A habeas corpus petition has been registered in the Supreme Court (SC) against the arrest of leader of the Dahal-Nepal faction and member of the dissolved House of Representatives (HoR) Ram Kumari Jhakri over her comments about President Bidya Devi Bhandari.
Advocate Gunaraj Acharya registered the habeas corpus petition on behalf of Jhakri, another lawyer of Jhakri, Govinda Bandi, confirmed.
Jhakri had moved the SC against the House dissolution by President Bhandari on recommendation of Prime Minister (PM) KP Sharma Oli. The habeas corpus petition argues that Jhakri has been arrested on direct instruction of PM Oli to avenge her petition against the step of President Bhandari and PM Oli, and for making a political statement on that exercising the freedom of expression guaranteed by the Constitution.
The petition demands Jhakri's release claiming that she was arrested with bad intentions.
A Metropolitan Police Crime Division team led by DSP Durga Raj Regmi arrested Jhakri from her residence in Shankhamul, Kathmandu Thursday afternoon on the basis of a warrant issued citing clause 58 of the National Penal Code 2017 related to prohibition of intimidation of president or parliament under the offenses against the state.
"No person shall intimidate, whether by using any kind of force or not, show fear or terror to, or otherwise overawe the President or Parliament of Nepal with intent to prevent or restrain the President or Parliament of Nepal from performing any of the functions required to be performed pursuant to the Constitution or law or compel the President or Parliament of Nepal to perform the functions in any specific manner," reads clause 58.
She can be jailed for up to seven years if found guilty.
Legal experts have claimed that she cannot be arrested on charge of offense against the state using the provision about intimidation of president.
Jhakri had criticized President Bhandari for involvement in active politics while addressing a program in Siranchowk rural municipality of Gorkha on January 29. "What to talk about the president! Great queen apparently said election will be held. I send message to the great queen from Gorkha. You may as well return to Koteshwore leaving the carcade of Shital Niwas. She apparently has house in Chabahil or somewhere else. She can even go to Balkot if not there."
Oli has a house in Balkot where he resided until he became the PM.
Jhakri had also called the decision of the then CPN-UML to field Bhandari in election after death of her husband and the then UML general secretary Madan Bhandari a mistake. "The culture that CPN-UML started of fielding in white sari after murder of Madan Bhandari, Bidya Devi Bhandari is counter productive result of that. Things go awry when one is done with ideology and does politics showing hair, nose and clothes," Jhakri had claimed.
Jhakri's statement against President Bhandari especially the Balkot reference was widely condemned. The women's association of the Oli faction demanded arrest of Jhakri for what it called abuse of President Bidya Devi Bhandari.
Handing over a memorandum letter to Home Minister Ram Bahadur Thapa, the association had demanded Jhakri be arrested for character assassination of President Bhandari.
Legal practitioner Tika Ram Bhattarai claimed that clause 58 under the offenses against the state is not attracted by her comments. "Offenses against the state apply on the person who refuses to obey the Constitution. It does not apply to those who criticize the works of the government and president formed under this Constitution," Bhattarai argued.
Pointing that the president exercised the executive rights to dissolve the House of Representatives (HoR) on recommendation of the PM, he stressed that the Constitution has given the rights to criticize such acts to the citizens. He claimed that he has listened to the whole speech of Jhakri and added that he saw no offense against the state.
"To slap offense against the state for criticizing that step is arbitrary and autocratic. This step shows that the government gradually is bringing back February 1 (coup) of the then king Gyanendra."
He stated that Jhakri and another CPN leader Dev Gurung have moved the Supreme Court (SC) claiming that the president's step to dissolve the HoR is unconstitutional, and contended that comments related to the issue cannot be an offense against the state when the SC is conducting hearing on whether the dissolution is unconstitutional or not.
Constitutional expert Bhimarjun Acharya said hundreds of thousands of people speaking against the unconstitutional step will have to be jailed if the offense against the state is slapped on a citizen merely for speaking. "Clause 58 says that the president should not be intimidated in course of performing functions. It does not say the president's works cannot be criticized," he added.
He argued that Jhakri should be charged under libel and slander law if there are any personal allegations in her comments. "If there are personal allegations in any of her words, the law about libel and slander may be attracted but this is definitely not an offense against the state."
