Warning Against Promotion of Impunity
The Constitution Of Nepal 2015, does not allow any entity or conditions to evoke criminal cases registered in the court. However, the government of Nepal registered an amendment bill in the parliament to formulate provisions to evoke cases registered in court, on May 9, 2023. Constitution Of Nepal Article 58(2) states in, apart from the provisions mentioned in the Constitution, the Attorney General has the authority to decide whether or not to prosecute cases on behalf of the government of Nepal, in a court, Judicial body, or in the jurisdiction of any judicial officers. However, the law does not envision conditions to evoke registered cases. The court has the authority and jurisdiction over registered cases, and it does not fall under the ambit of the power of government.
The Constitutional Bench of current former CheifJustice, Kalyan Shrestha, Judges Sushila Karki, Baidhanath Upadhyaya, Gopal Parajuli, and Om Prakash Mishra of the Supreme Court, on January 7, 2016, provided an order stating that any registered cases can be evoked under the existing legal criteria, the essence of existing laws will be implemented as law in itself. It further ordered the government to follow the legal criteria that it has established.
The government tabled the amendment bill in the Criminal Code, 2015, by exercising a power that the Constitution of Nepal does not provide. This amendment bill might lead other criminal groups to misuse this provision for a mainstream agreement of the crimes they have committed. Therefore, this practice encourages impunity rather than ending it.
Procedure for remission, postponement, change, or reduction of Punishment 2014, mentions an individual can submit an application explaining their reasons if they want their sentence to be pardoned, postponed, changed, or reduced. Number 3 of the procedure mentions punishments for crimes such as corruption, coercion, government embezzlement, organized crime, war crime, brutally violent or brutal murder, and drug use, do not qualify for reduction. The bill does even envisage the provision of the petition for the reduction of the punishment for such crimes.
There are instances where the accused involved in serious crimes are members of or have later joined political parties. There is a tendency to provide political protection to such individuals. Such trends seriously hamper any efforts to address impunity. First, it sets a narrative that members and caders of political parties do not commit any crimes. Second, no matter what crime they commit, when such individuals are provided political power, their crimes are wiped off their hands.
Instead of punishing those accused and guilty of human rights violations, the political leadership should not try to give immunity under the refuge of political power. The government does not seem to realize that this bill will encourage impunity and that when criminal acts are given a political label, democracy will be weakened. The government’s decision to grant immunity in heinous crimes, not to prosecute, or to withdraw the case against Nepal’s constitution, law, and the order of the Supreme Court may be a matter of momentary gain or loss for a political party, but justice dies because of such incidents. The government needs to keep an eye on human rights, the rule of law, and impunity not only in Nepal but also in the international world.
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