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Nepal: Demise of RCCC - A Blow to Autocrat

Nepal: Demise of RCCC - A Blow to Autocrat


By Siddhi B. Ranjitkar

It was February 13, 2006. The day was not auspicious for the believers in superstition. It was the latest date the Supreme Court of Nepal set for hearing on the case of the constitutionality of the Royal Commission on Corruption Control (RCCC). Most of the Nepalis who believe in the rule of law did not believe in that the Supreme Court would not defer the ruling date this time too. The Supreme Court of Nepal had set January 5, 2006 the date for hearing on this case but deferred it. Then, the Chief Justice of the Supreme Court appointed pro-palace judges and advocates to the temporary positions of justice at the Supreme Court. In view of the inauspicious day for hearing and the appointment of the pro-palace judges and advocates to the Supreme Court of Nepal, people having faith in the independence of judiciary had doubted the impartial verdict on this case. However, the pro-palace people must be sure that the Supreme Court's ruling would go in their favor.

To the surprise of many Nepalis, in its 61-page verdict document, the Special Bench comprising justices Kedar Prasad Giri, Min Bahadur Rayamajhi, Ram Nagina Singh, Anup Raj Sharma and Ram Prasad Shrestha declared the RCCC unconstitutional. It was a great relief to the people who are for an independence of Judiciary and the rule of law, and a slap on the face of the autocrat. In addition, the Supreme Court of Nepal resuscitated the democracy stating the king's actions are not above the law and could be challenged in any Court of Law, and revived the Constitution of Nepal of 1990. Ultimately, all the ordinances issued by the king and rules and regulations formulated by the current king's government that go against the Constitution of 1990 became illegal and Nepalis do not need to comply with them.

The Supreme Court's ruling must be a hard blow to the king who in the name of curbing corruption set up the RCCC, and instead of putting the Former Minister Chiranjibi Wagle indicated by the Special Court of Law for corruption behind bars put Former Prim Minister Sher Bahadur Deuba and Former Minister Prakash Man Singh on the charge of corruption. Obviously, the RCCC was not for curbing the rampant corruption prevailing in the country but to take revenge on the former ministers.

The king must be very upset because of the Supreme Court's ruling on the RCCC going in favor of the rule of law. So, the king with his spouse left Kathmandu for Pokhara on February 18, 2006 for a few weeks of touring the western Nepal. He has inherited a villa from his father and senior brother on the lakeside in Pokhara. Former kings - both his father and brother used this villa for staying in isolation and thinking for new political strategy to keep the Shah dynasty going. To some extent, they were successful in doing so, and they reaped short-term benefits. However, whether King Gyanendra might be able to come up with a strategy of resolving the political conflict without giving up the absolute power he usurped from the elected government in 2005 remains to be seen. Therefore, no matter how hard he might think and meditate for his political strategy, he might not come up with a viable strategy for resolving the political conflict.

On Monday, February 13, 2006, the Special Bench of the Supreme Court of Nepal by its ruling on the case of the constitutionality of the RCCC ordered to dissolve it making all decisions that it took in the past one-year invalid. The Special Bench of the Supreme Court declared that the RCCC was unconstitutional. All RCCC's decisions were declared invalid effective from February 13, 2006. The ruling of the Special Bench of the Supreme Court says that the notice of the principle secretariat of the king to form and give continuity to the RCCC contravenes with the objectives of the Article 84, 85, 88(3), 98, 115 (7) and 127 of the Constitution of Nepal of 1990. The Special Bench's ruling says the Article 127 of the Constitution of Nepal of 1990 could be implemented to activate the Constitutional process only when the state of crisis prevails in the nation. "The RCCC has been dissolved from today (February 13, 2006) onwards, as the order issued to form and give continuity to the Commission goes against the Constitution," the Special Bench said. [1]

