Prime Minister KP Sharma Oli’s ‘instruction’ to federal lower house Speaker Krishna Bahadur Mahara to administer the oath of office and secrecy to parliament-elect Resham Chaud­hary, the prime suspect of the Kailali killings, has raised many moral, political and legal ques­tions. The decision on the swear­ing-in of Chaudhary was jointly taken by PM Oli and co-chairman of his party, Pushpa Kamal Dahal, without consulting other party members and seemingly without any inputs from legal and consti­tutional experts. It clearly signals that Oli wants continued support of Madhes-based parties and will make any compromise to that end. But the decision has invited criti­cism within his own party. Nepal Communist Party leader Bhim Rawal, for instance, has labelled the decision “inappropriate”. On August 23, 2015, a group of protestors had lynched seven policemen and an infant in Tikapur, Kailali, raising fears that the constitution drafting process would again be halted. The police filed a case against Chaudhary, accusing him of being the key archi­tect of the killings (See box). Chaud­hary’s party Rastriya Janata Party Nepal (RJPN) has always denied his involvement.

Political or criminal case?

Krishna Pahadi, a human rights activist and civil society leader, thinks that Chaudhary’s swearing-in signals the growing trend of politicization and institu­tionalization of crime. “What hap­pened in Kailali was not a political movement. It was a grievous crime and the perpetrators should be punished,” said Pahadi, adding that delay in court settlement of the case has invited complications.

Bhimarjun Acharya, a consti­tutional expert, thinks Chaud­hary’s swearing-in is against the constitution and parliamentary rules. “The swearing-in of some­one with a pending criminal case is unconstitutional. The demands of the Tharu population are of a political nature, but the slaugh­ter of seven police officials and an infant is a crime. In fact, Chaud­hary was ineligible for elections under existing laws,” says Acharya. Madhes-based parties, however, are of the view that Chaudhary’s case is a political one and should be withdrawn or resolved through political consensus.

When Oli became prime minister in February last year, he sought the support of the Madhes-based parties and pledged to fulfill their demands. Ever since, the RJPN has continuously asked for the with­drawal of the case against Chaud­hary. Recently, after Oli seemed non-committal, the RJPN issued a seven-day ultimatum on Dec 25, stating that it would withdraw support to the government if its demand was not fulfilled. Although the prime minister has sufficient numbers in Parliament, he wants continued support of the Mad­hes-based parties, if only to demon­strate that he has their back.

Chaudhary’s swearing-in indi­cates a shift in Oli’s position on the Kailali killings. Soon after the incident, Oli had been against talks with the protestors, saying it was a criminal activity and there was no room for talks. In 2016, as the then Home Minister Bimalendra Nidhi prepared to withdraw the case against Chaudhary, the then CPN-UML had protested.

NCP co-chairman Dahal has also been pressing Oli to fulfill the demands of the RJPN. The then CPN (Maoist Centre) led by Dahal had taken the Tikapur killings as a political incident, whereas the then UML led by Oli had termed it a crim­inal case. During his visit to India in 2016, Dahal had met Chaudhary and pledged support in his case.

RJPN’s victory

For the RJPN, Chaudhary’s swearing-in was a political victory that has enhanced its position in the Tharu community. Soon after the swearing-in, RJPN cadres in some far-western Tarai districts broke into celebrations. “We did not issue any directives, but there was spontaneous celebration by Chaudhary’s supporters,” said RJPN leader Laxman Lal Karna, adding, “Chaudhary is innocent and his swearing-in is a step towards hon­oring the public mandate.”

The Oli government spokes­person, Gokul Baskota, also defended the swearing-in: “It is the government’s duty to respect the public mandate. But we are also ready to abide by relevant court decisions, if any.”

RJPN leaders say Chaudhary’s swearing-in is a first and major vic­tory. Their priority now is to create political consensus in order to get the government to withdraw the legal charge against Chaudhary.

Following the swearing-in, there is now a sort of competition between the RJPN and the Sanghiya Samajbadi Forum led by Upendra Yadav, a part of the Oli government, to take credit for this ‘achievement.’

Though Chaudhary is accused of the Tikapur killings, he enjoys strong support in the Tharu com­munity, which was also evident in his victory by a huge margin from Kailali-1 constituency in the 2017 national elections. He had filed his nomination in absentia and had conducted his election campaign secretly. His voters believe he is innocent and should be freed.

What the law says

Article 244 of Parliament Regula­tion deals with the status of a par­liamentarian if he or she is charged with or convicted of a crime.

• If any parliamentarian is arrested, Speaker should inform the house about such arrest.

• If a lawmaker is arrested and charge sheet filed against him or her in court, he or she can­not function or enjoy any rights as a lawmaker, and he or she would not get any remuneration or facilities.

• If the court convicts any lawmaker on a criminal case, he or she will be automatically suspended.

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Tikapur and its aftermath

When the first draft of the con­stitution was finalized in July 2015, some political parties and groups protested against it. In the far-western Tarai districts, the Tharu community organized a series of protests demanding an autonomous Tharu province. The Tikapur killings took place on Aug 23, when high-level police officials were trying to negotiate with the Tharu protestors.

It took several weeks to bring the situation under control and prevent possible communal tensions. Political parties were divided. The Nepali Congress and the then CPN-UML termed it a law and order problem, whereas the then CPN (Maoist Center) and Madhes-based par­ties billed it a political incident that called for a political resolu­tion. The government formed a panel to investigate the case, but its report is yet to be made pub­lic. The police subsequently filed a charge-sheet against Chaud­hary for his alleged role in the killings. (After the killings, there were reports of arbitrary arrests, torture and ill-treatment of mem­bers of the Tharu community.)

Chaudhary fled to India and started lobbying for the with­drawal of the case against him. In February last year, he surren­dered before the Kailali District Court, where the case against him is still pending. The court has completed recording the statements of around 100 peo­ple including Chaudhary, but the date of the hearing has not been fixed. As some key docu­ments related to the case were with the Supreme Court, the hearing could not take place in Kailali. Chaudhary filed a case in the apex court, arguing that his detention is illegal. However, upholding the District Court’s decision, the SC on Jan 7 ruled that Chaudhary cannot be freed on bail. Following the verdict, the Kailali District Could is expected to start its hearing soon.