December 5, 2012
Press Release
Case Withdrawal: Contempt of Rule of Law
The cabinet meeting held on December 4, 2012 has decided to withdraw 20 cases including that of murder, abduction, robbery and arson against 207 UCPN-M leaders and cadres. According to the news, most of the cases are from Maoist leaders and cadres from Gorkha, Prime Minister Baburam Bhattarai’s home district Gorkha.
This kind of decision, which is against the worldwide principle of transitional justice, has proven government lack of faith on the significance of Truth and Reconciliation Commission and Rule of Law. We highly condemn this step of the government and want to draw a serious attention of concerned authority.
The Interim Constitution of Nepal 2007 does not have any provision for case withdrawal, however, the Sub-Article (3) of Article 166 mentions that “The Comprehensive Peace Agreement signed on November 21, 2006′ and the Agreement on Arms and Armies Management Monitoring between the government and Maoists on December 8, 2006 are included on Annex 4”. According to point no. 5.7 of the Comprehensive Peace Agreement provided in Annex 4 of the Constitution,” both parties guarantee the withdrawal of charges regarding the political case and immediate release of the detainees after making them public’. In its verdict in 2008, the Supreme Court said that even though this provision is stated in Constitution’s Annex and thereby a part of the Constitution, this is not a constitutional provision but political manifesto.
The provisions of the treaties to which Nepal is a state party including Article 2 (3) of the International Covenant on Civil and Political Rights, 1966 states that the effective legal remedy is a right of the person if his/her civil and political rights are violated. It is the state’s responsibility to give an effective legal remedy if there is a human right violation carried out by state or non-state actor. Such remedy should give relief to the victim by identifying the perpetrators.
Article 151 of the Interim Constitution did give mandate to the Executive to pardon, adjourn or change the punishment imposed by a court or some other judicial or quasi-judicial or administrative authority or agency but this mandate should not be perceived as with discretionary without any boundary. If that right is interpreted in such a way, then the perpetrators of nationally and internationally grave human rights violations including extra-judicial killing, enforced disappearance, torture and rape would escape with impunity.
The then rebelling Maoists had declared that they would abide by the Common Article 3 of the Geneva Conventions making the provisions of these conventions pertaining to the war crimes of the conflict period relevant even today. Strongly condemning the government decision to withdraw the cases with total disregard for the Nepalis’ hope for justice, we earnestly call for the reversal of the decision.
Subodh Raj Pyakurel
Chairperson