Failed Leaders And Corrupt Nation-VII

Siddhi B. Ranjitkar

During the Rana rule, they have not differentiated the executive from the judiciary. The Rana prime ministers have run both the executive and judiciary. Their word of mouth has been the law rather than the Civil Code Jung Bahadur Rana has formulated and introduced in the mid nineteen century. In the 1950s after the end of the Rana rule, the government has set up an independent judiciary but it has been independent only in name. The justices and even the Chief Justice of the Supreme Court of Nepal need the favor of the executive for their appointments. Their appointments have not been for the life. So, the executive has heavily influenced the judiciary. Even then the government has not been serious to enforce the rulings of the courts.

On December 17, 2010, speaking at an interaction on ‘Good Governance and Justice’ jointly held by the Office of Prime Minister and Administrative Court, Chief Justice Ram Prasad Shrestha has disclosed that the government has not been serious about enforcing the orders and decisions of the courts, consequently, hampering the good governance in the country; the responsibility of the executive is to enforce the court’s directive orders concerning the public matters and legitimacy of laws but it has disregarded this fact. Chief Justice Shrestha has said that in addition, the Supreme Court of Nepal has to spend most of its resources and time on hearing and ruling the writs filed questioning the legitimacy of administrative decisions; so, he has urged the top bureaucrats to make their decisions following the rules and regulations, and making the decisions transparent and accountable. The Chief Justice has further said that until the rule of law is effectively enforced, the corruption deeply rooted in the governance could not be rooted out; consequently, any efforts on running good governance and delivering justice will not be possible in any kind of the political system the nation practices, ‘The Rising Nepal’ of December 18, 2010 writes.

On December 17, 2010, hearing on the case filed by advocate Chandra Kanta Gyawali stating the provision made in the Parliamentary Rules for legislators staying neutral in the parliamentary election to a prime minister goes against the Article 38 (2) of the Interim Constitution of Nepal of 2007, and demanding to annul the provision made in the parliamentary regulations, the full bench of justices Bal Ram KC, Sushila Karki and Bharat Raj Upreti of the Supreme Court of Nepal has ruled that the legislators present in the House session cannot stay neutral during the prime ministerial election, ‘The Rising Nepal’ of December 18, 2010 writes.

The Supreme Court bench has also declared that the provision made in the parliamentary rules for making the legislators remain neutral in the election to a prime minister null and void. With this ruling of the Supreme Court of Nepal, the parliament will be able to elect a new prime minister; the parliament has held 16 rounds of the election to a prime minister but not electing even the single candidate running for the office of a prime minister making the mockery of the parliamentary democracy.

Before this ruling of the Supreme Court of Nepal, legal experts and constitutional experts have interpreted the rules and regulations to suit their interest. Some experts have said that the House Speaker should declare single prime ministerial candidate Ram Chandra Poudel elected unopposed while others have said that this is not possible. Now, the election to a new prime minister should move smoothly ending the demand of the NC for declaring Ram Chandra Poudel a new prime minister elected unopposed.

The ruling of the Supreme Court of Nepal has given the legislators an option to make decision on keeping the candidacy of Ram Chandra Poudel intact or make it null and void after the president has discontinued the House session on November 20, 2010 following the recommendations made by officiating Prime Minister Madhav Nepal after the Maoist legislators have stopped officiating Finance Minister Surendra Pandey from presenting the budget for the fiscal year 2010 on November 19, 2010.

On Thursday November 11, 2010, President of Nepal Bar Association Prem Bahadur Khadka has said that the Supreme Court’s ruling on the prime ministerial race delivered on November 10, 2010 is the suggestion to the House Speaker for declaring the single prime ministerial candidate Ram Chandra Poudel the winner of the election unanimously. However, Former General Secretary to Nepal Bar Association Raman Kumar Shrestha has opposed the view of Khadka and has said that the Supreme Court has in fact quashed the writ petition filed seeking to elect Poudel unanimously; the ruling has not made any suggestion to elect the single candidate Unanimously, ‘The Rising Nepal’ of November 13, 2010 writes.

Advocate Dr. Bhimarjun Acharya has said that the Supreme Court’s ruling can be interpreted either as the suggestion to elect Poudel unanimously or to start a new process for electing a prime minister. Another advocate Tika Ram Bhattarai has explained the verdict has made it clear that the election process adopted so far has proved to be futile and has asked the House Speaker to start a new process for electing a new prime minister. Senior advocate Radheshyam Adhikari has stated that the ruling of the Supreme Court has drawn the attention to the Clause 7 (5) and (7) of the Prime Ministerial Election Rule that states clearly the single candidate should be declared elected unanimously.

