National 7 (Spotlight Weekly)

Law Vs. Politics

The Nepali Congress president's court battle with the anti-graft watchdog sparks a larger debate

By AKSHAY SHARMA

"Sometimes in autocracies, the rulers seek to corrupt. In democracies they are often themselves corrupted. In the former, their vices make a more direct attack on public morality. In the latter, the influence is indirect but still formidable," wrote Alexis de Tocqueville.

The 19th-century thinker encapsulated democracy's difficulty in conquering passions and silencing momentary requirements in the interest of the future, a dilemma thrown up in Nepal in the aftermath of Nepali Congress president Girija Prasad Koirala's decision to challenge the Commission for Investigation of Abuse of Authority (CIAA)'s summons at the Supreme Court.

Koirala : Challenging the CIAA

The anti-graft watchdog had summoned Koirala and over four dozen politicians and senior serving and retired bureaucrats to clarify the source of their property as mentioned in the high-level Judicial Committee for the Investigation of Property.

"New light has been shed on how mature the democratic practices of the country have grown in the last 12 years. A gigantic leap has been made in the direction by Koirala," said Subodh Pokhrel, leader of the Nepali Congress student wing and the vice-president of the Tri-Chandra College union.

Colleges and universities have long been the playground for political leaders. Some student believe Koirala's decision to question the actions of the present government might even pave the way for overdue union elections.

At another level, this has focused attention to the Tocquevillian view on judicial powers and their effect on political society. In democracies like America, a person finds judicial authority in almost every political context where the judge is the most powerful political force. "Judges can intervene in public affairs only by chance and the chance occurs daily," Tocqueville wrote.

Perhaps more so in the climate of suspicion and distrust Nepalese politics finds itself in. "The move against Koirala can be seen as a desperate political maneuvering against a big political figure of the nation," said Chiring Sherpa, another leader of the NC-affiliated student union at Tri-Chandra College.

Koirala decision to defy the CIAA's order prompted mixed reactions in the media. Some cried foul while others applauded his move. Some pundits believe the CIAA's action is aimed at stopping the anti-king maneuvers five political parties began on May 16. Others are concerned that political rhetoric might prevent the law from taking its course. Former minister L.P Ghimire, a Koirala confidante, appeared before the CIAA. "The Nepali
Congress is prepared to fight a two-front battle - legal and political," he said.

Justice Hari Prasad Sharma's order to the defendants and the CIAA to reply in writing within 15 days through the Office of the Attorney General and to include all related documents has given all sides the time to fortify their positions. "An independent constitutional body cannot take action against a seasoned politician on basis of secretive documents," said Moti Kaji Sthapit, a senior lawyer pleading on behalf of Koirala.

US Chief Justice John Marshall's opinion in the 1803 case, "Marbury versus Madison", established the authority of courts to review, under constitution, the actions of government. Ever since, the decision has raised more questions than it originally set out to answer.

Scholars around the world have debated the wisdom of giving sovereign prerogatives to the court where it could not use it well. The core concern is that judicial review is a counter-majoritarian practice. What the court holds is not final "as a political rule" until it is accepted by the institutions and officials over whom the people do not exercise full control.

"I believe there is law in this land and I will fight this political vendetta on legal grounds," Koirala said in a statement last week. Legal scholars will undoubtedly be looking at the bigger picture and the implications for Nepal's stormy politics.