The June 19 verdict of the Supreme Court has given a strong message that no army personnel is above the law
For the first time in Nepal’s judicial history, the Supreme Court has set a precedent under which all courts, including the military court, come under its jurisdiction. The apex court has clearly stated that the military court’s jurisdiction is limited to the offences listed in the Army Act. It means that any offence committed by an armyman that falls outside the Army Act shall be tried by the civilian court. In its full text of the verdict passed on June 19 by the single bench of Justice Cholendra Shumsher JB Rana, who is now the Chief Justice, in response to a writ of habeas corpus filed on behalf of armyman Krishna Bahadur Magar, the apex court said Magar, another armyman and a civilian were prosecuted under the National Parks and Wildlife Conservation Act. They were arrested with two rhino horns. After Magar was sent to judicial custody by the Kathmandu District Court on March 14, he had filed a petition, arguing that as per the Army Act, the military court had jurisdiction on all offences committed by army personnel except crimes of rape and murder. But the Supreme Court rejected Magar’s claim, saying the new constitution has placed the Supreme Court above all the courts, including that of the military.
The 1990 Constitution, known as the Constitution of the Kingdom of Nepal, had excluded the military court from the Supreme Court’s jurisdiction. However, the Interim Constitution, 2007 and the Constitution of Nepal, promulgated in 2015, has brought even the military court under the command and control of the Supreme Court. It also has now become clear that no military personnel can escape from being tried in a civilian court. In principle, an appeal on the verdict passed by the military court can also be made in the Supreme Court for a final review. If an armyman is accused of involvement in human rights violation or any other offence, not related to the Army Act, s/he will stand trial in the general court, which is considered competent, independent and impartial. The June 19 verdict has also sent a strong message that no army personnel is above the law.
The Nepali Army has often drawn flak for settling criminal offences committed by army personnel through the military court. So the Supreme Court verdict has legally put the dispute between the military court and the civilian court to rest. By bringing the military court under civilian command and control, the image of the country’s professional and apolitical army will also improve greatly in the eyes of the public. This verdict will also deter army personnel from committing criminal offences outside the barracks. As the Supreme Court, which is also the record keeper of all verdicts, has clearly stated that all criminal offences committed by army personnel will come under the civilian court, it will also help end the culture of impunity while helping to protect the human rights of ordinary citizens. To make its stance clear, the Supreme Court has quoted the UN Updated Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity. The principles say the jurisdiction of military tribunals must be restricted solely to military offences committed by military personnel.
The growing sexual harassment of girls and women using public transport should be a matter of serious concern not only for the parents but also for the authorities. If the flash survey conducted by The Himalayan Times daily, in which 13 of the 15 girls and women above 16 years of age said they had faced some form of sexual harassment on a public vehicle, is any guide, then it would be fair to assume that nearly all girls have faced such abuse at some point while commuting.
So are we just going to sit and talk about it or also do something? Sexual harassment on a public vehicle can come in different ways – from touching body parts to direct groping of women. The way our transport system functions gives all the room for such depraved characters to engage in their sexual perversions. When there are few vehicles chasing too many passengers, with the motive of making quick money than providing the people a comfortable ride, we can’t wish the problem to go away. No amount of awareness creation or the ‘Safety Pin’ drive is going to make a dent in the problem. The solution to the malady lies in having buses stop regularly and frequently at the bus stands and till late in the evening.
A version of this article appears in print on February 01, 2019 of The Himalayan Times.