KATHMANDU, DECEMBER 13
The Nepal Bar Association and the Supreme Court Bar Association today issued separate press releases condemning the government's move to bring an ordinance to facilitate withdrawal of government cases filed against political cadres who had adopted violent methods in the past but signed pacts with the government expressing their commitment to join the peaceful mainstream.
The government had sent the ordinance to the president yesterday proposing to amend Section 116 of the Criminal Procedure Court whereby the government could withdraw cases filed against political leaders and cadres at any level of the judiciary.
The president had not okayed the ordinance until 8:00pm today. The NBA said the government had not justified reasons for bringing the ordinance which can be brought only when the Parliament is not in session and there is urgency to bring such an ordinance.
The SC Bar Association also issued a press release saying that the government's move to bring the said ordinance was a mockery of the constitutional supremacy, the rule of law, legal values and norms, established principles of criminal law, and the Supreme Court's precedents.
The SCBA urged the government to withdraw the ordinance, saying it was aimed at withdrawing serious government cases in order to maintain the supremacy of the constitution and the rule of law.
Senior Advocate Mithilesh Kumar Singh said the government, which was merely a caretaker dispensation, insulted the newly elected parliament by bringing an ordinance to muster support for the formation of a new government.
"No caretaker government has ever brought an ordinance," he said, adding that the government could have justified its move had it brought the ordinance before the election.
Senior Advocate Surendra Kumar Mahto said even if the president okayed the ordinance, the government could not withdraw cases without the consent of the concerned court. Section 116 of Criminal Procedure Court stipulates that if the government wants to withdraw any government case, the government attorneys will have to file a petition in the concerned court and the court can then issue an order after a hearing allowing the government to withdraw the case.
This means that if the concerned court is not satisfied with the government's arguments, then it may not let the government withdraw the case.
Mahto said that in the ordinance the government had not proposed to grant amnesty to defendants whose cases were sub judice at any level of the judiciary.
"Amnesty path could have been free of controversy, but there is no such provision in the ordinance," he said. "Amnesty erases scar of guilt, but withdrawal of case does not." He said if the ordinance was issued, it could benefit Madhes centric parties, the CPN-Maoist Centre, the CK Raut-led Janmat Party, the Netra Bikram Chand-led Communist Party of Nepal, and the Nagarik Unmukti Party led by Resham Chaudhary's wife Ranjita Shrestha.
A version of this article appears in the print on December 14, 2022, of The Himalayan Times.
