NATIONAL 2 (Spotlight Weekly)]

Question Of Jurisdiction

The Supreme Court's decision on the role and independence of the Attorney General's Office will have a major bearing on the future of the constitutional process in the country

By KESHAB POUDEL

After the citizenship issue, the Supreme Court has completed hearingarguments on the case that has pitted the Attorney-General's Office against the Commission of Investigation of Abuse of Authority. Attention is nowfocused on how the apex court will settle an issue that will determine thefate of the constitutional process in Nepal.

Farmers of the constitution : Process under strain

The way the case is settled will have a significant impact on the structure and functioning of the constitutional organs. The decision could prove to be a major step towards clearing ambiguities about the role of constitutional bodies. In this case, the CIAA, knowingly or otherwise, is responsible for creating the constitutional deadlock.

When a constitutional body like the CIAA oversteps its prime responsibility to investigate cases related to corruption and abuse of authority and encroaches on the rights of others, a controversy of far-reaching proportions is inevitable.

The CIAA embroiled itself in a major controversy when it asked the rationality, intention and merit of legal opinion tendered by the attorney general - country's top legal officer who has the constitutional right and obligation to defend every institution and official of the state, including the CIAA. This was something unusual and unheard of in any common law jurisdiction.

The verdict of the court is expected to give a clear line to the attorney-general and overnment attorneys on their right to exercise and fulfil their obligations and perform their functions independently, impartially and fearlessly.

During four days of hearing, prominent constitutional lawyer and senior advocate Ganesh Raj Sharma and Motikazi Sthapit, Attorney-General Badri Bahadur Karki and advocate Harihar Dahal pleaded on behalf of the Attorney-General's Office. Advocates Anup Raj Sharma, Bal Ram K.C, Prakash Wasti, Sambhu Thapa and Sushil Panta pleaded for the CIAA.

Many are surprised to see the country's two major constitutional bodies locking horns over a currency that is not legal tender in Nepal. Should the highest constitutional bodies be spending time fighting on something so obscure? The lawyers are debating that point as well.

In two separate cases - one related to the legal opinion and prosecutorial decision tendered by the attorney-general, and the second related to the government attorney of Kapilvastu district - the CIAA interfered with the right of the government attorney to decide the legal status of the case on the basis of merit.

Sthapit : In defense of AG

Former attorney-general Sthapit, while pleading the case in the court, was citing the statement made by British Attorney-General Sir John Scott in 1792: "I protest against that doctrine, that the attorney general of England is bound to prosecute, because some other set of men choose to recommend it to him to prosecute, he disapproving of that prosecution. He has it in his power to choose whether he will or not, and he will act according to his sense of duties. My conscience must direct me, your judgement shall not direct me."

This citation was being quoted for a Supreme Court in 21st-century Nepal in a case involving kingdom's attorney general's opinion. What a pitiful situation? It shows where the legal scholarship of Nepal stands. The five member special bench include chief justice Keshab Prasad Upadhyaya, Justices Laxman Aryal, Kedar Nath Upadhyaya, Krishna Jung Rayamajhi and Govinda Shrestha.

Can a police official question a man who needs to have eligibility for appointment as a judge of the Supreme Court? The rationale behind such qualification is that the attorney-general be qualified to sit as a judge of the Supreme Court is to ensure that the official representing the government at the highest level is on a par with those to whom he addresses his legal arguments, and so that he is able to command respect.

As chief legal adviser, the attorney-general is the person responsible for advising the government on legal issues, recommending proposed lines of conduct in relation to legal matters, and pursuing claims and counter claims on behalf of the government in civil, criminal and administrative cases.

The unnecessary intervention by the CIAA created a state of confrontation with the Attorney-General's Office. The CIAA is now hiring private lawyers to defend its case. If the CIAA cannot rely on government attorneys who take the oath of secrecy, how can it trust private lawyers who may have conflicts of interest?

Some of the lawyers who are defending the Royal Nepal Airlines management in the Lauda Air deal, which is being investigated by the CIAA, pleaded on behalf of the CIAA in this case. A matter of great interest is how the CIAA is going to avoid conflict of interest of private lawyers who might be defending one case filed by the CIAA and fighting another on behalf of the CIAA.

"How long can the CIAA can go from door to door searching for a lawyer who has nough enmity with the attorney-general to plead its case? It cannot ignore the attorney-general in consulting the cases and opinion as constitutional practices guarantee it role to tender the opinions on any legal and constitutional issue," said senior advocate Sharma, before the special bench of Supreme Court. "If the CIAA ask questions on the constitutional and legal opinions tendered by country's first law officers, every lawyers will have to fall prey to the CIAA next time."

The private lawyers hired by the CIAA defended the right of CIAA to question the attorney-general. "As a constitutional body set up to contain corruption, the CIAA can interrogate any official, including the attorney-general," said advocate Bal Ram K.C, who resigned as a senior government attorney following a dispute with Attorney-General Karki.

"Article 98 of the Constitution of the Kingdom of Nepal clearly gives the right to the CIAA to investigate anybody holding public office, except any official in relation to whom this constitution itself separately provides for such action, and any official prosecuted under the Army Act," said K.C.

