National 6 (Spotlight Weekly)

True Guardian

Nepalese judiciary has the glorious image of limiting state's arbitrary exercise of power defending citizen's right to live with dignity

By KESHAB POUDEL

Despite Supreme Court's so cause notice against the Commission of Investigation of Abuse of Authority's (CIAA) decision summoning senior politicians and retired civil servants for further queries on the report of high-level Property Probe Commission, the anti-corruption body is yet to make its position clear and is ignoring the order of the country's apex court.

Though the CIAA's decision stands challenged at the court, it has sent its officials to re-evaluate the assets of some former ministers and retired civil servants along with television cameramen and photojournalists a week ago. This has raised a fundamental question: who will protect the individual citizen's rights to leave with dignity?

The CIAA claims that it conducted a regular procedure. But its action created panic among common citizens who feel anxious with the unlimited arbitrary power exercised by the commission.

Supreme Court : Final authority

"It was just a regular work done under the purview of existing laws," Surya Nath Upadhyaya, chief of the Commission of Investigation of Abuse of Authority, told the state run Nepal Television. "The CIAA team was not there to 'raid' the houses but to re-evaluate the property. Our officials have reevaluated the property by doing on the spot check."

Former officials and politicians have declared it as a case of political vendetta. "This is against the jurisdiction of the CIAA, which is motivated towards character assassination. Even if they have the authority for search, they should have taken all kinds of precautions. I don't have any complaint against re-evaluation of my property but the motive seems aimed at generating scandals to hurt my political character showing my house on television," said former minister Rabindra Nath Sharma.

"We have filed a case at the apex court but the court is yet to pronounce the decision. Had the court settled the matter quickly, such incidents would not have occurred. The court is yet to hear a case filed against the CIAA chief Surya Nath Upadhayay," said Sharma. "In the name of eradication of corruption, judiciary has to pronounce certain condition to restrict the exercise of arbitrary authority. If there is a corruption, it must be dealt in accordance with the rule of law. Justice delayed is justice denied."

At a time when people in rural hinterlands are living in a constant threat of the Maoist insurgents, the situation in the city area is not too different. The state authority like the CIAA can conduct raid without observing any judicial norms threatening politicians, former bureaucrats and their relatives who had submitted their property statement to the high-level commission.

The property probe commission's report is merely a report of a fact-finding commission. Interestingly, the report under which the CIAA is evaluating property has not been made public.

"Precisely on this ground, some of the ex-politicians and retired bureaucrats have challenged the action of the CIAA at the apex court. One of the important and serious ground on which the CIAA's action has been challenged is that of lack of jurisdiction," said a lawyer.

Clause 50 of Anti-Corruption (2001) Act and 31 of CIAA Act (amendment 2001) states that only those public authorities who either were in office or joined the office after the enforcement of the new act come under its purview. It expressly excludes those who were out of office when the new laws came into operation.

"It is a common knowledge and normal judicial practice that when the question of jurisdiction itself has been challenged and is sub judice before the highest court of law, the CIAA should have refrained from initiating any further action till jurisdictional question is authoritatively settled by the supreme court." Said a lawyer.

"Therefore the unusual and uncivilized hurry on the part of the CIAA seems to be either malafide or directed by some motive of personal vendetta," said a lawyer. "Even before the investigation has begun the CIAA has frozen the bank accounts and other transactions of the officials concerned."

The universal human rights include the right to live with dignity and the CIAA's action challenges the very essence of that right. Whenever the state authorities exercise unlimited arbitrary power undermining the fundamental rights of citizen, historically, Nepal's judiciary has come to the rescue of individual freedom.

Right to live with dignity is one of the fundamental aspects of the universal human rights. The article 1, 2 and 3 of Universal Declaration of the human rights declare that, "the human begins are equal because of their shared essence of human dignity and they recognize the universal dignity of a life free from discrimination".

These articles set the base for all other political rights and civil liberties, including freedom from slavery, torture and arbitrary arrest, as well as rights to fair trial and privacy Although the apex court's recent procedure seems to be relatively slow, the citizen's hope that the court will finally safeguard their rights like it has done in the past against arbitrary decision.