After two years of investigation, the National Human Rights Commission in October had concluded that the killing of Gopal Tamang, 23, of Sindhupalchok and Ajay Tamang, 24, from Nuwakot in a forest in Bhaktapur district by the police were extrajudicial.

A police investigation had concluded that the duo had kidnaped, killed and buried Nishan Khadka, 11.

According to the rights commission report, after killing them subsequent to their arrests a police team led by Deputy Superintendent Rugam Bahadur Kunwar had shot them dead on August 6, 2018 and later claimed that they were killed in “an encounter” since they had first fired at the police.

The commission concluded that along with Kunwar, Sub-inspectors Dipendra Chanda, Prashnna Malla and Ranjit Tamang and Assistant Sub-inspector Rajan Khadka were also involved in the killings.

It recommended the government book the police officials on criminal charges.

However, no actions were taken against the five police officers.

After the suspicious death of Kumar Paudel, Sarlahi district in-charge of the Netra Bikram Chand-led Communist Party of Nepal, after his arrest in June last year, the National Human Rights Commission investigated into the circumstances leading to Paudel’s death.

In a report published in October last year, the rights body concluded that Poudel was killed by the police and labelled it an extrajudicial killing.

It had recommended action against the police personnel involved. A year later, no action has been taken against them.

Nepal Police is responsible for action against such criminal activities, even if the perpetrators are police officers.

But now the Supreme Court has directed the government to form a separate mechanism, independent of Nepal Police, to investigate such cases of extrajudicial killing.

The full text of the ruling by the division bench of Justices Ishwar Prasad Khatiwada and Kumar Regmi made public earlier this week said a separate mechanism comprising experts from different sectors is necessary as impartial investigation by the police against its officers can be doubted.

“Constitute a mechanism separate from the Nepal Police for an independent, fair, impartial, and effective investigation into extrajudicial cases,” reads the verdict issued against the Office of the Prime Minister and the Ministry of Home Affairs.

“Until such a mechanism is constituted, the Central Investigation Bureau of Nepal Police should carry out the existing and other cases of unlawful killings.”

The Kathmandu-based Central Investigation Bureau sends investigators to crime scenes when local police are not sufficiently equipped in terms of personnel and tools.

Issuing the verdict in the writ filed by advocate Dipendra Jha, now chief attorney at Province 2, and advocate Sunil Ranjan Singh, now a member of the Commission of Investigation on Enforced Disappeared Persons, the Supreme Court has asked the Attorney General’s Office to oversee that the court verdict is implemented.

Human rights activists and former police officers have welcomed the decision.

“This is a landmark verdict from the Supreme Court,” Singh told the Post. “This could be a huge step towards providing justice for the families of victims who have been killed by the police either after taking them into custody or in excessive use of force.”

Jha and Singh had knocked on the Supreme Court’s door arguing the police had either refused to take complaints or filed weak chargesheets against police personnel involved in extrajudicial killings, which had led to the lack of conviction against alleged perpetrators of extrajudicial killings. In their writ, Jha and Singh had presented cases from the Tarai-Madhes from as far back as 2008 when the government had carried out a crackdown against several armed outfits in the region.

Hemanta Malla, former deputy inspector general of Nepal Police also welcomed the court’s order to form a separate mechanism.

“Questions over impartiality in investigation will be raised when the police carry out an investigation against its official,” Malla told the Post.

As per the Criminal Code-2017, cases of extrajudicial killings have to be filed at the police station under whose jurisdiction such cases take place and therefore it is the colleagues of the accused who have the authority to investigate any complaints.

So far there have not been fair and impartial investigations into such cases, according to Mandira Sharma, a human rights lawyer and activist.

“Nepal Police hasn’t been impartial in investigating the cases of extrajudicial killings and torture,” she told the Post. “Therefore, no action has been taken in almost all the cases.”

If there is a degree of public outrage and criticism following such an incident, the government forms a task force usually led by an official of the Ministry of Home Affairs, a retired senior police officer or a judge. But the findings of the task force are not made public; nor are its recommendations implemented most of the time.

The National Human Rights Commission also investigates such cases. However, even the recommendations by the constitutional rights watchdog are not implemented.

In their verdict the justice duo has reminded police authorities of the United Nations Basic Principle on the Use of Force and Firearms which says law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives.

In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life, according to principle.

The court’s verdict earlier this week also has directed the government to create awareness and revise existing laws, if necessary, to stop unnecessary and excessive use of force while maintaining the law and order.

For Sharma, the mechanism that the court has ordered to be formed should also have been given the authority to investigate other gross violations of human rights by the security forces rather than just extrajudicial killings.

For Malla, the concern is that such a mechanism be equipped with forensic tools and suitable laboratories as well as technical experts as task forces that have been formed in the past often did not have such experts.

He, however, welcomed the Supreme Court order and said, “There is a practice of forming such mechanisms in different countries.”