same act, the government formed a special court by publishing a notice in the

gazette on 27 Bhadra, 2042. The hearing was held in the special court based on the same law brought after the incident. The special court sentenced Ram Raja Prasad Singh and others to death and some others to life imprisonment. However, the government side, demanding the death penalty even for those sentenced to life imprisonment, appealed to the Supreme Court to overturn the decision of the special court to some extent. The bench of Justices Surendra Prasad Singh, Prithvi Bahadur Singh and Mahesh Ram Bhakta Mathema upheld the decision of the special court on 24 Jestha 2045  . And, it also explained that retrospective laws can be brought . That is, it explained that a law made later can punish a crime committed before the law was enacted to fulfill the purpose of the constitution. For that, the bench based the Constitution of Nepal on 2019 . 

The law, which was brought after the 2042 BS bomb blast, remained in force until the restoration of the multi-party system . This act was repealed only after the restoration of the multi-party political system with a constitutional monarchy after the 2046 BS people's movement . When the government repealed 21 different acts and regulations through the ‘Act to Repeal Certain Nepal Laws, 2047’ published in the Gazette on 28 Asad 2047, the ‘Subversive Offences (Special Control and Punishment) Act, 2042’ was also included in the list of repeals. About a year later, on 11 Asad 2048, Ramraja Prasad Singh and other people convicted in the case also received a general amnesty

 . Now, after four decades, the debate on retrospective law has surfaced again. Recently, the National Human Rights Commission has recommended the government to enact a ‘retrospective law’ to take action against the then Prime Minister KP Sharma Oli, Home Minister Ramesh Lekhak and Prithvi Subba Gurung on charges of being involved in the suppression of the Gen-G movement.

The commission’s recommendation has raised a serious constitutional question – which law did Oli, Lekhak and Gurung violate? What was the crime? And why is the current legal system not enough? The Commission has not given a clear answer to these questions. The Human Rights Commission's recommendation states that 'Since there is no provision in any law currently in force to punish them for human rights violations, retrospective laws can be made for crimes against humanity and human rights.' (Advocate Madhav Basnet v. Government of Nepal, N.K.P. 2072, Issue 9, N.No. 9051)

The Supreme Court has already formulated the principle in the case, so it seems necessary to make a new law to take action and punish them.'

The Commission has suggested the government to form a separate special court for this, to make a provision for a maximum punishment of 6 months imprisonment or a fine of up to 300,000 rupees or both, to prohibit them from contesting elections for at least 6 years, to ban them from administrative responsibilities for at least 3 years and to ban them from traveling abroad for at least 3 years.

After the experience of that retrospective law of 2042, the democratic constitutions of Nepal have gradually prohibited such practices. Article 14 of the Constitution of the Kingdom of Nepal, 2047 clearly states that ‘No person shall be subject to punishment for any act not punishable by the law in force at the time, and no person shall be punished more severely than that prescribed by the law in force in the case of an offence.’

This provision is also repeated in Article 24(4) of the Interim Constitution of Nepal

2063 and Article 20(4) of the current Constitution of 2072 . The International Covenant on Civil and Political Rights (ICCPR), to which Nepal became a party in 1991, has also enunciated the same principle, which in legal language is called nullum crimen sine lege

