You can't be punished for the same crime twice

	by TILAK POKHAREL KATHMANDU, Jan 28: Awarding a Maoist Central Committee berth to Kali Bahadur Kham, prime accused in the Ram Hari Shrestha murder case against whom an arrest warrant has been issued, is just one instance of how the political party heading the government is nurturing a culture of impunity. The Maoists are not alone in this. The Nepal Army (NA), the Maoists’ former enemy which is still at odds with the Maoist-led government on a number of issues, is equally responsible for contributing to a culture that has been the subject of criticism from rights groups and international organizations. NA has allowed at least two of its officers – then Lieutenant Colonel Bobby Khatri and Captain Niranjan Basnet – to continue in their positions even one year after a civilian court issued arrest warrants against them. Talking in private, police officers say NA has been preventing the law from taking its course by itself arresting the men, who are implicated in the murder of a 15-year-old girl, Maina Sunar, in February 2004 at NA’s Birendra Peace Operations Training Center, Kavre district. Officially, police spokesperson Vinod Singh told myrepublica.com that the case has already gone to court and “police are still on the lookout for the accused”. The accused, meanwhile, continue to serve at Army Headquarters. NA argues that since it has already punished the accused – Khatri, Captain Amit Pun and Captain Sunil Adhikari, who were proven guilty by military court in 2005, the case is closed. The NA didn’t find Basnet guilty. “The army has already court-marshaled and punished them and we have also informed the police about this and Basnet is not guilty,” Brigadier General BA Kumar Sharma, chief of NA’s law department, told myrepublica.com. “They can’t be punished twice for the same crime.” The Military Court, in its ruling, had said Maina was subjected to torture in the presence of seven NA officers and men, including two captains who ordered Maina Sunar’s head submerged in a large pot of water for one minute at a time six or seven times as instructed by Col. Khatri. The NA personnel then administered electric shocks to Maina’s wet hands and feet four or five times; the torture continued for one and a half hours. After that she was detained in a building on the premises of the training center, where she was left blindfolded and handcuffed. She later began vomiting and foaming at the mouth and then died, without having received any medical treatment. However, international rights bodies don’t count the ruling handed down by military court as any punishment. “The officers received sentences of six months in jail and temporary suspension of promotion (for two years), but they are unlikely to serve any actual time in prison, as they were found to have served their sentences in being confined to barracks,” US-based Human Rights Watch (HRW) said in September 2005. In the view of the United Nations Office of the High Commissioner for Human Rights in Nepal (OHCHR-Nepal), “justice has not been done”, a view shared by other human rights organizations. Besides being confined to the barracks, Khatri and Adhikari were also asked to pay Rs 50,000 and Rs 25,000 respectively as compensation to the victim’s family. Four years after the crime, Khatri, who continues to serve at the NA Directorate of Military Intelligence (DMI), has been promoted to “full colonel” and Captain Basnet to “major”. Two others -- Pun and Adhikari -- against whom arrest warrants have been issued – have already resigned from the army and are reportedly living abroad. NA’s argument that “the guilty have already been punished” is baseless as the law already took its course once the District Court, Kavre issued arrest warrants against them, said police officers. And, it is government (public) prosecutors, not an NGO or individuals, who have pressed charges against the accused. Following a Supreme Court order, the Office of the Attorney General on October 31, 2007 asked the police to arrest the accused within three months. A police investigation found the accused guilty of Maina’s murder. NA continues to disregard the court rulings and the police request for facilitating the arrests. It has continued to turn down requests from the police for a copy of the Military Court verdict. “The NA hasn’t cooperated with the police investigation,” a police officer, who prefers to remain anonymous, told myrepublica.com. However, NA spokesperson Brigadier General Ramindra Chhetri said the army has been extending all necessary cooperation “to the civilian court” as sought. According to police, Maina’s mother, Devi Sunar, filed an FIR at Kavre District Court on December 6, 2005. Kavre District Court is going to carry out hearings in the case on February 2. “As police have failed to nab the accused, the onus is now on the court,” said the police officer. In the case of the two other accused (Amit Pun and Sunil Adhikari), who have already left the army and gone abroad, police wrote to the Foreign Ministry to have their passports canceled. If convicted, the accused can face life imprisonment with confiscation of all their property, according to lawyer Ambar Raut, who is with the Advocacy Forum, a human rights NGO. However, in absence of the accused, the only thing the court can do now is freeze all their property. Chronology of Maina murder case: February 17, 2004: Maina Sunar is arrested by the Nepal Army and dies later in army custody at the Birendra Peace Operations Training Centre in Panchkhal, Kavre due to torture. September 2005: NA-instituted court marshal proceedings conclude. They find three officers – Colonel Bobby Khatri, Captain Sunil Adhikari and Captain Amit Pun – guilty. No mention is made of Niranjan Basnet. December 6, 2005: Maina’s mother, Devi Sunar, files an FIR at Kavre District Court. May 22, 2006: In reply to a police request to help arrest the accused, NA writes to the District Police Office (DPO), Kavre stating that it has already punished them and no further punishment was needed. November 9, 2006: NA writes to the police stating that there is no provision for making available to police a copy of court martial proceedings. December 21, 2006: OHCHR-Nepal makes public its report on the “torture and death of Maina Sunar”, which accuses the government of apparent lack of political will to hold accountable members of the security forces suspected of involvement in human rights violations. November 6, 2007: DPO Kavre receives an order from the Supreme Court through the Office of the Attorney General to arrest the four accused within three months. January 3, 2008: DPO Kavre writes to the Foreign Ministry requesting the latter to cancel the passports of two accused – Amit Pun and Sunil Adhikari, who are believed to be living abroad. January 31, 2008: Kavre District Court issues 70-day arrest warrants against the four accused. April 2008: Police paste a notice outside the home of Amit Pun in Anandaban (Rupandehi district) asking him to submit himself to police within 70 days. May 1, 2008: Police paste a notice outside the home of Major Niranjan Basnet in Bhimeshwar Municipality (Dolakha district) asking him to submit himself to police within 70 days. July 1, 2008: Police paste a notice outside the home of Sunil Adhikari at Bansbari asking him to submit himself to police within 70 days. July 13, 2008: Police paste a notice outside the home of Col. Bobby Khatri at Gyaneshwor asking him to submit himself to police within 70 days. February 2, 2009: District Court, Kavre is to conduct hearings in the case. Countesy of: Republica, January 28, 2009