Kathmandu, June 2

Jurists say new laws should be enacted to govern the process related to pardon, waiver, suspension and commutation of prisoners' jail sentence and to prevent political parties from misusing legal loopholes to suit their interests.

Senior Advocate Dinesh Tripathi said the Supreme Court had ordered the government to enact new laws to govern the process of pardon, waiver, suspension and commutation of prisoners' sentence as per the spirit of Article 276 of the constitution, but the Parliament did not enact any such law.

Tripathi said international standards prohibited pardon or waiver in cases of war crimes, serious human rights violations and sexual offences, among other serious crimes. “Our country is a party to the Geneva Convention and it is obliged to bar pardon, waiver, suspension and commutation of sentence for crimes listed under Article 3 of the Geneva Convention,” he added.

In the case filed by Sabitri Shrestha seven years ago against the Baburam Bhattarai-led government's decision to pardon former lawmaker Balkrishna Dhungel, who was convicted of murdering Ujjan Kumar Shrestha, the SC had ruled that international laws prohibited pardon or waiver in serious crimes. The apex court had also ruled that pardon and waiver provisions could not be arbitrary and unlimited.

Dhungel walked out of jail on Republic Day after the government waived his remaining sentence.

Tripathi said the government was waiving, pardoning and suspending prisoners' jail sentences as per the old laws, which did not conform with the modern principles and international standards that prohibited pardon or waiver in serious human rights violations and war crimes.

According to constitutional expert Bhimarjun Acharya, prisoners can qualify for waiver, pardon or commutation of jail sentence only when they reform and the concerned bodies have reasons to believe they will not pose a threat to society.

“However, as far as Dhungel's waiver is concerned, the victim's family has complained of threats and intimidations,” he added..

He also said that the recommendation for waiver or pardon by prison officers must be based on objectivity. While objectivity cannot be measured in a mechanical fashion, prison officers' recommendation for waiver or pardon should be based on rationale and objectivity,” he added.

Senior Advocate Purna Man Shakya said the criteria of waiver, pardon, suspension or commutation of sentence should be applied to all inmates equally or else the principle of equality would be violated.

“In India, there is a precedent that says waiver, pardon, suspension or commutation of sentence cannot be arbitrary. The criteria should be clearly stated in the letter of recommendation and there should not be any partiality in the recommendation,” he said.

Senior Advocate Chandra Kanta Gyawali, however, said jail should be taken as a reform centre and all convicts irrespective of the crime they were convicted of, should qualify for pardon, waiver, suspension and commutation. “If a prisoner atones for his/her crime and reforms, then the state should grant opportunity to reintegrate such a person in society,” he argued.

He further said that prisoners should qualify for pardon, waiver, suspension or commutation only after serving 60 per cent of jail sentence and not 40 per cent as provisioned in the existing laws.