By Anil Giri in The Kathmandu Post, Nov 03, 2023
With the Supreme Court’s mandamus order to revoke the presidential pardon granted to convicted murderer Yograj Dhakal, aka Regal, a moral and political question has arisen for the Office of the President and the government.
On the recommendation of the Cabinet, President Ramchandra Paudel on the eve of the 8th Constitution Day on September 19 had pardoned the remaining jail terms of 670 convicts, including Dhakal. The decision comes as a setback for the office of the President and the government, said legal experts.
Many people have questioned, including on social media, the moral standing of the government and the president’s office given the Supreme Court’s criticism of the government’s recommendation and President Ramchandra Poudel.
Reacting to the verdict on Thursday, CPN-UML chair KP Sharma Oli said the ruling alliance violated the constitution, so the Supreme Court reversed the decision.
Soon after the court’s verdict, Dhakal, who is in Banke, surrendered to the police. “I respect the Supreme Court’s verdict. I am confident that I will get justice,” he said while giving himself up. Dhakal is affiliated with the Nepali Congress’ youth wing, Nepal Tarun Dal.
But the ruling Congress said that the court verdict is unprecedented and could open more Pandora’s boxes and ultimately result in social unrest.
A full bench of Justices Ishwar Prasad Khatiwada, Sapana Pradhan Malla, and Kumar Chudal issued the verdict for Dhakal’s immediate arrest. Their order came in response to a petition by Bharati Sherpa, then wife of Chetan Manandhar, who was murdered in cold blood by Dhakal in 2015. The court concluded that the government decision to pardon Dhakal was constitutionally and legally flawed.
Oli, while speaking at a meeting of the UML parliamentary party, welcomed the verdict.
“The government breached the constitution, displayed arrogance by relying on the alliance’s majority, and even when the court issued repeated warnings, it resorted to the use of force rather than adhere to the rule of law,” he said.
After the arrest, the authorities are preparing to send Dhakal to jail to serve the remaining sentence.
Earlier on October 5, the bench of Justice Manoj Kumar Sharma had ordered two state agencies—Ministry of Home Affairs and the Office of the President—to present their justifications for the amnesty.
Last month, soon after Dhakal was released, Bharati Sherpa launched a protest and later a hunger strike in Kathmandu.
“There is no point in arresting criminals involved in heinous crimes and convicting them through courts if they are to be shamelessly pardoned without completing most of their jail term,” Sherpa stated in her petition. “I plead the court to overturn the Cabinet’s recommendation for the pardon as well as the President’s decision to implement it.”
In July 2015, Dhakal, a local Congress worker and gangster from Banke, killed Manandhar in broad daylight using domestic weapons. He was convicted of the murder and slapped with a 20-year jail term by the Banke district court in April 2018.
There has been no official reaction from the government to the Supreme Court’s ruling. A Cabinet minister told the Post that the court overlooked the legal provision on the presidential pardon.
“Several rulings have been overturned by various courts, including this one,” said Deputy Prime Minister and Minister for Home Affairs, Narayan Kaji Shrestha, adding, “but our recommendation [to pardon Dhakal] was in line with legal provisions.”
Meanwhile, a senior home ministry official told the Post that Deputy Prime Minister Shrestha had recommended Dhakal’s pardon under immense pressure from several senior Congress leaders.
“There was pressure on him from his own party [CPN (Maoist Centre)] to recommend pardon for those convicted in the infamous Ranibari case [in which a couple was hacked to death in Ranibari, Kathmandu in 2002] and the 2012 murder of Supreme Court justice Rana Bahadur Bam, but Deputy Prime Minister Shrestha had resisted,” the official said, “but he eventually succumbed to the Nepali Congress pressure.” Shrestha is the vice chairman of the ruling CPN (Maoist Centre).
“This verdict has not necessarily put us in a morally inferior position, because courts have in the past overturned many of the government’s decisions. On legal grounds, we are not wrong, but it seems the Supreme Court considered public sentiment while issuing the verdict,” said Shrestha.
Dhakal’s release after a presidential pardon last month got huge public attention and reaction.
Starting this Sunday, Manandhar’s then wife Sherpa resumed a hunger strike that she had started in the October first week demanding a rollback of the pardon, even as she was waging a legal battle.
When he was pardoned, Dhakal had served just eight of his 20-year jail term.
On September 19, the Constitution Day, video clips went viral on the internet showing Dhakal’s supporters giving him a grand welcome at the prison gate.
While he granted pardon to Dhakal and 669 other convicts, President Paudel had sent back 34 other names to the home ministry demanding the criteria from the government for recommending their pardons.
The government had presented two lists for pardon. One included the 670 prisoners who had completed 50 percent of their jail terms and had demonstrated good behavior as prisoners. The President approved this list that was forwarded by the Cabinet.
Law experts have lauded the Supreme Court verdict.
“This decision is a setback for the government,” said Bipin Adhikari, a Professor of Law at Kathmandu University. “The court has now stated that such cases are not pardonable.”
Adhikari added, “This is a setback for both the government and the President’s Office. With the Supreme Court’s ruling, several such pardons granted by the President have now become questionable. It puts the President in a difficult position. But this is a simple case of legality, no more than that.”
The decision to pardon the remaining jail terms of 34 other prisoners was forwarded by the home ministry as per clause 159 of the National Criminal Procedure (Code) Act 2017, but was eventually rejected by the President.
A person who is sent to jail by a court of law for an offense may petition the President through the Ministry of Home Affairs, for pardon, suspension, alteration, or reduction of such sentence. As per the clause, the petitioner has to attach a copy of the court’s judgment.
As the home ministry’s decision was not backed by essential documents, Paudel refused to reduce their sentences, but gave his nod to the list of 670 forwarded by the Cabinet.
The court’s ruling will make the government review its way of doing things, said Adhikari.
But Min Bishwakarma, head of the publicity department of the Congress, termed Thursday’s ruling “judicial activism” that had breached the principle of separation of powers.
During the Panchayat days, kings would give pardons on the recommendation of the Cabinet, said Bishwakarma, and the monarchs continued to do so also after the restoration of democracy in 1990.
“The Supreme Court has challenged the continuation of this tradition in republican Nepal. If such individual petitions continue to be filed and the court chooses to similarly rule against those released on presidential pardon, there will be anarchy and social unrest,” Bishwakarma said. “Instead of overturning the government’s decision, the court should have asked it to set a more stringent criteria for pardons.”
He added that the Supreme Court verdict will set a bad precedent and invite conflict between constitutional bodies and the government.
https://kathmandupost.com/national/2023/11/03/cabinet-president-face-setback-as-top-court-overturns-disputed-pardon