Chief Justice of the Supreme Court of Nepal Ram Prasad Shrestha and Minister for Law and Justice Prem Bahadur Singh have exchanged strong words at the meeting of the Judicial Council (JC) held on Friday, December 10, 2010, the Chief Justice advocating for taking actions against erring judges whereas the minister opting for not taking actions against them at all indicating the minister belonging to the cabinet of officiating Prime Minister Madhav Nepal is surely for institutionalizing the corruption even in the judiciary with the power the minister has got as the ex-officio member of the JC.

Minister for Law and Justice Singh has even threatened Chief Justice Shrestha to initiate a constitutional process to impeach him if he takes actions against the erring judges; the ministers has even dared to say taking actions against the unscrupulous judges goes against the constitutional provisions, myrepublica.com reports.

A high-level probe commission has found that Justice of the Supreme Court of Nepal Rana Bahadur Bam and Appellate Court Judges such as Hari Bahadur Basnet and Tej Bahadur Karki have made the controversial rulings on releasing Sanjay Shrestha, Rohit Paliwan Agrawal and Bhimsen Pandit implicated in kidnapping, murder and possessing arms and ammunition. The three judges have freed the criminals on the bail of a nominal amount. Minister Singh as the ex-officio member of the JC has said that the report the high-level probe commission has prepared is unacceptable, as the commission has no jurisdiction for holding such an inquiry. The three culprits have claimed that they have bribed the judges many times in the past to get out of detention, myrepublica.com writes.

On December 14, 2010, Biratnagar Appellate Court Judge Hari Bahadur Basnet has resigned stating his deteriorating health conditions on the recommendations of the doctors thus paving the way for impeaching him; however, Justice of the Supreme Court of Nepal Rana Bahadur Bam and Hetauda Appellate Court Judge Tej Bahadur Karki have remained adamant refusing to accept any mistake in the rulings. The JC might soon fire Judge Karki after receiving clarifications from him but the JC has no authority to fire a sitting justice of the Supreme Court of Nepal, myrepublica.com reports.

The JC has forwarded the probe commission’s report to the parliament against the opposition of Minister for Law and Justice Prem Bahadur Singh. Unfortunately, Minister Singh can still save the tainted judges not forwarding the probe commission’s report to the parliament blocking the impeachment process. However, Prime Minister Madhav Nepal could force the minister to forward the report to the parliament according to the myrepublica.com report. Officiating Prime Minister Madhav Nepal has been the root of corruption in the governance. So, whether Madhav Nepal will act to impeach the unethical justice and judges remains to be seen.

Most of the Nepalese lawyers participating in the interaction program titled "Human Right Violation, Access and Accountability of Justice for the Victims" held by Advocacy Forum in Banke, Western Nepal on Saturday, December 25, 2010 have said that the government has not enforced a large number of the court rulings. The government could do so in absence of a body monitoring the enforcement of the court decisions. So, they have strongly recommended setting up one such agency to force the government implement the court decisions and deliver the justice to the people. According to Appellate Court judge Ratna Bahadur Baghchanda more than 100,000 court decisions have been waiting for implementation. Regional Director of National Human Rights Commission, (NHRC) Murari Kharel has revealed that the government has also not implemented various recommendations made by the NHRC; the police also have refused to register the cases of human rights violation denying the victims’ rights to justice, ‘The Rising Nepal’ of December 26, 2010 writes.

The police tell the different story. Speaking at the same interaction program in Banke, Police inspector of District Police Office Mahesh Bikram Shah has acknowledged that most of the police personnel have not much knowledge of human rights adversely affecting the investigation into the cases of the human rights violation. The police investigation process has been mainly based on verbal accounts not focusing on evidences.

The Parliamentary Committee on Natural Resources has asked the Parliamentary Hearing Special Committee not to approve the nomination of Justice Girish Chandra Lal to the position of the permanent Justice of the Supreme Court stating the bench of the then Chief Judge of the Hetauda Appellate Court Girish Chandra Lal and Judge Uddhav Prasad Baskota has given five years jail-term and has not imposed any fine on the poachers on November 17, 2009, going against the evidences provided by the panel set up by the Parliamentary Committee on Natural Resources to study the challenges in curbing Rhino poaching, nepalnews.com writes quoting the ‘Nagarik’ daily on November 09, 2010. Currently, Justice Lal is working as a temporary Justice at the Supreme Court of Nepal. The Parliamentary Hearing Special Committee needs to hold hearing on the nomination of Justice Girish Chandra Lal to the permanent Justice at the Supreme Court of Nepal and approve it before the Judicial Council appoints him.

