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Kathmandu Monday May 21, 2001 Jestha 08, 2058.
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Government attorneys
Government attorneys have just taken a
controversial decision that opens up the possibility of widespread corruption. They have
in their wisdom concluded that no agency should be allowed to investigate cases where the
Attorney General or other government lawyers have the right to decide whether or not to
prosecute. The timing of the move is curious in that a case is pending at the Supreme
Court regarding an investigation by the Commission for Investigation of Abuse of
Authority, CIAA, into a decision of the Attorney General two years back not to prosecute
one Sunil Maskey for allegedly trying to smuggle out Rs 12.2 million in Indian currency.
Whatever the timing, the legal eagles in question seem to be of the opinion that the
constitution itself guarantees the Attorney General, and by extension, other government
prosecutors, the ultimate authority to prosecute or not in a given case. Obstruction of
this authority, by the CIAA or any other agency, would violate the Attorney General’s
immunity as under article 110(2) of the constitution. Fair enough. If that is what the law
says, so be it. But it does raise the spectar of attorneys acting out of less than
professional motives. Given that extra power in their hands there will also be that extra
tendency towards corruption, as per that Actonian dictum much vindicated over time. What
then is to be done? Short of a change in the law, the only safeguard that suggests itself
is greater transparency in the workings of that law. Government prosecutors from the
Attorney General down should be required to spell out the reasons why they have decided
not to prosecute in a particular case. Only if the reasoning is sound and convincing and
stands up to professional scrutiny will the public feel satisfied that the cause of
justice has been served. Some such safeguard through transparency may have to be worked
into the wording of the law before the attorneys are to be conceded the hands-off
arrangement that they seek. Otherwise the attorney’s profession may come in for a
measure of suspicion. Attorneys are already under some cloud because of a tendency to lose
out in more cases than they win and the public impression that they do not discharge their
duties properly. And while the architects of the law are at it, they might also put paid
to any other legal lacunae that allows those under investigation by the relevant agency on
suspicion of wrongdoing to snap back and question the latter’s very locus standi.
This is precisely what our incumbent Prime Minister has done when hauled to the carpet by
the CIAA in connection with the ongoing Lauda aircraft lease deal controversy.
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