KATHMANDU, Aug 22: Outside the imposing Supreme Court building, Bharati Sherpa draws a shaky breath. She went on a hunger strike because the man convicted of killing her husband — a former Nepali Congress party worker — was released from jail after being pardoned by Nepal’s president. She filed a petition against the man’s release, and on this day in late 2023, the court is about to deliver its judgment.

Sherpa’s petition triggered a mammoth review of Nepal’s presidential pardons and has the government reconsidering the rules for granting pardons, says Ministry of Home Affairs spokesperson Narayan Prasad Bhattarai. The nation has a long history of powerful leaders releasing people whom they know were convicted of serious crimes, according to the National Human Rights Commission as well as lawyers and political observers. Such releases are against the law. People convicted of serious crimes, such as corruption, rape, torture or murder, are not eligible for pardons in Nepal.

Following the pardon of the man convicted of killing Sherpa’s husband, the National Human Rights Commission wrote to the prime minister stating that such politically motivated pardons would disrupt society.

“Criminal tendencies will increase, impunity will be tolerated, and questions will be raised about governance, and the citizens will oppose the state,” wrote Top Bahadur Magar, chairperson of the commission. Sherpa’s husband, Chetan Manandhar, owned a shop in Nepalgunj in Banke district.

He had a falling out with Yogaraj Dhakal, also known as Regal. One July morning in 2015, Sherpa remembers a phone call from Dhakal summoning Manandhar to the market. A group of men including Dhakal attacked Manandhar with traditional swords called khundas, killing him, according to court documents.

One of the accused men testified in court that Dhakal planned the murder. Dhakal was convicted and sentenced to 20 years, including time served while awaiting trial, by Banke District Court in 2018.

Five years later, on Constitution Day, which commemorates the nation’s rebirth as a federal republic, Dhakal was pardoned by President Ramchandra Paudel. He was released from prison with approximately 12 years left on his sentence.

Sherpa felt wrecked when she saw Dhakal emerge from prison on a social media app. She had suffered since her husband’s death. All alone, she says she attempted suicide several times. Now, her husband’s killer was free.

Sherpa filed a petition with the Supreme Court and went to Kathmandu from Nepalgunj to hold a press conference in October 2023. “After my husband’s death, I felt like I also died. Now, because of the pardon, I am dying a second time,” she said as she announced a hunger strike.

Sherpa sat at Maitighar Mandala, a monument at a busy intersection where protests are usually held, drinking only water, as the Supreme Court judges deliberated nearby.

A long history Sherpa’s story isn’t unique in Nepal. Legal experts say successive governments and presidents have issued pardons for people convicted of serious crimes. In 2023, 1,566 people who had completed at least half their prison terms and had exhibited good behavior received presidential pardons, according to the Office of the President.

Among them was Resham Lal Chaudhary, founder of the Nagarik Unmukti Party, who was convicted of killing nine people during a riot in 2015. As far back as 2011, the United Nations and Nepal’s Human Rights Commission observed that many people convicted of serious crimes receive pardons or have their cases withdrawn. Such case withdrawals “protect politically connected individuals from criminal accountability, promoting a policy of de facto impunity for the perpetrators of hundreds of serious crimes,” according to a 2011 commission report.

“The government has pardoned those with political connections,” says Amresh Kumar Singh, member of the House of Representatives. “This seems to happen [every year] and with every government.”

Observers say that some of the pardoned people are politically connected.

In 2018, the late Communist Party of Nepal (Maoist Center) leader Balkrishna Dhungel, who had been serving a life sentence for murder, was pardoned.

Three years earlier, so was Pradeep Jung Pandey, the former president of the Federation of Nepalese Chambers of Commerce and Industry, who was sentenced to three years for corruption.

Sushil Pyakurel, adviser to former President Bidya Devi Bhandari, who pardoned Dhungel, says that he advised against it.

“When I was the president’s adviser, people with political access were pardoned. I had raised my voice against it,” he says. Pyakurel also served as a commissioner on the National Human Rights Commission between 2000 and 2005.

Dhakal’s lawyer, Lav Kumar Mainali, says his client is being unfairly targeted when other people have been freed without objections. “When a political party is in power, they have pardoned thousands of cases. Nobody has raised a voice in disagreement,” he says.

How pardons work

Under Article 276 of Nepal’s constitution, the president has the power to “pardon, suspend, commute or reduce” a person’s sentence. Incarcerated people can petition the Department of Prison Management, which then submits a recommendation to the Ministry of Home Affairs. The ministry considers the crime and any previous record, the person’s age and sentence, and submits a prospective list of incarcerated people to be pardoned to the Council of Ministers. After discussion, the council forwards the list to the president.

