National 2 (Spotlight Weekly)

First Detention Then Investigation

Supreme Court’s endorsement of the CIAA’s modus operandi - detain first and then investigate - has reversed the investigative jurisprudence

By KESHAB POUDEL

The practice of the Supreme Court - to issue an order of habeas corpus when any kind of illegal detention is done by any investigative authority and set such detainees free - seems to have turned into a new phase. In the case of former minister Govinda Raj Joshi, who has been detained by the Commission of Investigation of Abuse of Authority (CIAA), which is investigating him on mere suspicion of corruption, the court, however, has endorsed the detention order thereby giving a blank check to detain any suspect without having to cite any reason.

Former minister Joshi had filed the writ petition at the Supreme Court under the article 88 (2) demanding orders for habeas corpus demanding his release from an illegal detention made by the CIAA. The commission detained Joshi citing the reason that he might destroy the evidences. Interestingly, the CIAA has started the collection of evidence by putting Joshi in the prison. Joshi, however, has denied to record his statement before the CIAA.

Supreme Court : Decision with far-reaching consequences

Although the Anti-corruption Act 2002 and CIAA Act Amendment have clear provisions regarding investigation procedures, the CIAA hardly follows it. Instead of completing investigation, the CIAA’s investigation officers choose - as a convenient mechanism - to detain the suspect first and proceed with detailed investigation and collect evidences later by playing into the media gallery.

A division bench comprising justice Kedar Prasad Giri and justice Khil Raj Regmi through their oral pronouncement legalized the CIAA’s detention order of Joshi. Incidentally, the CIAA’s request for the detention of Joshi had been automatically endorsed by the Special Court.

Nepal’s apex court has a long history of defending the basic human rights and freedom of the individual but the recent verdict of the court has sent a wrong signal.

According to the international covenant on Civil and Political Rights, it recognizes the right of every human being to life, liberty, privacy and security. The Covenant prohibits slavery, guarantees the right to a fair trial and protects persons against arbitrary arrest or detention.

“Thanks to the recent verdict of the court, hence onward the CIAA will have a free hand in picking and choosing of any one which it likes and whenever it likes. This will in a sense would give a good bye to the rule of law and promote rule by law,” said a lawyer.

“It is important to note that the case of Joshi is said to be related to amassing property disproportionate to known legal source of income. That means the burden of proof lies on Mr. Joshi himself. By detaining him, the CIAA and special court and the supreme court are clearly denying Mr. Joshi’s right and opportunities to collect and produce his evidences before the CIAA to prove his innocence,” said the lawyer.

One more unusual standard that has been set by the supreme court verdict on Joshi’s case is that they have allowed judicial probe property commission report, which has not been made public yet but secretly handed over to the CIAA to be used as an evidence in criminal investigation. This is something unknown to the common laws of jurisprudence of criminal investigation.

Judiciary inquiry commission report everywhere is treated only as a fact finding report and it never is allowed to be used for any other purpose including criminal investigation.

There is a fair chance of denying any suspect of defense and right to defense. Some former government officers and ministers - who were detained without giving sufficient evidence – had filed the case in the Supreme Court against the arbitrary actions of the CIAA but the Court, too, endorsed the actions. Former minister Rabindra Nath Sharma and former two secretaries seem to have preferred to rely on the wisdom of the special court justices and wait for verdict on Joshi’s case.

Although the apex court has already dismissed the writ of habeas corpus filed by former minister Joshi, what will be the legal implications in the fundamental rights of the citizens remain to be seen. There is a clear need to eradicate the corruption. But question remains whether the actions will be taken under the rule of law or otherwise.