In a historic verdict on Monday, Feb 13, 2006, the Supreme Court of Nepal put the king-constituted and controversial RCCC to death, terming it "unconstitutional". The Special Bench handed down the unanimous ruling in response to the writ petition filed by advocate Santosh Kumar Mahato. On February 16, 2005, King Gyanendra constituted the RCCC using the provision for a state of emergency made in the Constitution of Nepal of 1990 and later on gave it continuity through a royal decree using the power pursuant to the Article 127 of the Constitution after the expiry of a state of emergency on April 29, 2005. The king gave the RCCC both the power of judge and jury making it all-powerful body, which goes against the basic tenets and principle of natural justice according to legal experts. Delivering the verdict, the Special Bench also addressed three other major constitutional issues such as 1) source of state power, 2) use of Article 127 of the Constitution, and 3) whether the king's actions can be questioned in a Court of Law. The Special Bench's ruling on these issues are as follow: 1) Exercise of state power: The Nepali people are the source of state power pursuant to the Constitution of Nepal of 1990 (The ruling says that the promulgation of the Constitution of 1990 has made the provisions made in the previous constitutions for the use of state power irrelevant; so, nobody can argue based on those provisions. For defending the constitutionality of the RCCC, the defending attorneys had argued in the hearing on the case that the state power vested in the king pursuant to the Constitution of Nepal of 1962.); 2) Use of Article 127 of the Constitution: Referring to the precedent set in 1994, the Special Bench says that the king can use the Article 127 only if any difficulty arises in the implementation of the Constitution (The ruling also says the Article 127 cannot be invoked to curtail citizen's rights guaranteed by the Constitution); 3) Whether the king's actions can be heard in a Court of Law: Replying to a major argument raised by lawyers in defense of the RCCC at the hearing, the Special Bench says that even the king's actions can be challenged in a Court of Law if those actions are taken on his own discretion and raise serious constitutional questions; however, any actions of the king according to the advice of and in consultations with the cabinet cannot be heard in any law court. The major points of the ruling are: RCCC is unconstitutional, State power vests in the people, King’s actions can be challenged in a Court of Law, and the Article 127 of the Constitution of 1990 can be invoked only to address constitutional difficulties. In the beginning, the Supreme Court administration refused to register the petition filed by advocate Santosh Kumar Mahato. But Justice Min Bahadur Rayamajhi ordered the administration to register the case saying it raised serious constitutional questions. Even after the registration of the case, some judges were reluctant to take it up and the initial hearing was deferred as many as 19 times. Again, Justice Rayamajhi issued a show-cause notice to the RCCC and the government over the case. [2]

The government set free Former Prime Minister Sher Bahadur Deuba from the Police Academy at Maharajgunj, Kathmandu, and his cabinet colleague and Former Minister for Physical Planning and Works, Prakash Man Singh from Pahara Gan at Tripureshwor, Kathmandu at midnight following the Supreme Court's decision on scraping the six-member RCCC and annul all its rulings terming them as "unconstitutional on Monday afternoon, February 13, 2006. Party leaders such as Dr Minendra Rijal, Purna Bahadur Khadka and Bal Krishna Khand were present at the Academy to receive their leader Deuba. The RCCC had indicted the two leaders for their involvement in the alleged irregularities in the (Asian Development Bank) ADB-funded Melamchi Drinking Water Project, and sentenced them to two-year-jail terms and put them behind bars on July 26, 2005. Both the leaders did not defend at the hearing held by the RCCC saying the RCCC was unconstitutional, and would not recognize it as a legal entity. The RCCC also fined Former Prime Minister Deuba Rs 45 million and also ordered him to pay up another Rs 45 million as the repayment for the amount allegedly embezzled by him. The RCCC indicted Former Secretary to the Ministry of Physical Planning and Works, Tika Dutta Niraula, Former Executive Director of MDWP (Melamchi Drinking Water Project), Dhruba Narayan Shrestha, Former Assistant Executive Director, Deepak Kumar Jha and Contractor Jip Tshering Lama for the alleged irregularities in the project. [3]

Talking to reporters a day after he was released from about ten-month-long detention, Former Prime Minister and President of Nepali Congress (Democratic), Sher Bahadur Deuba said that his sole concern was for the restoration of peace and democracy in the country rather than for the monarchy. He accused the government of misusing the state machinery for taking revenge on him and his party. Former Prime Minister Deuba said that the decision of Supreme Court on dissolving the RCCC enhanced the prestige of the apex Court and reasserted people's sovereign power, and also opened doors to the restoration of peace and democracy. He further said that the international solidarity was essential for re-establishment of democratic processes and human rights in Nepal. 'The ultimate goal is to establish people's supremacy and democratic process that could not be 'recaptured' by the King under any pretext,” he added. [4]

Various political parties, civil society and professional organizations welcomed the termination of the RCCC by the Supreme Court on Monday, February 13, 2006. Political parties, civil society, human rights activists of the Khotang district also welcomed it. President of Nepal Bar Association, Shambhu Thapa said, "The ruling of the Supreme Court of Nepal proved that full sovereignty is vested in the people and it cannot be wrested away by any individual." On Tuesday, February 14, students affiliated to the seven-party alliance celebrated distributing sweets among the people in Rajbiraj. On the contrary, pro-palace lawyers said that the Supreme Court’s verdict was a ploy to weaken the monarchy. [5]

