Nepal: The Judiciary Has The Power To Exercise Due Diligence

March 21, 2012
A Statement from the Asian Human Rights Commission
Nepal: The Judiciary Has The Power To Exercise Due Diligence Over The Withdrawal Of Cases
The Asian Human Rights Commission wishes to condemn in the strongest possible terms the decision of the government, made on February 27, 2012, to recommend the withdrawal of nearly 425 criminal cases. It is now up to the judiciary to exercise due diligence over the cases under their jurisdiction, to ensure that the reasons for the withdrawal of these cases comply with both the requirements of Nepalese law and the internationally accepted norms and standards of the administration of justice. Should the judiciary fail to exercise such power of scrutiny this would be one more step further towards the debunking of the justice system in Nepal.

All the major political parties of Nepal have recommended that cases against their supporters be withdrawn according to information received under the Right to Information Act by a national newspaper. The Cabinet of Ministers on February 27, 2012 has forwarded its decision to withdraw these cases to the Ministry of Law and Justice (MoLJ) which, in response has forwarded the cabinet decision to the Office of Attorney General for implementation. The cases to be withdrawn include cases of murder, attempted murder, abduction, arson and robbery.

Section 29 of the State Cases Act 1992 allows the Government Attorney to "withdraw a criminal case from prosecution by the government subject to the permission from the Court" for all cases except for those pertaining to private property without setting detailed legal procedures or safeguards in the withdrawal process. It is to be noted that several of the cases to be withdrawn deal with arson or robbery which both pertain to private property and as such do not comply with the limited conditions set up in the State Cases Act.

The governmentally-approved "Procedures and Norms to be Adopted While withdrawing Government Cases-1998" further provide that the "general" cases (by opposition to political cases, including homicide and robbery) shall only be withdrawn in the rarest of instances, taking into account circumstantial evidence, prior criminal history of the accused, social standing of the accused, and other related factors, including whether the case was filed with a motive of political vengeance or malicious intent. Nevertheless, the lack of transparency of the process leading to the government decision has raised question about the extent to which those standards were followed. The government has termed the cases recommended for withdrawal as being 'politically motivated' but did not specify how this was assessed.

Instead, a Nepalese newspaper quoted Maoist lawmaker Ram Bahadur Thapa Magar who gave recommendation for the withdrawal as saying "Even leaders of our party's state committee and VDC secretaries have been accused in the cases. Such people can hardly be involved in abductions." The lawmaker's remark implies that the cases were recommended for withdrawal more on the basis of the personality and position of the accused rather than on the basis of substantial evidence to justify such withdrawal or on the basis of the intent with which the case was filed.

Judging which cases are politically motivated and which cases are indeed criminal cases, in other words judging the veracity of the nature of the accusations brought against an individual and the circumstances with which the case was filed, is not an executive prerogative but rather falls within the authority of the courts of justice.

Since 1994 the Supreme Court has developed a jurisprudence establishing the necessity of obtaining its consent and the responsibility of the district courts to approve the withdrawals before they go ahead, "balancing the reasonable cause to withdraw the case and right to justice of the victim". In February 2011, in response to a writ filed by Janaki Thakuri and Pyari Lal Shahi, the Supreme Court established the responsibility of the district courts to confirm the compliance of a specific case withdrawal with applicable law and found that "the government first has to take permission from district courts and it is only the district court that has the right to decide whether or not to give permission to the government in this regard.".

In accordance to its previous findings, on March 19, 2012, the Supreme Court refused to issue a stay order on the current withdrawals. It stated that the district courts in which the cases were filed will decide whether to allow the withdrawal to proceed, in accordance to the State Cases Act.

Nevertheless, in the past, district courts have often failed to exert due vigilance over the legality of the withdrawal of cases filed in their jurisdiction. A report by the Nepalese NGO, Advocacy Forum, analyzing the trend of case withdrawal notably reads "District Court judges have been passive in their acceptance of case withdrawal applications and there are reportedly very few instances where district courts have scrutinized the Government's decisions for withdrawal or refused consent for withdrawal."

This negligence of the courts to exercise their responsibility to scrutinize which cases were to be withdrawn has encouraged the repeated massive withdrawal of cases. Since 1990 various governments have withdrawn more than 1000 cases, including already more than 600 since the signing of the Comprehensive Peace Agreement. That failure to exert oversight over the withdrawal process has encouraged further withdrawals, weakening the rule of law and the notion of a strong and independent judicial authority, able to resist to political pressure and to uphold the principles of equality of all before the law.

Article 2-3 of the International Covenant on Civil and Political Rights, of which Nepal is a party, mandates each state to ensure that victims of human rights violations have a right to effective remedy, which includes having their case decided by a competent judicial authority, in a fair and independent process. The oversight of the courts over the application for withdrawals is necessary and the merit of the cases should be considered on an individual basis. Failure to do so, especially in the cases related to murder, would result in a breach of Nepal's obligations under the ICCPR.
Read this statement online

# # #
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

Visit our new website with more features at www.humanrights.asia.

You can make a difference. Please support our work and make a donation here.

ENDS

© Scoop Media