Following the raid Thapa claimed that “as law firms hold even top-secret documents in their possession, such raids are against the constitution” (Republica, September 6). He did not bother to elaborate which provision of the constitution or the law the DRI had violated.[break]
Republica
Thapa’s statement was difficult to comprehend for the common people. They wondered how any business firm suspected of tax evasion could be legally untouchable and beyond the reach of government investigation. If they were, such places could become sanctuaries for all sorts of crimes. No law confers immunity to lawyers and their firms for tax evasion. It is, however, true that all raids must be carried out following due process.
After the raid, many lawyers spoke out against the DRI. They called the raid illegal and filed a case against it at the Supreme Court. This made people believe that the DRI might have made some grave mistake. In a special gesture, the court heard the petition the same day, a rarity, and ordered a halt to the investigation.
Subsequently, news reports suggested that Thapa’s Legal Advisors Forum hasn’t submitted any income statement for the past several years. Neither Thapa nor his firm has contradicted the news reports. Presumably, the DRI would not have mustered the courage to raid a senior and powerful lawyer’s office without sufficient information and evidence. Unfortunately, the Supreme Court did not allow the DRI to present the evidence and make its case.
It is understandable that the legal community was trying to protect its collective interest. But the Supreme Court’s order to stop investigation without letting the DRI present its evidence is difficult to understand. Evidently, due process was seriously violated. One retired Supreme Court justice wondered why the Supreme Court was so lenient on Thapa and his firm.
Perhaps this is the result of all three branches of government—Legislative, Executive and Judiciary—being headed by the same person, which is contrary to the democratic principle of separation of powers.
As a matter of principle, it would have been an overwhelming victory for legal practitioners and senior advocate Thapa had he come out clean from the DRI investigation, rather than stopping it in its tracks. Precluding the DRI from investigating suggests there is something fishy. I am afraid the Supreme Court’s decision will discourage DRI from carrying out even credible investigations and thereby encourage tax evaders in the future.
People have difficulty comprehending why a legal expert who has made such a big contribution to the democratic movement and rule of law acted so jittery the moment his firm was raided. A man of his stature should have been bold to prove his innocence by letting DRI examine his papers. As they say, “Do no wrong and fear no one.” If Thapa had done nothing wrong, he would have been vindicated after the investigation.
Understandably, people are curious why Thapa did not clear his name through investigation and let them continue to believe that he might have been involved in tax evasion. For his opponents, it is an open and shut case: Thapa is guilty of tax evasion. That is a hasty verdict and I do not subscribe to it until it is backed by evidence. But even for his admirers like me it is difficult to fathom why Thapa made a hue and cry about the raid if he had nothing to hide.
President Ram Baran Yadav, for his part, has made an astonishing blunder in this case. He made quick but imprudent remarks criticizing the raid of Sambhu Thapa’s firm (Kantipur, September 10). The head of state should have shown neutrality and non-partisanship and a degree of patience and calm.
The President, the titular head of state, must act only on the advice of government and not interfere in its day-to-day functioning. A retired Supreme Court judge told me that the President’s interference was one of most unfortunate incidents of violation of rule of law. The President was clearly very partisan in speaking in favor of only one of the five raided firms. He did not wait for facts to emerge before taking a position, thus badly exposing his blind spots.
Going a step further, the President told Chairman of the Interim Election Council Khil Raj Regmi and Finance Minister Shanker Koirala that such actions would send a negative message and cautioned against any such move until election time (Kantipur, September 10). It is difficult to understand the connection between raiding a business firm for tax evasion and conducting polls.
If the raided entity were a political party, the President’s advice to the government would have been timely, if not appropriate. But it is neither.
Interestingly, Regmi and Koirala expressed their ignorance to the raids. They did not have the courage to tell the President that his suggestion could be interpreted by the public as an obstruction of justice and that if the DRI had done anything wrong, the responsible persons would be punished. The President is not above the law and must not unduly interfere in the day-to-day work of government.
President Yadav seems to have a habit of getting excited very fast. In 2011 he made a hasty telephone call to one Anuja Baniya, congratulating her on behalf of the Nepali people and on his own behalf for her dramatic self-cooked story that she had returned to the rightful owner a bag containing Rs. 9.1 million in cash and a diamond necklace she had found. Later, it was revealed that the lady had made up the story to boost her public image. Before calling her, the President should have checked for the authenticity of information with the concerned authorities.
The President is not above the law. He has no role in day-to-day governance. His prime duty is to safeguard the constitution and look after the welfare of people. Though in the beginning he showed solemn dignity of a constitutional head of state, he has become quite lax about presidential norms and duties in recent times.
The country expects dignity from its head of state. His involvement in Thapa’s case was unwarranted and unjustifiable. I earnestly hope he does not repeat such blunders and compromise the dignity of his office in the future.
More importantly, I hope the new norm of new Nepal is not to value might more than rule of law and allow the powerful to bend the law in their favor as and when they please.
Author is former
foreign secretary
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