On February 14, 2006, speaking at a program organized by the Reporters' Club Nepal, President of Nepal Bar Association, Shambhu Thapa, and senior advocates such as Radheshyam Adhikari, Shreehari Aryal, Basudev Dhungana and Sarvagya Ratna Tuladhar said, "the Supreme Court's verdict on the RCCC has upheld the supremacy of the Constitution and established the sovereignty with the people. So, the king should be ready to give up all executive and state powers immediately to respect the Supreme Court's verdict and resolve the conflict." President Shambhu Thapa and Former Attorney General Sarvagya Ratna Tuladhar also said that the verdict was a reply to those who had been demanding elections for a constituent assembly, and arguing that the existing constitution failed to ensure people's sovereignty. Senior Advocate and Former Minister, Basudev Dhungana said that the Supreme Court's verdict should discourage pro-palace people who were encouraging the king to become an autocratic ruler in violation of the constitution. "It has confined the king within the Constitution and stopped him from misinterpreting the Article 127 of the Constitution," he added. Advocate, Sindhunath Pyakurel said that the verdict gave the king the tacit message that his takeover of February 1, 2005 and rule of the country under Article 127 was also unconstitutional. "The king should retract his decision keeping this in mind," he said. [6]

On Tuesday, February 14, 2006, in an interaction held by the Society for People's Awareness in Bhairahawa, Former Supreme Court Justice, Laxman Aryal said, "Most of the king's moves have proved to be unconstitutional so he should immediately resign from the position of the executive head on the moral ground." Former Supreme Court Justice, Laxman Aryal said that the apex Court's verdict has clearly established a norm where the king cannot work arbitrarily and all his acts are questionable. He said, "Before this verdict, the cases against the king's orders and actions used to be rejected by the Court." [7]

Jubilant supporters of Former Prime Minister Sher Bahadur Deuba called his release and the dissolution of the commission a "humiliating defeat for the royal government and a victory for democracy." South Asia Analyst in New Delhi, S.D. Muni predicts the Former Prime Minister's release will give fresh momentum to pro-democracy activists in Nepal, who have been holding regular street protests and rallies in the capital Kathmandu." "The credibility of the February 1 takeover has been dented further - not that it needs any more dents," Muni said. "That is one thing. Then the agitation would build up, there would be more violence, more disturbances, more anarchy." Political analysts also say the Supreme Court's decision to strike down the anti-corruption panel will boost the morale of political parties and activists fighting to end the king's direct rule. [8]

On Wednesday, February 15, 2006, speaking at the program hosted by the American Center in association with the Ganesh Man Singh Academy in Kathmandu, US Ambassador to Nepal, James F. Moriarty said, “We have taken the abolishment of RCCC and subsequently, the release of Former Prime Minister Sher Bahadur Deuba in a positive light." [9]

On Thursday, February 16, 2006, speaking at the talk program held by the Sambad Club, leaders of the seven-party alliance and a Former Minister said the Supreme Court's decision on dissolving the RCCC proved that the King's takeover on February 1, 2005 was unconstitutional. Nepali Congress Central Working Committee Member, Arjun Narsingh K.C. said, "The Supreme Court's verdict clearly says the nation's sovereignty rests on the people; people are the sources of state power; King's actions can be debated in the court and Article 127 of the Constitution cannot affect other Articles of the Constitution." He asked the King to take measures to correct his unconstitutional move by paving the way for revival of the dissolved House of Representatives. Welcoming the Supreme Court verdict, Central Committee Member of the Communist Party of Nepal - United Marxist and Leninist (CPN-UML), Shankar Pokharel said the apex Court's verdict went against the RCCC's formation and continuation, as it had hurt the Court's jurisdiction. Nepali Congress (Democratic) leader, Dr Narayan Khadka said, "the Supreme Court's verdict on the RCCC proved the King's claim that his actions would not be questioned in the court, wrong; he was the sources of state power and he could use Article 127 on his own desire also, wrong." He said that the verdict proved the King's rule was unconstitutional; the apex Court should revive the House of Representatives to bring the constitutional process back on track. Politburo Member of the CPN-ML, Tanka Rai opined that the King's February-1 takeover became "null and void" with the Supreme Court's decision on the RCCC. "If we tend to seek legitimacy of the Maoist insurgency, it also applies even to the King," Rai said. Former Minister Kuber Sharma said the Supreme Court's decision opened the door to bringing the derailed Constitution back on track. "The King's legal advisors appeared to be immature as they gave wrong advice to the King," he said. [10]

