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There is no evidence to support that rigorous jail sentences reduce the number of hardcore criminals or violent acts perpetrated in a society. Correspondingly, there is no research which suggests that the convicts given a premature release through pardon have reformed themselves and rehabilitated in society.

When you read news stories that reveal that pardoned persons got arrested in connection with a crime, then you start believing that convicts cannot change. If convicts cannot change, then we are fooling ourselves by setting them free to walk under open sky.  

Recently, Lok Bahadur BK, one of the 670 convicts, who walked free on the basis of a presidential pardon granted on the Constitution Day (Sept 19) on the government’s recommendations for “exhibiting good conduct”, was again arrested for allegedly murdering Bhawana BK of Rukum district. Murder convict Yograj Dhakal Regal, doing a 20-year term, also got freed for a brief period, only to be arrested after a Supreme Court order.  

Pardoning hardcore criminals is nothing new in Nepal. Former lawmaker and Maoist leader Balkrishna Dhungel, awarded life term in 2004 for masterminding the murder of Ujjan Kumar Shrestha of Okhaldhunga during the Maoist insurgency in 1998 along with the confiscation of his property, had received a pardon in 2018 along with around 800 convicts. But the Supreme Court had issued an order against the government vis-a-vis the pardon granted to Dhungel.

Legal recognition

Article 276 of the Constitution of Nepal 2015 provides that the President of Nepal “may grant pardons to persons convicted, and suspend, commute, or reduce any sentence imposed by any court, judicial or quasi-judicial bodies or administrative officer or authority.” But this provision is not absolute in nature, as the prevailing criminal law of the land has put certain restrictions on the exercise of this power. 

Section 159(4) of the National Criminal Procedure Code, 2017 prohibits pardoning of people convicted of corruption charges; rape; genocide; human trafficking; money laundering; abduction or enforced-disappearance; (possession of) explosives; murder in a cruel and inhumane way; and narcotic drugs trafficking or transaction punishable by a sentence of imprisonment for a term exceeding three years.

The pardoning could help the convict walk free before the completion of the sentence so inflicted, but it does not necessarily mean they are innocent. In other words, pardoning could ensure a premature release but cannot eliminate the stigma or guilt.

Global precedent

The constitutional power to pardon is not a unique concept in Nepal. It was derived from the Royal Prerogative of Mercy. This power is delegated to the Lord Chancellor in England whereas in the United States (US), it’s secured under the constitutional scheme.

Article II, Section 2 of the US Constitution envisages that the President “shall have the Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

The Constitution of India also recognizes presidential power of pardoning under Article 72, which confers on the head of the state the power to grant pardons, reprieve, respite, and commute or reduce the sentence of any person convicted of any offense.

Unlike in the US, the president of India or Nepal does not act in person but on the aid and advice of the Council of Ministers headed by the Prime Minister.

Is it an absolute power?  

The Supreme Court of Nepal on November 2 in the case of Bharati Sherpa v the Office of the President, Kathmandu and Others observed that the remission, respite, reprieve, remission or commutation of the sentence should be based on public interest, prevailing laws and the rulings of the Supreme Court.

The presidential clemency for the sake of political adjustment or political bargaining shall amount to violation of the constitution and established legal norms, the Supreme Court of Nepal held in the case of Resham Lal Chaudhary and Others v Government of Nepal (2023). 

The author holds a degree in Constitutional Law

This is part 1 of a two-part series

“Nepal: From Monarchy to Republic” by Professor Lok Raj Baral offers an insightful journey through Nepal’s political landscape, examining its transformation from a monarchy to a republic. The book comprises a comprehensive introduction, eight detailed chapters, and a thought-provoking epilogue.  Baral delves into various aspects of governance, constitutional development, political culture, and the challenges facing Nepal’s democracy.

The first chapter, “Institutional Crisis of Governance,” thoroughly explores the multifaceted governance issues that have plagued Nepal. Professor Baral provides a meticulous analysis of the country’s constitution, tracing its inception and the introduction of critical components such as federalism and secularism. 

He also examines the persistent trust deficit among Nepal’s political actors. Furthermore, the author critically assesses the parliamentary hearing system, deeming it formal, ritualistic, dysfunctional, and derogatory, particularly in the context of appointing judges to the Supreme Court. He also sheds light on the malpractices within the bureaucracy, the stagnation of administrative progress, and the dearth of innovative approaches to governance.