(there is no crime without law) and nulla poena sine lege (there is no punishment without law). Supreme Court's 2070 verdict: What was the context? The Supreme Court's 2070 verdict, on which the commission has based its decision, was based on transitional justice, and it was specifically related to the case of persons who had disappeared during the conflict. On 18th Poush 2070, a full bench comprising Justices Kalyan Shrestha, Girish Chandra Lal and Sushila Karki, in paragraph 36 , stated: 'Since serious violations of human rights and crimes against humanity are serious crimes, in cases where the existing laws are inadequate to bring the persons involved in such crimes within the ambit of the law, impunity should be ended by enacting new laws.' According to legal practitioners knowledgeable in criminal law, the verdict explained the state's responsibility not for general criminal crimes but for international humanitarian law and serious crimes against humanity. For this reason, the question of whether the principles enunciated in the context of transitional justice can be directly applied to incidents related to the Gen-G movement is at the center of the current debate. Advocate Madhav Basnet says that the Supreme Court's precedent cited by the Human Rights Commission for making retrospective laws is not relevant. 'I myself was the writ petitioner in that case. At that time, I took the case to repeal some provisions of the ordinance brought by the government on transitional justice,' Basnet told Kantipur, 'That judgment said retrospective laws are for serious criminal offenses.' The report recommended now (by the Human Rights Commission) does not seem to match the context of this case.' Senior advocate Raju Chapagain, who argued in the same case, also said that the Supreme Court's judgment only paved the way for the state to make necessary legal arrangements in cases of crimes that attract international jurisdiction. 'Disappearance is a matter under international humanitarian law and universal jurisdiction.' The Supreme Court had explained in that context,' Chapagain told Kantipur, 'However, it is not clear which crimes the individuals recommended by the Human Rights Commission have committed that would attract universal jurisdiction.' According to Chapagain, the Human Rights Commission has made the law retrospective, meaning that the punishment is also very low. The Commission has asked for a law that provides for a maximum of 6 months in prison or a fine of up to 300,000 rupees or both while making a retrospective law. 'If the Human Rights Commission believes that serious human rights have been violated, I do not understand why it recommended such a weak punishment,' Chapagain said.

How can the current law not be sufficient?

Criminal law experts themselves comment that there is another weakness in the Commission's recommendation. The Commission has not clarified what crime was committed, which law was violated and why the current law is insufficient. Based on the recommendation of the commission led by Gauri Bahadur Karki, the police are still investigating Oli and the writer for murder under the National Criminal Code.    Senior advocate Raju Chapagain argues that the existing law has not closed the way for investigation and prosecution in such a situation. 

‘The commission’s report has not clearly answered the question of why a new retrospective law was necessary when the process under the existing law is still ongoing,’ Chapagain said.

Criminal law expert Shubhash Acharya says the argument for this recommendation is flawed. 

‘No person can be brought under the criminal ambit, punished or declared a criminal by making a retrospective law. This is prohibited by the Constitution of Nepal and the ICCPR, to which Nepal is a party,’ he says.

Senior advocate Krishna Prasad Sapkota says that more caution should be exercised in this matter.  

'In special cases of crimes against humanity or serious human rights violations, the international principle of retrospective law may be applicable. However, in general cases, such a practice can be extremely dangerous. The practice of declaring an act that was not a crime before and punishing it later can set a wrong precedent,' he said.

Political and constitutional questions

According to experts, the basic principle of criminal justice is that citizens should be informed whether an act is a crime or not before committing it. However, senior advocate Raju Chapagain says that it is a matter of concern that the Human Rights Commission itself recommends retrospective law even in cases of a general nature.

'The case was prosecuted according to the law in force. The Human Rights Commission should have been able to tell the government to recommend based on the existing law,' Chapagain says, 'Today, a recommendation was made to make retrospective law in a case.' If the state continues to make similar laws in every case tomorrow, there could be a major crisis in our criminal justice system.’

Former Deputy Attorney General Suryaraj Dahal says that the constitution prohibits retrospective criminal laws at the level of fundamental rights. ‘The current law of Nepal does not clearly state what is a crime and what is not.’ As far as I have seen, the National Criminal Code has already defined many acts related to the incidents of 23 and 24 as crimes,’ he said.

A committee was formed to investigate human rights violations in the incidents of 23 and 24, coordinated by Commission member Lily Thapa. Kantipur asked Thapa, ‘Why did the government recommend bringing retrospective laws to take action against Oli-Lekhak and Gurung?’

According to Thapa, the recommendation is to enact a retrospective law to prosecute Oli Lekhak and Gurung for ‘human rights violations’ rather than criminal offenses. ‘We did not find that the current law has provisions to prosecute the recommended individuals,’ Thapa said. ‘That is why, based on the precedent of the Supreme Court being able to enact a ‘retroactive’ law, we have recommended punishment for human rights violations rather than criminal offenses.’

Another member of the Human Rights Commission admits that the recommendation made in the report is a new experiment.

‘There are examples of taking action in many countries not only in serious criminal cases but also in cases of human rights violations by bringing retrospective laws. In the current context, we have recommended the government to recommend taking action for human rights violations by bringing retrospective laws,’ Commission member Manoj Duwadi told Kantipur, ‘This is a new experiment.’ Now it's up to the government to decide how it will implement it.'