The conflicting parties, our politicians, the ultimate power-centers and their leaders have been demonstrating self-centered myopia. In order to bring an end to the ongoing conflict and initiate reconstruction, the first requirement for CPN (M) is to give up their arms, amidst adequate and rational guarantee of protection and amnesty from the government. The reconstruction era envisaging a New Nepal is profound solely on primary basis of constitutional reconciliation. The monarch, an inevitable party to this national resolution, has the ultimate role to exercise this constitutional reconciliation option of granting ‘unconditional’ pardon under article 122 of the Constitution of the Kingdom of Nepal 1990.
Article 122 Pardons
His Majesty shall have the power to grant pardons and to suspend commute or remit any sentence passed by any court, special court, and military court or by any other judicial, quasi-judicial or administrative authority or institution.
His Majesty’s power to pardon can be interpreted as granting pardon to all those who have raised arms against the state, pardoning those who have been issued criminal charges during the armed conflict, who have been denied of their civil rights and for those who are already under detention.
Pardon or Amnesty or Clemency
Pardon or Amnesty or Clemency is the action of a government by which all persons or certain groups of persons who have committed a criminal offense, usually of a political nature that threatens the sovereignty of the government (such as sedition or treason), are granted immunity from prosecution. It allows the government of a nation or state to “forget” criminal acts, usually before prosecution has occurred. Amnesty has traditionally been used as a political tool of compromise and reunion following a war.
Pardon or amnesty or clemency has been an inevitable part of the governments in nearly every nation. Since ancient times, the head of the states have been seen exercising their right to pardon. Pardon often operates as an arbitrary exception. Under common law, a pardon is an act of mercy whereby the king “forgives any crime, offence, punishment, execution, right, title, debt, or duty.” According to an early pronouncement of the United States Supreme Court, a full or unconditional pardon not only releases the offender from any punishment for her crime, but also vitiates moral guilt for the offense, so that in the eyes of the law she is as innocent as if she had never been charged or convicted. Pardons may be granted either before or after conviction, but are most commonly used to restore the reputation and civil rights of an individual.
Pardon has its genesis in the sovereign’s power to grant mercy to those who violate the law. The notion of dispensing pardon is limited only to the ingenuity of the human being and our humanity. Pardon has always been considered an extraordinary remedy that can be extended for any appropriate reason and under any circumstances. One of the Justices in a US Supreme Court case had characterized the earliest pardons as “private acts of grace from an individual happening to possess power.”
“Mercy” has always been extended by those in power. Crown’s use of the pardon power to ensure that justice is administered with mercy is one of the great advantages of monarchy over any other kind of government. Pardons are also seen as “repeated acts of goodness” which may consolidate the monarch’s power too. Mercy and truth preserves a king, and by pardon, his throne is strengthened.
An unconditional pardon is a formal forgiveness by the government that restores liberties, to the subjects. A conditional pardon has some strings attached, such as serving a lesser punishment. A pardon can be granted in anticipation of conviction of any crimes.
Pardon in different Legal Systems
The Romans developed the notion of Pardoning in the 3rd century BC. In the democratic society of ancient Athens, the institution of clemency power rested with the people rather than with a monarch. The end of Athens Civil War in 403 B.C., developed a procedure of receiving clemency, whereby one had to comply with the process of adeia, which required that at least 6000 citizens support a petition for clemency in a secret poll. The general amnesty of 403 B.C. included all citizens who had participated in the Athenian Civil War. Other amnesties recorded in Greek history appear to have been granted to promote solidarity during emergencies such as the Peloponnesian and Persian wars. The Roman tendency to use pardons was skillfully used to meet their political ends. The Roman also practiced the killing of every tenth soldier rather than executing an entire army of wrongdoers, as an example of using clemency in a politically expedient fashion, maintaining discipline while preserving resources that could prove useful to the state. The Romans also employed the pardon power to excuse crimes of which the people disapproved, but which furthered patriotic ends.
This Roman tradition of pardon manifested itself in England. The first General Pardon in England was issued in celebration of the coronation of Edward III in 1327. In 1535 Henry VIII consolidated the pardoning power establishing the king as the sole power to pardon or remit treasons, murders, manslaughters, felonies, or outlawries. Charles II, in his regime, frustrated the parliament by pardoning Osborne prior to the conclusion of their impeachment process. This outraged the Parliament and the legality of the pardon was questioned. Soon, the parliament opted to limit the powers of the King on the matter of Clemency. The Habeas Corpus Act of 1679, the Bill of Rights of 1689 and Act of Settlement of 1700 limited royal clemency in particular instances. Later in 1721, the Parliament vested itself with the power to pardon by legislative act. In the United Kingdom, the Rehabilitation of Offenders Act 1974 now governs pardons.
