Former chief judge of Special Court Gauri Bahadur Karki, who adjudicated many disproportionate asset cases, continues to express his opinion about the rules and practices required to ensure good governance. Ram Kumar Kamat of The Himalayan Times caught up with him to know his views on the CIAA’s indictment of 175 individuals, including three former ministers, for their alleged role in the Lalita Niwas land grab case. Excerpts:
How do you look at the recent indictment of 175 individuals by the Commission for the Investigation of Abuse of Authority for their role in the Lalita Niwas land grab case? The CIAA has been accused of adopting selective approach. What is your say?
In the past, the CIAA did not dare to file cases against high office bearers and whenever it did, it was only after much outcry in the media about the CIAA’s inefficiency.
Interview with Former chief judge of Special Court Gauri Bahadur Karki, in Kathmandu, on Friday, February 7, 2020. Photo: Balkrishna Thapa Chhetri/THT
We can take the case of former CIAA Commissioner Raj Narayan Pathak. The CIAA filed a case against Pathak only after consulting the Attorney General and then the anti-graft body treated him as a VIP by not producing him in the court the day it filed the case against him. The case was filed against Pathak only after an environment was created wherein he would be released on bail. Now, the CIAA has filed cases against former ministers and other office bearers. All government agencies had been keeping mum in the past regarding complaints filed against those responsible for Lalita Niwas land grab. The Sharada Prasad Trital-led Committee that probed the Lalita Niwas land grab cases was formed mainly because of the initiatives taken by former home secretary Prem Kumar Rai. The Trital-led team did a good job by exposing those involved in the Lalita Niwas land grab case. CIAA did a good job by filing cases against those involved in the case, but there are some issues over which the CIAA has been criticised. For example, the CIAA did not indict Nepal Communist Party (NCP) General Secretary Bishnu Paudel’s son Navin and Justice of Supreme Court Kumar Regmi as they told the CIAA that they would return their land plots to the government. If somebody has not committed a crime, then he/she should not be indicted. That’s the principle that applies in all cases. All constitutional bodies and government agencies have the duty to respect civil rights. If Navin Paudel and Kumar Regmi had not committed any crime, then the CIAA should have clearly stated this in the charge sheet. But the CIAA’s argument that it would not indict these two persons as they pledged to return their land plots was wrong. The CIAA’s decision not to indict Navin Paudel and Kumar Regmi can complicate the case because many other defendants who bought Lalita Niwas land could tell the court that they did not know that their land plots were public land and now they were ready to return their land plots.
In a corruption case, the court slaps fine equal to the amount embezzled. Now people who have been accused in the Lalita Niwas land grab case can tell the court they are ready to return their land plots because they know that if they are convicted in the case, they will not only have to return their land plots but also have to pay fine equal to the embezzled amount. How can the court convict these people? I have my fear that the CIAA, by deciding not to indict Paudel and Regmi, prepared the ground for others to invoke the same precedent.
The other thing I would like to highlight here is that the CIAA records statements of all those who have been accused of embezzling government property. The accused, who appear before the CIAA, are released on personal recognisance. The CIAA is supposed to produce all the accused before the court the day it files case against them. The CIAA gave unfair advantage to the accused as it did not produce them before the court the day it filed the case against them. If the CIAA is an independent body, why should it shy away from producing the accused before the court? This was a mistake on the part of the CIAA. A constitutional body should not worry about what others think of its lawful action.
The CIAA did not indict all the Cabinet members, whose decisions affected the transfer of government land to individuals. The CIAA termed their decision ‘policy decision’ and argued that as per Section 4 of the CIAA Act, it could not indict former prime ministers for their policy decisions. This section of the CIAA Act stipulates that the decision should be related to policy and that should be a collective decision so that Cabinet members get immunity from the CIAA’s jurisdiction. What is policy decision? In my view policy decisions are those decisions that are not addressed in the existing laws, but the government needs to do something urgently. Take the case of the coronavirus scare in Nepal. One-hundred-and-eighty Nepali nationals in China have filed petition seeking evacuation in the wake of the coronavirus outbreak there. Now the government will have to bring them back to Nepal and quarantine them here. In order to do all this, the government will have to spend some money and if the government follows the normal rules of procurement, it may not be able to do the required things. The government’s decisions in times of natural disasters such as floods, landslides and earthquakes are defined as policy decisions. If the government follows regular process in times of natural disasters, then it may not able to carry out relief and rehabilitation work and those decisions that the government takes to address issues during extraordinary situations are called policy decisions.
As far as Baluwatar (Lalita Niwas) land is concerned, the Cabinet decided to give land tenancy right to individuals through Land Revenue Office. The point I want to underline here is that as per the existing law, issues related to land tenancy rights are handled by the Land Reform Office. Land Reform Officer has the jurisdiction over land tenancy rights issues as per the Land Act. No other authority, not even the Land Reform minister or the Cabinet has the right to take decisions on issues related to land tenancy rights.
The Cabinet cannot entrust the Land Revenue Office with jurisdiction to decide land tenancy rights issues. Even Parliament cannot interfere in this issue. At the most, the Parliament can amend the Land Act if it wishes to do so. The Cabinet cannot authorise the Land Revenue Office to take a call on land tenancy rights. Where a particular Act clearly makes provisions about certain things, that cannot be a matter of policy decision.
In order to avoid CIAA action, bureaucrats often get controversial issues decided by the Cabinet.