Professor Baral emphasizes the central role of the parliamentary system in Nepal and underscores its importance in other democratic nations. He notes that despite the autocratic tendencies of elected democratic leaders, the parliamentary system offers resilience and adaptability. Drawing a comparison with India, he highlights the parliamentary system’s effectiveness in addressing the diversity present in both countries. Recent Poland polls showed that autocracy is not inevitable. Democracy has the power to change, reform, and refine itself, and survive better.

The book delves into the intricate relationship between education and governance, with Professor Baral expressing concern about the deterioration of Tribhuvan University due to excessive politicization and partisan influences. He laments that many universities in Nepal have become hollow shells, lacking substance and content.

The connection between elections and democracy is dissected cogently, emphasizing that democracy encompasses more than just elections and government formation. It necessitates effective leadership, institutional efficiency, and other crucial elements. The author also addresses the issue of external interference in Nepal’s affairs, labeling it as "invited intervention." He highlights instances where leaders demonstrated resilience against external pressures, such as the decision to announce the Nepali Constitution despite external suggestions to delay it until a satisfactory solution was reached amongst all the political forces, including Madhesi parties.

He does not shy away from criticizing Nepali leaders for their history of unfulfilled promises and subservient attitudes. He recalls incidents where even leaders like BP Koirala sought to win favor with the monarch by displaying unwavering devotion to palace customs. This parent-seeking mentality, as described by Dor Bahadur Bista in his popular book ‘Fatalism and Development’, is reflected in the activities of our leaders then and now.

Intra-party conflicts and their consequences on democratization and political health are explored in detail. The rivalry between Nepali Congress leaders Girija Prasad Koirala and Krishna Prasad Bhattarai is examined, illustrating how democratic leaders sometimes compromise their principles to achieve personal gains. The book highlights how internal conflicts within political parties, including CPN- UML, have adversely affected democracy. Shankar Tiwari's book, "Kasle Sudharchha Congress," offers a comprehensive autopsy of contemporary political happenings and their implications in this context.

While Author  finds Pushpa Lal Shrestha to have believed in multiparty democracy with a republican form long ago and Madan Bhandari’s formulations not so new but ‘a jugglery of jargons and cliches’ used by the Communists of all lines, he is of the opinion that it was pragmatic enough understanding Nepal’s incompatibility with a one-party dictatorial regime. The writer does not find political parties to have taken a permanent shape and are seemingly in the throes of mutation and permutation. He also addresses the opportunistic nature of some political parties, which hinders the country’s democratic progress, both domestically and in its interactions with external powers. 

He argues that some left parties and “rashtravadi” club together and call the Nepal-India Peace and Friendship Treaty 1950 “unequal” and yet, they did not come out with any alternatives when they were in power. Why they didn’t opt for Article 10 of the treaty is beyond answerable. Professor Baral suggests that there is a lack of courage to abrogate the treaty, as it becomes a tool for scoring political points through nationalistic rhetoric.

He  touches upon Nepal’s foreign policy and its limitations in fully adhering to non-alignment and strategic autonomy, even when condemning the Russian invasion of Ukraine and rejecting the agreed State Partnership Program (SPP) with the USA. The author discusses the impact of Nepal’s recent diplomatic disputes, such as the ‘Chuchhe Naksha’ border issue, and suggests that it may have reached a point of no return, with limited room for compromise.

The chapter titled ‘Electocracy vs Democracy’ provides a thought-provoking analysis of elections in Nepal. Professor Baral notes that while elections may not always mirror political reality, they serve as a powerful vehicle for mobilization and democratic dynamism. Throughout the book,  he references concepts and insights from ‘How Democracies Die’, shedding light on the challenges and vulnerabilities faced by democracies. He examines grassroots democracy through local elections and scrutinizes the ability of voters to select their representatives effectively. He cites the 2022 local elections as evidence of the shortcomings of political parties. The book also delves into the deconstruction of ideologies and the dearth of effective leadership, highlighting these as challenges in Nepal's democratization process.

Economics of Governance chapter delves into Nepal's economic challenges, including a depleting economy and increasing debt. He provides a comprehensive analysis of various sectors, including tourism, agriculture, trade, and hydropower. The role of King Mahendra in land reform and its implications for agriculture are discussed briefly. The book draws from "Why Nations Fail" by Professors Daron Acemoglu and James A. Robinson to categorize Nepal as an "extractive economic institution," which serves a select few individuals and business entities closely aligned with government elites.

