Comparing Maina Sunar and Resham Chaudhary casesBoth are cases of criminal political violence, but the security forces are perpetrators in one and victims in the other
The most emblematic case from Nepal’s armed conflict is of Maina Sunar, but it quietly slipped away from the Supreme Court docket last week.
On 23 May the presiding judges said they could not hear the case because of a conflict of interest. It has been three years since the Supreme Court has continuously adjourned Maina Sunar’s case hearings.
Contrast this to Resham Chaudhary, whose crime occurred 11 years after Sunar was killed in 2004. His case was processed by the District Court, High Court, Supreme Court and he was released from prison on a presidential pardon.
Maina Sunar and Resham Chaudhary both involve criminal cases against a backdrop of political armed struggle, and involve the security forces. They raise similar legal questions such as: What degree of murder was committed? Who were the commanders that ordered them, what was their responsibility?
Read Also: Who is Resham Chaudhary..., Shristi Karki
One marked difference in the cases is that in Maina Sunar’s case the perpetrator was the Nepal Army, whereas in Resham Chaudhary’s case members of the security forces were victims. The contrast of how these two cases moved through the courts exposes some bigger concerns in procedures followed and decisions made in criminal trials in Nepal.
There has been a consistent stream of analysis that pins the delays in cases processing through the court system to human resource deficit. particularly the failure to appoint judges. This is only one part of the problem.
Cases are listed for hearing by the court’s administrative staff. Each week all courts produce a list of cases that will appear before the judges called the ‘Weekly Cause List’.
For example, the Supreme Court releases a list of around 200 cases to be presented before judges that week. The cases are listed in order of priority meaning that realistically only the first 90 cases have a chance of being heard that week. The rest are adjourned. These cases need not be listed in the next week’s cause list but rather are likely to be listed after at least a month.
Court administrative staff, as opposed to judges, use their discretion to sequence cases on the weekly cause list. The Chief Justice and administrative heads of the courts supervise the weekly lists and can change the order of cases.
Whilst there are laws providing guidance on how to prioritise cases on the list such as processing cases affecting women, children, prisoners and elderly quickly, it is largely discretionary. Decision making remains mostly opaque at all levels.
Moreover, it is common understanding amongst lawyers that this lack of transparency in drawing up cause lists opens up room for undue political influence and corruption by administrative staff in either moving up cases or pushing them down the list. Cases can be essentially buried through this function of procedural decision making by administrators.
Maina Sunar’s case has been in the courts since 2007. The military has challenged the legitimacy of civilian courts to hear this case after it conducted its own court martial. This petition has lingered at the Supreme Court which in turn has adjourned this hearing five times since 2019. The reason being that the case was listed too far down the order in the cause list.
In contrast, Resham Chaudhary’s case was processed in about six years. The speed at which the two cases have moved through the courts raises questions about what legal and non-legal factors affected the court administrator’s decision-making in listing these cases.
In Maina Sunar’s case decision, the Patan High Court and Kavre District Court established that military personnel Amit Pun and Sunil Adhikari under the command of Bobby Khatri abducted, tortured, killed and disappeared 15 year old Maina inside the Panchkhal barracks.
The judges acknowledge the torture that led to the death of Sunar is a violation of international human rights law deserving of a life sentence. However, in a remarkable display of sympathy towards the military, the judges state that a life sentence would be excessive for the perpetrators who were working under extraordinary pressures of the armed conflict.
The life sentence was lowered to five years of imprisonment by both courts, the same punishment for the commanding officer Bobby Khatri and his subordinate officers. International human rights law is clear on its absolute prohibition against torture under all circumstance and stipulates the duty of the state to safeguard children during an armed conflict.
A sentence mitigation, after citing Nepal’s obligation to follow these laws in the judgment, is a baffling leap in legal logic. No military personnel has yet served this sentence.
High Courts in Nepal should be persuaded (as opposed to bound) by previous rulings in similar cases as a matter of legal principle. It is interesting that the political consideration that mitigated sentences for military personnel in Maina Sunar’s case are summarily dismissed in Resham Chaudhary’s case judgment.
After all, the 2015 killings in Tikapur, for which Resham Chaudhary was handed a life sentence, is termed a political struggle (as opposed to a criminal act) by the Tharu community. The judges are within their rights to declare an incident a criminal act as opposed to a political act.
However, judges either needed to examine legal parameters of political armed struggle vis-a-vis existing criteria under international laws such as whether the group has a structure, organisation or military command. Or, they needed to propose a set of legal criteria for political acts that fit the Nepali context which can be used for subsequent cases before the court. This legal engagement to separate a criminal act from a political act is significantly underdeveloped in Resham Chaudhary’s case judgment.
The legal value of the Maina Sunar and Resham Chaudhary case was immense. They presented an opportunity for Nepal’s Supreme Court to deliberate and set legal standards on some pertinent legal questions relating to political movements that would assist future cases.
These include questions like separating sporadic criminal uprisings from political violence, establishing the gravity of death by torture, defining the parameters of command responsibility in security forces and political groups amongst others.
However as Maina Sunar’s case stalls and Resham Chaudhary’s presidential pardon potentially lifts the Supreme Court’s obligation to issue a full length decision, the engagement with legal elements of justice remain compromised.
Aastha Dahal is a Kathmandu-based lawyer with a PhD in criminology from the University of Cambridge.