When CMC abandoned the Melamchi drinking water project, the Cabinet decided to award 10 contracts to 10 different people or institutions. The Cabinet should not decide on project contracts. The Cabinet had decided that Nepal Electricity Authority would buy LED bulbs worth Rs 2 billion. This was the jurisdiction of the NEA, not the Cabinet.
When Kul Man Ghising became the NEA chief, he opted against buying LED bulbs. The point here is that the authority concerned should make decision about procuring things and not other bodies. There is no issue of policy decision in Lalita Niwas. All those people who are responsible for making wrong decision should be held to account.
In this case, we have seen that the CIAA indicted former ministers who had forwarded the proposal to the Cabinet, but the anti-graft body did not indict all the Cabinet members who okayed the proposal. All the ministers of the Cabinet who endorsed the proposal should be investigated. One cannot say that I did not know about the proposal. If the line ministers are to be accountable, why does a particular proposal need to be endorsed by the Cabinet?
How do you evaluate the CIAA’s methods of investigation in corruption cases?
Constitutional bodies are independent and autonomous bodies. The CIAA is an independent body and it need not inform the executive about its investigation. Information regarding the CIAA’s action is leaked. We often read in the media that the CIAA has summoned an accused to record his/her statement. This practice is wrong because prior information to the accused gives opportunity to the accused to conceal relevant information.
Prime Minister KP Sharma Oli called editors at his residence a day before the CIAA filed corruption case against those accused in Lalita Niwas land grab case. PM Oli’s statement that he was also looking for a land plot in Baluwatar and had he done that, he could also face problems was an indication that the CIAA might have tipped him that it was going to file a case against those involved in the Lalita Niwas land grab case. No outsider should know about the CIAA’s investigation. This shows the CIAA is under government influence and the root of executive influence on the CIAA lies in the appointment process. We all know that CIAA office bearers are the favourites of political parties who secure their pledge that no action will be taken against their leaders. We can judge what kind of people these parties appoint in the CIAA. These parties had appointed Lok Man Singh Karki and Deep Basnyat in the CIAA and we all know what they did when they were there. The Bhairav Lamsal-led Commission had recommended action against Basnyat and yet he was first appointed as a commissioner of the CIAA and later as Chief Commissioner of the anti-graft body. Now the CIAA had to file a case against him. All this proves that unless able, efficient and fearless people are appointed in the CIAA, there will be no improvement in the functioning of the anti-graft body.
A constitutional body should be like the Public Service Commission whose Chair Umesh Mainali opposed the government’s effort to control the PSC through budgetary limitations. NHCR Chair Anup Raj Sharma also warned the government that he would withdraw the NHRC nomination from the recommendation committee if the government interfered in the selection of office bearers of the two transitional justice mechanism bodies. The CIAA has not carried out any investigation of the wide body aircraft scandal, and the Ncell case. A parliamentary panel had told the CIAA to investigate the Ncell case, yet the anti-graft body did not do anything.
Do you mean the CIAA cannot act independently within the existing structure?
It can if it wants to act as an independent body. Lok Man Singh Karki had said he would take action against big fish, but his actions were the opposite. The CIAA has enough power to do its duty, but it depends on the anti-graft body’s will to exercise its powers.
What are your views on the judiciary’s handling of disproportionate assets?
I would like to give you an example of the judiciary. Sometimes the courts issue order to the CIAA to produce original documents such as the appointment letter of a public officer. The Supreme Court should deliver its verdicts in disproportionate assets cases without any delay. If a document or anything can convict or acquit a person, then the court must seek it otherwise, it should not wait endlessly to adjudicate the case. I have seen judges wanting to appease lawyers who want to prolong the case, and therefore, judges issue order to procure certain documents that are not vital for adjudication of the case.
If a judge is concerned about his action antagonising lawyers, then he/she cannot ensure justice.
What reforms are needed in the judiciary to adjudicate corruption cases?
If an institution is to function well, then its head should be good and efficient. The chief justice should allot cases keeping in mind the efficiency of the judges in relation to particular issues. If we take a recent case, the Supreme Court functioned well when Ram Prasad Shrestha and Anup Raj Sharma were the chief justices, but problems arose when Gopal Parajuli became chief justice and Deepak Raj Joshi became acting CJ.
Constitutional bodies submit their annual reports to the president every year, which is then sent to the Parliament through the prime minister and the Parliament is supposed to evaluate the performance of constitutional bodies. The Parliament never seems to comment on the performance of constitutional bodies.
During Lok Man Singh Karki’s tenure, lawmakers were scared that if they opposed Karki’s interference in Kathmandu University, they could be framed in corruption cases by Karki. Lawmakers should be courageous and check the misuse of power. Only then can constitutional bodies work independently.
What are the problems in justice delivery?
Judges do not question lawyers when they fail to give logic. Judges entertain lawyers’ petition to endlessly postpone a case thereby prolonging the case in the courts. When Sushila Karki was chief justice, one case was postponed 46 times. The reason for postponement was not attached in the case file. That means the bench cannot judge why the case was repeatedly postponed in the past.
Rules stipulate that the court can postpone a case twice if the lawyer representing the case party asks for it. When I was a judge at the Special Court, many lawyers representing the case parties repeatedly asked for postponement citing ill health. I was not in favour of prolonging the case so I would list the case under continuous hearing. That means the next time the case could not be postponed if the same lawyer asked for postponement of proceedings. I know there are lawyers who even ask government attorneys to postpone their case.
Such practice should be discouraged to deliver justice on time.
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