The United States, the power to grant a pardon derives from the English system in which the king had, as one of his royal prerogatives, the right to forgive virtually all forms of crimes against the crown. The first amnesty in U.S. history was offered by President George Washington, in 1795, to participants in the Whiskey Rebellion, a series of riots caused by an unpopular excise tax on liquor; a conditional amnesty, it allowed the U.S. government to forget the crimes of those involved, in exchange for their signatures on an oath of loyalty to the United States. Presidential Pardon has been used time and again to restore tranquility to the nation, especially after the Civil War. After the Civil war, President Abraham Lincoln issued a proclamation of amnesty for those who had participated in the rebellion. Such pardons were conditioned on voluntarily oath to uphold the Constitution. In 1865 President Andrew Johnson pardoned the rebels of the Civil War at the white house. On August 29, 1865, the President granted full pardon to a group of rebels, for having taken part in the late rebellion against the Government of the United States. Later in 1868, President Andrew Johnson granted an unconditional amnesty to all participants in the Civil War.
Likewise, in Canada, pardons are considered by the National Parole Board under the Criminal Records Act, the Criminal Code and several other laws. In France, Pardons and acts of clemency (graces) are granted by the President of France, who, ultimately, is the sole judge of the propriety of the measure. In Germany, the right to grant pardon lies in the office of the President (Bundespräsident). In Italy, the President can grant pardons under the Italian constitution. Under the Constitution of Ireland, the President of Ireland can pardon convicted criminals
Pardoning in Civil War
In El Salvador, in 1987, the President of El Salvador introduced a bill to award a ‘broad, absolute and unconditional amnesty’ to ‘all those who in one way or another participated in political crimes, (or) crimes with political ramifications.’
In Chile, in 1978, the Chilean military granted itself a broad amnesty that covered most of its crimes from 1973 (when it took power) until 1978. The amnesty remained in effect even after the military lost power in 1990. Notwithstanding the amnesty, trials have been conducted regarding the 1973-78 atrocities, with courts interpreting the amnesty law to prohibit punishment for crimes only (similar to a pardon), rather than prohibiting the trials to establish criminal responsibility.
In Mozambique, the Parliament adopted a general amnesty for ‘crimes against the state’ 10 days after the signing of the 1992 Peace Agreement, which brought an end to 16 years of armed conflict between the warring parties in Mozambique. ‘Reconciliation’ became the central focus of the transition to a new political order and there has been little call for accountability for past crimes.
In Sierra Leone, the Lomé Peace Agreement of July 1999 provided a general amnesty for all acts committed during the armed conflict. In signing the agreement, the UN stated that it did not recognize amnesty for genocide, crimes against humanity, war crimes, and other serious violations of international law. The amnesty was reconsidered following the breakdown of the Lomé Agreement in mid-2000, but remained part of Sierra Leonean law. In response to a request from the Sierra Leone government, the UN passed a resolution in August 2000 to establish a Special Court to try human rights abuses.
In South Africa, the South African Truth and Reconciliation Commission was given the power to grant amnesty for political crimes to those individuals who fully disclosed all acts in respect of which amnesty was sought. When granted, the amnesty exempted individuals from criminal prosecutions and barred civil suits for damages. It also indemnified the state from liability that might flow from acts committed by those persons granted amnesty.
In Colombia, in March 1981, the Congress declared a conditional amnesty favoring those in arms who had perpetrated political crimes and crimes related to political crimes. In 1989, the government’s action of granting of pardon set the framework for the peace agreement signed by the conflicting sides.
In Angola, the government has announced and guaranteed pardon to an estimated four million internally displaced persons (IDP) and 440,000 refugees who sought asylum in bordering countries during the conflict. Many have started to return to their homes.
Unlike others, in Peru in 2003, the Truth and Reconciliation Commission has rejected the possibility of amnesty to the rebellions and has called on the State to move forward with prosecutions.
Pardon under International Human Rights Law
Amnesty for gross violations of human rights, including torture, disappearances, and extra-judicial executions, may be incompatible with some human rights conventions and may also undermine principles endorsed in General Assembly Resolutions.
