We must wholeheartedly laud the enthusiasm of Chief Justice Ram Prasad Shrestha and justice Khil Raj Regmi for making such a welcome and encouraging verdict on a corruption case that was awaiting decision for the last six years. Former minister Wagle had filed an appeal to the SC in September 2004 challenging the Special Court´s verdict on July 22, 2004. The investigation had found that he had accumulated NRs 34.32 million during the period between May 29, 1991 and October 4, 2002 when he served seven ministerial portfolios.
It is axiomatic that people in Nepal today have completely lost the trust, faith and confidence in the judiciary due to the long gestation period of litigation, with hundreds of corruption cases pending for disposal. This backlog has led to long adjournments and encouraged the corrupt to influence the process so as not to be convicted. The degree of delays and corruption has led to cynicism about our justice system. Former Chief Justice of the United States´ SC John Marshall had once said, "Power of judiciary lies not in deciding cases, nor in imposing sentences nor in punishing for contempt, but in the trust, faith and confidence of the common man."
The denial of justice through delay is the biggest mockery of the rule of law and it is not limited to a mere mockery of the law in Nepal, but is killing the entire justice dispensation system. This has led to people settling scores on their own, resulting in a growing number of corrupt syndicates and reflecting the loss of people´s trust in judiciary itself. The "weak justice system" has hampered our past efforts to curb corruption and delayed justice to those who are suffering it.
Though we have a constitutionally formalized mechanism to deal with corruption backed by an exclusive law, namely the Prevention of Corruption Act, people perceive that corruption has increased all around and the problem appears more intractable. This may be largely due to many politicians and bureaucrats who are known to be abjectly corrupt, do not get caught, and even if they are caught by the investigating agencies, they ultimately get acquitted in courts as they themselves are plagued by corruption and lengthy judicial processes. It has been the case in our fight against corruption in the past two decades.
These deficiencies and failures in the anti-corruption mechanism have made common people more cynical and hold a defeatist view of corruption. Our justice system has practically ceased to have any deterrent effect to deal with this fast growing malaise. The situation is further compounded by the increasing entry and aggressive presence of ‘charge-sheeted’ politicians in the parliament and in high positions within the political parties. There is an urgent need to put an end to this farce once and for all by having fast track court and the process to try all cases of corruption against politicians and senior government officials to restore dwindling people´s trust in the judiciary and in the rule of law.
As per the Special Court Act, once a corruption charge sheet is filed against a person by the investigating agency, the case should be tried and decided in six months. And the appeal, if any from either side, is legally provisioned to be decided on by the SC in three months. Thus, in not more than nine months from the day a corruption case is filed against a politician or a bureaucrat, either the person would be behind the bars cooling his heels or would be honorably discharged. But, meeting the deadline has been often an exception to both the courts.
If we are oblivious of the past history, the SC now, after a long painful silence, seems girding up its loins by putting corruption cases in its priority. Among 339 backlogs at the apex court now, a dozen cases include former security chiefs, bureaucrats and high-profile politicians such as former ministers Govinda Raj Joshi, Khum Bahadur Khadka, JP Gupta, Pradip Shamsher Rana, Moti Lal Bohara, Achut Krishna Kharel, bureaucrats Ishwor Pokhrel and Padam Raj Pokhrel, among many others. The SC´s verdict on Wagle´s case has sent tremors across bureaucratic and political circles and buoyed the citizens with a hope that it would treat other pending cases in the similar vein.
But, one of the biggest challenges to fighting corruption in Nepal has always been in changing the prevailing organizational culture and value system where roles and relationships often prevail over rules and regulations. Coming out of a coterie of such power relations and influence, institutions like the judiciary needs to brave up concerning some big corruption cases. This will set a good precedent and deters the corrupt, teaching them a lesson that it is a high-risk venture. If our history is an indicator, what appears evident is the courage of an individual person as a leader or his initiatives that has mattered more than the institutions themselves in the fight against corruption. Be it the CIAA under Surya Nath Upadhaya or the SC now under Chief Justice Ram Prasad Shrestha, things seemed to have got a new momentum.
The apex court has made a good beginning by sentencing a former minister on corruption charges and also deciding to re-open a corruption case of former defense secretary Chakra Bandhu Aryal terming the SC´s earlier decision to nullify his case as a "serious mistake" and a distortion of the law. Even the former SC judges who provided clean chits to the corrupt under a cause of "statute of limitation" should also be brought within a purview of judicial investigation. The rays of hope among people renewed by the ruling on Wagle´s case should not be dashed away under any circumstances.
FAST-TRACK PROCESS
The judiciary needs to take a new approach and policy in regard to anti-corruption cases to pull the common people out of their growing cynicism and infuse some confidence in them for relatively better and effective governance. Our efforts should be to keep all types of corruption under effective check and control in a manner that will be known and appreciated by the people.
In the past, we have failed to improve the legal system without understanding the importance of a good justice system is for the country for its peaceful environment, prosperity and reducing corruption and at the same time for maintaining efficiency of the legal system. We are aware of a number of countries which have a proper legal system which gives speedy and efficient results on cases of corruption and fraud. In Hong Kong, no case stays on the list for more than six months. Lack of bench marking is also another reason for today´s problems in our legal system. We must plan for a pro-active and time bound solution, especially on corruption cases.
More delays in justice system ultimately benefit the corrupt and the lawbreakers. When we apply an innovative system, the volume of cases will not be a major issue, as the system itself will speed up overall legal process automatically. The time spent on trivial and routine procedures can be cut down significantly by an efficient system such as fast track process for backlogs. The SC will have to issue few more rigorous rulings, as in the case of Wagle, through the fast track process setting exemplary precedent in the history of new federal Nepal.
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