Enabling impunity

On April 23, the then Sanghiya Samajbadi Party’s deputy chief of the central communication department Bishwadeep Pandey tweeted about an absurd incident: the abduction of the party’s lawmaker in Janakpur. The tweet said that a group of ruling lawmakers loyal to Prime Minister KP Sharma Oli had ‘abducted’ Surendra Yadav from Janakpur and that he was being brought to Kathmandu to enable the splitting of the Madhes-based party. 

It was bizarre that a government with a two-thirds majority would resort to abducting an opposition lawmaker. It was even more bizarre that its lawmakers would drive across provinces during a lockdown to nab an opposition leader. But PM Oli knew he could get away with this brazen escapade because in Nepal the politicians and prosecuting agencies often have each other’s back: meaning, the leaders can operate with impunity because they know they will not be brought to book. 

But the oddity that was the abduction had actually been preceded by a similarly sinister action on the PM’s part. Three days before the abduction took place, PM Oli had introduced two controversial ordinances, both unrelated to fighting the pandemic crisis--the burning issue that the nation was focused on. The ordinances pertained to the registration of political parties and to the constitutional council. Both ordinances were approved by the president in the middle of a party secretariat meeting convened to discuss the very ordinances in question. The ordinance to do with the registration of political parties sought to relax the existing provision, which said that a party could only be split if at least 40 percent of the party’s central committee members and parliamentary party members supported the split. 

The real motive behind PM Oli’s introducing the bills was to bolster his own position in his party and in government. He was losing his grip over his own party because the comrades in the secretariat outnumbered the comrades loyal to him: he was teetering on the brink. To make matters worse, the secretariat, the party’s apex body, had started questioning his poor performance. 

As was later disclosed by Oli’s aides, he’d wanted to split two Madhes-based parties— the Rastriya Janata Party and the Samajbadi Party—by offering their members ministerial positions in his government. He was essentially exploiting their growing dissatisfaction with their respective parties. Oli’s grand plan was to lure some disgruntled leaders from opposition parties and later include them within the folds of the Nepal Communist Party (NCP), his own ruling party. Oli’s calculation was that this move would help him in two ways: it would weaken the Madhes-based parties as well as topple the government in province 2, which is led by an alliance of Madhes-based parties. 

To execute Oli’s plan, his lieutenants Mahesh Basnet and Kishan Kumar Shrestha, along with recently retired police chief Sarbendra Khanal, rushed from Kathmandu to Mahottari in a private car, via the BP Highway--when all unnecessary vehicular movement had been banned.

The plan, however, came to nought--after top leaders from the two Madhes-based parties read the political currents and responded accordingly. They scrambled to merge their parties into one so that disgruntled leaders like Yadav would not be able to help Oli secure a 40 percent majority--the percentage needed to split a party--in his party or in parliament. Had they not intervened thus, their government in the Madhes would have fallen. On April 22, their parties were merged to form a new party, the Janata Samajbadi Party.

The formation of the new party represented a major setback for PM Oli. After facing criticism from several quarters, Oli withdrew the ordinances, which had been swiftly endorsed by President Bidya Devi Bhandari, upon recommendation from the executive head of government, PM Oli. 

After the withdrawal of the ordinances, the newly formed Janata Samajbadi Party relentlessly raised the issue of the alleged abduction, in parliament and other public forums. It demanded that the lawmakers involved in the abduction be booked under criminal charges. To hold them legally accountable, on April 26, a group of opposition leaders, led by former PM Baburam Bhattarai, went over to the Teku Metropolitan Police Range to file a complaint against the rogue lawmakers and former police chief. 

The Range, headed by Shyam Gyawali (he is also the brother of the then IGP Thakur Gyawali) refused to register the complaint--on the grounds that the incident had occurred in Mahottari, which lay outside his jurisdiction. Under apparent pressure from the higher authorities, the police suggested that the leaders file the case in Mahottari. When they heard that, the protesting party leaders understood that countermoves were being deployed, and so they returned home without filing their case. 

Read also: KP Oli’s early life and influences

Two days after the police refusal to file the case, lawmaker Yadav and Samajbadi Janata Party leaders made their way to the Office of the Kathmandu District Attorney. But by the time they reached the Attorney Office, the accused had already filed a defamation case against the opposition lawmakers, including former PM Bhattarai.

And just as the police had done, the Attorney Office also delayed in preparing the charge sheet, arguing that it first needed to peruse the complaint before it could officially register the case in court. The Attorney Office then sat on the complaint until the lawmakers accused of abducting the MP had readied their defamation case against former PM Bhattarai and his party members. 

Only after both the cases had been registered, did the Attorney Office forward the case to the aforementioned police office to have them investigate the matter and decide whether to probe the case further. 

The defamation case’s purpose, according to ruling NCP insiders, was to weaken the Samajbadi MPs’ suit.  And Bhattarai was made the main target because of his firm stance on taking action against the abductors. But unbeknownst to the public, while all this was happening, the ruling party’s leaders had been asking former PM Bhattarai to not push the matter further. They let him know that he could also face suspension once the police arrested him to interrogate him about the defamation charges. 

