KATHMANDU, JAN 16 -
In a strongly worded order, the Supreme Court (SC) on Tuesday said prosecution against those accused in the Dekendra Thapa murder case should go ahead regardless of whether the Truth and Reconciliation Commission ( TRC ) is in place.
The verdict is a slap in the face for Prime Minister Baburam Bhattarai and his chief legal advisor, the Attorney General, who have been saying that the case, or any other such case for the matter, cannot move ahead before the TRC is formed.
On Friday, the Office of the Attorney General (OAG) had, under instructions from the PM, ordered the District Attorney’s Office and the Police Headquarters to halt investigations into the murder of Dekendra, a Dailekh-based journalist who was killed in 2004 allegedly by Maoist workers.
The OAG had said that conflict-era cases would be dealt by transitional justice mechanisms like the TRC envisioned by the Interim Constitution and the Comprehensive Peace Agreement.
Responding to a writ petition filed by human rights activist Govinda Sharma “Bandi,” a single bench of Justice Kalyan Shrestha said the government’s instruction to halt court proceedings in the Dekendra case was illegal and against the Interim Constitution and the fundamental principles of criminal justice.“The Interim Constitution and other existing laws have not envisioned such a situation wherein this commission [ TRC ] cannot be formed and function as per the prevailing criminal laws,” the court said.
It added that the criminal justice mechanism will weaken and “deviate from its actual path” if court proceedings in such cases are stopped.
The court, which stayed the government’s intervention in the case, also ordered the Dailekh District Police Office and the District Attorney Office to go ahead with the investigation processes and report to the apex court if they face “illegal obstructions.”
The court further said that the OAG cannot interfere in the investigations of a lower court.
The apex court, which also criticised the government for not implementing its earlier order to form transitional justice mechanisms, said regular justice processes should not be affected in the name of TRC .
“As effective implementation of criminal laws is supreme to ensure legal and fundamental rights of individuals, implementation of the laws should not be hindered merely on the basis of a draft or a proposal concerning the proposed Truth and Reconciliation Commission Act,” the court’s order said. The court also said it never issued an order to halt investigations into human rights violation cases involving former Constituent Assembly member Keshav Rai as mentioned by AG Pradhan in his order to the district attorney. It said that as the case involving Rai, accused of serious human rights violations during the Maoist conflict, is still pending in the court, the case should not be taken as a precedent.
Former AGs Yubaraj Sangraula, Badri Bahadur Karki, Laxmi Bahadur Nirala and Yagya Murti Banjade and other senior advocates advocated for the petitioner.
Posted on: 2013-01-16 08:37