The Parliamentary Committee on Natural Resources has accused Justice Girish Chandra Lal of delivering faulty and ill-intentioned verdicts on several cases of Rhino poaching while he has served as the Chief Judge of the Hetauda Appellate Court. According to the accusations made by the Parliamentary Committee on Natural Resources, Chief Judge Girish Chandra Lal has reduced the jail terms for about 100 persons implicated in 42 cases of rhino poaching and waived fines on them.

The then-Kathmandu District Court judge Narendra Sibakoti currently serving as a Janakpur Appellate Court judge had released Ram Kumar Shrestha and Pratik Shrestha arrested along with Sanjay Shrestha, Rohit Paliwan Agrawal and Bhimsen Pandit on charges of murder and kidnapping on a small bail even though the culprits have been involved in multiple offenses including murder and kidnap, myrepublica.com writes on December 28, 2010. According to the rulings of Judge Sibakoti, Ram Kumar involved in three cases: two kidnappings and a murder was released on a bail of Rs 70,000 on January 8, 2009. Judge Sibakoti has released him on a bail of Rs 25,000 for the second kidnap and on a bail of Rs 45,000 in the murder case. Judge Sibakoti has released another culprit Pratik Shrestha involved in a murder case and two kidnapping cases on even lower bails. Pratik Shrestha was released on a bail of Rs 25,000 in the murder case on April 22, 2009, and on a bail of Rs 75,000 and Rs 25,000 bail in the two kidnapping cases on the same day.

On March 18, 2008, hearing on the case of abuse of authority filed by the CIAA, a single bench of Justice Tahir Ali Ansari of the Supreme Court of Nepal has ruled that Governor of Nepal Rastra Bank (Central Bank of Nepal) Bijaya Nath Bhattarai, and Executive Director Surendra Man Pradhan have abused their authority releasing $ 51,538 to the contractor not following the condition mentioned in the Clause 6 (4) of the contract the Central Bank of Nepal has signed with the contractor. However, in their appeal to the Supreme Court of Nepal, another bench has acquitted them. Later on, Prime minister has appointed Governor Bijaya Nath Bhattarai to the position of Governor.

In January 2007, stating the defective technicalities of the cases filed by the Commission on Investigation into Abuse of Authority (CIAA), the Special Court had acquitted Nepali Congress leaders such as Govinda Raj Joshi and Khum Bahadur Khadka, and the leader of the Rastriya Prajatantra Party Rabindra Nath Sharma implicated in the corruption charges. According to the Nepalese media reports, these allegedly corrupt guys have met with the then-chief Justice of the Supreme Court of Nepal before they got released from the corruption cases registered at the Special Court. Following the court ethics, the sitting justice or judges should not meet with the defendants at the law courts. These guys must have spent a large amount of money on getting rid of the corruption cases, as they would be ineligible for the member of the Interim Legislature to be set up following the Interim Constitution of Nepal of 2007 pending the corruption cases at the Special Court.

On July 22, 2004, hearing on the corruption case filed by the Commission on Investigation into Abuse of Authority (CIAA), the Special Court has ruled that former minister Chiranjivi Wagle is required to serve a two-and-half-year jail term for illegally amassing state money for his personal enrichment, and return Rs 27.5 million to the government treasury. Then, the Supreme Court of Nepal has upheld the ruling of the Special Court but the government has failed in putting Wagle in jail and getting the taxpayers’ money back from him. Wagle has been the right hand man of senior Nepali Congress leader Sher Bahadur Deuba, and has escaped from the jail term and the payment of the illegally acquired money. Thus, so many politicians including the current Prime Minister Madhav Nepal have amassed hue wealth abusing their power with impunity. It is not surprising that Prime Minister Madhav Nepal and his Defense Minister have covered up the criminal acts of the high army officials.

Politicians have flouted the rule of law. The Government of corrupted politicians has disregarded the ruling of the Courts. The people in power as always have been above the law. To remedy these evils, Nepalis need to empower the CIAA for bringing prime minister and ministers to justice for not enforcing the court cases and for other corruption cases. Nepalis have to do so for obvious reasons, as the prime minister and ministers themselves are corrupt and certainly don’t want to enforce the court cases; as such enforcement will land them to jail.

Ends