The Asian Human Rights Commission strongly condemns the government cabinet’s decision to recommend that the President grants amnesty to Balkrishna Dhungel and wishes to add its voice to that of Nepalese civil society and the victim’s family to denounce the additional attempt by the government to shield human rights violators from justice and thereby entrench impunity in the country.
Balkrishna Dhungel was sentenced to life imprisonment and confiscation of property after having been convicted of the 1998 murder of Ujjan Kumar Shrestha by the Okhlandunga District Court on May 10, 2004, a sentence upheld by the Supreme Court of Nepal in 2010. In June 2011, the Supreme Court further found that there was no legally-based obstacle to implement its earlier verdict. Revealing the extent of the demoralization of Nepalese politics, having been condemned to life-imprisonment by the highest judicial body of the country did not prevent Dhungel from being elected at the Constituent Assembly and to remain an active member since then. On November 8, 2011 the government decided to send its recommendation to President Dr. Ram Baran Yadav to ask for amnesty to Dhungel, stating that it had found the case to be “politically motivated”.
The difficulties faced by the victim’s family to get justice, when thirteen years after the murder of their relative the perpetrator has still not served his sentence, shows that the government’s argument that the case would be politically motivated is groundless to say the least. On the contrary, that ultimate attempt to shield one of its supporters from a Supreme Court decision is nothing less than the dismantling of the family’s right to a legal remedy.
Most of the victims from the conflict have not even seen the perpetrators appear before a court, let alone be convicted. The amnesty of Balkrishna Dhungel would send a clear signal them that even a success in the highest court — a prospect still distant for most cases — does not guarantee that justice will be done, that they do not have any avenue to claim their rights.
Since May this year, the government has made several attempts to massively withdraw cases dating back to the time of the conflict, terming them as politically motivated. Dhungel’s case was also included in the list of the cases to be withdrawn. Nepal has faced strong internal and international opposition to such a move, and the government’s request for amnesty is therefore to be seen as a government attempt to find alternative ways to grant amnesty to its supporters. The AHRC is therefore of the opinion that the move to demand amnesty for Dhungel should not only be considered as an individual case but, if successful, as a case which would be setting a precedent for dozens more human rights cases to be pardoned through the same channel.
The Updated Set of principles for the protection and promotion of human rights through action to combat impunity specifically reminds the States of their obligation to “adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription, amnesty, (…) non bis in idem, due obedience, official immunities, (…) that fosters or contributes to impunity.” By granting amnesty to a convicted murderer, Nepal would fail to abide by its international obligations. The commitment that Nepal took before the international community during its Universal Periodic Review at the beginning of the year not to condone impunity would be blatantly trampled.
The implications of this decision for the rule of law in Nepal are equally of serious concern. The Interim Constitution specifically mandated that the Government of Nepal is bound by the decisions rendered by the Supreme Court. Nevertheless, it seems that a cabinet decision is sufficient to overturn a decision rendered by the highest judicial authority, questioning the reality of the independence of judiciary and the balance of power in Nepal.
Needless to say, that decision is also an additional blow to the fundamental democratic principle of equality of all before the law as belonging to a certain political party is sufficient to be cleared from accusations of having committed human rights violations.
The AHRC strongly reasserts that politically motivated amnesty should not take place in a democratic set-up. We recall the unalienable right of victims of human rights violations and their families to be provided with adequate legal remedy. We urge the government to acknowledge its prime responsibility to protect these rights and to withdraw its decision encroaching upon them in violation of its international and national legal obligations.
