Pardon to Resham Chaudhary comes under questionOn Monday, the President pardoned 19 prisoners, including Resham Chaudhary, the convicted mastermind of 2015 Tikapur incident.
June 24, 1998. Bal Krishna Dhungel, a politician from Okhaldhunga, led a cohort of around seven-eight people and ambushed Ujjan Kumar Shrestha. Shrestha was also from Okhaldhunga and at the time of incident, was en route to Ramechhap. Dhungel shot Ujjan Kumar dead and dumped the body into the Likhu river, a tributary of the Sunkoshi.
Ten years later, Dhungel got elected to the Constituent Assembly while Shrestha’s family continued their fight for justice. The Okhaldhunga district court had convicted Dhungel of murder in 2004 but in 2006, the Rajbiraj Appellate Court gave him a clean chit. The Supreme Court in 2010 overturned the appellate court’s decision and upheld the district court’s verdict.
In 2011, the Baburam Bhattarai-led government decided to grant amnesty to Dhungel, but the Supreme Court later ordered not to make such a move. The government’s decision had drawn widespread controversies back then. Despite the court's order, Dhungel was walking scot-free. Only in October 2017 was he arrested.
But on May 28, 2018, President Bidya Devi Bhandari pardoned 816 jailbirds including Dhungel on the occasion of Republic Day on the government’s recommendation amid protests from a section of the public and various human rights organisations.
Now the pardon of the remaining jail term of Tikapur massacre mastermind and former lawmaker Resham Chaudhary has met with similar resistance. Legal experts the Post talked to say if such convicts are granted amnesty, impunity will go uncontrolled in the country.
The decision to pardon Chaudhary, as per Article 276 of the Constitution of Nepal, comes just 10 days after the Supreme Court handed a life sentence to him. “The President may, in accordance with law, grant pardons, suspend, commute or remit any sentence passed by any court, judicial or quasi-judicial institution or administrative authority or institution,” the article states.
Along with Chaudhary, 19 other convicts serving jail terms were also granted presidential pardon on the government's recommendation.
Observers say presidential pardon has been misused with political interest at times, and pardoning without valid reasons and for political purpose will promote impunity.
Dinesh Tripathi, a constitutional expert, termed the decision a misuse of the constitutional provision for political convenience. If the government pardons convicts due to their political power, impunity will go uncontrolled in the country, he said.
“Pardoning those who have been convicted in crimes will undermine the court and judiciary,” Tripathi said. “It is not a fair exercise of power and weakens the rule of law.”
The legal fraternity has criticised the move, as Chaudhary has been pardoned at a time the full text of the recent apex court verdict is yet to come.
Issuing a statement on Monday, Nepal Bar Association drew the attention of the government to be serious in the matter of the punishment, pardon and justice for the victims.
“The President pardoning those linked with the Tikapur incident on the recommendation of the government is against the supremacy of the constitution, rule of law, and the concept of pardon and such activities will ultimately promote impunity,” reads the statement.
The Tikapur incident happened on August 24, 2015 as a demonstration turned into a violent clash between protesters and police in Tikapur, Kailali. As many as nine people, including a two-year-old child and eight police personnel, were killed in the incident. Scores others were injured.
In May 2019, the Kailali district court gave life sentences to 11 people including Chaudhary, for their involvement in the commission of crime.
The convicts had appealed to the Dipayal High Court but it upheld the life terms slapped by the district court on Chaudhary and others. Then Chaudhary and other convicts moved the top court demanding that they be given clean chits. However, a division bench of justices Anand Mohan Bhattarai and Nahakul Sudedi rejected their request and upheld Chaudhary’s life imprisonment.
As Chaudhary has already been convicted by the three courts, constitutional expert Bipin Adhikari said “it is not even a reasonable case to consider for a presidential pardon”. “If this continues, no one with political clout will be imprisoned for any type of crimes,” he said.
Adhikari added that the Tikapur crime was so heinous that even the pardoning will not let Chaudhary enter the Parliament. “In Chaudhary’s case, the infant and the police [the state] were brutally murdered.”
However, lawyer Swagat Nepal argues that one can’t find fault in the President’s decision to pardon Chaudhary because the head of state can’t pardon someone who is convicted of cruel and inhumane killings and Chaudhary is not similarly convicted. “In this case, the court’s verdict hasn’t stated that Chaudhary was involved in cruel or inhumane killings, therefore one can’t find any fault in the President’s pardon,” Nepal told the Post. “Moreover, the case filed against him is on murder, attempted murder, and robbery, not on inhumane killings.”
He also argued that the allegations against Chaudhary that he had coordinated the attack and instructed other people haven’t been substantiated by evidence.
Some legal provisions for pardon are mentioned in the criminal procedure code 2017. Section 159 of the code states no action may be taken to pardon, suspend, alter or reduce the sentence imposed on the offender of any of the following offences: (a) corruption, (b) torture, (c) rape, (d) murder in a cruel and inhumane way or by taking hostage, (e) genocide, (f) explosives, 164 (g) kidnapping, hostage-taking or enforced disappearance, (h) human trafficking and transportation, (i) money laundering, and (j) narcotic drugs trafficking or transaction punishable by a sentence of imprisonment for a term exceeding three years.
According to legal experts, sometimes, the pardon is given if fresh evidence is discovered to prove a convicted person innocent. Sometimes, the elderly people, the new mothers, and patients with chronic diseases can also be considered. “But such a move of pardoning should be for justice,” said Adhikari.
Legal experts say Resham Chaudhary can be rearrested. “It will not be acceptable to the court. The court can order Chaudhary be rearrested,” Adhikari added.
There are some precedents in which the court has overturned its own decision and put a criminal behind the bars again.
Ranjan Koirala, a murder convict who was released on July 23, 2020 after his sentence was commuted by the Supreme Court, was rearrested later. A full bench of Acting Chief Justice Deepak Kumar Karki and justices Tanka Bahadur Moktan and Kumar Chudal in May 2022 quashed the top court’s earlier verdict issued by a division bench of Chief Justice Cholendra Shumsher Rana and justice Tej Bahadur KC.
The verdict by the Rana-led bench sparked controversies, prompting the Supreme Court to go for a review.