Royal Commission on Corruption Control: A Further Step into Lawlessness
By a 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.
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