Analysis

Pardoning criminals: Nepal’s communism model?  

Rajeev Ranjan and Jivesh Jha

Ranjan

Ranjan

Is it justified to excuse a man when numerous others are being rebuffed for a similar offense? If the President grants pardons to the ruling party’s honchos no sooner than it came to power, it would set a wrong precedent. It goes on to prove that two modes of justice prevail in the country, i.e. one for ordinary class (proletariat) and the other for well-off (bourgeoisie). Ultimately, it would pose threat to the existence of communism in a state where the party bearing communist ideology is at the helm of power.

Jivesh

Jha

The recent exercise of pardoning power by the President is suffice to convince a prudent mind that politically connected people can easily get pardoned for his/her offence no matter how heinous crimes they committed. The President of Nepal Mrs Bidya Devi Bhandari on the occasion of Republic Day (May 29, 2018) granted pardon to Nepal Communist Party leader Bal Krishna Dhungel from serving rest of his jail sentence. Dhungel has been convicted by the Supreme Court of committing homicide of an individual at the time of conflict.

Amusingly, Dhungel alongside 816 convicted criminals—most of them are hard-cores—were released on the recommendation of government for ‘good conduct.’ The day ought to have marked the beginning of new dawn for the people of Nepal who gave mandate to the Communist forces to not only foster the breeds of socialism but also transform their lives in Federal Democratic Republic of Nepal. But the expectation of the national population has been shattered.

It appears the government of the day is less devoted to initiate socialism in the country and more focused on carrying out terrible practices under the attire of socialism. It would at last clear the courses for the dismissal of balance standards in the Republic which would ultimately pave the way for the rejection of equality principles. In doing so, Communist powers of Nepal have given a jolt to the dreams of Karl Marx, Friedrich Engles and Vladimir Lenin. They are no more in a position to claim in their political documents that they are pledged to bestow the ideology of Communism.

Although the Communists of Nepal claim to be staunch believer of Communist philosophers like Lenin or Marx, the recent act of clemency to criminals shows that they have made principled distance with ideologues of communism. Would the convicts, who are generally units of Communist powers, assume any instrumental part in the public eye? Will it be safe to say that they are liberated to disseminate the messages of ‘socialism’?

How come a democratic government grant pardons to the murder convicts merely on the report of jail authorities? The report of jailors can be noteworthy for allowing parole or probations or furlough, but not entire forgiveness. Along these lines, the choice of government is neither ‘reasoned’ nor pragmatic.

Even if the populist leaders of Communist forces have succeeded to convince the heart and mind of voters, they have forgotten the C of communism. The hardcore principle of Communism clearly shows adherence to equality before law and equal protection of law and good governance. If this type of presidential clemencies happens time and again under the garb of Article 276, the authority of Court, which is the characteristic feature of a federation, would be called in question. It is to be noted here that the “reasoned decision”, which is fundamental to natural justice, intends to garner equality and give a blow to arbitrariness but this principle was sidelined by the government as the decision to pardon lacks any rationality.

Former lawmaker and erstwhile UCPN Maoist (now Nepal Communist Party) leader Dhungel, who got clemency from the President, was convicted for masterminding the murder of Ujjan Kumar Shrestha in 1998 during Maoist insurgency. He was awarded life term with confiscation of property by Session Court of Okhaldhunga district in 2004. However, the Rajbiraj Appellate Court overturned the decision of the Session Court in 2006 and gave him a clean chit. But, the Apex Court upheld the Session Court’s verdict in 2010. It should be born in mind that the pardoning nullifies the ruling of a law Court but not the guilt!

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Nevertheless, the power of a Court and that of the President operate on two different planes and the nature of powers is different from each other. If the authority of Court or the principle of separation of power is something to stand by, the President or Governor cannot encroach in the domain of judiciary.

It’s an evident fact that the “fortunate” individuals who received forgiveness are not among them who take a vow to walk Lenin’s way. Neither can they provide any assistance to canvas the visions of Lenin who was of the view that the duty of ‘special class’ [i.e. learned people] is to internalise socialist morality in the mind of proletariats. Irony is that these people [pardoned criminals] are the enemy of proletariats. At this pretext, it would be fallacious to assert that the communists of Nepal are really committed to advance the cause of Leninism and Marxism.

Does communism allow the head of state, who herself is a communist, to grant pardons to the convicted criminals? Does our Republic deserve this kind of impunity? Are we going to set a new precedent that the communists are free from judicial slap no matter how heinous their crimes were?

