JUDICIARY Verdict On Controversy

For the first time, the Nepalese society seems bitterly divided over the Supreme Court’s verdict on a corruption case<br>A CORRESSPONDENT<em></em>

Aug. 26, 2012, 5:45 p.m. Published in Magazine Issue: Vol.: 06 No.-06 Aug. 24-2012 (Bhadra 08,2069)<br>

When the institution of judiciary, which is born to protect the freedom of citizens and uphold the principle that even in absence of sufficient proof ninety-nine criminals may be let free but even a single  innocent shall not be punished, starts to follow the populism, the people may lose their faith on law and justice.

Thanks to a long history of democratic exercise and fair judicial practices, the populist initiatives taken by persons like Anna Hajare and Yog Guru Ramdev to establish an unaccountable anti-corruption watchdog were foiled in India. Nepal's experiences are that an enormous authority given to an unaccountable body is used to destabilize political process, not to control corruption.

“No civilized society should tolerate corruption and corruption related incidents. Unlike in an authoritarian communist state, however, corruption must be dealt with universally accepted rule of law including fair and impartial trial and justice,” said NC central committee member and former CA member Pushpa Bhushal.

However, Nepal’s cases were different as the corruption trial begins from populist media. Even the court's verdict is influenced by populism. “Judges sacrifice the essences and ethos of impartiality of justice to prove they are clean. The question of individual freedom and justice gets less priority,” said a lawyer.

As soon as the division bench headed by justice Kalyan Shrestha and Vaidyanath Upadhyay indicted Nepali Congress leader Khum Bahadur Khadka in corruption charges and order one and a half year’s prison and fine of 18.8 million rupees, a large number of Nepali Congress followers chanted against the court’s verdict saying it was unjust. Khadka, who came to Nepal in 1976 from exile along with B.P. Koirala, Ganesh Man Singh and Shailaja Acharya to face death penalty, had a lot of sympathizers.

In pronouncing the verdict, the apex court also declined the universal practice referred by the lower court in acquitting Khadka. The verdict said Nepal had its own system and it could not accept the judgment delivered by lower courts.  Earlier, the bench headed by chief justice Khil Raj Regmi issued an order to open the file on retrospective grounds.

The verdict is now politicized. Nepali Congress District Committee in Dang called a bandh on August 21 paralyzing normal life of western Nepal in protest.  It seems that the country is heading towards confrontation between the judiciary and the Nepali Congress, a party pleading for independence of the judiciary. 

Earlier Nepali Congress leader termed the court's verdict as unfortunate. “It is an unfortunate decision by the court,” thundered Nepali Congress leader and former prime minister Sher Bahadur Deuba. The case against Khadka was filed during the autocratic rule of the monarch to ruin the congress and it was politically motivated. The apex court endorsed it.”

Along with senior leader Deuba, the Nepali Congress party officially criticized the court’s verdict saying that it was unfair and decided to file a review petition against the decision.  In the last two years, the Supreme Court, siding with the populist agenda, reversed the verdict taken by the Special Court. Chief Justice Ram Prasad Shrestha reversed the first decision putting Chiranjibi Wagle behind the bar. After Shrestha, Justice Sushila Karki ordered prison for Madheshi leader Jay Prakash Ananda Gupta. Another bench headed by chief justice Khil Raj Regmi sent Congress leader Govinda Raj Joshi’s case to the Special Court for retrial. The Chief Justice said retrospective effect did not apply on corruption cases.

However, a group of civil society and media supported the court. Media hailed the verdict as historic. Similarly, the civil society organization also backed the court's verdict. “This is a historic verdict against corruption,” said Kedar Khadka, a civil society member leading crusade against corruption.

Nepal has a history of politicizing corruption. Whether it was during the Panchayat days or the era of constitutional monarchy and the present hybrid loktantrik system, corruption remains a tool to destabilize political process and punish political opponents.  Between the period of 2001 to 2006, out of 13 politicians charged in corruption cases were Nepali Congress leaders including late Girija Prasad Koirala.

After leading successful movement and overthrowing monarchy, Koirala, who led the government 10 years out of 18 years of democracy, got a clean chit from CIAA and the case against him was withdrawn. 

The time has come now to debate whether Nepal wants a clean and corruption free society based on rule of law or a society with rampant corruption and corruption as a political scandal and trial by populism. As long as Nepal's judicial system does not accept the judicial practices of following populism, the corruption cannot be controlled and it will increase further. What will be at stake will be the faith on the judicial systems.

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