National 1 (Spotlight Weekly)

Contempt of Court?

The recent act of Commission of Investigation of Abuse of Authority (CIAA) pressing for the resignation of minister Shukla raises constitutional questions

By KESHAB POUDEL

Supreme Court : Big role to play

The resignation by Minister for Culture, Tourism and Civil aviation, Forest and Soil Conservation Sarbendra Nath Shukla sparks a new round of debate on who protects the individuals that testify in the court of law as an eyewitness against the CIAA.

Just a day after a delegation of five commissioners led by chief commissioner of CIAA Surya Nath Upadhyaya handed a mandatory directive to prime minister Surya Bahadur Thapa asking him to take stern actions, minister Shukla - who had appeared as a witness before the Special Court to testify against the commission, had to resign from his post.

Showing his inability to confront with the CIAA, prime minister Thapa is reported to have demanded Shukla’s resignation. The CIAA claims that minister Shukla’s act of appearing as an eyewitness was inappropriate and immoral in accordance with existing laws.

Except for committing perjury, there are no laws to punish an eyewitness that appears in a court of law. He or she gives his statement under oath. This simple lesson of law seems to be unknown to prime minister Thapa and the CIAA. Constitutionally, prime minister is the chief of country’s executive branch but the incident showed that the CIAA prevails over cabinet.

Outraged by such an illegal and unconstitutional act, former minister Rabindra Nath Sharma (in favor of who Shukla had testified) is considering to move a contempt proceeding against CIAA’s commissioners for committing contempt and threatening his eyewitness to record statements before special court.

The CIAA’s commissioners accused minister Shukla - who appeared as a witness and recorded statement alleging CIAA’s charge-sheet was not based on facts and evidences and was rather a consequence of conspiracy – had violated the norms of a government minister.

Minister Shukla had appeared before the court as an eye-witness in a case against former minister Sharma. The CIAA had prosecuted former minister Sharma on charges including custom violation accusing the former minister of creating two fake informers to get the reward money out of confiscated gold illegally imported by North Korean diplomat in early December, 1996.

But it has raised fundamental legal and constitutional question of propriety on the part of the CIAA; whether a prosecutor can be allowed or authorized to prejudge the statement recorded by a defense witness before the court.

According to legal practitioners, it is direct threat to the court proceeding and prospective witness in any or all other cases filed by the CIAA. “There is a need to wipe out corruption but it must be done remaining within the purview of constitution and rule of law. No corruption drive based on individual whims can be successful,” said a lawyer.

“I appeared before the court just as an individual eyewitness since I was chief whip of the RPP when the events took place,” said Shukla. “Since I took oath to speak truth, I had to say what was the truth.”

When a sitting minister revealed that the case framed against former minister Sharma was improper and framed, prosecutors should have probed his charges wrong at the court rather than pressing for his resignation. It is not that the commissioners – some of them are practitioner lawyers - do not have knowledge about the court proceedings. Interestingly, all of them seem to be ignoring it at the cost of authority.

“It is for the court to decide whether statement given by witness is true or false. How can the CIAA, as a prosecutor, prejudge the statement of a witness?” asked Sharma.

Interestingly, when the CIAA is acting against the witnesses appearing to give evidences against its case, the silence of otherwise vocal Nepal Bar Association on such a constitutional issue is mysterious.

“I will knock the door of court demanding protection of my eye-witness against any harassment,” said former minister Sharma.

The CIAA Act (amendment) and Anti-corruption Act give anti-corruption watchdog sweeping powers including the authority to arrest any civil servants on charges of corruption.

Thanks to the magnanimity of Nepal’s democratic political parties, which are now waging movement demanding to activate the constitution and democracy, the CIAA is in a position to challenge the authority of the prime minister and court and even threat individual freedom in the name of anti-corruption.

“As monarch is at the helms of affairs of the country, the CIAA finds difficulty to turn itself into a tyrannical institution like in other countries with dictatorial rule,” said a political analyst. Tragedy of Nepal’s history of anti-corruption drive has been that it often ended as a tool for settling political vendetta rather than becoming a regular part of process backed by the rule of law.