Whenever constitutional bodies feel uncomfortable or unclear on any point of a question of law, they are supposed to seek the government lawyers' and ultimately the attorney-general's opinion. When such bodies contest the opinion tendered by the attorney-general, how could they expect to seek opinion for themselves next time?

"The attorney-general's opinion is not immune from the scrutiny of law and the CIAA has the constitutional right to investigate any issue when it suspects corruption and irregularities. In the Sunil Maskey IC Rs 500 banknote case, the opinion tendered by the attorney-general was against the law," said advocate Wasti. "Should the CIAA encourage corruption in the name of privilege?"

Nepal Rastra Bank has banned the transaction of Indian Rs 500 bank notes in the country following notification received from the Indian central bank. "How can Nepal's attorney-general legalize Indian Rs 500 notes which do not have more than paper value in the country after the notification from the central bank of India?" asked advocate Dahal arguing in front of the bench.

In corruption cases, attorneys are not immune. The recent case of an attorney of Lalitpur Appellate Court, Lekhanath Poudel, who resigned following his involvement in a bribery case, shows that government attorneys are not immune from the rule of law. If they go against the law, they should be punished. In the IC 500 case, the CIAA,however, asked for clarifications on the rationality of the legal opinion tendered by the attorney-general.

"We are pleading on behalf of the attorney-general who is being questioned in defending Nepal Rastra Bank's decision to ban circulation of Indian Rs 500 banknotes," said senior advocate Sharma on the last day of hearing.

While performing their duties, attorneys around the world get functional immunity. Attorneys and other officials, including those of the CIAA, are given immunity to maintain their independence. "Whenever attorneys commit an offense, they should be punished. However, they should never be questioned for the opinion they deliver. While performing their professional duties, no one can question the merit of the opinion," said Sthapit. This simple question seems to be totally ignored by the CIAA.

In every country, the attorney-general is known as a first legal officer and his legal opinions are always are respected until they come under the scrutiny of the Supreme Court. "If an incumbent attorney-general cannot protect the power and the interest of independence of his organization and team, he has no moral right to continue in his position," Karki pleaded. "By the very oath taken in the name of the constitution, he is constitutionally obliged to fight this cause."

Interestingly, Sthapit, who served as attorney-general for just five years, defended the independence of the Attorney-General's Office, while K.C., who retired after almost three decades with the institution, opposed it.

"The attorney-general is also a public official and his opinions, too, come under the purview of the CIAA. When an attorney-general tenders an illegal opinion can he be considered immune to the actions arising therefrom?" asked K.C.

The CIAA has the right to investigate corruption cases but the constitution trusts the attorney-general for legal matters and other disputes. "The constitution guarantees the independence of the attorney-general and its final decision on whether to go for particular case," said Sthapit. "He is the lawyer of the judiciary, executive and legislature. The opinion expressed by the attorney-general is final unless the court says otherwise."

In the last 10 years, questions concerning the rights and independence of constitutional bodies have appeared before the court time and again. This time, too, a new debate has been raised on how important the independence of the first law officer of the state is to maintain judicial independence and rule of law when the CIAA can question the legal opinion, prosecutorial decisions, advisory opinion and legal representation of the attorney-general.

"No institution of the state can raise in court questions on prosecutorial decisions, advisory opinions and legal representation of the attorney-general. By the very nature of these functions, no other organ has the capability, quality and expertise, on these matters of professional integrity and decision-making process," said Sharma, citing international cases.

On behalf of the state and government, the attorney-general is the only institution that has been envisaged or conceived by the constitution as the sole institution fully equipped and wholly responsible for prosecution functions. Attorney General is a lawyer of legislature with a power to adress the parliamentary session and friend of the court.

"Since the issue over the role and duty of the CIAA and attorney-general is a major constitutional importance, all friends of the court should hand over Written Note to the court," ordered Chief Justice Keshab Prasad Upadhyaya, at the concluding session of the discussion.

"Likewise, the constitution gives investigative authority to the CIAA regarding corruption and misuse of authority and the attorney-general as the final authority to take final decision whether to file a case or not in court. In criminal cases, the attorney-general has the sole discretion over whether to institute certain types of prosecution based on police

investigation in accordance with Schedule 1 of the Public Prosecution Act 1992 (sometimes also referred to in English as the Government Cases Act), and over whether to pursue certain cases through the courts which have been investigated and prepared by other authorities under special status (such as the Revenue Department in relations to tax cases, or the Special Police Department in relation major corruption inquiries). The power given by Article 110(2) of the constitution has been delegated in accordance with Article 110(5) under the terms of an official notice to subordinate officials working in District Offices of the Attorney-General's Office in each of the 75 districts," according to the book "Commentary on the Nepalese Constitution," written by Dr.Surya Dhungel, Bipin Adhikary and B.P. Bhadary.

Following the completion of the final hearing on the case, the court's decision will go along way in determining institutional credibility and limit future encroachments on jurisdictions. The court's decision is also expected to check the rising despotism in the nature of the CIAA.