Royal Commission on Corruption Control: A Further Step into Lawlessness
By Nepali Citizen
Seventeen days after King Gyanendra assumed direct rule in Nepal and declared a state of emergency that suspended most fundamental freedoms, he has issued an order setting up a body that nullifies the most significant principles of rule of law embedded in the Constitution of 1990. In setting up the Royal Commission on Corruption Control, the king has created an agency to subdue critics of his 1 February takeover, threaten members of constitutional bodies including judges of the Supreme Court, and paralyse existing institutions meant to tackle corruption within legal boundaries.
The king has acted under Article 115 (7) of the 1990 Constitution, which is meant to allow for short-term measures required to enforce a state of emergency. The article should not be used to go beyond the strict requirements of enforcing an emergency, nor is it meant to weaken existing constitutional institutions and practices.
The royal order flies in the face of the fundamental principle of law, that investigating and prosecuting bodies must be separate from the adjudicating authority. The prosecutor cannot be judge, but King Gyanendra has concentrated all functions within the commission, giving it powers beyond the pale of what civilized societies grant such entities. The principle of fair trial evaporates under the weight of today?s royal action.
The constitution and operation of the royal commission is designed to paralyse the existing bodies for investigation into corruption, viz. the Commission for Investigation of Abuse of Authority (CIAA) and the Special Court meant to consider the CIAA?s prosecutions. In the name of battling corruption, King Gyanendra has made defunct existing mechanisms set up constitutionally for that very purpose. Rather than setting up a royal commission with near-total powers to prosecute anyone without limitation, if the goal was really to battle corruption King Gyanendra could have further empowered the existing institutions and backed the action with a political commitment that was often lacking in the past. Instead, he has created an institution designed to go after opponents of the royal takeover.
At a time when Parliament is only a memory and the entire media sector (press, radio and television) is shackled under censorship edicts, this action by King Gyanendra is also seen as a blow against what little independence there remains of the judiciary. All relevant laws and as well as the 1990 Constitution have been superseded in setting up the commission, and oversight by the courts under the order is tenuous. For a Supreme Court already submissive and intimidated, the order makes it pointedly possible for the commission to investigate ?the judges of the Supreme Court and office bearers of all constitutional bodies?. The commission may proceed with prosecution against such individuals as long as they have informed the king. This seems a provision carefully worded to ensure that the judges are compliant and do not seek any adventure vis-?-vis the authoritarian moves of the royal palace.
The order by King Gyanendra forbids any criticism of the commission, provides for punishment, and has a provision for ?excuse? of those who dare to disparage the commission. This is nothing but an attempt to stifle criticism of the royal commission as it begins work. There is also a provision that prohibits anyone from protesting an investigation being conducted by the commission and providing for punishment. Such a stricture goes against the rights to effective representation and proper hearing, and intimidates all concerned including the very persons prosecuted. While there is provision for appeal to the Supreme Court within 35 days of a decision by the commission, the current status of judicial and constitutional bodies in Nepal, as well as the general atmosphere of fear and intimidation, makes it unlikely that this recourse will be utilized effectively.
The commission is chaired by Bhakta Bahadur Koirala. Koirala was the Secretary of Home Affairs during the repression of the People?s Movement of 1990, and the person found to be the most culpable by the respected Mallik Commisson. Other members are Raghu Chandra Bahadur Singh, a retired army general, pilot and royal relative; Hari Babu Chaudhary, former head of the Department of Intelligence; Sambhu Prasad Khanal, a retired official from the Revenue Service; and Prem Bahadur Khati, whose antecedents are not clear. The only person with judicial experience in the commission is Sambhu Bahadur Khadka, who has been appointed secretary. Rather than being from the Supreme Court or the many Appellate Courts, he is a relative junior in the judicial service and sitting judge of the Kaski District Court. This subordinate?s appointment to a position where he can pointedly even prosecute the Supreme Court flies in the face of judicial practice and is seen as a blatant message to the bench of the highest court.
In an emergency meeting this evening, the Nepal Bar Association has condemned the royal order as one that contravenes the 1990 Constitution, goes against rule of law, and undermines the independence of the judiciary. We now wait for other jurists and constitutional experts in the country and internationally to weigh in on King Gyanendra?s decision. On the day that he has announced the royal commission, however, this looks like one more action by a monarch bent on a descent into lawlessness.
Jai Nepal
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