The Constitutional Bench, comprising four seniormost justices of the Supreme Court and chaired by Chief Justice Kalyan Shrestha, also issued a mandamus order to the President's Office and the Office of the Prime Minister and Council of Ministers, not to provide amnesty to Dhungel in the murder case.
"As a decision taken to provide undue benefit to any one individual contradicts the right to equality, the right to fair trial, the finality of court verdicts and the principle of rule of law, the cabinet's recommendation to provide amnesty cannot be allowed to be executed. Such a recommendation is thus annulled through this order," the bench stated.
The court has clearly stated that the government recommendation of presidential clemency for Dhungel has also not met the legal criteria for amnesty since the convict has not surrendered as per the final court verdict. The bench has further stated that the court verdict convicting Dhungel is yet to be executed, and providing amnesty without commencing the execution contravenes the legal provisions.
According to the SC spokesperson, the bench has also stated that a decision to provide amnesty could not be taken in the absence of the related laws as per Article 276 of the newly promulgated constitution of Nepal.
Ujjain Shrestha's sister Sabitri Shrestha had filed a writ petition at the court after the then Baburam Bhattarai government recommended presidential clemency for Dhungel in November 201l. The Bhattarai government had argued that the case should be dealt with by a Truth and Reconciliation Commission as the case was of a political nature dating back from the time of the armed conflict.
Sabitri had also moved the apex court seeking implementation of the court order to sentence Dhungel to life imprisonment for the 1998 murder.
On 10 May 2004, Okhaldhunga District Court had convicted Dhungel and eight others for Ujjain's murder. Dhungel served a brief term in jail before being freed in 2006, following a decision of Rajbiraj Appellate Court to give him a clean chit.
On January 3, 2010, the SC upheld the 2004 verdict of the district court. The apex court had then sentenced Dhungel to life imprisonment along with confiscation of his property.
However, implementation of the apex court verdict remained on hold as the Bhattarai government had forwarded Dhungel's name for presidential clemency. Dhungel had been absconding since then.
The victim's family and rights activists have long been demanding punishment for Dhungel.
"The order consoles a sister and her family who have been fighting for the last 17 years for justice," said Sabitri Shrestha. "The court order on Thursday is a victory not only for my family but for all victims of conflict-era crimes," she added.
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