JAN 21 -
A law educator for 25 years, Yubaraj Sangroula considers himself more of a teacher than a lawyer. Still, he was chosen as attorney general in the short-lived Jhala Nath Khanal-led government. Sangroula gained prominence as a lawyer when leading the case against the dissolution of the first parliament after 1990 by Girija Prasad Koirala, and the approval of the decision by the Supreme Court, an action he considers “a death blow to Nepali democracy”. The Post’s Bhadra Sharma and Gyanu Adhikari spoke with him about Nepal’s criminal justice system, and the two cases of impunity that have recently placed human rights at the centre of debate: Dekendra Thapa and Kumar Lama. Excerpts:
Is Nepal’s criminal justice system functioning at all?
The principle of criminal justice is non-functioning. The adversarial system we’ve adopted, which is derived from the UK’s system, has a precise foundation on which the system works. Basically, first, the investigators create an output. On that output, the prosecutor works, making an input. Then there’s the chargesheet, and the court gives its own input, leading to a judgment. What is absolutely broken down in Nepal is this sequence of outputs and inputs, from investigation to adjudication.
The current government tried halting investigation in the case of Dekendra Thapa, a journalist murdered by the Maoists during the “people’s war.” Is this a violation of the legal framework?
Yes, the government is violating the fundamental principle of the criminal justice system. It should realise that no matter who runs the government, if they don’t follow the principles, the Interim Constitution will become non-functional.
Historically, how would you rate the criminal justice system under the current government?
Let’s be very impartial when taking the historical view. About 600 cases were revoked by the first Nepali Congress government after 1990. That is when the violation of the principle started. Some of the cases revoked concerned heinous crimes, including rape and trafficking. That was followed by the CPN-UML. When it ruled, 322 cases were revoked. The human rights community protested against those revocations. Later, the Maoist government came and they followed the trend.
Why are all governments from all parties so bent on revoking cases and bypassing the system?
When a society doesn’t function democratically, the criminal justice system doesn’t serve as an instrument of the people: it functions as an instrument of the state to suppress the people. Non-democratic societies make the criminal justice system an instrument to rule rather than protect the human rights of the people.
Would you say the police are also an instrument of state oppression?
How about the judiciary?
In many past cases, the judiciary has made decisions to stop revocations. Whether it was revocations made by the Congress or UML, the court didn’t allow a few cases of heinous crimes. But this changed later on. For example, this government was adamant on revocations and they were allowed to have their way.
Going back to Dekendra Thapa, why do you think the UCPN (Maoist) used all state instruments at its disposal to halt the investigation?
I would prefer to say that it’s because of different political perspectives. We must remember that the crimes committed by the state during the insurgency are really heinous too. Take the cases of Maina Sunuwar and Reena Rasaili and so many others. They caused a lot of anxiety among state officials. From the beginning, Nepal’s police, Army, and to some extent, politicians, seriously lobbied for general amnesty for these crimes. In the meantime, when the Maoists joined the peace process, they also understood the importance of the military and the police, especially after the Madhav Kumar Nepal-led government came to power, and their [the Maoists’] attempt to encircle Kathmandu and create a rebellion ended in a miserable failure. This was a huge lesson. After that, they thought that if they became closer to the military and the police, it would be much easier to run the state. So, instead of taking actions against the people actually involved in killing the Maoists just for their ideology, they developed a psyche that said let’s not fight with the Army and the police; let’s forget their crimes.
You mean the Maoist government wants to halt Dekendra Thapa’s case in order to protect the police and the Army?
The Maoists are not really concerned about the arrest of those five or six people in Thapa’s case. Their primary concern is that if these cases take their course, civil society, the human rights community and the international community will then push for action against those belonging to the state, like the military and the police. That would distort the emerging relationship between the Maoists, police and the Army.
What do you make of the statements from the Maoists, Congress and UML—as well as Foreign Minister Narayan Kaji Shrestha—that the arrest of Col Kumar Lama in the UK is an encroachment on Nepal’s sovereignty?
It’s pure rhetoric. If Col Lama’s arrest is a breach of Nepal’s sovereignty, why did the Maoists themselves make demands to the international community, for example to the UNOHCHR, until three years ago that these same people should be prosecuted? The fact of the matter is that a few people getting arrested in Thapa’s case isn’t a concern for the Maoists. But if this process gets underway, the families of those from Krishna Sen to Reena Rasaili are going to make a move against the state, and the state will be compelled to take action against those responsible. They see this as a bigger issue.
The UK has said Col Lama was arrested under its law which has universal jurisdiction. For argument’s sake, let’s say a UK citizen is implicated in trafficking a UK national in the UK. Is that person liable for prosecution in Nepal?
Nepal can make such laws; it has the right to do so. If Nepal makes such laws, for example on human trafficking, and a British citizen comes to Nepal, and gets arrested on those charges, Nepal is not violating the sovereignty of the UK.
It seems there are differing political interpretations of impunity regarding Dekendra Thapa and Col Kumar Lama. The Congress and UML are with the Maoists when it comes to opposing Lama’s arrest on the grounds of sovereignty, but when it comes to Thapa, they disagree. Why is that?
This is a competition to take the military into their fold. From the Panchayat-era onwards, the biggest failure of democracy has been that the parties don’t believe in the people. Instead, they believe in the police and the military. Just look at the fights for who controls the Home Ministry. We still believe that the state can be ruled by coercion, not democratic norms. Talking about national interest in Lama’s case is nonsense.
All they want is to be friendly with the military.
How exactly do parties benefit by being friendly with the military?
Politics isn’t always overt but it has its undercurrents. These undercurrents are the powers of the state—the judiciary, Attorney General’s Office, military, and police, etc. In a truly functioning democratic state, these undercurrents are guided by democratic values, so there is no fear. But in a country like ours, parties work to keep these undercurrents within their fold, and to rule.
Attorney General Mukti Pradhan instructed the local attorney and the police to stop the investigation in Thapa’s case. Does the constitution give him power to do that?
Article 135 of the constitution does give the attorney general the power to make the final decision on whether or not to file a lawsuit. That said, it’s very clear that investigation is a separate jurisdiction. Although the attorney has power to decide whether to file a case, he or she has no power to interfere with the investigation.
Do you think cases like Dekendra Thapa’s should be dealt with only after a Truth and Reconciliation Commission is formed?
There are three basic things here. As a rule, the regular criminal justice system should work regardless of whether there is a TRC or not. If there are some cases which occur only due to conflict, they fall within the jurisdiction of the TRC. But sometimes controversies occur. There are some cases that fall in-between, where the state has to prudentially decide the right way to proceed.
In cases like that of Dekendra, Maina and Reena, is it prudent to wait for a TRC?
Looking at it from a human rights perspective, these cases were directly related to the right to life. There was extermination of life, but in a process of conflict between two parties. They were taken by officials of conflicting parties and killed without following their own judicial processes. Both the Maoists and the state had their own courts then, but these people were not brought under their judicial processes. The mid-way we’ve suggested time and again is to have a special tribunal with three judges, one regular and two from outside. And bring all these controversial cases to that tribunal.
Do you think the media is giving an accurate picture of the transitional justice issue?
Personally, I’d like to request a deeper investigation in Kumar Lama’s case. Is it possible for officials of Nepal’s military to take residence in a foreign country, keep family over there, and visit them without permission from the government? How many military and state officials are possibly doing the same?
Posted on: 2013-01-21 08:23