Nepal loses its say in international forums if NHRC is downgradedFormer Chief Justice Anup Raj Sharma, who also led the National Human Rights Commission, on a legion of issues related to presidential pardon and the constitutional rights watchdog.
The government and President Ramchandra Paudel have been criticised for pardoning Yograj Dhakal aka Regal, an unrepentant murder convict. The issue is being widely discussed after the Supreme Court last week invalidated the President’s pardon. Meanwhile, the National Human Rights Commission has recently saved itself from a downgrade. The Post’s Thira Lal Bhusal sat with former Chief Justice Anup Raj Sharma, who also led the National Human Rights Commission (NHRC), to discuss these issues.
The Supreme Court on Thursday overturned the President's pardon given murder convict Yograj Dhakal aka Regal. How did you see this development?
The constitution has given such rights to the President. The head of state may grant pardons, suspend, commute or remit any sentence passed by a court. But the constitution says it should be done “in accordance with the law”. So the President has to check what criteria are set by the law. If the recommendations made by the government aren’t as per the law, the head of state should return them.
Every year, the President pardons 300-400 prisoners on different occasions. But in some cases, questions were raised about the grounds for the pardon. On September 30, the President returned the recommendations of pardon for 34 individuals as the grounds for such pardons were unclear. But he endorsed the pardons in more serious cases, even though there were no grounds for such pardons.
In the past, former President Bidya Devi Bhandari was widely criticised for endorsing the then prime minister KP Sharma Oli's recommendations without a second thought. But the same tendency is seen now. At least, Paudel should have sought legal grounds. There should be a basis even to use prerogative rights. The President must use his conscience before making such a decision.
In our case the government submits a list of hundreds of people recommending the President to pardon them and the head of state obliges. Is it the right process?
This is wrong. There is a constitutional provision of presidential pardon, and that has been practised for long. But a wrong process is being followed of late. Ideally, the person seeking pardon should first submit a petition to the President. When the President gets the petition, he weighs whether there is sufficient ground to pardon the person. Then the President seeks suggestions from the government. This is the process to follow. It happens everywhere in the democratic world, including in India.
Following the latest court decision, can we expect some reform in this process?
Democracy is a system in which all responsible ones should exercise self discipline and respect democratic values. The court has reminded that pardons should be in accordance with the constitution and the law. The law clearly states that those who were given a life term by a court of law shouldn’t be pardoned. But he [President] breached the provision.
Did the court just remind the government of constitutional and legal provisions or did it set a precedent?
This is not something new. If you study the case of DB [Dil Bahadur] Lama [who later became police chief], justice Bishwa Nath Upadhyay had sought grounds for pardoning him. We find similar verdicts in India as well. So, the government, while recommending a pardon, must furnish legal grounds and the President should cross-check them.
What anomalies are such Cabinet decisions promoting?
It has caused serious problems. For instance, the Central Investigation Bureau (CIB) conducts a thorough investigation on certain crimes and files cases in courts. Then the district, high and the Supreme courts issue verdicts. But their decisions are meaningless when those they convict are pardoned and freed. Generally, we find two types of people that are freed through such decisions: cadres of political parties and those who can offer huge bribes, but not the prisoners who show genuine good conduct. In the past, there was also a practice of seeking the court’s approval for that. Justice Ishwar Prasad Khatiwada, when he was a judge in a district court, had once refused to approve a pardon.
Is the provision of presidential pardon faulty?
No, it is needed at times. Sometimes, even good people commit crimes. Some recommendations for pardon can be substantiated on strong grounds. When I was a lawyer, I had pleaded for pardon for a person. When he came home, he found his wife sleeping with someone else. He hit the man with an axe and killed him then and there. I argued that his reaction was natural. So he was granted some leeway in his sentence. In the recent decision, I was surprised to know that the President didn’t seek grounds for pardoning Yograj Dhakal even as he sought it for pardoning 34 other prisoners. Media reported that Dhakal got the pardon as he was an active member of Tarun Dal, the Nepali Congress youth wing. If that is the case, the President’s act is more serious.
