National 3 (Spotlight Weekly)

Rule of Flaws

The sudden arrest of former minister and two former senior civil servants by the CIAA has sparked a new round of legal and constitutional controversy

By KESHAB POUDEL

Although the report by the Property Probe Commission and the jurisdiction of the Commission for Investigation of Abuse of Authority (CIAA) lie challenged in the apex court, the CIAA has all of sudden taken three persons in its custody citing the need for further investigation.

Joshi : Contesting the CIAA action

No body knows what prompted the CIAA to take such a drastic and sudden action at a time when the apex court has accepted the writ petition and listed the case to hear and dispose it on the priority basis to settle the jurisdictional matter. The CIAA also acquitted two former ministers including Sitanandan Raya of CPN-UML and Siddha Raj Ojha of Nepali Congress.

The hurried actions taken against former minister and powerful Congress leader Govinda Raj Joshi comes at a time when there were efforts from Nepali Congress to reconcile with the King. The detention of two former secretaries, Chakra Bandhu Aryal and Padam Prasad Pokharel, who held the country’s two powerful ministry Defense and Home in the past, is also a surprising move. All three were arrested under the CIAA act citing the need for further investigations.

“It is irony that when the very issue of jurisdiction is sub judice, the CIAA is out to prejudice the sub judice case. Once the CIAA files a criminal case against these people the writ petition pending before the supreme court would become in fluctuate,” said a constitutional lawyer.

If the Supreme court decides the jurisdictional case, then the special court case will become void and the whole exercise will become futile. “It is precisely because of this that the CIAA is enacting all these drama of no consequence showing no respect to basic judicial norms and rule of law,” said the lawyer.

As the newly amended CIAA Act and new Anti-Corruption Act do not include those public officials under its purview who were not holding the post at the time of the commencement of these acts, the whole process will be challenged in the court. “Ignoring this unambiguous provision, the CIAA seems to be hunting all former public officials and leaders of a particular political party Nepali Congress,” the lawyer added.

“The CIAA cannot arrest me without issuing a detention notice and before the apex court’s decision,” said Govinda Raj Joshi. “The CIAA action is illegal and against the spirit of rule of law.”

The CIAA has however defended its actions as a part of its effort to contain the corruption. Despite the claim of monarch, the country is under the direct rule of King. In absence of accountable parliament, King has to bear every action taken by unaccountable bodies like the CIAA. By delaying the appointment under the recommendation of Constitutional Council in constitutional bodies including the CIAA, Elections Commission and Public Service Commission, constitutional status of prime minister Surya Bahadur Thapa has been transformed into a mere figure head,” said another constitutional lawyer.

Nepali Congress Party, which has shown some flexibility towards monarchy, has already issued statement terming the action as political vendetta. Following the arbitrary detention of Joshi, Nepali Congress charged that the CIAA is acting as an instrument of tyranny and political vendetta. “The action against minister Joshi is politically motivated,” said the statement issued by Congress.

Despite its claim as being one of the constitutional bodies, CIAA action clearly shows that it does not abide by the basic rule of law. In May, the CIAA summoned 37 politicians including former prime minister and Congress supremo Girija Prasad Koirala to clarify certain matters regarding the details in the report of the Property Probe Commission.

The arrest of three politicians shows that the CIAA can exercise any arbitrary power to curtail individual rights and freedom. Unfortunately, the CIAA does not wait for the decision of the apex court. At a time when dozens of human rights organization are stressing for protection of human rights, they are strangely ignoring the gross violation of individual rights in front of them.

“The western democratic countries, which are supposed to promote the rule of law and who are denouncing the violation of human rights, too, are supporting the exercise of arbitrary authority by an unaccountable body,” said a lawyer. “You cannot control the corruption and punish the culprit just by putting someone in prison without citing any law.”

By summoning politicians and officials through pick-and- choose modus operandi, citing the secret report of the High Level Property Probe Commission, the CIAA has shown it can put anyone in prison at any time.

Political leaders and former civil servants are confronting two different types of terror. “In the rural areas, the Maoist insurgents are threatening their life but the city is under the legal terror of the CIAA,” said a politician.