Amid raging controversy, the government forwarded an ordinance to amend the National Criminal Procedure (Code) Act, 2017 to the President’s Office on Monday.

A cabinet meeting on Sunday had decided to bring the ordinance to eventually pave the way for the withdrawal of cases against Resham Chaudhary—the alleged ‘mastermind’ of the 2015 Tikapur incident in which eight people had died—and some leaders and cadres of the CK Raut-led Janamat Party. Similarly, the leaders of the Netra Bikram Chand-led Nepal Communist Party who are serving jail time on similar charges could also benefit from the new law.

The ordinance will become law after President Bidya Devi Bhandari’s authentication and will clear the way for the government to grant amnesty to those convicted of heinous crimes doing jail terms.

Tika Dhakal, an expert advisor on communications to President Bhandari, said the head of the state will study the ordinance which the President’s Office received on Monday. “We cannot predict her decision, and not before the government also communicates the rationale behind the ordinance,” he said.

Sources said the government has proposed to amend section 116 of the Civil Code for Criminal Procedure to add a provision allowing withdrawal of cases of political nature pending in a court of law.

Its sub-section 8 states that despite whatever has been written elsewhere in the section, cases that are either sub judice or under review cannot be withdrawn.

As Resham Chaudhary’s case is under review in the apex court following decisions by the district and the high courts, it cannot be withdrawn. So the government chose to bring an ordinance.

As per the agreement reached between the government and the political outfits, the government can withdraw cases of political nature apart from those prohibited by the law, said sources quoting the new provision to be added in the ordinance.

Coalition leaders, meanwhile, claim that the ordinance will be a temporary arrangement.

“The ordinance will have a short life,” a leader close to Prime Minister Sher Bahadur Deuba said, adding that it will be invalidated after serving its purpose—the government will not bring a replacement bill to turn it into a full-fledged law.

“The ordinance’s main goal is the release of Chaudhary as well as some leaders belonging to Raut and Chand’s parties,” the leader said. “The government’s intent is not bad. Several reports have suggested Chaudhary’s absence during the Tikapur incident. All ruling parties were positive about the ordinance.”

The government’s unforeseen decision has raised many eyebrows. Political leaders and the legal fraternity have condemned it.

As per the law, only the President can pardon people doing jail time; no law allows the government to issue such a pardon.

Dhakal agreed that the government’s decision to bring the ordinance after it has become transitional (caretaker) following November polls—with a new parliament convening soon—has stirred up a storm. “The President will consult with experts and closely examine the document before taking a decision,” he said.

The National Human Rights Commission, various political party leaders and civil society members have criticised the government’s decision to amend the criminal procedure code through an ordinance, allowing the government to withdraw criminal cases.

As their condition for joining the five-party coalition and forming a new government, the parties of Chaudhary and Raut had set withdrawal of cases against them as a condition.

“It is not difficult to predict how the country's governance will be affected by the decision to bring the ordinance,” said former chief election commissioner Bhojraj Pokharel.

“Let the new parliament take steps to end the tendency of manipulating the system for partisan gains,” said Pokharel, adding the new parliament’s first priority should be to ensure good governance.

Though Chaudhary is in jail, his wife, Ranjita Shrestha, has registered the Nagarik Unmukti Party and she is active in politics. The party won four seats in the House of Representatives. Similarly, the Raut-led Janamat Party won six seats in the lower house. The two parties will add 10 seats to the current ruling coalition, which is currently two seats short of a majority.

The National Human Rights Commission said its ‘serious attention’ had been drawn to the government decision. The commission has written to the Office of the Prime Minister and Council of Ministers on Monday seeking details of the draft law, the commission said in a statement.

The government decision has been roundly condemned by Nepali Congress leaders themselves. Congress vice-president Dhan Raj Gurung, general secretaries Gagan Thapa and Bishwa Prakash Sharma, senior leader Shekhar Koirala, and central working committee member Pradip Paudel termed the decision an insult to rule of law, parliamentary system and democracy.

Similarly, the second largest party, the CPN-UML, has also strongly criticised the decision, saying bringing an ordinance is above the paygrade of a caretaker government.

But the government has defended its decision as an attempt to pardon some politicians to bring them to the political mainstream.

Government spokesman and communications minister Gyanendra Bahadur Karki has argued that some politicians deserve pardon and this will bring peace, unity and development to the country. “Our goal is to bring political parties or groups involved in violent activities into peaceful politics,” he said on Monday.

He also defended the government's decision by arguing that past governments had also given similar pardons.

But Karki’s own party colleagues beg to differ.

Taking to social media on Thursday, Congress General Secretary Thapa said the ordinance is wrong on legal, political and moral grounds. “It is unconstitutional, undemocratic and against the spirit of the parliamentary system. The caretaker government can’t wade into matters with long-lasting implications. This government lacks the legal and constitutional mandate to issue an ordinance,” Thapa said.

“The government cannot withdraw sub judice cases. The new parliament can make a law and proceed if it considers [the jailings] a political issue. The government should immediately withdraw the ordinance as it encroaches on the jurisdictions of the court and parliament.”

Sharma, the party’s other general secretary, criticised Congress president and prime minister Sher Bahadur Deuba. “It is wrong in every sense to issue an ordinance in a transitional phase and that too without holding any discussion,” Sharma wrote on Twitter on Sunday evening. “The government action will raise not only political but also legal and moral questions.”

Similarly, Rastriya Swatantra Party president Rabi Lamichhane said the move has belittled people’s mandate and the authority of the new parliament. “How long will it take until the first sitting of the new parliament? One week? Two weeks? Three weeks? What emergency showed up that they could not even wait for one-two weeks? This step is the epitome of political effrontery. It should be returned asap [as soon as possible],” he wrote on social media.

Meanwhile, Janamat Party leader BP Shah has ridiculed the CPN-UML for protesting the government decision. He said the KP-Oli led government in the 12-point agreement signed with the Janamat Party in 2019 had agreed to withdraw the cases against his party’s cadres. “The CPN-UML’s protest against the implementation of the past agreement is pointless,” he said.

Cases against Resham Chaudhary and seven others reportedly involved in the Tikapur killings are sub judice in the Supreme Court. The Kailali district court in March 2019 convicted Chaudhary of masterminding the Tikapur incident. The Dipayal High Court in December 2020 upheld the district court’s decision.

Similarly, the legal fraternity and the intelligentsia have condemned the government move saying it will jeopardise the principle of separation of power.

“It is against constitutionalism, rule of law and constitutional morality. A transitional government cannot bring ordinances which can have lasting implications,” said Tikaram Bhattarai, a senior advocate. “The government has also tried to intervene in the work of the independent judiciary as the cases are sub judice. The ordinance should be withdrawn as soon as possible.”