Interestingly, in every Constitution of the world, there is a provision to reprieve, commute, or remission of punishment of a person who has undergone due process of law and has been convicted by the Court of justice. The power to grant a pardon is enshrined under Article 276 of 2015 Constitution where the President of Nepal “may grant pardons to persons convicted, and suspend, commute, or reduce any sentence imposed by any court, judicial or quasi-judicial bodies or administrative officer or authority.”

This constitutional power to pardon is not a unique concept in Nepal. It was derived from Royal Prerogative of Mercy. This power is delegated to the Lord Chancellor in England whereas in the US it’s secured under the Constitutional scheme. Article II, Section 2 of US Constitution envisages that the President “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Similarly, the Constitution of India also recognises presidential power of pardoning under Article 72 which confers on the head of state the power to grant pardons, reprieve, respite, and commute or reduce the sentence of any person convicted of any offence.

Unlike United Sates, the president of India or Nepal does not act in person but on the aid and advice of Council of Ministers headed by the Prime Minister. But does the Cabinet advice bind the President? As per the Constitutional frameworks, the Presidents of these two Republics are bound to pay a heed to the advice tendered by the Council of Ministers. Still, there are instances which depict a vivid picture that the desk of President can reject the mercy petitions.

In this context, Pranab Mukherjee, the former President of India, had cleared as many as 32 mercy petitions. “Of 32 mercy petitions cleared, 28 were rejected by the President. That’s over 87 per cent of the total mercy petitions,” reported Huffington Post last year. Moreover, “R Venkat Raman– who was in office between 1987-1992– rejected as many as 44 mercy petitions, the most by any President of India” so far. It is to be noted that Article 74 mandates that the President of India would compose his functions in accordance with the aid and advice of Council Ministers headed by Prime Minister.

Yet, has the Government formulated any uniform standard or guidelines by which the exercise of this constitutional power is intended to be or is in fact governed? Unfortunately, the Nepali state lacks any guidelines or the ruling of the Court in this regard. Still, the judicial department of Nepal can take a leaf from the dynamic observations of the Supreme Court of India.

The Apex Court of India has time and again said that the question [uniform guidelines] is of far-reaching importance and that it is necessary that it be examined with care.

Importantly, the Apex Court of India in the landmark Maru Ram v. Union of India (AIR 1980) insisted that although the power to pardon is very wide, ‘it cannot run riot’. The Court emphasised that no constitutional power is to be exercised arbitrarily. ‘Public power vested on high pedestal has to be exercised justly.’ In saying so, the Court clarified that the head of the state is not competent to grant pardon in a fanciful manner.

The Supreme Court of India has further clarified in the case of Epural Sudhakar v. Government of AP (AIR 2006) that the material facts on which the pardoning power was exercised is subject to judicial review and “the considerations of religion, caste, or political loyalty are irrelevant and prohibited. It was also held that the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of the decision on family of the victim and society and the precedent it sets for the future.”

In this light, it’s advisable for the Supreme Court of Nepal to initiate a judicial review of the presidential order on the ground of political reason. It is a known fact that that the former lawmaker Dhungel was pardoned just because of his “political loyalty” to a party (i.e., Nepal Communist Party).

The Supreme Court of Nepal while taking a (persuasive) reference from judicial interpretations of India can inquire the grounds on which pardoning power was exercised or may ask the authorities concerned to reveal the grounds in presidential order itself.

The Supreme Court of Nepal while taking a (persuasive) reference from judicial interpretations of India can inquire the grounds on which pardoning power was exercised or may ask the authorities concerned to reveal the grounds in presidential order itself.

Nevertheless, the power of a Court and that of the President operate on two different planes and the nature of powers is different from each other. If the authority of Court or principle of separation of power is something to stand by, the President or Governor cannot encroach in the domain of judiciary.

Does communism allow the head of state to grant exculpations to the sentenced criminals? Does our Republic deserve this sort of impunity? Certainly, it won’t be accurate to say that we are going to set a precedent that the communists are free from legal slap regardless of their crimes. Such practice of pardoning criminals for no good reason is itself suicidal for communism in any democratic set-up.

Mr Ranjan is Assistant Professor of Legal Philosophy at Uttaranchal University, Dehradun, India and Mr Jha is an LLM student at Uttaranchal University.

Published on June 13, 2018

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