Examining the ‘Presidential’ pardon of Yograj Dhakal

On Constitution Day 20^th September, the President granted amnesty to 670 convicts using the presidential authority and following the government recommendation.

While the case of 669 convicts is unknown so far, the pardon granted to one of the convicts has courted controversy.

Among the 670 convicts was Yograj Dhakal, also known as Regal Dhakal, who had been serving life imprisonment for his involvement in the first-degree murder of Chetan Manandhar on 13^th July 2015. By the time Dhakal was released, he had served eight years (40%) out of his 20 years of life imprisonment.

Dhakal had affiliations to the ruling party Nepali Congress then.

Bharati Manandhar, spouse of the deceased Manandhar, has filed a writ against the decision of the government to grant pardon to Dhakal at the Supreme Court.

What do the present laws say about granting pardons?

According to the present law that governs the early release of convicts Section (37) of the Criminal Offences (Sentencing and Execution) Act, 2017 (2074), no offender who has been sentenced for offenses in the following negative list shall be eligible for remission (cancellation of the sentence of imprisonment):

(a) Imprisonment for life 
(a1) Murder by acid attack or the use of other chemical substances, grievous hurt, or other bodily harm 
(b) Rape 
(c) Corruption 
(d) Human trafficking and transportation 
(e) Taking hostage and kidnapping 
(f) Organized crime 
(g) Money laundering 
(h) Torture or cruel, inhumane or degrading treatment 
(i) Crime against humanity

Even those who are eligible for remission must have served 50% of their sentencing. 

Similarly, Section (159) Muluki Criminal Procedure Code states that no measures can be pursued to pardon, suspend, alter, or reduce the sentence for a crime involving murder in a cruel and inhumane way or by taking control.

In the case of Manadhar’s killing, the deceased was first taken under control by Dhakal’s accomplices and dragged to Dhakal who then killed Manadhar with a domestic weapon (khuda), according to a statement from one of the murder accomplices.  

Eight years later, the murder convict is pardoned by President Ram Chandra Paudel and Prime Minister Pushpa Kamal Dahal. 

The coalition government’s defense for granting pardon to Dhakal primarily relies on the Supreme Court’s Mandamus (paramadesh) that allows pardoning based on the law in force at the time of the commission of the offense.

Let’s examine the mandamus and the prevalent law at the time of the crime.

In the case of Gopal Siwakoti (Chintan) and others v. Prime Minister, Council of Ministers, and Others, Writ number (076-WO-0939), the Supreme Court had ordered a mandamus stating that a convict can be granted pardon if the prevalent laws when the crime was committed entail such provisions.

The court issued such a mandamus on the principle that ‘no law should hold retrospective effect’ — meaning that no offender should be held liable for more than what the prevalent law at the time of the crime prescribes.

The mandamus was also based on a constitutional provision mentioned in section 20(4):

“No person shall be liable for punishment for an act which was not punishable by the law in force when the act was committed nor shall any person be subjected to a punishment greater than that prescribed by the law in force at the time of the commission of the offense.”

As such, Prison Regulations (Kaaraagar Niyamawali), 2020 (13^th amendment) — the prevalent law at the time of sentencing — come into force.

Under its negative list for remission, the 13^th Amendment includes illegal activities relating to the following cases:

(a) Jiu maasney-bechney
(b) Rape
(c) Prison break or abetting escape from prison
(d) Custom evasion and smuggling
(e) Drug trafficking
(f) Corruption
(g) Espionage
(h) Protected wildlife
(i) Offenses relating to archaeology

(This negative list was revoked in the 15^th amendment).

Surprisingly, the negative list at the time omitted the crime of murder, although the list covers crimes that are usually deemed less offensive based on their nature when compared to the crime of murder.

When these legal provisions are considered, the pardon granted to Dhakal is in compliance with the law.

The “Jiu Maasney-Bechne” provision however is subject to legal review and broader interpretation. If the pardon is challenged at the court (which it already is), the court can be called on to define the “Jiu Maasney-Bechney” provision where the court can perhaps set a new jurisprudence. 

There are reasons to test the legal scope of this provision.

First, it is difficult to believe that the legislative wisdom at the time omitted the crime of murder under the negative list for pardon.

Second, the literal meaning of ‘maasney’ according to Nepali Brihat Shabdakosh (Nepali Comprehensive Dictionary) published by Nepal Academy is to expend, complete, or finish (खर्च गर्नु, समाप्त पार्नु, सिध्याउनु).

The Supreme Court has taken cognizance of this meaning under the case of “Nepal Government v. Prakash Ojha, NKP 2073, Decision Number 9621”, where the court pronounced the verdict exploring the term ‘jiu maasney-bechney’ in relevance to what constitutes human trafficking and sexual exploitation.

Why was Dhakal pardoned without completing 50% of the sentence?

The 14^th amendment of the Kaaraagar Niyamawali provisions that convicts can be pardoned after the completion of 40% of their sentence.

Although the provision came into effect after Dhakal’s crime, it is still applicable to Dhakal’s case because it was already in force during his sentencing, even though the prevalent provision during his offense required the completion of a 50% sentence.

This notion is guided by section 5 of the Criminal Offences (Sentencing and Execution) Act, 2074 which argues for ‘lesser sentences to be imposed’.

“If any offense is punishable by law with a sentence that is lesser at the time of sentencing than the sentence at the time of the commission of the offense, the sentence shall be so determined that it is the lesser.”

Pardon: whose prerogative is it anyway?

The exercise of granting pardons has often courted controversy for blatant misuse by the government and the successive presidents’ silent approval over the matters.

In 2015, the Sushil Koirala-led government pardoned Pradeep Jung Pandey who was serving a sentence on corruption charges. Pandey, an industrialist, was also an immediate past president of the Federation of the Nepalese Chambers of Commerce and Industry (FNCCI).

