Supreme Court refrains from squashing Sapkota’s election as SpeakerJustice Sapana Pradhan Malla refused to issue an interim order but instructed the Home Ministry and police to present a progress report on the case within 30 days.
The Supreme Court on Tuesday refused to issue an interim order on a writ against Agni Sapkota, but recognised that questions raised over the appointment of a person facing a murder charge to the legislature’s highest post were justified.
Sapkota faces charges of the abduction and murder of Arjun Lama in 2005 and a case, filed on March 3, 2008, is pending at the Constitutional Bench of the Supreme Court.
Sapkota, a Maoist leader since 1995 and a two-time minister, was nominated for the Speaker’s post on January 19.
A week later, on January 24, senior advocate Dinesh Tripathi filed a petition at the Supreme Court demanding Sapkota’s immediate arrest and an investigation into the charges he is facing, dismissal of his nomination as House Speaker, and a halt to the Speaker election process.
A hearing was scheduled for January 26, but the case could not be heard as Justice Hari Phuyal, who was assigned the case had earlier argued against Sapkota back in 2011 when he was a practising lawyer. That same day, the House of Representatives elected Sapkota as Speaker.
The case was then assigned to Justice Sapana Pradhan Malla, who after hearing arguments on Monday and Tuesday, observed that there was no point in issuing an interim order as Sapkota had already assumed office after his election and oath.
The single bench, however, asked the Ministry of Home Affairs and the Kavrepalanchok District Police Office to furnish a progress report within 30 days regarding the status of earlier interim orders and the investigation into Sapkota’s case, which has been pending for the last 11 years.
Lama’s wife Purnimaya had moved the Supreme Court after the Kavrepalanchok District Police Office refused to register a case against Sapkota. A group of human rights activists had filed a separate petition in 2011 against the Jhalanath Khanal administration’s decision to make Sapkota a minister.
“Investigation had started after a case was registered at Kavrepalanchok District Police Office against Sapkota, but as of now, the charges have yet to be proven in any competent authority or court of law,” the bench observed. “So there is no need to issue an interim order at this point in time.”
The bench, however, said its attention has been drawn to a number of issues raised by the petitioner.
“A woman whose husband was killed in 2005 is still demanding justice,” the bench observed. “It’s obvious for questions to be raised about the obstruction of justice when a man facing murder charges reaches the legislature’s highest post.”
Earlier, while responding to Purnimaya’s case, the Supreme Court had asked the concerned authorities to furnish a progress report on the investigation every 15 days.
The court had also refused to issue an interim order in the writ filed by human rights activists in 2011, which had asked that the Khanal government’s decision to appoint Sapkota as minister be annulled. The court had then said that it could not annul Sapkota’s appointment as he had not been convicted by a court of law and it was a question of the morality of the person in question to resign.
On Tuesday too, the bench said that it expects Sapkota to use his conscience while discharging his duties as questions have been asked over his appointment as House Speaker and a member of the Constitutional Council.
Advocate Om Prakash Aryal, who pleaded on behalf of Friday’s petition, described the court’s Tuesday observations as meaningful.
According to Aryal, the court order authorises the Kavre District Police Office to move its investigation forward, as the onus to present the status report of the case is on the police.
Since Sapkota’s nomination as Speaker, conflict victims and national and international rights activists have expressed concern, asking for the Nepal government and parties’ position on the transitional justice process. Describing Sapkota’s nomination as Speaker as a setback for the transitional justice process, four international rights organisations—Amnesty International, Human Rights Watch, International Commission of Jurists and TRIAL—on Saturday had even warned that conflict victims could seek justice internationally under universal jurisdiction.
Senior advocate Baburam Giri said that even though the court stopped short of issuing an interim order, its ruling will help expedite the investigation into Purnimaya’s first information report filed with the police.
“Earlier, the police had been saying that they had failed to trace Sapkota. But since the court has asked the police to furnish a progress report, there is a legal compulsion to follow up,” Giri told the Post. “No interim order today means that the Supreme Court has left the case up to the Constitutional Bench to deal with.”
The Constitutional Bench is scheduled to hear the case against Sapkota on February 5.
Petitioner Tripathi said that if the police fail to apprise the court of progress in the investigation, the department risks facing a contempt of court charge.
“But the larger issue here is moral standing,” Tripathi told the Post. “The Speaker leads the state’s law-making body, the hallowed parliament, which also elects the prime minister. That apart, the Speaker also has a crucial role in the appointment of officials in constitutional bodies as a member of the Constitutional Council.”