"The Native Construction of a Nation State," chapter explores the concepts of nation, national unity, and "Nepalization." He cites Frederick H. Gaige's assertion that "cultural homogeneity" is not a prerequisite for national unity, advocating for a diverse composition of the Nepali nation. He also credits Gajendra Narayan Singh with sowing the seeds of federalism in Nepal, which materialized in 2007 AD.

The author also highlights the significance of a sound foreign policy, smart diplomacy, and an inclusive approach to Nepal's military, particularly with regards to incorporating Madhesis. He asserts that achieving an egalitarian society requires equitable treatment of the poorest of the poor, Dalits, and other marginalized sections of society based on the principles of equity and social justice.

As China assumes the presidency of the UN Security Council and the Presidents of China and the US meet in San Francisco on the sidelines of APEC summit this month, the two superpowers are expected to take serious steps to bring the conflicting parties— Israel-Palestine and Russia-Ukraine— into negotiating table for tangible outcomes.

As compliant partners and rational competitors, the two giants should work for the greater good of society, humankind and the universe, keeping in mind that they will be able to retain their prime positions only through decent leadership, equable and nimble rationality, amity and cooperation. 

Globalization and a corresponding drive toward neoliberalism had a role in shaping the global political order in the past. At present, the intricacy of ‘techno-geopolitics’ and ‘techno-nationalism’ is making a sway in digital, economic, social and democratic order thereby impelling a new global order.

‘Democracy’ is said to be in decline in many parts of the world, while its global state is ‘complex’, ‘fluid’ and ‘unequal’ in 2023 (Global State of Democracy Initiative). Considered to be a process rather than a “system” or any form of institution, democracy can come to a halt when it encounters critical threats from any actor— be it human or machine.

 “The human being ranks higher than machines and technology”, reads Article 12, Section 1 of the 1947 Constitution of Bremen, an entity of the German federal state, perhaps foreseeing the prospective supremacy of machines (AI) over humans. 

An Open Letter titled “Pause Giant AI Experiments” originally signed by a 1000-plus tech, social and AI leaders around the world on March 22, 2023 has garnered more than 33700 signatures, including that of this author. 

It reads, “Contemporary AI systems are now becoming human-competitive at general tasks, and we must ask ourselves: Should we let machines flood our information channels with propaganda and untruth? Should we automate away all the jobs, including the fulfilling ones? Should we develop nonhuman minds that might eventually outnumber, outsmart, obsolete and replace us? Should we risk the loss of control over our civilization? Such decisions must not be delegated to unelected tech leaders. Powerful AI systems should be developed only once we are confident that their effects will be positive and their risks manageable…” 

Unlawful development and deployment of generative AI has heightened risks of weaponization of AI technology to the detriment of humanity and human civilizations. The extensive misuse of AI has been posing a serious threat to democracy and humanity through ‘deep-fakes’ or ‘scams’.

After a Covid-19 pandemic that continues to haunt humanity, the world is witnessing two major threats—the “tech threat” that is challenging the sovereignty of nations, posing crucial threats to democracy and impinging on personal sovereign dignity of individuals; and the “religious radicalism” that could foment civilizational clashes and lead to disastrous consequences like ethnic cleansing. These two threats can sweep human civilization by wreaking havoc around the world.

Civilization clashes—be it Hindu-Muslim conflicts or the Manipur violence in India, Islam-Christian tensions around the world after 9/11, Black-White racial clashes in the US, the Rohingya sweeping in Myanmar, ethnic conflicts in Africa or Middle-East or ethnic clashes between Azerbaijan and Armenians in the Nagorno-Karabakh, the  diplomatic fiasco between India and Canada that is deep-rooted to religious radicalism or the recent Hamas attack in Israel and the Israeli counter-attack that are fuelling Muslim-Jews clashes—all reflect domination of religion over religion, culture over culture, human over human, nation over nation, and civilization over civilization. These developments could permeate beyond national boundaries and end up challenging the existing global social, civilizational or democratic order. 

Transnational issues such as terrorism, war, crimes, financial issues, climate change, economic stability, energy and food security, intellectual property rights, cybersecurity, nuclear and AI threats, maritime security, poverty and pandemics are also causing chaos worldwide.  

The author is a geopolitical analyst. This article is part 2 of a three-part series

Children comprise more than half of the human casualties in the 6.4 magnitude quake that struck Jagarkot and Rukum West last Friday, police data show, putting the number of children succumbing to the disaster at over 80. 

