Major parties are demonstrating double standards vis-a-vis these cases. If it serves their immediate interests like government formation, they have no qualms in calling these cases “political”.
Human rights activists say that withdrawal of such cases amounts to a grave violation of human rights—it will tarnish the country’s image and promote impunity. The ordinance aims to provide blanket amnesty to all kinds of serious crimes committed under any political guise. It impinges on the jursidiction of the judiciary. The ordinance also directly contravenes the stipulations of international conventions and treaties that Nepal is a party to. It will, in all likelihood, complicate Nepal's attempt to garner support of democratic world in concluding its transitional justice process. The National Human Rights Commission, civil society groups and conflict victims have demanded that the government withdraw the controversial ordinance. Constitutional expert Bipin Adhikari says: “Even if some cases are withdrawn by amending the laws, it will unleash a never-ending series of withdrawing criminal cases through political means. It will contribute to the culture of impunity.” Securing the release of Resham Lal Chaudhary, the founding chair of Nagarik Unmukti Party, appears to be the immediate objective of this ordinance. Chaudhary stands convicted of masterminding the 2015 Tikapur incident, in which eight people, including a senior Nepal Police officer and a toddler, lost their lives. At that time, political parties were divided on how to take this massacre — some saw it as a political issue, while others termed it as a criminal one. Chaudhary’s supporters claim that the investigation report of the incident, prepared by Justice Girsh Chandra Lal, does not implicate Chaudhary. Many feel that Chaudhary has been unjustly jailed. Lal’s report has not yet been made public. A large section of the Tharu community seems to feel that Chaudhary has suffered injustice. This grievance has been manifested this past election. Nagarik Unmukti Party, registered under the leadership of Chaudhary’s wife Ranjeeta Shrestha, won three House of Representatives seats under the First-Past-The-Post (FPTP) electoral system. The same party’s Lalbir Chaudhary won as an independent candidate from Bardiya-2. Chaudhary’s party has won 12 seats in provincial assemblies and secured almost 300,000 Proportional Representation votes as well. This shows the sympathy of the Tharu community towards Chaudhary. With 136 seats in the federal parliament, the current ruling coalition is just two seats short of the majority it needs to form a government. Securing Chaudhary’s release at this time could be key to the government formation process. Defending the ordinance, Gyanendra Bahadur Karki, minister for information and communication, says it aims to enhance national unity by bringing all political forces on board. Another senior government minister claims that the ordinance has nothing to do with government formation, saying there is an all-party consensus on the ordinance. The ordinance, the minister adds, is in line with agreements signed between the previous government and different political parties and outfits. CPN-UML has opposed the ordinance, even though it has been brought to implement the agreements signed between the then Oli-led government and different political outfits. Former home minister Ram Bahadur Thapa had signed an agreement with the Chand-led Nepal Communist Party on March 4, 2021. He had also signed an 11-point deal with CK Raut of Independent Madhesh Alliance on March 8, 2018. Similarly, Lilanath Shrestha, law minister in the Oli government, had signed a similar agreement with Rukmini Chaudhary of Tharuhat Joint Struggle Committee on June 1, 2021. Cross-party leaders say the spirit of these agreements is paving the legal way for withdrawal of pending cases against leaders and cadres of these groups that have joined mainstream politics. They say it is similar to the withdrawal of cases against Maoist chair Pushpa Kamal Dahal, senior leader Baburam Bhattarai and other leaders after the signing of Comprehensive Peace Accord (CPA) in 2006. Former prime ministers Dahal, Bhattarai and Madhav Kumar Nepal recently met Chaudhary in Dillibazaar Prison after Nagrik Unmukti Party’s spectacular performance in the elections. What the ruling parties do not seem to realize is that this ordinance, if passed, will open too big a can of worms. They seem least bothered that it will make way for the government to withdraw criminal cases, some of them of serious nature, against leaders and cadres of the political parties including former Maoist combatants. They could walk out in the name of political prisoners, cleared of all charges and convictions. The CK Raut-led Janamat Party has already set the precondition of withdrawal of cases against its leaders and cadres to join the government in the making. Naturally, the ordinance has drawn criticism from all quarters and pressure is mounting on President Bidya Devi Bhandari not to approve it. “It’s an absolutely wrong move. I wonder who gives suggestions like this to the government. This is unacceptable,” says political analyst Puranjan Acharya of the ordinance. “The present government, which is essentially a caretaker one after the elections, has no authority to bring such an ordinance. The new government can introduce laws through the parliament if it really needs to.” Some influential leaders of the Nepali Congress have also stood against the ordinance. They are putting pressure on the party leadership to withdraw it. Leaders like Shekhar Koirala, Gagan Kumar Thapa, Bishwa Prakash Sharma and Pradip Poudel have taken to social media to voice their opposition to the legal instrument. Sharma has said the ordinance was brought without any discussion in the party, while Thapa has called for immediate withdrawal of the ordinance ‘brought for the release of criminals’. The anti-establishment leader in the NC, Koirala has said the decision to release individuals convicted by the court through an ordinance is a mockery of the rule of law, parliamentary system and the spirit of politics and democracy. Poudel, meanwhile, has said the solution to all the problems has to be sought from the new parliament, not through ordinances. Bypassing the legislature is not a new phenomenon. Instead of facing the parliament, governments prefer to make laws through ordinances. This is not the first time a ruling party leader has relied on an ordinance on controversial topics. In August last year, the coalition government led by Sher Bahadur Deuba had brought an ordinance to amend some provisions of the Political Parties Act, 2017. The amendments were aimed at easing the procedure for political parties to split. The CPN-UML and Janata Samajbadi Party broke up on the back of the same ordinance. Prior to that, the former government of UML under KP Sharma Oli had also tried to push forth a similar ordinance. It was aimed at saving his government. Former Supreme Court justice Balaram KC says the government cannot withdraw cases in which the judiciary has already delivered its verdict, as such cases can no longer be considered cases of political nature. “It is a gross misuse of ordinance brought to serve political interests,” says KC. “If the government thinks there has been a miscarriage of justice, it can recommend the President to grant pardon in specific cases, but mass withdrawal of cases is against the rule of law.” Constitutional expert Adhikari says if the government thinks that certain cases should be withdrawn, it should prepare a document and discuss it in parliament, rather than introducing an ordinance. “Certain provisions made for a fixed period of the peace process cannot be extended for an indefinite period because the peace process has already concluded,” says Adhikari. Experts fear that the government move could open a Pandora’s Box of similar cases in the future, where people with political reach could easily get amnesty for their crimes.
