The most emblematic case from Nepal’s armed conflict is of <a href="https://www.nepalitimes.com/news/she-would-have-been-33-this-year" target="_blank">Maina Sunar</a>, but it quietly slipped away from the Supreme Court docket last week.&nbsp; 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 <a href="https://archive.nepalitimes.com/news.php?id=15409" target="_blank">Maina Sunar</a>’s case hearings.&nbsp; Contrast this to <a href="https://www.nepalitimes.com/news/who-is-resham-chaudhary" target="_blank">Resham Chaudhary</a>, whose crime occurred 11 years after <a href="http://archive.nepalitimes.com/blogs/thebrief/2015/02/17/remembering-maina/" target="_blank">Sunar</a> 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.&nbsp; 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?&nbsp; &nbsp;Read Also: <a href="https://nepalitimes.com/news/who-is-resham-chaudhary">Who is Resham Chaudhary...</a>, Shristi Karki One marked difference in the cases is that in Maina Sunar’s case the <a href="http://archive.nepalitimes.com/blogs/thebrief/2013/02/16/still-waiting/" target="_blank">perpetrator was the Nepal Army</a>, 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.&nbsp; 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. &nbsp; 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’.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp;  <figure> <img src="https://publisher-publish.s3.eu-central-1.amazonaws.com/pb-nepalitimes/swp/asv65r/media/20230603130652_2a8fb07731cbdd5da02da1cb329ea210e014973b09efd3c1e825147a26c179b2.jpg" data-media-id="editor_6" data-image-id="20230603130652_2a8fb07731cbdd5da02da1cb329ea210e014973b09efd3c1e825147a26c179b2" data-rendition-name="original" width="400" height="406" loading="lazy" alt="Maina Sunwar"> <figcaption>Maina Sunar, who was killed in detention at Nepal Army barracks in 2004.</figcaption> </figure>  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.&nbsp; &nbsp;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.&nbsp; In Maina Sunar’s case decision, the Patan High Court and Kavre District Court established that <a href="https://archive.nepalitimes.com/news.php?id=941" target="_blank">military personnel Amit Pun and Sunil Adhikari under the command of Bobby Khatri</a> abducted, tortured, killed and disappeared 15 year old Maina inside the Panchkhal barracks.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; 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 <a href="https://archive.nepalitimes.com/article/from-nepali-press/mother-fights-for-justice-Devi-Sunar,2837" target="_blank">military personnel in Maina Sunar’s case</a> are summarily dismissed in Resham Chaudhary’s case judgment.&nbsp; After all, the <a href="https://www.nepalitimes.com/here-now/tikapur-s-protracted-trauma" target="_blank">2015 killings in Tikapur</a>, 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.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; 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.&nbsp; Aastha Dahal is a Kathmandu-based lawyer with a PhD in criminology from the University of Cambridge.

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Comparing Maina Sunar and Resham Chaudhary cases

