Under Rule of Flaws
By d ismissing the charges against two Congress leaders, Special Court gives message that CIAA’s anti-corruption drive has many flaws
By KESHAB POUDEL
As usual in the past, Commission of Investigation of Abuse of Authority (CIAA)’s populist media backed major anti-corruption drive turned into a fiasco following the Special Court ’s dismissal of charges against two former ministers Govinda Raj Joshi and Khum Bahadur Khadka.
This is not first time that politically motivated anti-corruption drives in Nepal turned into fiasco. In 1970s, many senior bureaucrats and politicians were charged on corruption but the court dismissed the cases after several years of hearing.
The recent decision of Special Court to dismiss the charge of corruption against Joshi and Khadka, two powerful politicians of Nepali Congress, sparked a new row whether Nepal ’s anti-corruption drive was politically motivated or it was in accordance with the rule of law. Only question is: why the court took such a long time to dismiss the charges.
Although western liberal democratic country genuinely supported anti-corruption drive supporting institutional capability and legal sides of CIAA, the charge sheet filed against Joshi and Khadka was so weak that no judges except the institution like previously dissolved Royal Commission for Corruption can toe the line with CIAA.
Had the Commission filed the case in accordance with law, the court would not have found reasons to dismiss the cases. The CIAA filed cases against two dozen politicians following the dissolution of House of Representatives and dismissal of Deuba government in 2002. The first act of then government appointed by King Gyanendra was to arrest dozens of politicians on charges of corruption including Joshi and Khadka.
C orruption remains a major problem in the country and nobody wants to see corrupt persons walking scot-free. However, the agency like CIAA needs to properly investigate the cases before making it public.
From the very beginning, the modus-operandi of CIAA’s anti-corruption drive was questionable as it filed the cases on the basis of pick and choose method targeting the Nepali Congress leaders.
High-level Anti corruption commission formed by King Gyanendra arrested former prime minister Sher Bahadur Deuba and former minister Prakash Man Singh. A secretary committed suicide reportedly under the threat from the commission.
“The charge sheet filed against Joshi and others were quashed on the ground of time bar of one year from the date of dissolution of parliament. Whence from Joshi was ceased to be a public official. According to CIAA Act section 29 provisions, the CIAA shall not file any case against any public official whose service was terminated one year before the execution of the act. The CIAA filed the case on disproportionate property after 21 months elapsed,” said former attorney general Badri Bahadur Karki.
“Honorable court dismissed the case against Joshi on the principle of time bar,” said advocate Karki, who pleaded on behalf of Joshi. One cannot presume that CIAA did not know this.
Lawyers argue that the cases were very weak in this count. They charge that CIAA did not believe in legal principle rather on propaganda by populist newspapers.
From media barons to politicians, CIAA filed cases against many Kantipur’s publisher Kailash Sirohiya was also put in prison on charges of obtaining TV license through illegal and corrupt means. Later on, his case was dismissed by the Special Court .
On the grounds of merit of law, the cases filed by CIAA were always weak. Former minister Joshi and Khadka were implicated and made accountable for the properties of his mother-in-law and son-in-law’s assets - who Nepalese family law always considers as members outside Joshi and Khadka’s family.
CIAA was against the clear provision of law charging Joshi for not being able to prove the valid source of the properties owned and possessed by his mother in law and son in law.
But, CIAA officials blamed the court defending the merit of their case. “If cases were weak in legal merits, why did court take such a long time to dismiss them?” asked Basudev Lamichhane, former commissioner of CIAA. “If court starts to follow similar precedents, no corrupt person will ever get punishment,” said Lamichhane.
Although the court dismissed the case, it is a tragic story that Joshi’s mother in law died as a sad old lady in pain before CIAA case was quashed by the Special Court terming it illegal.
“There is no law in Nepal for obtaining compensation against malicious and illegal prosecution in the cases like Joshi’s mother-in-law,” said a lawyer. “It is also a pity that some reporters and media houses, backed by the purse of tax payers money continue to hound Khadka and Joshi without caring to tender apology for conducting media trial against them before the court of law has a chance to do justice.”
On behalf of Joshi, senior advocate Radheshyam Adhikary, advocate Harihar Dahal, Upendra Keshari Neupane, and Lalit Basnet had pleaded in the court.
The special court’s message is clear to CIAA that the time has come now to go for genuine efforts to eradicate corruption through law rather than going for politically motivated and propaganda-based drive.
