Top government officials now worry that the document purportedly prepared to better enforce Article 151 of the Interim Constitution leaves enough room for the political parties to politicize the exercise of clemency and abuse the clemency powers, if it is endorsed by the cabinet.[break]
The provision relates to the president´s powers to grant pardons and suspend or remit sentences passed by courts, special courts or by any other judicial, quasi-judicial or administrative authority or body.
The document titled ´Directive on Granting Pardons, Suspending, Commuting or Remitting Sentences´, is currently in the bills committee of the cabinet.
"The directive does not meet international standards. Nowhere in the world are pardons granted and sentences suspended or remitted on the recommendation of political parties," said a senior government official who has read the document, adding, "If it is passed, only those who have political connections will enjoy clemency."
A senior home ministry official, confirming the proposal, told Republica that the document was prepared "obliviously under direction from the political level". He, however, declined to disclose who directed the ministry to prepare such directives.
Asked to comment on the proposed directives, Home Ministry Spokesperson Shankar Koirala declined to do so.
The directives seen by Republica say that the Ministry of Home Affairs will recommend to the cabinet pardons, suspension or remittance of sentences upon the recommendation of the major political parties only.
Another government official familiar with international practice in clemency told Republica that the proposed provision does not meet international standards.
"As per international practice, the law ministry recommends pardons only after conducting its own thorough investigations into the reasons why one should be pardoned, or a sentence should be suspended and commuted," said the official on condition of anonymity.
Human rights lawyer Govind Bandi also says that the provision is against internationally accepted standards for pardons.
"Internationally, pardons can be granted only by acting on a recommendation from an independent body. And any person who seeks pardon should have demonstrated good conduct in jail and realized his crime," Bandi elaborated about the international practice.
As per international practice, clemency is granted only to criminals serving jail terms, according to Bandi. But the proposed directive is silent about all this.
The directive states that pardons, remittances and suspension of jail terms cannot be granted to those convicted of corruption, involvement with illegal drugs, crimes related to immigration and passports, leakage of revenue, rape, money laundering, terrorism, disruptive activities, illegal organ transpant, espionage and leaking of state secrets.
The directives, according to officials, are silent whether pardon will be given to those convicted of murder, serious human rights violations and crimes against humanity. They said this loophole can be misused by the political parties.
"As per the international practice, pardons, remittances and suspension of sentences cannot be given to persons convicted of murder, torture, crimes against humanity and serious human rights violations," said Bandi, who did research on the powers of pardon while pleading at the Supreme Court last year against the government decision to pardon erstwhile Maoist lawmaker Bal Krishna Dhungel.
The proposed directive is silent about compensation and reparations for the victims while pardoning culprits. As per existing international practice, prior consent of the victims or the victims´ family is required before recommending pardon for the perpetrators, according to Bandi.
Subodh Raj Pyakurel, president of Insec, said the proposed directives on pardon, remittance and suspension of sentence goes against Nepal´s commitment to rule of law and the international human rights treaties to which it is a party.
"As per the existing laws, pardons cannot be given to those convicted for criminal activities," said Pyakurel, "The directive has been proposed in contravention of Nepal´s commitment to international human rights instruments."
The bills committee of the cabinet last Friday discussed the directives briefly but could not endorse them despite being urged by ministers to do so, according to officials involved in the discussions.
"Though the ministers wanted it passed by that meeting, we blocked the move, arguing that there should be more discussion on the document before it is passed," said a secretary who participated in the meeting.
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