Much to the chagrin of human rights defenders, the Supreme Court on Monday ordered the government and the Election Commission (EC) not to bar murder convicts from contesting elections.
Rights activists have been advocating for a stronger vetting system while selecting candidates for the November 19 Constituent Assembly election.
The court issued a stay order that effectively stops implementation of a provision in the CA Member Act (Section 19-e) that bars murder convicts from contesting polls.
Monday’s ruling now allows all murder convicts, including Maoist leader Bal Krishna Dhungel, to file candidacy for the November election. In January 2010, the apex court upheld the decision of the Okhaldhunga District Court and convicted Dhungel of murdering one Ujjan Kumar Shrestha.
Responding to a petition filed on September 19, a single bench of Justice Tarka Raj Bhatta on Monday said the order would remain in place until September 26 when both the petitioners and the defendants are scheduled to discuss whether it should continue. The petitioners led by Advocate Biswo Prakash Bhandari say that since the 2008 CA election legislation did not bar murder convicts from contesting the polls, the same should happen in the upcoming election.
The bench also asked the defendants—government, EC, government Chairman Khil Raj Regmi, the President’s office and the Law Ministry—to furnish written replies within 15 days of receiving the court order.
Nepal Bar Association officials flayed the court’s decision and said it will promote impunity. “Though this is a temporary order, it is going to promote impunity if not scrapped,” said NBA General Secretary Sunil Pokharel.
The petitioners argue that the provision in the CA Member Act is against the spirit of the Comprehensive Peace Agreement and the Interim Constitution.
While the petitioners referred to Article 65 of the constitution when they said murder convicts should be allowed to contest elections, the text of the Article reads: “In order to be a member of the Constituent Assembly, a person must have the following qualifications a) be a Nepali citizen, b) be 25 years of age, c) not have been punished for any criminal offence involving moral turpitude.”
The petitioners say that though the courts may have convicted individuals on murder charges that were politically motivated during the Maoist insurgency, the proposed Truth and Reconciliation Commission is yet to deal with certain cases concerning human rights abuses.
Even Chairman Regmi has told the apex court that not all individuals convicted of crime are debarred from contesting elections. In a written reply to the court in August in a petition that challenged the provision that bars persons convicted under certain criminal offences from contesting elections, Regmi maintained that Section 19 of the Act does not stipulate what constitutes criminal offence involving moral turpitude. “In fact, we don’t have a law that defines criminal offences leading to moral turpitude,” he had said.
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