Days of reckoning
DAMAKANT JAYSHI Myrepublica
The outcome of the murder-convict Bal Krishna Dhungel pardon plea will soon be known. This case also offers some inescapable lessons for all concerned, including Prime Minister Baburam Bhattarai. Let me first examine how and why we arrived at this point.
Whether he likes it or not Bhattarai comes across as someone who enjoys the company of murder-convict and murder-accused. So far four people with murder taints have been spotted in his circle. There could be more as media digs into the past record of those in Nepal´s largest-ever cabinet.
Bhattarai inducted three murder-accused in his cabinet (one of them, Prabhu Sah, has already been forced to resign) and is defending party colleague and parliamentarian Dhungel.
The prime minister seems not to have learned any lesson from the Sah fiasco since he has subsequently inducted two more murder-tainted politicians--Suryaman Dong and Om Prakash Yadav Guljari--in the last two cabinet expansions. Is this just his gung-ho attitude or an attempt at a political hara-kiri?
Defending his move to recommend pardon for Dhungel, the PM termed it a right one taken at a right time. I am afraid it is just the opposite. The decision to pardon Dhungel who is yet to honor courts´ orders is wrong on moral as well as legal grounds. It also further entrenches the culture of impunity. Dhungel has been convicted of murdering Ujjan Shrestha in Okhaldhunga district in 1998, just two years after the Maoist ´People´s war´ began.
A letter to the editor in Kantipur daily on Monday claims Dhungel had not even joined the Maoist party at the time. The Okhaldhunga wing of the Maoist party says that since Shrestha had been found "spying" for Nepali Congress, he was "eliminated". If Bhattarai, Dhungel and the party get away with this, expect more "spy" logic behind murders during decade-long insurgency. This is certainly a test case.
Shrestha´s sister and parents say that he was murdered because he married a Brahmin woman whose relatives then sought Dhungel´s help in killing him. The PM doesn´t want Dhungel to serve the prison term that the court has slapped on him. Hence the attempted cover up by terming the case "politically motivated".
It so happens that Dhungel belongs to the Bhattarai camp in the Maoist party, the smallest of the three factions. The support of every single member of this camp is crucial for Bhattarai for present and future battles in the party. This also explains the rationale behind the creation of the largest cabinet ever.
As for the timing of the pardon recommendation, it comes before the formation of Truth and Reconciliation Commission (TRC) for which less than two weeks are left as per the recently signed seven-point agreement. (In fact this and the Commission on the Disappeared People have been due for over five years.)
Bhattarai seems to be enjoying the company of murder-accused and convicts. The Dhungel controversy is a wake-up call to put in place safeguards to thwart subversion of justice and protect independence of judiciary.
The rush to protect Dhungel despite pleas from the victim´s family and the two orders from SC asking the government to arrest and send him to prison is not difficult to understand. Bhattarai seems to be forgetting that he is the prime minister of all Nepalis, not just for a select few people who happen to be members of his party.
Party chief Pushpa Kamal Dahal has tried to bail out his beleaguered deputy, claiming the pardon decision had been originally taken when CPN-UML´s Madhav Kumar Nepal was the prime minister. Nepal wasted no time in shooting down the claim.
Even if Dahal were speaking the truth (it is his words against Nepal´s), Nepal apparently backed out later. That was the right thing to do. The president, Dr Ram Baran Yadav, is believed to have asked him and his successor, Jhalanath Khanal, not to proceed. It is very likely that the president gave the same suggestion to Bhattarai who apparently refused to heed it.
Call it power-drunk arrogance, his fondness for Dhungel or his helplessness, the prime minister has no one else to blame for the soup he is in. (Of course, there are suggestions that his party chairman tricked Bhattarai into recommending the pardon.)
One can draw several conclusions from this episode but I will limit my analysis to issues of justice, judiciary and Bhattarai himself. So far as Bhattarai is concerned, none of his recent moves reflect well on him. The PM, who prides himself on responding to people´s concerns, has clearly lost the public pulse. Letters to editor space in major newspapers, the vox pop on TV channels and scathing editorials have all condemned the move.
His reputation for being different from past prime ministers is in tatters and unless he engages in some serious damage-control, he would find it extremely difficult to recover his erstwhile popularity. For this, the Maoist party vice-chairman has to overcome his customary stubbornness in accepting that he could ever be wrong. I am sure he is aware, given his nature to read a lot, that there are already insinuations that he is indeed different from his predecessors—only much worse. Bhattarai better heed this before it is too late.
The Nepal Army top brass is very happy at the turn of events. They have tried to defend their actions during the insurgency, arguing they had acted under Terrorist and Disruptive Activities (Control and Punishment) Ordinance (TADO), the anti-terrorism ordinance which, in 2004, replaced the Terrorist and Disruptive Activities (Punishment and Control) Act or TADA of 2002. Army officials are claiming immunity from prosecution under TADO´s cover, just like the Maoists are seeking the same under "politically motivated" angle. As a result victims would be denied justice.
Since we are in the midst of writing a new constitution, the Bhattarai-Dhungel fiasco is a timely reminder of what we ought to do regarding independence of the judiciary. In the new constitution, the parties—which believe in supremacy of law and natural justice—should incorporate provisions that guarantee and protect the independence of the courts. There should also be a provision that calls for suspension of charge-sheeted public servants (besides bureaucrats), and expulsion from their posts if convicted. It is a disgrace that Dhungel still sits in the Constituent Assembly and the prime minister continues to defend the indefensible.
On Sunday, the Supreme Court issued a stay order on the cabinet recommendation to pardon Dhungel. For the time being, it has prevented a confrontation between the prime minister and the president who has made known through various means that he is not too pleased by the cabinet´s action. Bhattarai should count himself lucky that the SC has provided him a safe-landing option. He should grab it with both hands and withdraw the recommendation to the president.
In case he doesn´t, what should President Yadav do? He must do everything he can to uphold justice. Delay acting on the recommendation or hold it or even refer it to the Supreme Court as lawyers have suggested. Advocate Swagat Nepal has written a brilliant piece in Monday´s edition of Nagarik daily on the history of pardon and what options the president has. Both the president and the prime minister should read that and decide the next course of action.
। यो हत्या अनि हत्याराहरु नेता मन्त्री भएका सुन्दा त उ बेलाका (सत्तरी असी दशकका) हिन्दी फिल्म झै लाग्न थाल्यो हो
। ति गुल्शन गोबर, डेनी, कादर खान, अम्रिस पुरीहरु नेता मन्त्री भए झैं। अनि खै त हाम्रो हिरो हिरोईनहरु: मिथुन, गोविन्दा, जीतेन्द्र, ज्याकी सराफहरु
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