Former Minister of Law, Justice and Parliamentary Affairs Dhanraj Gurung, who was in the Council of Ministers when Dhakal was pardoned, says it isn’t just one office or one person that decides who gets pardoned. “The sentence reduction or amnesty goes through [the] district administrative office, Department of Prison Management, then the Ministry of Home Affairs and eventually to the Council of Ministers,” Gurung says. He says the Council of Ministers can stop the amnesty process, but once it reaches that level, “we work with the belief that the lower-level agencies have done the required investigation.” The list, he says, has hundreds of names, and it is only after amnesty is granted, that the ministers find out about controversial cases.

Baburam Kunwar, legal adviser to the president, says the president’s job is to make official the decisions made by the Council of Ministers. “It is not the president’s jurisdiction to make the decision. If the council makes a decision and recommends it, then the Constitution does not allow the president to reject it,” Kunwar says.

But various laws restrict who can be pardoned. People accused of crimes whose cases are still in court do not qualify. Certain crimes such as corruption, torture or murder in “a cruel or inhumane way” cannot be pardoned.

Chanda Karki, a lawmaker in the House of Representatives, says the government has to be careful when issuing pardons. “Somebody who has killed with cruelty should not be out of prison.”

The Resham Lal Chaudhary case

Sharada Kadayat, whose husband was killed during the 2015 riots orchestrated by Nagarik Unmukti Party founder Chaudhary, filed a petition with the Supreme Court last year after Chaudhary was pardoned.

Former Human Rights Commissioner Pyakurel alleges that Chaudhary was released due to his links to the president. Paudel visited Chaudhary, whose party held four electoral college seats, in prison in mid-February — days before the presidential elections that Paudel won. Members of Nepal’s electoral college vote in presidential elections.

“Chaudhary’s pardon is a classic example of pardon based on political access,” Pyakurel says. “The current president went to prison to ask for his vote. The linkages suggest that a deal happened there.”

Kunwar, the president’s legal adviser, says it is “completely false that the president went to meet Chaudhary for votes.” Ministry of Home Affairs spokesperson Bhattarai says the pardon was granted for Chaudhary’s good behavior. “There is a history of reducing the prison terms of convicts who have improved their behavior and have already served some time for their crimes. Chaudhary was also released for this reason.”

Tejman Shrestha, assistant campus chief of the law school at Tribhuvan University, Kathmandu, says the law gives incarcerated people a chance to improve and contribute to society. And under the law, a person who improves their behavior while in prison can have their sentence commuted, provided they have completed at least 50% of it, Shrestha says. When Dhakal and Chaudhary were in prison, the law required completion of at least 40% of the sentence to be considered for a reduction.

Kadayat says the hearing of her petition has been postponed eight times for unknown reasons, and is now scheduled for September. Chaudhary remains a free man, but Kadayat says she’s confident that the court will rule in her favor. “I will keep on fighting, even though justice might be delayed,” she says.

The court’s verdict

In late 2023, the Supreme Court canceled the presidential pardon granted to Dhakal, Manandhar’s accused killer.

When the news reached Sherpa, who was waiting in the nearby courtyard, she ended her hunger strike.

The Supreme Court judgment stated Dhakal had planned and carried out the murder of Manandhar. The judgment also stated that his pardon did not follow proper procedure.

The court noted that other men convicted in the Manandhar case were not pardoned, suggesting that Dhakal received special treatment.

The court further said that the Ministry of Home Affairs had not submitted any proof of Dhakal’s good behavior to the president to justify his release. Undeserved pardons suggest the misuse of political power in order to cover up crimes, the judges concluded.

They ordered the immediate re-imprisonment of Dhakal and recommended the government reconsider its process for granting pardons. The people who were harmed by a convicted person’s crime should give their permission for a pardon, and the government must also consider how the pardoned person would be reintegrated into society, the judgment stated.

“The Supreme Court has spoken from a victim’s perspective. This is praiseworthy,” says Pyakurel, the former Human Rights commissioner.

The government is now reconsidering the system of pardons, says Bhattarai, of the Ministry of Home Affairs. No one has been pardoned since the Sherpa verdict, he says.

The ministry is also considering ways to measure the behavior of prisoners systematically, which could be used to recommend pardons, he says. “We are also discussing what to do when the behavior shown inside the prison does not match [the person’s behavior] after he is released.”

Singh, from the House of Representatives, says that lawmakers haven’t discussed reforms in Parliament yet. “The government has not brought any bill to Parliament.”

Sherpa returned to Nepalgunj after the verdict. She says she now feels hopeful about the justice system.

“The verdict of the Supreme Court suggests that even people like me can get justice,” she says. “My trust in the court has increased.”

This story was originally published by Global Press Journal

 
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