Background Nepal’s new Constitution had just been endorsed by the Constituent Assembly, but Madhesi <a href="https://www.nepalitimes.com/opinion/un-centralising-the-federal-structure">activists</a> were not happy and there was violence in Tarai cities. Following the promulgation of the Constitution in 2015, the Tharuhat Struggle Committee (TSC) rejected the seven-province federalism model that placed Kailali and Kanchanpur in Far-west Province, demanding greater autonomy for their indigenous group in a separate Tharuhat Province.&nbsp; However, the Akhanda Sudur Paschim movement that had been demanding a separate Far-western state had been celebrating the passing of the new Constitution, leading to a confrontation between the two organisations.&nbsp; On 24 August 2015, armed supporters of the TSC <a href="https://archive.nepalitimes.com/blogs/thebrief/2015/08/24/kailali-carnage/">confronted police in Tikapur</a> of Kailali district. Madhesi activists were reported to have instigated the indigenous Tharu community to join the Madhes Movement.&nbsp; Eight police officers were killed: lynched, knifed, or burnt alive. A two-year-old baby was also shot. Police filed charges in the Kailali District Court against 58 suspects, naming Resham Chaudhary, the district coordinator of the Tharuhat Struggle Committee, as the <a href="http://archive.nepalitimes.com/blogs/thebrief/2017/01/22/tikapur-finding/">mastermind behind the attacks</a>. Read also: <a href="https://www.nepalitimes.com/here-now/tikapur-s-protracted-trauma">Tikapur’s protracted trauma</a>, Tufan Neupane  <figure> <img src="https://publisher-publish.s3.eu-central-1.amazonaws.com/pb-nepalitimes/swp/asv65r/media/20230529120548_0c6976eb2e6b43f40a0dfcc835c28d72cab53f804840bf9c0900b34a2b2ba19a.jpg" data-media-id="editor_4" data-image-id="20230529120548_0c6976eb2e6b43f40a0dfcc835c28d72cab53f804840bf9c0900b34a2b2ba19a" data-rendition-name="original" width="1600" height="1064" loading="lazy" alt="Resham Chaudhary"> <figcaption>Resham Chaudhary with wife Ranjita Shrestha, who is the Minister of Land Management and the chair of the Nagarik Unmukti Party.</figcaption> </figure>  What did the courts do? While still on the run, Resham Chaudhary ran for elections in 2017 as Rastriya Janata Party-Nepal (RJP-N) and was elected to Parliament from Kailali-1. &nbsp; As MP, he turned himself in to police in February 2018, but was convicted and sentenced to life imprisonment along with 11 others by the Kailali District Court and the High Court in 2019. On 17 May this year, the Supreme Court upheld the verdict of the two lower courts.&nbsp; Why was he released? On Nepal’s Republic Day on Monday, President Ram Chandra Paudel included Resham Chaudhary in his amnesty list on recommendation of the coalition government led by Prime Minister Pushpa Kamal Dahal.&nbsp; Article 276 of Nepal’s constitution stipulates that the President may, in accordance with the law, grant pardons, suspend, commute or remit any sentence passed by any Court, judicial or quasi-judicial body or administrative authority or body. From behind bars, Chaudhary last year got his wife Ranjita Shrestha to form the Nagarik Unmukti Party (NUP). Shrestha herself was elected to Parliament in the 2022 federal elections, and is Minister of Land Management, Cooperatives and Poverty Alleviation. But she had not participated in Cabinet meetings.&nbsp; Read also: <a href="https://www.nepalitimes.com/opinion/displacement-and-defiance/">Displacement and defiance</a>, Tom Robertson  <figure> <img src="https://publisher-publish.s3.eu-central-1.amazonaws.com/pb-nepalitimes/swp/asv65r/media/20230529120548_eb2eee37cde4dc6626f7765be55322637668e28f6cdd1615da9d09ffac72f4b6.jpg" data-media-id="editor_6" data-image-id="20230529120548_eb2eee37cde4dc6626f7765be55322637668e28f6cdd1615da9d09ffac72f4b6" data-rendition-name="original" width="1600" height="1066" loading="lazy" alt="Resham Chaudhary"> </figure>  Although the NUP is a part of Prime Minister Dahal’s coalition government, it had made <a href="https://www.nepalitimes.com/banner/government-of-the-leaders-for-the-leaders-by-the-leaders">Chaudhary’s release a primary agenda</a>, threatening to pull out of the coalition if that demand was not fulfilled.&nbsp; The coalition was looking fragile after the exit of the independent RSP, the fourth largest party in Parliament with i21 members.&nbsp; Chaudhary’s pardon will now ensure the the NUP remains in the coalition for the time being. But this is bound to have a ripple effect on other smaller parties in the coalition to use similar bargaining tactics to gain political leverage. The Dahal-led coalition government was pushing for Chaudhary’s inclusion in the President’s Republic Day amnesty list which also includes 482 others serving prison terms. Besides Chaudhary, 19 prisoners were also pardoned. Read also: <a href="https://www.nepalitimes.com/review/atrocities-against-tharu-expressed-in-art/">Atrocities against Tharu expressed in art</a>, Sakina Abidi  <figure> <img src="https://publisher-publish.s3.eu-central-1.amazonaws.com/pb-nepalitimes/swp/asv65r/media/20230529120548_572f971d19c8bd2edf1918dc64853f00ad7004673c83e694b54015770e133850.jpg" data-media-id="editor_9" data-image-id="20230529120548_572f971d19c8bd2edf1918dc64853f00ad7004673c83e694b54015770e133850" data-rendition-name="original" width="1600" height="1064" loading="lazy" alt="Resham Chaudhary NT"> </figure>  What is the fallout? The fallout of Resham Chaudhary’s release is sharply divided. Activists and members of the Tharu community, who have long demanded that the Tikapur protests be treated as a political movement and not criminal activity, have welcomed the government’s decision.&nbsp; Human rights activists and others say that his pardon undermines Nepal’s judiciary, encourages impunity and compounds the injustice to the victims and families of the 2015 killings.&nbsp; 'It is abundantly clear that the government, by disregarding the judgement of the court and infringing upon the judicial rights of victims, is institutionalising impunity, ignoring the spirit of the Constitution, and making a mockery out of the republic,’ read a statement put out by the Accountability Watch Committee (AWC). 'It is reprehensible that the government, which has a responsibility to protect the fundamental rights of the victims, has repeatedly sided with the perpetrator.' The opposition UML has been especially vocal, and has accused Dahal of pardoning a criminal solely to keep his shaky coalition intact.&nbsp; Resham Chaudhary’s release and the ongoing agitation in Kosi Province by activists who want Nepal’s easternmost province to be named after the Kirat ethnic group underscores the Constitution’s inability to address the <a href="http://archive.nepalitimes.com/article/nation/ground-zero-kailali-nepal,2535">grievances and demands</a> for representation by Nepal’s ethnic groups.&nbsp; Read also: <a href="https://www.nepalitimes.com/here-now/chitwan-s-bote-people-in-a-changing-world">Chitwan’s Bote people in a changing world</a>, Sravasti Ghosh Dastidar

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Comparing Maina Sunar and Resham Chaudhary cases

Who is Resham Chaudhary …