Murari Sharma: Crime and Reward

The United States is a democratic country both in form and in substance, for no one, including its president, is above law. Its checks, balances, and institutions work effectively to keep the executive, legislative, and judicial branches within their limits and to protect citizens’ rights.

In contrast, Nepal looks democratic in form — some may call it an illiberal democracy — but not in substance.  Checks, balances, and institutions exist, but they do not work on political leaders, especially at the top. To sustain democracy, we must make them work on all.

Here is what I mean. In the US, courts have rejected Trump’s several executive orders, including the travel ban on the citizens of six Muslim countries, as unconstitutional. Trump was furious, but nobody has moved an impeachment motion against the justices. The president cannot initiate it, and the bar for Congress to it is much higher than in Nepal. 

The Federal Bureau of Investigation (FBI) is conducting a criminal investigation into Trump-Russia collusion that might have tipped the presidential election in his favor. Furious, Trump asked its Director James Comey to terminate the investigation and fired him when he refused. It has only motivated the FBI to widen and deepen the investigation and the Congressional committees looking into the matter to do the same. 

Certainly, Trump will face impeachment if he himself or his campaign had colluded with Russia to benefit him, accepted money from Russia or promised undue favors if elected. Likewise, he will likely be impeached for the obstruction of justice for asking the FBI and the intelligence agencies (like CIA and NSA) to terminate the Russia investigation. 

Bear in mind that Presidents Richard Nixon and Bill Clinton faced impeachment for the obstruction of justice.  Nixon resigned and Clinton survived it.

Contrast this to the situation in Nepal. Our top leaders are not investigated and punished for committing any crime, including murder, or for obstructing the course of justice. They get rewards for their crime.

Dostoyevsky had given the title of Crime and Punishment to his most famous novel. But in Nepal, there are only crimes and rewards for influential political leaders.

Here are some examples of crimes and rewards.

Maoist leaders Pushpa Kamal Dahal and Baburam Bhattarai had given a written commitment to a foreign country to protect its interests in exchange for its support to them to harm Nepal through their armed insurgency. They became prime ministers. No investigation, no punishment for this treasonable crime.

A few Maoist murderers have become ministers and other high officials. Balkrishna Dhungel, the Maoist murder of Ujjan Shrestha, is ‘absconding’ under the nose of the police, thanks to the protection of senior leaders.  

If they or their close supporters commit such heinous crimes as terrorism, murder, and rape, our top leaders treat such cases as political, so they are not filed with courts or withdrawn if they are already filed.

The latest example is the government’s decision to withdraw the cases against those who had killed several policemen and a child in cold blood in Tikapur. The perpetrators of such serious crimes will be further rewarded.

The leaders who had allegedly compromised Nepal’s interests in the Tanakpur Bund and the Mahakali Treaty retained their high posts; they were rewarded with repeated appointments to those posts. 

The leaders who have allegedly accepted from foreign governments money, scholarships, free medical treatment, and other expensive gifts for them and their relatives in return for advancing policies favorable to such countries have become prime ministers and ministers. Crime and reward. 

The leaders who have been shown in the media visiting foreign countries and asking publicly for their support to bread Nepal or change the constitution and law remain respected. Crime and reward. 

Our leaders are some of the most corrupt in the world, but they continue thriving by obstructing justice without facing justice.  Most of the current leaders who entered politics in poverty have become millionaires and billionaires within a decade without ever having a steady job or doing business.  Transparency International finds the political sector more corrupt in Nepal than any other sector. But our politicians continue to rake in corrupt money and to thrive. Crime and reward.  

Sure, some second-tier leaders have been jailed for corruption. It happened only because they had lost the blessings of their top leaders due to personal conflict. Sure, several leaders have corruption cases pending in courts, but they have used their supporters in the bar and in courts to defer their cases indefinitely, using all kinds of procedural obstructions.

When Chief Justice Sushila Karki began to demolish such artificial barriers and expedite such pending cases, our leaders struck back with an impeachment motion against her. This is a form of the obstruction of justice. I will come to it a little later.

