Beware, Attorney-General

DAMAKANT JAYSHI

The new Attorney-General Mukti Pradhan is the latest among those who want "politically motivated" cases against Maoist cadres withdrawn.

“All politically motivated and baseless cases against Maoists will be withdrawn, including cases against leaders and cadres of Madhesi parties,” Pradhan told media persons at an interaction program in the capital on Tuesday.

Pradhan is a member of the Unified Communist Party of Nepal (Maoist). So it is natural for his heart to beat for the accused in his party and those among the ranks of the political coalition, the Madhesi parties.

He also said that murder conviction against Maoist lawmaker Bal Krishna Dhungel would be reviewed. His reasons? "People are biased against Dhungel just because he is a Maoist leader." In June this year, the Supreme Court ruled that there was no legal barrier to arrest and jail Dhungel, who has been convicted with life imprisonment on a murder charge. Dhungel still roams free.

If Pradhan´s logic for amnesty and review is applied – that all cases are politically motivated and baseless if they are brought against Maoist cadres/leaders – then every single Maoist, irrespective of the severity of the crimes they committed, will walk free. Either Pradhan needs to go back to law school or is actually himself politically motivated. For, he is trying to give clean chit to his people for which neither he nor the government has authority to do so. Those who argue that the government has this authority do not understand national and international laws as well as some of the agreements that have been signed since 2006.

Pradhan referred to the Comprehensive Peace Agreement (CPA) of Nov 21, 2006, saying it has provisions for withdrawal of cases against Maoists. He is being selective. One of the provisions under Article 5 of CPA reads: "Both sides agree to set up with mutual consent a High-level Truth and Reconciliation Commission in order to probe into those involved in serious violation of human rights and crime against humanity in course of the armed conflict for creating an atmosphere for reconciliation in the society." (Emphasis mine).

The attorney-general also claimed that governments, in the past, had withdrawn cases against the state side. This is nonsense.
If Attorney-General Mukti Pradhan´s logic for amnesty and review is applied – that all cases are politically motivated and baseless if they are brought against Maoist cadres/leaders – then every single Maoist, irrespective of the severity of the crimes they committed, will walk free. Either Pradhan needs to go back to law school or is actually himself politically motivated.
Cases against state security forces are pending in various civilian courts in the country. Some of these include cold-blooded murder of over 25 arrested Maoists cadres in Doramba in 2003 by soldiers of (Royal) Nepal Army, torture and murder of Maina Sunar in army barracks in Kavre in 2004, and the notorious ´disappearance´ of about 150 detained Maoists in Bhairabnath Battalion in Kathmandu. All these 150 detainees are feared murdered in custody.

In cases where the army´s tribunal is said to have "punished" the perpetrators (like in Maina´s case), the verdict has not been accepted and will not be accepted. This tribunal court´s verdict on its four army officers is akin to ´justice´ by Maoists´ kangaroo courts they had set up during their armed insurgency. An army tribunal simply has no right to decide a case involving torture and murder of a civilian.

Just an aside here. Army tribunals have demoted and even dismissed officers and soldiers for serious crimes. For example, Major Ram Mani Pokharel who led the massacre of Maoists in Doramba was dismissed from service and jailed for two years. This was not enough, of course.

But the attorney-general should consider what his party has done. Kali Bahadur Kham, the then third division commander of Shaktikhor cantonment of the Maoist army, allegedly tortured and murdered a businessman Ram Hari Shrestha with the help of some of the combatants. Kham was subsequently promoted to an expanded Central Committee of the party. Did anyone utter the word ´punishment´ here?

There are many atrocities – including murder, rape, torture and disappearances – committed by both security forces and Maoists that need to be tried in courts. Some of the cases besides the ones mentioned above are the Madi massacre (which was a result of Maoist deliberately blowing up a bus carrying over 100 passengers in June 2005 in Chitwan district), burning of eight-year-old Kajol Khatun and her relatives in a bus in Chitwan in 2002 by Maoists for defying their banda, and murder in cold blood of at least eight policemen in Naulmule in Dailekh district in 2001 after asking them to surrender during the Maoist attack on Dailekh police headquarters.
Besides these mass murders by Maoists, there are scores of individual cases of murder and other serious crimes by both sides to the conflict. Many of these are based on eye-witness accounts of family members and locals, not concocted in the confines of a government office as Attorney-General Pradhan seems to imply. These are not politically motivated or baseless cases.

If an effective Truth and Reconciliation Commission (TRC) is set up and starts its work on delivery of justice, then only the victims have the right to grant amnesty, if at all. No one else has that right. It looks like that the Maoists are in haste to absolve their cadre of crimes before a TRC is formed.

The attorney-general, having studied law, may have heard or read about the Universal Declaration of Human Rights (UDHR), 1948. "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." (Article 8).

The UDHR, which is a foundation of international human rights law, recognizes that "whatever our nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status, the international community on 10 December 1948 made a commitment to upholding dignity and justice for all of us."
Also, reinstated House of Representatives had unanimously endorsed a proposal to accede to the Rome Statute of International Criminal Court (ICC) in 2006, just three months after the People´s Movement II. Although Nepal has not yet signed the Rome Statute (the reasons are very obvious), the UN Security Council, if convinced, can refer cases to ICC if a State fails to provide justice to victims in cases of gross abuses of human rights, including crimes against humanity and war crimes. Some of the cases that have occurred in Nepal are gross abuses.

Besides, the attorney-general needs to keep in mind something called universal jurisdiction. Though it is a controversial concept, some countries have acted on it. In 1993, Belgium passed a law of universal jurisdiction to give its courts jurisdiction over crimes against humanity in other countries. In 1998, Chilean dictator, Augusto Pinochet was arrested in London following an indictment by Spanish court under the universal jurisdiction principle.

If justice is denied within the confines of a national boundary, there are means to get it by appealing to international institutions. Attorney-General Pradhan should have no doubt that this would be done.

So, Mr Attorney-General, think seriously before you – and the government – act on this front.

damakant@gmail.com

Published on 2011-09-15 01:15:42
http://www.myrepublica.com/portal/index.php?action=news_details&news_id=36015&show_comments=true