What about pardoning someone based on the victim’s suggestions?
That is not wrong in itself but it is impractical.
What should be done to do away with wrong practices in cases like this?
The prisoner seeking pardon should submit a petition to the President saying that I repent for the crime and I have already served this much of the sentence. The President’s office inquires about the matter and seeks the advice of the government, which then studies the matter and makes a recommendation. Then the President makes a decision.
In Nepal, Cabinet ‘policy decisions’ are often controversial as they can’t be probed by the Commission for Investigation of Abuse of Authority. Is this the right practice?
Wrong decisions should be challenged irrespective of who makes them. For instance, the then King Gyanendra formed the Royal Commission for Corruption Control after his takeover in 2005. We were in the Supreme Court at the time. We scrapped it as we already had a similar body. In the past, no question was raised against any of the king’s steps. The Supreme Court for the first time said that even the king’s acts can be unconstitutional. And second, there should be a clear definition of what policy decisions are. All Cabinet decisions can’t be policy decisions.
Let us move to the National Human Rights Commission successfully retaining its ‘A’ status and saving itself from an international downgrade. How do you see this development?
This situation arose due to the dishonesty of former prime minister KP Oli. He appointed office bearers in the NHRC by tweaking a law related to the Constitutional Council, which nominates the officials in the constitutional bodies, through an ordinance. Those who are appointed there are good people. But the government wanted to weaken the body. It used to be led by a former chief justice. Now a former justice has been given the leadership role. This makes a big difference.
If a former chief justice is head of the body, he or she can summon powerful officials such as home minister, army chief, police chiefs to question them. I have done that so many times. Former justices don’t have that kind of command. This is how the NHRC has been weakened. The commission can’t work effectively if the government isn’t cooperative. Parliament brought a bill to amend the commission’s Act. Once, I was invited to a parliament committee meeting. They suggested that the commission’s rights be curtailed. I threatened the lawmakers to internationalise the issue if they did so.
Could the NHRC still be downgraded?
Yes, because our major parties such as the Nepali Congress and the CPN-UML aren’t in favour of strengthening it. Just a week before my retirement, we published a list of 144 people recommending actions against them, and they included army and police chiefs. The government didn’t take action against them. But at least it is recorded in history.
What kind of setbacks will Nepal face if the NHRC is downgraded?
We will lose our voting rights in the United Nations Human Rights Council. Likewise, we will lose our voting rights in the Asia Pacific Forum. In such a situation, Nepal will not have any say in international forums. It can only listen to others’ views while remaining silent. The same voting rights had helped Nepal and Qatar reach an agreement to promote and protect the rights of Nepalis working in Qatar in 2015. At the time, Qatar had sought our votes and at last it won by one vote in the Human Rights Council.
In the world, only two national human rights bodies observed general elections of their own countries: those in Nepal and Zambia. Even in India, the national human rights body isn’t allowed to observe the elections. Therefore, the NHRC has an impressive international image. Had it been downgraded, it would have lost that credential. In South Asia, only the commissions from Nepal and India have the ‘A’ status.
Some argue that the NHRC should take bold steps such as blacklisting officials or agencies violating the commission’s recommendations. Do you agree?
Yes, the commission should take such steps. But political parties want to adopt the ‘forget and forgive’ modality. Congress President Sher Bahadur Deuba always says, “Why exhume a dead body from the grave?” or “Why reopen the wounds of a conflict?”. What they all want is to increase the financial compensation to the victims but not to take action against the perpetrators. They think that people will be silent once they are given good money. But that’s a wrong assumption.
What steps are needed to strengthen NHRC?
The commission’s Act should be updated and it should be made financially independent. Under existing provisions, it’s very dependent on the government. For instance, if the commission for some reasons cannot spend money allocated for a specific title, it can’t divert that for another purpose. Once a budget is allocated for the commission, it should be allowed to spend the money as per its requirement and context.