Here is how our leaders thrive by obstructing justice. First, they appoint their loyalist to independent investigative bodies and courts, who would not poke their nose into their benefactor’s dirty closet. Such have been the recent appointments of Supreme Court justices, and heads and members of other constitutional bodies.

Second, they often appoint to such bodies people with a corrupt background who would have no moral standing to go after the top leaders’ corruption. For instance, Deep Basnyat, the recently appointed chief of Commission to Investigate Abuse of Authority (CIAA), has a corruption case in the Supreme Court. It does not mean Basnyat is guilty until proven, but it means he should not have been appointed at all until he was cleared.

Third, if some officials of such bodies begin to demonstrate their independence, as they should, our top leaders take no time to move the impeachment motion against them and get them suspended immediately.

I have already given the example of Chief Justice Sushila Karki. Our leaders had also moved an impeachment motion against the then chief of CIAA Lokman Karki when he began to look into the complaints and evidence about our top leaders’ corruption.

Our leaders have hung the Damocles sword of impeachment over the officials of independent constitutional bodies to protect themselves, so they can continue committing crimes with impunity. For instance, the constitution drafted by them says one-fourth members of parliament can move an impeachment motion against such officials, and as soon as a note to this effect is submitted to the Speaker of the House, the official in question is suspended.

Unlike in the US, the bar for it is very low in Nepal. The constitution has not laid down any provision for the preliminary examination of the charges against constitutional officials by an independent mechanism before triggering the impeachment motion. 

Do you think our leaders will ever face the kind of criminal investigation US President Trump and his team members are facing now? Probably, not in my lifetime.  

Prime ministers will come and go. Pushpa Kamal Dahal has resigned on 24 May 2017 to pave the way for another, under a secret agreement. But their secret and unwritten agreements to break or evade the law and protect each other from justice will stay with us. The crime and reward will continue. So Nepal will remain a democracy only in form if at all, not in substance. That is a pity. 

 

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Murari Sharma: The wrong side must lose this cold war

By moving an impeachment motion against the chief justice before DIG Navaraj Silwal’s second petition was even heard, the government started a cold war with the Supreme Court. The court fired back by staying the motion.  

As a student of law, I view the constitution and due process of law as sacrosanct. Therefore, I have no doubt that the government is on the wrong side. If the wrong side wins this war, you and I will lose our rights and freedoms.  

It is important that we are not misled by the tons of government propaganda out there justifying the motion. If you look at the sequence of events and the constitutional provisions, you would know the truth.     

First, the sequence. The government promoted DIG Jaya Bahadur Chand to the inspector general of police (IGP), and his competitor, Navaraj Silwal, appealed to the Supreme Court. The court gave its verdict in Silwal’s favor, but the government hastily appointed another DIG, Prakash Aryal, to the post.  

Silwal knocked the court’s door with a second petition, and the court accepted it to examine. Angered by this, the ruling coalition filed an impeachment motion in the parliament against Chief Justice Sushila Karki, before the court had heard the case. The motion resulted in Karki’s suspension. 

Essentially, the coalition argued that Karki encroached upon the executive branch’s turf by accepting Silwal’s second petition.

All dictatorships start by trampling the constitution and rule of law and silencing courts and by arrogating unlimited power to themselves. The impeachment of Chief Justice Sushila Karki looks like the first step in that direction.  

Ruling on a case filed by two lawyers, Justice Cholendra Rana stayed the motion and ordered Karki’s reinstatement, citing that the motion based on a sub judice case violated the constitution. Karki returned to work. In response, the government has hinted that it would punish Rana for the breach of the parliament’s privilege to impeach justices. 

Here is what the constitution of Nepal 2015 says:

Article 126: Everyone should abide by the Supreme Court’s decision in any legal case.

Article 128 (2): The Supreme Court will be the final interpreter of Nepal’s constitution and law.