Minister of State for Information and Communications and spokesperson for the king's government, Shrish Shumshere Rana said that the government accepted the recent verdict of the Supreme Court on the RCCC and remained committed to abide by the decision of the Judiciary. Saying the formation of the anti-graft body was unconstitutional as it contradicted with Articles 83 (3), 84, 85, 88 (3), 89, 105 (7) and 127 of the Constitution of Nepal of 1990, the Supreme Court of Nepal scrapped the controversial RCCC formed by the King pursuant to the Article 127 of the Constitution immediately after the February-1-royal takeover last year. [11]

Mrs. Mina Niroula, wife of the Former Secretary to Ministry of Physical Planning and Works, Tika Dutta Niroula, convicted of corruption in dealing with the Melamchi Drinking Water Project by the RCCC sighed with relief when she heard the Supreme Court's verdict on the RCCC. First, she could not believe it. "Can the Court do that?" was her first reaction to the news. Then, she started speaking in anger about the decision made by the RCCC. "Why was I traumatized by the unfair decision of a body that was itself unconstitutional?" she said, "I cannot describe how I and my family lived after the RCCC took action against my husband. No celebrations, no parties, no festivals. It was a life full of stress." Mrs. Mina's trauma was only the tip of the iceberg of the sufferings, the RCCC inflicted on its victims during its almost one-year existence. The worst consequence of the RCCC's action was for the family of the Former Secretary to the Ministry of Physical Planning and Works, Dinesh Chandra Pyakurel. He committed suicide "out of humiliation" a day after he was summoned by the RCCC. Even people who knew the "political motive" behind the RCCC could not ward off the mental torture wrought by it. "My hair has turned white, my blood pressure has gone up and new wrinkles have appeared on my face due to the stress since the RCCC arrested my husband," said Dr Arzoo Deuba, wife of Former Prime Minister Sher Bahadur Deuba. " I feel five years older than my age," said she. "As a women's rights and child rights activist, I should and will take steps to get compensation for the mental torture and character assassination the RCCC inflicted on my family," said Dr Deuba. "There could be a strong case of crime against humanity," said senior advocate Radhe Shyam Adhikari "The state should be responsible for the death, the violation of individual freedoms, character assassinations and atrocities by the RCCC." Another lawyer, Bhimarjun Acharya said, "The state should compensate the victims." [12]

The RCCC had not only tried the civil servants and civilians but also the District Court Judge going beyond its jurisdiction. On Sunday, December 18, 2005, on the occasion of Judicial Council Day, Chief Justice of the Supreme Court of Nepal, Dilip Kumar Poudel made public the report of a high-level committee set up by the Judicial Council (JC) on the corruption case the RCCC took up against Pyuthan District Court Judge, Birendra Kumar Karna in March 2005, and declared the RCCC's action against the judge was unconstitutional. The report says that the JC is the only body empowered by the Constitution to take actions against the judges facing corruption charges. [13]

On Tuesday, February 14, 2006, one day after the Supreme Court ordered to scrap the controversial RCCC, prominent legal experts called on the King to immediately dissolve his government on moral grounds. Speaking at an interaction program, Senior Advocate Radheshyam Adhikari said, "Now the King should link the verdict to his morality and dissolved the royal government as the Supreme Court has said the monarch has no authority to claim the state authority." He also said that the King should realize that he has no special power, no one is above the Constitution, and he should respect the verdict. "If he agrees to work under the Constitution, it will pave the way out for the political impasse as well," he said. President of Nepal Bar Association, Shambhu Thapa asked the king for immediately acting on reinstating the dissolved House of Representatives. "Now there is an urgent need to reinstate the Lower House to exercise the people's sovereignty as wished by the Supreme Court verdict," he said. Former Minister and Senior Advocate, Basudev Dhungana said, "This verdict has reminded the people that they are not slaves but a sovereign power." Former Attorney General, Sarvagya Ratna Tuladhar and Senior Advocate, Sandhog Nat Pyakurel also said, "the verdict has reassured the people that they are sovereign and the king cannot exercise any power beyond the Constitution." However, Former RCCC Lawyer, Kuna Bihar Prasad Singh said, "the verdict has curtailed the power of the king without giving a chance to explain why the monarch needed to take the step." The Supreme Court invalidated the controversial RCCC saying it contradicted with the Articles 83 (3), 84, 85, 88 (3), 89, 105 (7) and 127 of the Constitution of Nepal of 1990. [14]

