Why proposed revisions to Criminal Code have courted controversyCritics say withdrawing cases from all tiers of court is an encroachment on the judiciary’s authority.
On Tuesday, lawmakers, including those from the ruling parties, came down heavily on the government over several provisions in the bill to amend some Nepal Acts. The lawmakers taking part in the deliberations were particularly unhappy with the provision that aims to amend the Criminal Code, clearing legal hurdles to withdraw criminal cases of “political nature”. The National Human Rights Commission, civil society organisations, and rights activists have also been objecting to the amendment. Amid the controversy, the Post explains what the amendment to the criminal code is all about.
What does the amendment bill contain?
The government on May 9 registered a bill to amend some Nepal Acts in the House of Representatives. It proposes amendments to 80 Acts, a third of the country’s total. Through the bill, the government wants to revise the Criminal Code, the Forest Act, the Environment Protection Act, Acts related to 13 universities, and many more. During deliberations on Tuesday, the lawmakers expressed their worries about amendments in other laws as well but were particularly concerned about changes in the Criminal Code.
In the bill, the government seeks to add a sub-section to section 116 of the Criminal Code with the goal of withdrawing cases against political leaders and cadres from all tiers of the court system—Supreme, High and District. The provision says that cases sub judice in a court against anyone from a party or a group that conducted violent protests in the past but is carrying out its activities peacefully now in line with the constitution and the law, can be withdrawn.
Why the controversy?
Critics say withdrawing cases from all tiers of court is an encroachment on the judiciary’s authority. They say it is against the spirit of rule of law and will promote impunity. Taking part in theoretical discussions on the bill, Nepali Congress lawmaker Gagan Thapa termed the provision unacceptable and said his party stands strongly against the politicisation of crime and criminalisation of politics. “The government is continuously insulting Parliament. The prime minister might be thinking he has a majority in Parliament and we [ruling party lawmakers] are here to endorse whatever bills his government presents. I want to ask him to be ready to face Parliament,” he said.
Other leaders from the senior coalition partner in the Pushpa Kamal Dhahal government too stood against the bill. The Congress chief whip Ramesh Lekhak said the provision cannot be endorsed in its current form. The main opposition said the government had misused its authority by trying to revise dozens of Acts through a single bill including one related to the criminal code. “We object to the bill that is against rule of law and promotes impunity,” said Mahesh Bartaula, the CPN-UML chief whip. “It cannot be endorsed.”
The National Human Rights Commission had said the amendment’s target is to clear legal hurdles to insurgency-era cases. The commission, issuing a statement in May, had said it was deeply concerned about the revision and had demanded the government clarify its motive. But the government has not responded. Leaders and cadres of the CPN (Maoist Centre), the prime minister’s party, have dozens of cases pending against them in courts.
More than 66,000 complaints have been lodged by conflict victims in the two transitional justice commissions. The Truth and Reconciliation Commission has received 63,718 complaints. Separately, 3,223 cases have been lodged with the Enforced Disappearances Enquiry, Truth and Reconciliation Commission. Of them, the disappearance commission has owned up 2,484 cases saying others do not fall under its jurisdiction.
Who else has objected to the amendment?
Civil society members and human rights defenders have also asked the government to rethink the bill. Joining them in expressing such concern is the International Commission of Jurists, which said, if passed, the bill would allow the Nepal government to withdraw cases related to heinous crimes committed by the activists and leaders of political parties, which would seriously undermine justice for victims, the rule of law, accountability and judicial independence in Nepal.
“The ICJ is concerned that legislation introduced by the Government on 16 July could serve to further impunity for serious crimes by giving the government authority to withdraw criminal cases. It calls on the government to withdraw or modify the proposed bill to bring it into conformity with its international legal obligations,” read its statement.
What does the government have to say?
The government maintains that the amendment bill was introduced to bring about lasting peace. While presenting the bill, Minister for Law and Justice Dhanraj Gurung claimed that the provision was aimed at bringing the political forces involved in violent protests into mainstream politics. He also rejected the allegations that the bill undermines the authority of the judiciary.
The government in the past unsuccessfully tried to revise the Criminal Code through ordinance. The Sher Bahadur Deuba government, in December 2021, had issued an ordinance to amend the code to clear the way for amnesty in sub judice cases. The move met with severe criticisms from different quarters. Though the Deuba administration didn’t budge, the code remained unchanged following the refusal of then-President Bidya Devi Bhandari to authenticate the ordinance.
How will the bill come into force?
The bill must be endorsed by both chambers of the federal parliament and be authenticated by the President for it to come into effect. There is still a long parliamentary process before it is tabled for endorsement. The bill was supposed to get the House clearance on Tuesday for the registration of amendments. However, it couldn’t happen as the House of Representatives lacked the minimum strength of lawmakers present. While 69 lawmakers constitute a quorum in the 275-strong House, only 59 were present on the day. The next meeting on September 4 could possibly approve the proposal, allowing cross-party lawmakers to register amendments to the bill.
It then will be sent to the State Affairs Committee of the lower house to find meeting points among lawmakers. The House committee needs to endorse it before the government tables it for clause-wise discussion and the endorsement from the House of Representatives. It will then be tabled in the National Assembly for endorsement. Only then it will be sent to the President’s Office for final authentication. The Parliament can change or totally remove the provision if it wants.