Article 133: The Supreme Court has the exceptional authority to provide legal remedies, only limited by the impeachment motion moved against the justices in the legislative bodies. 

Section (3): The Supreme Court can review its own decision.

Article 101 (2): 1/4 members of parliament can move the motion of impeachment against the chief justice or justice of the Supreme Court if they fail to fulfill his duties because of serious violation of this Constitution and law, incompetence or misconduct or failure and honestly or serious violation of the code of conduct.

Section (6): Once the motion is moved, the chief justice or justice of the Supreme Court would not be able to discharge his duties. 

Article 103 (7) and (8): The legislature has the authority to punish anyone who undermines its privileges. 

Article 105: The legislature cannot discuss anything sub judice case or anything said or done in the course of giving justice unless it is considering an impeachment motion against a judge.

In summary, the court is the final interpreter of law, and it has the obligation to protect citizens’ rights. It is the duty of everyone to abide by the court’s verdict. If someone disagrees with the verdict, they should ask the court for a review. 

The parliament must not discuss any sub judice case or the conduct of a justice therein unless it is discussing the impeachment motion against the justice.  

Evidently, the ruling parties have breached the due process at several levels.

First, they introduced a sub judice case for discussion in the house, which is prohibited by the constitution.

Second, they moved the impeachment motion on speculation that the court would decide against the government, and without exhausting the review remedy. 

It is against natural justice, principles of jurisprudence, practice in other democratic countries, and Nepal’s own constitution to charge anyone of crime before one has been committed.   

Besides, though Karki has not been above reproach — for instance, in the recent appointment of several judges — her faults were not serious enough to meet the threshold set for impeachment under Article 101 (2).

If the same standards were applied to them as to Karki, most of the politicians who moved the impeachment motion would be in jail. They have committed infinitely more horrendous crimes of corruption, incompetence, dishonesty, handing democracy to the palace, and compromising national interest with foreign powers for personal gains than Karki.  

Natural justice and principles of jurisprudence call for proportionate punishment for all crimes. However, the ruling coalition has vengefully applied a disproportionate measure to silence Karki and the judiciary. You do not fire a nuclear bomb to kill an irritating nanny. 

Justice Rana’s stay order prevented the injustice of punishing Karki before she has committed a crime and put the process in its right order. Therefore, it is preposterous for the ruling parties to suggest, as they have done, that Rana should be punished for breaching the parliament’s privilege.

Faced with the strong opposition from the opposition parties, civil society, and the United Nations, the government has put the motion on hold, and the Parliament has postponed its meetings until after the local elections due on 14 May 2017. This is a temporary ceasefire. 

The question arises, why have the leaders become vengeful towards Sushila Karki and the Supreme Court? 

The answer is a no-brainer. Nepali Congress leader Sher Bahadur Deuba and Maoist leader and Prime Minister Pushpa Kamal Dahal have been shielding themselves and their close supporters from the music of justice for their crimes. They are angry with Karki because:

          –She instructed the government to arrest within 7 days Balkrishna Dhungel, a Maoist leader sentenced to jail for the murder of Ujjain Shrestha, who is hiding in plain sight under the protection of his party’s senior leaders.  The court can slap the government with the contempt of court for not arresting Dhungel.

          –She handed the court’s verdict on the Sudan procurement scandal and sentenced three former police chiefs to jail.

          –She expedited the corruption cases against the political leaders that were pending for ages in the court.

Deuba should be held to higher standards than Dahal for starting the cold war. Deuba has fought for democracy and been to jail, and the Supreme Court had him released from prison not long ago. But power seems to have blinded him now.

For Dahal, it is only one more opportunity to destroy democracy and its institutions. Just to achieve that goal, he had conducted the Maoist insurgency for 10 years and spilled the blood of 17,000 people.       

Remember, an activist court is much less dangerous than a reckless government with bureaucracy and treasury at its disposal. If we love our democracy and our rights, we must not support the wrong side — government — in this cold war.