Jestha 15, Some celebrated it as Republic Day, commemorating and remembering all the struggles the Nepali people went through in the civil movement and reflecting on what being a federal democratic republic really means.
Some people celebrated in giddy anticipation of new reforms and changes made in the budget for this fiscal year. Some were happy, some were not. Some even got the coveted “get out of jail card” as a gift from the Rt Honourable President himself, which has been named and constitutionalized as “presidential pardon”. The president pardons, reduces, alters or suspends the prison terms of convicts on major celebratory days such as Constitution day, Democracy day and Republic Day.
“Presidential pardon”: As enshrined in the constitution
Article 276 of the Constitution of Nepal 2015 states: “The President may, in accordance with law, grant pardons, suspend, commute or remit any sentence passed by any Court, judicial or quasi-judicial institution or administrative authority or institution.” The “in accordance with law” is further defined in Section 159 of the National Criminal Procedure (Code) Act, 2017, which states “A person who is sentenced by a court judgment to punishment for an offense may make a petition to the President, through the Ministry of Home Affairs, for the pardon, suspension, alteration or reduction of that sentence.”
Article 276 of the Constitution of Nepal at first glance might be misconstrued as a counterintuitive paradox to the universally accepted doctrine, Res Judicata (a finality in judgment, preventing a party from bringing a claim that has been subjected to a final judgment in an earlier lawsuit.) Such is not the case. The concept of Presidential Pardon is kept as a last resort, not as an achilles heel of the finality of judgment of our Judiciary. It is also a way to ensure that the checks and balances are within the tiers of government.
Politically inclined presidential pardons: A mockery of the Judicial System
Having the belief that the Judiciary is the protector and executioner of Justice is an important aspect of being a federal democratic republic country and the upholdment of the rule of law. A tier of government which is solely responsible for ensuring justice is delivered, needs to make sure that no innocent person is convicted of a crime they didn’t commit. Hence; we have three tiers of Judiciary–District Court, High Court and the Supreme Court. The logic of having three levels of courts is to manage the time of judges and assignment of cases according to the experiences and capabilities of the judge according to the time they have contributed to the courts.
If the verdict reached by the lower courts is not satisfactory to any of the parties, they can contest it in appellate courts. If the party still feels unsatisfied they still have the apex court where they can plead their case. If the Supreme Court decides to overturn or uphold or the decision made by earlier courts, it is deemed to be final. It shows the power of having an apex court decide on a case. If by any given human error, a mistrial does take place in one of the tiers, we have the right to be heard, right to appeal, and the principle of judicial review. If there has been a grave error in the justice delivery process, only then shall we take presidential pardon as the last resort to give justice to an innocent person.
Where Nepal’s legislation stands out is the term “in accordance with law” used in its language, meaning a pardon can be given but it still has to be in accordance with law as per se. Section 159 of the Criminal Procedure Code 2017 states “A person who is sentenced by a court judgment to punishment for an offense may make a petition to the President, through the Ministry of Home Affairs, for the pardon, suspension, alteration or reduction of that sentence.” The Sub-section 4 of Section 159 of the Code further expounds on the categories of offenses on which pardon may not be granted. These include: corruption, torture, rape, murder in a cruel and inhumane way, genocide, illegal use of explosives, kidnapping, hostage-taking, enforced disappearance, human trafficking and transportation, money laundering, and narcotic drug trafficking or transaction punishable by a sentence of imprisonment for a term exceeding three years. The Code also clarifies that pardon won’t be granted if the case is being appealed, referred for sanction, review, or revision, or if the court’s judgment is not yet final.
Similarly, Section 24 of Criminal Offense (Sentencing and Executing) Act 2017 also mentions a negative list where suspension of the imprisoned person may be given. Prison Regulation 2020 also provides such a negative list.
Presidential Pardons in Nepal have historically been politically inclined, even if an apolitical president is appointed with some stroke of luck, it is ultimately the cabinet who determines which convicts are to be pardoned and which are not. This power might be seen as an act of ensuring that the checks and balances are intact but this might also raise questions if the spirit of separation of powers is being adhered to or not. The Presidential Pardon is a result of the restorative justice and the reformative theory of punishment but if the motives are clearly politically inclined it is unjustly impunitive.
Anjila Shrestha is a researcher at Samriddhi Foundation, an economic policy think tank based in Kathmandu. The views expressed in this article are the author’s own and do not represent the views of the organization.