The disaster has rendered about 10000 people shelterless, said government officials, while initial estimates put the number of school buildings destroyed in the quake at 300.

 Heather Campbell, Country Director for Save the Children in Nepal, said, “Children are scared. Many have lost relatives; thousands have lost their homes. The constant aftershocks and terror of another quake means they have been forced into the open. With temperatures dropping, they need shelter, warmth and nutritious food.   

 “We are worried that the longer the children live outside, the greater the chances of contracting pneumonia. They are also at risk of contracting waterborne diseases, as safe drinking water is scarce. There is an urgent need for toilets and washing facilities,” Campbell said. 

“Children are vulnerable and need spaces where they are safe and can continue to learn. We need to ensure their safety and protection as disasters like this can lead to severe mental distress. Recovery from the trauma of losing loved ones and homes will not be a quick process. They need stability.”  

 14 schools destroyed in Bheri 

In Bheri municipality, the jolt has destroyed 14 school buildings, whereas 78 school buildings have suffered damage, the municipality’s data show. The tremor has killed 11 students and three teachers in the municipality, while 31 students have sustained injuries. 

Forty-seven classrooms, nine toilets and four compound walls have turned into rubble in the quake, whereas 122 school buildings, 476 classrooms, 38 toilets, nine fences, one science lab, nine ICT labs and two solar systems have suffered damage.

In Rukum West, the quake has claimed 14 students, destroyed 15 school buildings and caused damage to 20 schools. 

President reaching out

President Ramchandra Paudel on Tuesday reached out to the survivors of the quake and assured them of all possible help from the state in rebuilding their lives. He visited Sitali Kami of Bheri municipality-1, who is undergoing treatment at Jajarkot district hospital for injuries sustained in the quake. 

He assured Sitali that the state would provide assistance for the reconstruction of her house damaged in the quake. Paudel also stressed that the survivors need temporary shelters. 

While interacting with the survivors at Thaple of Bheri-3 after visiting the spot where Nalagadh municipality’s deputy mayor Sarita Singh had lost her life in a house collapse, President Paudel pledged that the government will expedite reconstruction works and address other concerns of the survivors in a gradual manner. 

No relief for survivors 

Five days into the quake, government agencies have still not been able to provide for most of the survivors facing a grim winter with almost all of their possessions lost, as if bereavement were not enough. Local levels have not been able to provide blankets and bedding in required numbers to people like Ganesh Thapa of Bheri-3, who said he has not yet received warm clothing. 

Relief materials have not yet reached most of the remote places outside the district headquarters, with representatives of various organizations distributing these materials in the villages as per their convenience instead of giving due priority to the most affected ones. 

Local communities do not know how to remain safe even as frequent aftershocks have been occurring here.

Meanwhile, relief materials reached Barekot rural municipality on Monday, two days after the earthquake. Chair of the municipality Chair Bir Bahadur Giri said,  “As people in the rural municipality have been living out in the open, protecting them from cold is a major challenge.”

NC, CPN (US) donate to relief fund

Nepali Congress (NC) and CPN (Unified Socialist) have made contributions to the Prime Minister’s Disaster Relief Fund.

A delegation of NC office-bearers, including President Sher Bahadur Deuba, visited Prime Minister Pushpa Kamal Dahal at the PM’s official residence in Baluwatar to hand over a cheque bearing Rs 5m, meant for the survivors of the quake. A delegation under CPN(Unified Socialist) Chair and former PM, Madhav Kumar Nepal, presented a cheque bearing Rs 2.5m to PM Dahal.  

CPN(US) also submitted a nine-point proposal to the government regarding post-earthquake relief, rescue and rehabilitation efforts. The party lauded government measures in response to the earthquake, particularly the search and rescue operations, recommending that the federal government oversee and facilitate the implementation of a one-door policy for rescue and rehabilitation efforts by ensuring the leading roles of provinces and local governments toward that end. 

During the meeting, PM Dahal assured that the best practices in post-disaster management will be followed. He said, “With the search and rescue operations completed, the focus has now shifted to the second-phase response, including relief and rehabilitation.”

Dahal said he held separate meetings with the ambassadors from the neighboring countries regarding disaster relief. 

The meetings with the ambassadors focused on the management of storage facilities at the local level and development of integrated settlements based on geographical features of the affected areas.