The defamation case forced Bhattarai to soften his stance. Once that case was filed, NCP leader Subas Nembang reportedly pressured Bhattarai to either withdraw his case or opt for a compromise. Bhattarai was in a bind because if the defamation case against him won out, he would not be able to hold a parliamentary post in the future.

Weighing the implications of the possible fallout from the criminal charges filed against him, Bhattarai remained absent when the case was filed at the district attorney’s office. But in his address to parliament on May 8, he indicated that the government was attempting to steer all those involved towards a compromise. 

“When the counter complaint was filed against the victims, [they told us] you withdraw your case and we will also withdraw our case. Is this how democracy works?” Bhattarai told the parliament

Eventually, the police concluded that the evidence presented in both cases couldn’t be established, and thus the cases were put on hold. Ever since, Bhattarai, who had been the most vocal about the abduction case, has remained silent. 

Read also: The court’s course correction

MP Yadav was also under pressure to withdraw the case. “I was told that since my case involved a sitting prime minister, it could affect the running of government,” Yadav told The Record. “So I was asked to refrain from pursuing the case further. But we will reopen the case when the time is right.”

Abduction is a serious criminal offence, and when a political party stoops to such measures, the state must probe the matter with utmost seriousness. But the government’s attorneys, at the behest of Nepal’s most powerful political party, froze the case. Lawyers argue that such acts that jam the gears of justice should never be allowed to occur. Although the Attorney Office is part of the government, the office should not be influenced by the government. To be influenced thus is to be wrong on many levels. The justice delivered in any case should be informed by the particulars included in a charge sheet, says advocate Bikash Basnet. 

The parties to the case in question were forced to agree to a detente largely because the defamation case filed against Bhattarai’s group could derail their future in politics. Anyone found guilty of kidnapping is liable to 7 to 10 years in prison and a fine between NRs 75,000 and NRs 100,000. Nepal’s laws state that for anyone seeking to be a parliamentarian, the person should not have been convicted by the court on a criminal charge. When the ruling leaders pulled this trump card, everyone involved settled for an agreement that would essentially save their political careers. 

Yadav’s alleged abduction case is not the only one in which a deal was made to ensure a truce among political parties. Take the case of the infamous Nepali Congress leader Mohammad Aftab Alam. Alam was arrested only last year—13 years after his alleged involvement in one of Nepal’s most heinous crimes. In that instance, the Attorney Office had earlier decided to drop the case altogether. 

Alam, who was an influential leader in Rautahat District, was the then Congress President Girija Prasad Koirala’s trusted man. On April 9, 2008, Alam was plotting to capture election booths, to ensure his victory during the 2008 Constituent Assembly elections. Further, he’d hired bomb-makers from India to scare the voters. When the hired hands were improvising the bombs, the explosives accidentally exploded. All those injured in the blast, including the bomb makers, were shoved into the furnace of a nearby brick kiln, in a bid to destroy all evidence. A total of 23 people were reportedly burned in that kiln. 

Read also: Oli’s dictatorial desires

Because it was the investigating authority, the police collected all the evidence, but the Attorney Office decided to put the case on hold, saying that there was not enough evidence to move the case forward. The Home Minister back then was Nepali Congress leader Krishna Sitaula. So the Attorney Office decided to drop the case against Alam. Alam went on to win his seat in the CA elections and even became minister several times. 

Over that period, two petitioners to the case against him were mysteriously killed, but a third petitioner Sri Narayan Singh persistently pursued the case—until Alam was finally arrested on October 13, 2019. According to lawyer Pushpa Poudel, two writ petitions had been filed as one petition at the apex court: a certiorari and a mandamus, which led to a reviewing of the earlier handling of the case. Subsequently, the court repealed the lower court’s verdict and ordered the district police to arrest the accused. However, the court order was not implemented. It was only later, when the petitioner filed a complaint with the Judgement Execution Directorate, that the Nepal Police were forced to arrest Alam. 

In Nepal, the police are the authority tasked with investigating cases. The Attorney Office prepares the charge sheet on the basis of the evidence collected by the police. It is thus the responsibility of the Attorney Office to provide the rationale for delaying a case or putting it on hold. The office’s decisions are not supposed to be influenced by political parties. 

But it was political influence that determined the outcome of yet another case involving a politician--against Prabhu Shah, the Maoist leader accused of shooting Hindu Yuva Sangh leader Kashi Tiwari in Birgunj on June 26, 2010. Shah was the minister for Land Reforms in Baburam Bhattarai’s Cabinet. Despite having enough evidence to establish Shah’s involvement in the murder, the Attorney Office decided against pursuing the case. The evidence gathered by the police was sufficient enough to implicate Shah, but he wasn’t brought to book.

The Attorney Office has the right to drop a case, but it has to provide convincing reasons for doing so. In the same way that Prabhu Shah’s case was mishandled, the recent abduction case was also botched. An abduction case involving two members of parliament and an erstwhile Nepal Police chief is obviously a matter of public concern, says advocate Poudel. The Attorney Office should have provided the public the reasons as to why it decided to put the case on hold. But it didn’t. The actual reason, as many Nepalis know, is the unhealthy nexus among the power players in Nepal.

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