Case Comment: Govind Prasad Sharma v Attorney General

Dr Bipin Adhikari
Unpublished notes (January 2015)

In this case, Advocate Govind Prasad Sharma filed a writ petition seeking Supreme Court's intervention against Prime Minister Baburam Bhattarai and Attorney General Mukti Narayan Pradhan for their ‘unconstitutional intrusion into judicial matters’ in their bid to halt the investigation and interrogation process of Dailekh-based journalist Dekendra Raj Thapa’s murder. 

The petitioners argued that the orders provided by the Prime Minister and Attorney General to halt the investigation process on the murder of Dailekh based journalist Dekendra Thapa amounted to misuse of authority, obstruction of justice and action against the Interim Constitution, 2007.

In this case, a Dailekh District Court had remanded, subsequent to their arrest, Lakshiram Gharti, Harilal Pun Magar, Bir Bahadur KC, Nir Bahadur Gharti Magar and Jay Bahadur to judicial custody as Lakshiram Gharti had confessed to being a part of the crime committed on August 11, 2004. However, citing influence from higher-up, the interrogation process was halted. Subsequently, the Office of the Attorney General had sent a directive to the Dailkeh Police and District Office of Attorney directing them not to proceed with legal action in Thapa’s murder case. 

In light of this, the petitioners argued that the defendant authorities had misused their powers in halting the interrogation process and releasing the accused from judicial custody. In addition, there was a high possibility for tampering of evidences due to the highly politicized nature of the murder. Thus, the petitioners further sought immediate apex court intervention through stay order. According to the petitioners, the Attorney General’s written order indicated a clear misuse of power and also amounted to obstruction of justice. Thus, the petitioners sought a Supreme Court order directing the lower courts to reprimand the defendant authorities. The petitioners alleged that the defendant authorities had misused power even though it was their duty to arrest the accused and protect evidences, to search and arrest perpetrators of crime, detain suspects and file charge sheet as per the Government Cases Act, 2049 BS. 

Proximately, the petitioners argued that the AG is the final authority that decides whether or not to prosecute any case in a court of law as per Article 135 of the Constitution. However, the chief legal adviser of the government does extend to the right to intervene in any ongoing investigation. Moreover, Article 13 (2) of the Interim Constitution, which promoted equality before the law, states: "The State shall not discriminate against citizens among citizens on grounds of religion, race, caste, tribe, sex, origin, language or ideological conviction or any of these". In light of this, the petitioners argued that the remanded party cadres should not hold any special privileges to escape the regular criminal justice system. Further, citing an SC order on Sushil Pyakurel vs Agni Prasad Sapkota  case, that states that investigation and prosecution of murder cases cannot be stopped only by citing the yet to be formed transitional justice mechanism, the petitioners sought apex court intervention. 

In response, the defendants argued that as per the Interim Constitution and the Comprehensive Peace Agreement (CPA), conflict-era crimes fall under the jurisdiction of the Truth and Reconciliation Commission (TRC) and that they should not be dealt with by the regular criminal justice system.

In its decision, a division bench of Justices Ram Kumar Shah and Gyanendra Karki issued ordered that prosecution against those accused in the Dekendra murder case should go ahead regardless of the TRC’s existence. Furthermore, the bench, in devising a verdict, claimed that investigations into criminal cases must not be halted by citing the impending TRC as envisioned in the Interim Constitution, 2007 and the CPA. The court maintained that since the much anticipated reconciliation mechanisms were yet to materialize, regular criminal procedure could not, in the mean time, remain ineffective in relation to investigation and prosecution of conflict-era cases.

Moreover, the court also ruled that AG cannot interfere in the work carried by his subordinates until they continue to have the power delegated to them by the government’s legal chief. The court order also mentions that prosecuting (district attorney) and investigating (police) authorities are separate and independent entities and there can be no meddling in their job. The constitution provisions the AG as the last authority to decide whether a case would be filed in the court, the court stated, but such decisions from the government’s chief legal advisor cannot be arbitrary and has to be based on findings of an impartial investigation. Even though the AG is appointed by the President on the recommendation of the prime minister, it is important that any person holding public office remains loyal to the Constitution and not to the one who appointed him. 

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One school of thought suggest that due to the possibilities of a large number of casualties during a conflict, a separate procedure is required for dealing with such cases. Regular criminal procedures are inadequate to deal with such cases and victims may also not get justice.  In addition, invoking regular criminal procedures in dealing with war-era crimes would mean going against the constitutional provision of having a transitional justice mechanism in place, which would in effect raise questions on the use of such a mechanism. Thus, in light of the impending legalization of transitional justice mechanism, it can be argued that the cases which fall under war era should be prosecuted according to the provision envisioned by the TRC. 

On the other hand, the move from the PM and AG to halt the investigation procedure is seen as a huge political move. First of all, the illegality of the move is unquestionable. As per the Supreme Court, both the Prime Minister and Attorney General acted ultra vires in demanding a halt in investigation proceedings. Secondly, in a post-conflict society, where consolidation of democratic norms goes hand in hand with building trust, the political move comes as a huge step back in institutionalizing good governance practices and upholding the rule of law. As it stands, the act by AG and PM highlights the growing culture of impunity among political cadres at the expense of justice. This is not conducive for the long term peace and reconciliation process. 

In essence, the Supreme Court held that war-era crimes can be prosecuted under regular criminal procedure in the absence of transitional justice mechanism. In doing so, it has once again re-established its position as the bastion of protection of rights of Nepali. This decision has come at a time when both the UCPN (Maoist) and the CPN-Maoists have been advocating for such cases to be governed under the transitional justice mechanism and stood against piecemeal approach in dealing with such cases. But the Supreme Court, once again holding its non-partisan characteristics, devised a judgment based on the prevalent laws of Nepal rather than party whims.

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