KATHMANDU, Jan 16: In a major blow to the present caretaker government, the Supreme Court (SC) on Tuesday ordered the Office of Attorney General not to obstruct the ongoing investigations into the murder of journalist Dekendra Thapa, who was killed by Maoist cadres some eight years ago.
The Office of Attorney General had sent a letter to Dailekh District Attorney´s Office and District Police Office on Friday, instructing them not to proceed with the recording of statements of the five accused in Thapa´s murder.
Acting on a writ petition filed by Advocate Govinda Prasad Sharma ´Bandi´, a single bench of Justice Kalyan Sherstha issued an interim order against the Office of Attorney General, Dailekh District Attorney´s Office and the District Police Office. The apex court also issued a show cause notice to the Office of Attorney General.
"The basis stated in the letter sent to the District Police Office and District Attorney´s Office instructing them not to proceed with the investigations, is against the constitution, the laws and the fundamental principles of criminal justice; therefore, do not implement the letter and do not create hurdles in the investigations directly or indirectly," states the SC order.
The SC has ordered Dailekh District Police Office and the District Attorney´s Office not to halt the investigations and to inform the apex court if any hurdle is created in those investigations. Also, the apex court has ordered the government to act responsibly to help them [Dailekh District Police Office and District Attorney Office] accomplish their tasks.
The SC said the government has not yet formed a commission on truth and reconciliation despite the apex court orders issued in this connection time and again.
"The Interim Constitution and existing laws have not anywhere envisioned a situation of neither forming such a commission [on truth and reconciliation] nor taking action as per existing criminal laws," states the order.
In essence, it has not been guaranteed anywhere that action as per existing laws would not be taken on cases related to the insurgency, says the SC order.
"The draft or proposal related to the commission on truth and reconciliation cannot bar the regular implementation of the constitution and existing laws as it is a matter of priority to see to the effective implementation of criminal justice for the purpose of individuals´ fundamental and legal rights," states the order.
Justice Shrestha, in his order, said that following the complaint, there must be investigation into the murder of Thapa in accordance with the Act Related to Public Prosecution, 2049. "If investigation is not carried out as per clauses 3, 4, 7, 8, 9, 10, 11, 12, 14, 15 and 16 among others, following an incident, there will be long-term impact on the collection of evidence, its quality and the priority accorded it, and this will negatively contribute to create a situation where criminal justice can go astray," the order further reads.
The SC stated that the Office of Attorney General has issued its controversial letter at a time when the investigation was likely to pick up momentum albeit a long time after the complaint regarding the case was filed.
There is no provision under which even a higher body can interfere with the regular tasks of public prosecutors except as per provisions or in situations clearly stated in the existing law, says the order.
"Ongoing investigations should not be influenced by creating any hurdles or halting procedures that must be accomplished immediately as per the Act Related to Public Prosecution. If there is any type of obstruction to ongoing or to-be-undertaken investigation as per a court´s order it can affect the delivery of final justice," Justice Shrestha maintained in his order.
The SC said investigation into crime should not be carried out with a view of bringing about a result in favor of or against anyone.
"Justice is the sole objective of investigations into a crime. Investigation into crime is a professional, scientific and independent legal procedure and if one does not believe or allow belief in this, it will upset the very foundation of justice," reads the order, adding, "And no democratic and civilized legal system will accept such things even to the minimum extent."
Advocate Bandi on Sunday had moved the apex court, urging it to annul the letter sent by the Office of Attorney General.
Following his instructions to halt investigations into the Thapa murder case, Attorney General Mukti Pradhan is being criticized by all walks of life.
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