The Supreme Court made the historic decision on the RCCC that is notable not only for declaring it null and void but also for defining the role and responsibility of the king when the king rules under the Article 127 of the Constitution as its executive guardian. It also legally engineered a new lease of life to the Constitution of 1990 so sadly abandoned by all the major political parties except the Crown. It has assured us that the people are the sole sovereign authority and that the executive, legislative and judiciary exercise their authority on behalf of the sovereign people exercising checks and balance upon one another so that the sanctity of the Constitution is uppermost - both in letter and spirit. [15]

On February 16, 2005, pursuant to the Article 115 (7) of the Constitution of Nepal of 1990, the King constituted a six-member RCCC for effective control of corruption. It was empowered to investigate the complaints or information received from any source on smuggling or tax evasion, dealing of illegal contracts and other activities defined as corruption by the prevailing laws. It also enjoyed the powers of the Special Court established pursuant to the Special Court Act of 2002 for corruption control. Any person convicted by the RCCC in corruption may appeal the Supreme Court within 35 days. [16]

The Supreme Court verdict of February 13, 2006 is a setback to the struggle against the corruption at the highest levels of politics. The system of corruption control adopted by the Commission on Investigation into Abuse of Authority (CIAA) has failed. Regarding the actions of the king, the five-judge panel could have considered Article 27 and 31. Article 27 states that the king is to preserve and protect the Constitution, keeping in view the best interests and welfare of the people of Nepal, and Article 31 states, "No question shall be raised in any court about any act performed by His Majesty." [17] If the king or the current government is really for controlling the corruption then they should immediately put those politicians convicted by the Special Court for corruption behind bars. Regarding the activities of the CIAA, it has been successful to win more than 80% of the corruption cases at the Special Court but the government has been lethargic to implement the verdicts of the Special Court. For example, the Special Court convicted Former Minister Chiranjibi Wagle for corruption in the case filed by the CIAA but the government has not confiscated his assets earned through corruption, and has not put him behind bars so far. Regarding the actions of the king, the Supreme Court ruling has clearly stated that any actions of the king taken pursuant to the Constitution of 1990 will not be heard in any law court but the arbitrary actions of the king will not escape from the court hearing.

Pursuant to the ruling of the Supreme Court of Nepal on the RCCC given on February 13, 2006, any ordinance that goes against the Constitution of 1990 is invalid, and the king's current government is unconstitutional, and all ministers arbitrarily appointed are illegal too. So, the king needed to dissolve his current government immediately and turn over the power to the seven-party alliance because they represented the people in the dissolved House of Representatives. If it is not happening means the king is not standing on the moral ground and he does not mean what he has repeatedly said about his commitment to the multi-party democracy and the constitutional monarchy.

Foot Notes

[1] The Rising Nepal Feb 14, 2006

[2] eKantipur.com posted on: 2006-02-13 20:19:35 (Server Time), Kiran Chapagain

[3] The Hindu, Feb 14, 2006, nepalnews.com pb Feb 14 06

[4] nepalnews.com ia Feb 14 06

[5] eKantipur.com posted on: 2006-02-14 03:18:13 (Server Time)

[6] eKantipur.com posted on: 2006-02-14 18:14:11 (Server Time)

[7] eKantipur.com posted on: 2006-02-14 18:14:11 (Server Time)

[8] NewsVOA.com Feb 14, 2006, Anjana Pasricha New Delhi

[9] Newslinenepal.com 2006-02-15 17:24:50

[10] The Himalayan Times Online Feb 17, 2006

[11] nepalnews.com pb Feb 17 06

[12] eKantipur.com posted on: 2006-02-14 18:12:42 (Server Time) Kiran Chapagain

[13] Report by Kiran Chapagain for 'The Kathmandu Post' of December 20, 2005

[14] nepalnews.com pb Feb 15 06

[15 The Rising Nepal, Feb 21, 2006, Madhukar Shumshere J.B. Rana*]

[16] The Rising Nepal, Feb 17, 2005

[17] The Rising Nepal Feb 28, 2006, opinions of K. Kigali

* Mr. Rana was the Former Finance Minister on the Council of Ministers headed by the king. The local newspapers widely publicized his involvement in the fertilizer smuggling. Possibly, for that matter, he was dropped out of the Council of Ministers when the king reshuffled the Cabinet on October 7, 2005.

*************

Siddhi B. Ranjitkar is a political analyst based in Kathmandu.


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