Special Court (SC) Chairman Gauri Bahadur Karki retired last week. He can be rated as one of much acclaimed and appreciated justices in Nepal who meted out daring verdicts on several high-profile corruption cases. With the entry of Karki as its chairman, the ‘sluggish and tainted’ image of the court improved significantly. He took up the reins at a time when his predecessors had completely ruined SC’s reputation by granting ‘clean chits’ to over 50 percent of corruption cases filed by the Commission for the Investigation of Abuse of Authority (CIAA), the country’s chief anti-graft body.
Karki did his level best to reinvigorate the court’s image by convicting three former Inspector Generals of Police (IGPs)—Om Bikram Rana, Hem Bahadur Gurung and Ramesh Chanda Thakuri—in the multi-million dollar Sudan scam. His judicial campaign accelerated with more convictions of political and bureaucratic heavyweights, including former minister Govinda Raj Joshi, former IGP Motilal Bohara, as well as former senior bureaucrats like Chakra Bandhu Aryal, Sabitri Rajbhandari and Padma Prasad Pokharel. The rate of conviction neared an historic 90 percent during his tenure.
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He showed how individual leadership can make a marked difference in overall institutional performance. Karki’s predecessor, Bhoopdhooj Adhikari, had let off high-profile individuals like former ministers JP Gupta, Govinda Raj Joshi, Khum Bahadur Khadka, Motilal Bohara, Achyut Krishna Kharel, Padma Prasad Pokharel, Sabitri Rajbhandari, among many others, citing the ‘statue of limitations’ and other unsubstantiated reasons. Former chairman Adhikari had scrapped 35 corruption cases out of 62 filed by the CIAA. The period from January 2006 to July 2008 was the gloomiest chapter in the history of Nepal’s judicial activism against corruption.
Karki and his team performed a lot better than their predecessors. His achievements in his almost four-year-long tenure have blazed a trail for his successor. Actions speak louder than words. This is what Karki made clear to the people and drew accolades from all around for reinvigorating the judiciary, which was often criticized as lethargic and lackadaisical in tackling corruption. He set important milestones with strong verdicts on high-profile corruptions and contributed around Rs 4.6 billion to national coffers through fines and confiscation of the property from the corrupt.
His judicial activism against the corrupt rekindled hopes among people at a time they were beginning to lose their trust in the judiciary for its lukewarm approach to dealing with corruption cases. People today still don’t have much faith and confidence in the judiciary due to the long gestation period of litigation, with hundreds of corruption cases still pending. This backlog has led to long adjournments on the one hand and encouraged the corrupt to influence the process on the other. The long delays have led to popular cynicism about our justice dispensation.
The denial of justice through delay is a mockery of the rule of law. It is not just a mockery of the law, but also sign of slow death of the entire justice dispensation system. This has led to people looking to settle scores on their own, resulting in a growing number of corrupt syndicates and loss of public trust in the judiciary. The “weak justice system” has hampered our past efforts to curb corruption and dispense justice.
We do have constitutional and legal mechanisms, backed by strong anti-corruption laws. Yet corruption has continued its ascent and appears more intractable than ever. According to Transparency International’s most recent report, with the position of 139 among 176 countries assessed, Nepal has been listed as one of the most corrupt countries in the world. This is largely due to the impunity enjoyed by the abjectly corrupt who never get caught, even if convicted by the investigating agency: they are ultimately acquitted either by greasing the palms of judges or through political meddling in the judicial process.
Prevailing deficiencies in the anti-corruption mechanism have made common people cynical and made them hold a defeatist view on corruption. Our justice system practically ceased to have any deterrent effect to deal with this fast-growing malaise. The period for litigation of corruption cases in Nepal has been more than eight years. As per the Special Court Act, once a corruption charge-sheet is filed against a person by the anti-graft agency, the case should be tried in six months. And the appeal from either side ought to be decided by the apex court within three months. Thus, in no more than nine months from the day a corruption case is filed against someone, either the person should be behind the bars or be cleared of the charges. But meeting deadline in corruption cases is a rarity in Nepal.
Just consider some notable Supreme Court verdicts on graft cases. In JP Gupta’s case, the combined duration of adjudication process of both the courts was almost nine years; the settlement of Chiranjibi Wagle´s case had taken all of eight years. Khum Bahadur Khadka’s case took almost six years to be decided. Thus, one of the biggest challenges to fighting corruption in Nepal has been changing the prevailing organizational culture and value system where roles and relationships often prevail over rules and regulations. In countries like Nepal, informal but powerful relationships become more important than formal rules and regulations. Otherwise, the Special Court would not have given “clean chits” to those high-profile corrupt politicians and the Supreme Court would not have taken years to arrive at final verdict on former ministers Wagle, Gupta and Khadka.
Emerging from the coterie of such power relations and influence, institutions like the judiciary and the CIAA need to be brave. Be it the CIAA under Surya Nath Upadhaya, the Special Court under Chairman Karki or Supreme Court under chief justice Khil Raj Regmi, it seems the courage of an individual as a leader or his initiatives have mattered more than the institutions themselves in the fight against corruption.
In the past, we have failed to improve the legal system without understanding how important a good justice system is for reducing corruption. 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. Thus, we must plan for pro-active and time-bound solutions, especially on corruption cases. Many corruption-endemic countries have started initiating fast-track process to deal with graft. The government of India last year approved 71 new fast-track courts in different states to boost prosecution on corruption charge-sheets.
We must understand that the anti-graft body´s effectiveness cannot be enhanced without efficient adjudicative capability of the courts. Failure to synchronize institutional capacity and performance of these most important institutions has vastly undermined our anti-corruption efforts. But it seems our political class does not yet recognize that anti-graft agency and courts are two sides of the same coin. Had they even an iota of realization, the only anti-graft body would not have remained headless for more than six years. This protracted vacuum allows us to gauge the level of political commitment toward controlling corruption at the highest corridors of power. In a state-led anti-corruption drive, anti-graft body and courts are inseparable entities. Underperformance of one severely affects the other. Thus, strengthening these crucial institutions is highly important. Justice Karki’s successor at the Special Court must follow on his footsteps. Only then will corruption control efforts start to bear fruit.
pbhattarai2001@gmail.com
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