Sadly, for the beleaguered Nepal government the Supreme Court has decided that the recent directives of the Attorney General to obstruct the investigation of accused in the murder case of journalist Dekendra Thapa, are unconstitutional. This order has indeed dealt a severe blow to the government, which is widely blamed for undermining the rule of law at a time when one of its serving army colonel has been remanded to judicial custody until next hearings on January 24 by a court in London for his alleged involvement in torturing a suspect, which resulted in the victim’s death.
A hearty debate whether Nepal’s national sovereignty has been violated by the UK government’s decision to arrest a Nepali citizen on suspicion of committing torture crimes during the Maoist insurgency without notifying the government of the arrested person has been continuing. Opinions are seemingly divided as one school of thought believes that the detention amounts to an attack on sovereignty whereas another group of people, particularly the human rights lawyers hold the view that considering Nepal’s international obligations arising out of her accession to anti-torture convention, the arrest is lawful.
In the recent past many columnists including some professors of international law have been arguing that certain conventions like The 1984 UN Convention Against Torture (CAT) attract universal jurisdiction in view of some heinous crimes like war crimes, crimes against humanity and genocide etc. Crimes related to torture are considered to be crimes against humanity and CAT has outlawed it. In so doing the said convention unequivocally mentions in its Article 2, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”.
It is this provision embodied in the CAT, which Nepal acceded to in 1994, renders the pleadings of Nepal government that the detention of its citizen in a foreign land is infringement upon Nepal’s sovereignty ineffectual.
Nevertheless, one can also argue that application of human rights standards has not been uniform. Some countries are treated more equal than others in censuring countries for abusing such rights. There are a few examples that substantiate such criticism. Critics question if the US government has adhered to CAT in its truest form vis-à-vis one of its former presidents, whose administration was accused of not punishing the perpetrators and paying reparations to the victims despite flagrant violation of human rights of Iraqi detainees in Guantanamo Bay. More glaringly, the British government has shown double standards in handling the case of former Israeli foreign minister, Tzipi Livni to prevent whose arrest in the country in 2011, it even amended some of the provisions of Criminal Judicial Act of 1988. It has, however, invoked it to detain a Nepali citizen. Against such dubious history of treatment can the government of David Cameroon legally prosecute the suspected torture criminals in the United Kingdom, if they are from its close allies and especially the United States? Doubts persist.
Can Nepal afford to emulate the United Kingdom and other most powerful countries such as the members of the exclusive club (permanent members of the UN Security Council) with regard to her international responsibilities?
Astonishingly, the government has invited people’s wrath by impeding the investigation related to the torture followed by death of Radio Nepal journalist Dekendra Thapa. With such incident in the country the international community seldom has the reason to believe that the government of Nepal is really serious to enforce the rule of law. By pleading that individual criminal investigation like that of Dekendra Thapa would derail peace process, the government has exposed its true intention of protecting the perpetrators of heinous crimes that attract universal jurisdiction.
The lawyers have been explaining that the Truth and Reconciliation Commission is not supposed to deal with all criminal cases that have occurred during the conflict period. The normal criminal procedure has to address such criminal cases. Moreover, there is a difference between the cases that took place in actual conflict situation when fire was exchanged and those when no fire was exchanged. Therefore, the government cannot treat all cases putting them in one basket. As per the international practice the crimes not committed in actual conflict situation are not dealt with by the Truth and Reconciliation Commission. The government’s claim that all the accused criminals of murder, torture and other serious crimes would be investigated by the proposed commission, a hallmark of post-conflict situation, is not convincing.
The diplomatic intervention put in place by the government to obtain the early release of the army colonel in London is getting nowhere the reasons for which are obvious. Firstly, the Nepali envoy has not met the expectations of the people as his parleys in London have not persuaded the host authorities at all. His absence of leave from the embassy at the time of arrest and the resumption of duties almost after a week has compromised the performance. Secondly, the government has not been able to reassure the international community about its promise to abide by the provisions of the treaty it has ratified. The most persuasive action on the part of the government in this regard would be to start fair investigation against all the pending criminal cases and deliver justice by punishing the criminals and paying reparations to the victims.
Instead the government took a reverse course by instructing the district legal authorities to stop investigation of the accused persons involved in serious crimes. Fortunately, the stay order from the apex court nullifying the written instruction from the Attorney General has corrected the course and has reinforced the faith of the common people in the rule of law.
The government has lost its moral strength by unconstitutionally obstructing the justice as evidenced in Dekendra Thapa episode. Unless and until justice is delivered to the victims of heinous crimes by bringing all the perpetrators to book, Nepal has the risk of facing such humiliation not only in the UK but in many other countries, which have enacted criminal justice law enjoying universal jurisdiction that allows them to prosecute anyone accused of heinous crimes wherever committed.