KATHMANDU, Oct 11: In a recent controversial decision, President Ramchandra Paudel granted a presidential pardon to Yograj Dhakal, also known as Regal, a convicted murderer responsible for the death of Chetan Manandhar. This decision has ignited widespread debate and criticism within Nepali society, raising important questions about justice and the rights of crime victims.

Chetan Manandhar was brutally attacked in Nepalgunj on July 13, 2015, a traumatic incident that left his family shattered. Regal, the perpetrator of this heinous crime, was sentenced to life imprisonment in May 2019, along with 10 others involved in the incident. Justice seemed to have been served, but this was not the end of the story.

Every year, on Constitution Day, the President traditionally grants amnesty to prisoners. While this practice is intended to correct errors in the delivery of justice and prevent further injustice, it has recently come under scrutiny. In the case of Regal, the decision to grant him amnesty has left Chetan Manandhar's family and many in the community deeply distressed.

Bharati Sherpa, the widow of Chetan Manandhar, has taken a brave stand against this decision. On October 1, she filed a case at the Supreme Court (SC), challenging the government's and the President's decision to grant amnesty to her husband's murderer. Her message is clear: justice must prevail.

Bharati Sherpa Manandhar's unwavering commitment to seeking justice for her husband's murder has manifested in a hunger strike until death. She has also filed a legal petition challenging the President's decision, emphasizing that the release of her husband's murderer is fundamentally unjust when the sentence against him is not final.

Former Attorney General Agni Kharel has criticized the process of withdrawing pending cases from the courts to release individuals through legal loopholes, calling it an abuse of the state system. He contends that removing appeals and releasing convicts in such a manner undermines the principles of justice.

In countries like Nepal that have adopted a reformative penal system and are willing to correct errors in the delivery of justice, pardons and exemptions from imprisonment are provided. In most such countries, it is a practice to implement the provision of amnesty at the level of the head of state.

It is stated in Article 276 of the Constitution, which provides for pardons and exemptions from imprisonment, that "the President may pardon, postpone, change or reduce the sentence imposed by any court, judicial or quasi-judicial body or administrative officer or body in accordance with the law.” 

In the course of the implementation of criminal justice, if there is an error during the investigation from the delivery of justice, if an innocent person is punished or if an innocent person is punished on the basis of political beliefs, or if the punishment is harsher than it should be, the law provides for pardons to prevent further injustice. 

The offender should submit an application to the President through the Ministry of Home Affairs. After that, if the President advances the application, the Ministry of Home Affairs should examine it and submit it to the government for a decision. The Council of Ministers decides on the basis of this and submits the proposal to the President.

The process of granting amnesty is governed by various legal provisions, including Section 37 of the Criminal Offences (Sentencing and Execution) Act, 2017, Rules 1 and 1(a) of the Prison Regulations, 2020, SC judgments, and Section 12 of the Senior Citizens Act, 2063. These provisions allow for sentence reduction and pardon recommendations by the President based on factors such as the nature of the offense, circumstances, offender's age, physical condition, conduct, and the severity of the punishment. 

If the case of the accused is not final, if the full text of the judgment is not ready, and if it is on the negative list, the criminal does not get the privilege. Before making a decision, the government has to consult the Parole Board, which is formed under the leadership of the Attorney General.

The SC has now taken center stage in this legal battle. Recognizing the complexity and importance of the matter, the SC has ordered that the case be submitted to a full bench, comprising three or more justices, underlining that it cannot be decided by a single or joint bench. A single bench of Justice Manoj Kumar Sharma has issued a show cause order to the government, demanding an explanation for the waiver of Regal’s jail term, further highlighting the legal intricacies surrounding the presidential pardon.

The SC has attached high priority to the case and scheduled a hearing for October 12. The SC order states, “Since it seems desirable to quickly resolve the disputed matter,  attaching high priority, a hearing on the petition by a full court is scheduled for October 12, and if there is an emergency holiday or if the hearing cannot take place on that day due to some special reason, the hearing will take place on the following day.” The government has also been ordered to submit the complete details including the decision regarding the waiver of imprisonment to the court by October 11. It has been ordered to submit the complete documents with the order regarding the withdrawal of the case from the SC in the case of the Nepal government against Regal.

Meanwhile, concerns have been raised by human rights activists, legal experts, and organizations like the National Human Rights Commission (NHRC) about the rolelessness of victims in the pardon process. Amnesty and exemption from imprisonment are considered prerogatives of the President, but stakeholders argue that the victim's perspective and rights should be integral to the decision-making process.

Furthermore, the NHRC has expressed concerns over the impact of amnesties granted based on political access. The NHRC has warned that such actions can suppress the rights of crime victims and their families, increase criminal tendencies, and foster impunity. These actions can erode trust in state institutions and raise questions about the governance system.

According to the NHRC, the act of pardoning Regal on the basis of Rule 29 (1) of the Prison Rules, 2020, which existed before the Civil Procedure Code Act was issued, did not seem appropriate from the point of view of human rights. This has led to the violation of the right of the crime victim as stipulated in Article 21 of the Constitution of Nepal, to receive clean and respectful treatment in the criminal judicial process according to Section 4, not to be subjected to discriminatory treatment on any basis as per Section 5, of the Crime Victim Protection Act, 2074. The rights of the victim under Section 10, including the right to be safe from attacks by suspects, accused persons, criminals or persons associated with them, have been violated.

NHRC has also called for transparency and accountability in the pardon process. It has said that the relevant agencies provide detailed information about individuals pardoned by the President on Republic Day and Constitution Day. This move emphasizes the importance of protecting the rights of crime victims and ensuring that justice is not compromised.

Mohana Ansari, a former member of the NHRC and an advocate, raises questions about the rolelessness of the victims in the process of release and amnesty.

“Amnesty and exemption from imprisonment are the prerogatives of the President. After that, the authority should at least consult with the victim before making a decision,” she says, “How can the offender get benefits from the state without consulting with the victim’s party affected due to the incident? The President who is supposed to be the nation’s parent should think about this!”

The controversy surrounding the presidential pardon for Regal has illuminated the need for a fair and just legal system that considers the rights and needs of victims. It highlights the critical role played by the SC and organizations like NHRC in upholding justice and accountability.

On October 9, the Human Rights and Peace Society staged a protest in front of Sheetal Niwas (Office of the President of Nepal). The demonstration was held against the misuse of the right of the President to pardon convicts as per Article 276 of the Constitution and to demand an investigation into the possible financial manipulation from the bottom to the top while pardoning the jail terms of inmates.

As Bharati Sherpa Manandhar continues her fight for justice and the SC takes up the case, the nation watches closely. The outcome of this legal battle will not only determine the fate of one individual but will also shape the future of justice and accountability in Nepal. It is a reminder that the pursuit of justice must always prioritize the rights and well-being of victims and the integrity of the legal system.