The UN Guidelines for United Nations Representatives on Certain Aspects of Negotiations for Conflict Resolution state that:
‘…demands for amnesty may be made on behalf of different elements. It may be necessary and proper for immunity from prosecution to be granted to members of the armed opposition seeking reintegration into society as part of a national reconciliation process. Government negotiators may seek endorsement of self-amnesties proposals; however, the UN cannot condone amnesties regarding war crimes, crimes against humanity and genocide or foster those that violate relevant treaty obligations of the parties in this field.’
Amnesties for international war crimes, crimes against humanity and genocide are not permissible under international human rights law. The status under international law of amnesties issued for war crimes committed in internal armed conflicts is unclear. However, recent case law of the International Criminal Tribunal for the former Yugoslavia makes clear that such crimes are international crimes subject to universal jurisdiction. The statutes of the International Criminal Tribunal for Rwanda and the International Criminal Court give those courts jurisdiction over serious war crimes/violations of humanitarian law committed during internal armed conflicts.
Pardon and National Reconciliation Process in Nepal
Even though the Royal government has announced two separate policies regarding “Surrender and Rehabilitation (of Maoist Cadres)” and “Regarding Internally Displaced Persons (IDPs)”, the true National Reconciliation cannot begin until the constitutional power of Pardon is exercised by the monarch. Until then the newly formulated policies aimed at mainstreaming the Maoists and restoring peace in the country through peaceful means, can only be taken as theological achievement. The prizes and other facilities announced to the different levels of Maoist cadres and leaders who want to surrender with or without arms; the government to provide economic, physical and legal security to the surrendering Maoists; to provide extra economic assistance to the group surrender; can only be deemed true and effective if the government envisages the national Reconciliation Process through offering unconditional pardon to the rebellions.
The issue of employment and benefit for the unimaginable mass of the low ranking cadres and displaced youth can be sort through prioritized foreign employment only if the government provides non-interest loan to all of them without any security or collateral. Moreover, such foreign employment must be regulated through the government window only in order to ensure that they are not exploited by the profit oriented private foreign employment business. The government must take into account the truth of thousands of Nepalese being stranded, tortured and killed in different gulf countries. The ultimate solution can be a government level labor agreement with the major labor importing partners such as Malaysia, Korea, Taiwan, Singapore, Kuwait, Qatar, Hong Kong and others. Professional training, continuing education, adult education, income generating skill development, psychological treatment, free health checkups, food-shelter-clothes should be the primary attributes of the envisioned rehabilitation centers all across the nation. Those who have already gained foreign employment experience, exposure to the 21st century technologies and expertise in different production and development jobs abroad should be used for the reconstruction. Development of infrastructure such as roads, transportation, agriculture, hydropower, information and technology should be the primary start off point ensuring employment to the people and should be compensated at global standard. Foreign donor agencies have to support such reconstruction without any reservation.
The recourse towards reconstruction is only possible through a national reconciliation. For the national reconciliation, a single aligned faction cannot go too far. There is an ultimate need to join hands together with all factions be it royalists, parliamentarians or the revolutionaries. There has already been a consensus among the seven agitating parties on the issues of constitutional assembly, to curtail the power of the crown and to reinstate the parliament. The recent Delhi talks between the seven agitating parties and the Maoists have shown glimmering sign of possible truce based on national need of reconciliation too. The people have been eagerly waiting for the day when everything returns to normal and we all begin to rebuild the nation from where we left. All these immense possibilities are viable only if the Royal regime gives up its power and reinstates the parliament or forms a multiparty interim government. The reinstated parliament or the interim government can move further towards a constitution amendment or a constitution draft committee. The role of the apex court in this stage shall be to comply with the national reconciliation need and issue habeas-corpus (show-the-body) orders to all security forces, executive government bodies and the palace controlled army. Reinstatement of the crown as the constitutional monarch, revival of bicameral legislature and multi-party democracy, exercise of adult franchise for popular will, reinstatement of the sovereign authority on the people and guarantee of fundamental human rights should be the unconditional attributes to be considered.
-Advocate Santosh Giri, Human Rights Lawyer-Nepal. March15, 2006. (Based on the historical development of Pardon as conceived by Professor Daniel T. Kobil in ‘The Quality of Mercy Strained: Wresting the Pardoning Power from the King’, [69 Tex.L.Rev. 569 (1991)