In 2018, Bal Krishna Dhungel, a Maoist party leader who was convicted of the murder of Ujjan Kumar Shrestha, was pardoned by the then KP Oli government. Efforts to pardon him, initiated by the Baburam Bhattarai-led government, were earlier quashed by the Supreme Court. Yet, he went on to receive pardon despite threatening Chief Justices with physical harm. 

And just a while ago, PM Dahal and President Paudel pardoned Resham Chaudhary, who was also serving life imprisonment for his involvement in the killing of seven security officials and a child. Chaudhary’s release is widely interpreted as Prime Minister Dahal’s effort to keep his coalition intact. 

In all the cases, the incumbent presidents abstained from the responsibility citing their inability to question or repeal any recommendations made by the government. 

President Ram Chandra Paudel has once again followed suit, this time with an exception. 

Based on his own admission, he returned 34 such requests to the Ministry of Home Affairs due to procedural errors (bidhi/prakriya namileko), which is tantamount to exercising power. 

This begs the question: whose prerogative is the power of pardon?

The term pardon is often interpreted as ‘Presidential Pardon’ but it is nowhere mentioned explicitly if it is really so. However, the constitution has reserved this right for the President through Article 276. 

Article (276) of the constitution has empowered the President with the authority to pardon:

“The President may, in accordance with law, grant pardons, suspend, commute or remit any sentence passed by any Court, judicial or quasi-judicial institution or administrative authority or institution.”

According to the constitution, the President shall exercise their powers and duties as conferred on them in accordance with the constitution or the federal law. 

Going by Section (159) Muluki Criminal Procedure Code, the President has the authority to make decisions on requests for pardon as such petitions are made to the President, not to the executive. 

The code outlines the following procedure for granting pardon:

i) A petition is made by the convict to the President through the Home Ministry along with a copy of the court's decision
ii) The President then forwards the petition(s) to the Home Ministry for necessary action
iii) The ministry then can, upon considering the facts of the case, submit to the government to decide whether or not to pardon, suspend, alter or reduce the sentence imposed on the petitioner

The step (i) and (ii) of the process that guides the pardon tells us that the President has a role in decision-making — any petition can only advance to the next stage for the concerned ministerial review if the President forwards it. 

Now, if it were the government’s prerogative, it should have clearly mentioned otherwise. Had the President no say over it and if its role were only to issue it based on the executive decisions, the process wouldn’t have prescribed that a petition must be made to the President.

The government, on the other hand, is only supposed to review the lawfulness of the President’s list based on criteria laid down under section (159).

The process makes valid sense based on the principle of check and balance. Granting sole authority in such matters to the executive would allow them to use the power arbitrarily based on their political interests, which the President is considered to be free from.

If this is not the case, the power of pardon should be clearly demarcated as one of the presidential duties, and not as its power to ‘grant’.

The process, thereof, should be revised accordingly wherein the petition shall be made to the executive itself while the President only authenticates the final list. This way the institution can be saved from repeatedly falling from grace, but also reviewing hundreds of petitions on a yearly basis where the President in actuality has no say. 

The whole confusion about whose prerogative the pardon is further exists because there is no specific law that comprehensively outlines pardoning, which presently is governed by dispersed legal provisions, as discussed earlier.

The President’s role in all this

As the President which translates into the ‘Head of the State’, discretion is desirable in thoroughly checking if petition(s) complement various aspects of the criminal justice system, and have implications like political impunity.

Despite exercising the power on the recent occasion, the President instead passed the buck to the council of ministers following his criticism.

When Rastriya Swatantra Party (RSP) members called for the President’s attention to the matter with a three-point letter regarding the practice of pardoning, he stated that the office of the President does not have the power to refuse any government recommendation that fulfils the necessary procedural posture.

He even went on to dismiss the concerns, saying that such controversial claims about the President would only weaken the republic. 

Yet there is room to consider Paudel’s examination of Dhakal’s plea as biased.

First, while he seems to understand his lawful authority in granting pardon and even exercised it partially, the President has then skirted the issue when fingers are raised at him. 

Second, the President served the same party until seven months ago, which Dhakal was once affiliated to — the Nepali Congress which is an influential force in the present ruling coalition. 

For a controversial request as that of Dhakal who was convicted of a first-degree murder, the President’s discretion was utterly desirable:

• Was the plea fair?
• Could there be party favouritism/bias/vendetta?
• Was the punishment unduly excessive?
• Will granting a pardon be divisive?
• Does it encourage impunity?
• Does it overstep judicial authority?
• Does it mock the justice system?
• Can it mean injustice to the victims and families? 

With this, a pertinent inquiry emerges about the President: 

• Does the President understand the essence of pardon?
• Does the President possess a grasp of his power, if not lawful authority then at least discretionary, when it comes to granting pardon?

Time to review ‘pardon’

In the lack of dedicated laws and regulations that could guide the pardon more democratically and with transparency, there are rampant cases of misuse of power, all in the name of the presidential institution. 

The cases of Bal Krishna Dhungel, Resham Chaudhary, and Pradeep Jung Pandey along with Regal Dhakal — all reek of political fouls. Yet all the presidents have skirted any accountability on their part while allowing the institution to taint. 

On the other hand, as matters reach the court when their convictions are undone, there’s not much it can do apart from expressing concerns and objections, for it cannot overstep the constitutional provision.

Yet, with almost over half a thousand pardons granted on a yearly basis in recent times, there are chances of larger misuse of the power than what makes it to headlines. 

A judicial and parliamentary review of the system is thus necessary and urgent to comprehensively outline and demarcate the process, authority, and criteria for pardons.