National 6 (Spotlight Weekly)

A Political Gimmick

When judges of the Supreme Court demand severe punishment, who will protect the rights of the citizen?

By KESHAB POUDEL

If a police authority demands severe punishment, individuals do not have to worry, since there are judges to protect their fundamental rights and freedom. When the judge leading a fact-finding commission presses punitive demands, individuals have reason to worry.

After presenting the Property Probe Commission Report, the chairman of the panel and Supreme Court judge Bhairab Prasad Lamsal demanded that the stern action be taken against those who accumulated property illegally. Since Nepal has adequate acts to punish those who accumulate illegal wealth, there is no question of leaving anyone scot-free. It is the duty of the police and other investigative agencies to prosecute and demand severe punishment. The duty of judges is to see how valid the prosecution and charges are.

King Gyanendra (right) receiving the report : Bundle of statistic

The three-member Lamsal commission worked as a police agency from the beginning, following all methods of investigation. Even after submitting the report, panel members showed similar tendencies.

Experience has shown that commissions are often appointed to allay agitation, to delay unpleasant truths or to discredit public servants or political opponents. Instead of executing the existing acts, the government entrust judges with controversial tasks.

Constituted by King Gyanendra under Clause 3(1) of the Probe Commission Act, the panel submitted its report and opinion to the King. The mandate of the commission was to investigate the property of officials and politicians appointed after April 1990.

As a fact-finding commission, it has no power to pass an order which could be enforced proprio vigore, but everybody sees the panel as a trial and prosecution body. Amid political populism, the commission was projected as a body to terrorize the government officials.

"We have prepared our report following a thorough investigation. We hope that the government will take stern actions," said judge Lamsal, after presenting the report to the King.

Although the commission is a judicial panel consisting of Lamsal and two other retired judges of the apex court, Udaya Raj Upadhyaya and Gaindra Bahadur Shrestha, its final opinions showed that it conducted a criminal trial.

The high-level property probe commission is not an investigative authority, as it seeks information not to prosecute but just to solicit it. As a fact-finding commission, nobody is accused before it. Those people who appear before he commission - to give evidence, advice and report information - are just witnesses. According to legal experts, its report is
not a complaint.

The high-level property probe panel is like the Mallik, DasDhunga and other commissions constituted under the Probe Commission Act 2026. The commission summoned individuals for the collection of evidence to support the fact, not to frame charge-sheet. One cannot file charge-sheet in any court of law on the basis of the commission's report. Other investigation agencies have to prove the fact given in the commission's report. "How can a judge deliver impartial judgement if the cases are framed under the report of the high-level fact-finding commission?" asked a lawyer.

Few question the panel's power to come up with opinions. "It has the right to express opinion but its opinion cannot be cited as proof," said senior advocate Mukunda Regmi.

"The state can set up (such) commissions to accumulate specific, facts and figures to correct particular problems. To enable the administration to discharge effectively the multifarious functions entrusted to it. It needs to exercise broad powers of conducting investigation and inquiry intro various matters. The primary purpose of this technique is to collect information with a view to decide upon a further course of action to meet a given situation, or to find correctives to a given problem," write M.P. Jain and S.N. Jain in the Principle of Administrative Law.

Since the commission is not criminal investigation body, nobody is treated as an accused. There is no allegation, and the panel simply gives a fact-finding report. Its suggestions cannot be use as prima facie evidence. If so, on what grounds did the chairman of the commission demand stern action?