Two court verdicts on high-profile corruption cases in less than two weeks have raised people’s spirits. For the first time in Nepal’s history, a sitting minister has been convicted of corruption and tossed behind the bars. The feel good factor this time is that political parties have refrained from politicizing the verdicts. Traditionally, political protectionism, politicization of corruption and patronization of the corrupt have made prosecution extremely difficult in Nepal.
The period from January 2006 to July 2008 was the gloomiest chapter in the history of Nepal’s anti-corruption campaign. During these years, the Special Court acquitted former ministers Govinda Raj Joshi, Khum Bahadur Khadka and Rabindra Nath Sharma as well as three former police chiefs Prajwal Shumsher Rana, Motilal Bohara and Achyut Krishna Kharel, among many others, in corruption cases. Their cases were scrapped on ‘statute of limitations’ provision and in some cases citing inadequacy of evidence, thereby setting a bad precedent. Discouraged by this, the CIAA did not dare prosecute even a ‘small fry’, leave alone the ‘big fish’, in cases of illegally earned properties since 2008.
The recent verdict on JP Gupta has set exemplary precedent and it could have a domino effect on verdicts over similar corruption cases that are pending. The apex court in its recent verdict also recommended the Judicial Council to take action against the former Special Court judges Komal Nath Sharma, Cholendra Shumsher Janga Bahadur Rana and Chairperson Bhupadhwoj Adhikari, who had “illegally” acquitted Gupta of all corruption charges in 2007.
Breaking with the past, the Special Court has set a new record by convicting three former Inspector General of Police (IGPs) and two suppliers of Armored Personnel Carriers (APC) in the much-touted multi-million-dollar Sudan scam. The verdict is commendable for three reasons. One, it is the first case in which more than one IGPs were simultaneous convicted. Two, a foreign supplier has been implicated in the case, with the highest fine of Rs 280 million. And third, the verdict has been delivered in less than eight months. Since its formation in 2002, this might also be the shortest time the Special Court has taken to settle a high-profile corruption case.
We do have constitutional and legal mechanisms, backed by strong corruption laws. Yet corruption has continued its ascent and the problem appears more intractable than ever. According to the Transparency International’s recent survey, 53.4 percent of Nepalis feel the level of corruption has increased in the last three years. Public rating of political parties and the parliament as the most corrupt institutions is a proof that corruption is intrinsic to Nepali political system. 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.
One of the big 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 six years to arrive at final verdict on Gupta’s case.
Traditionally, the period for litigation of corruption cases in Nepal has been 8-9 years. As per Special Court Act, once a corruption charge-sheet is filed against a person by 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 in three months. Thus, in no more than nine months from the day a corruption case is filed against someone, either the person would be behind the bars or he should be cleared of the charges. But this is a rare practice. We need consider just a few verdicts on corruption cases by the Supreme Court. 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.
Thus, besides the need for speedier trail system within our courts, there should also be no difference in sentencing and enforcement of the verdict. For instance, a verdict on corruption case in Indonesia by TIPIKOR, its anti-graft court, immediately goes into execution. A sentence of imprisonment instantly takes effect even if the court decision is appealed to the high court. Because of this legal and institutional reform since 2003, Indonesia’s Corruption Eradication Commission has been able to enjoy 100 percent conviction rate against top officials in all major branches of the government including judiciary. But look at our system: Special Court sentences don’t get executed if the court´s decisions are appealed to the apex court.
If the quality of anti-graft body’s charge-sheets remains poor, largely owing to deficiencies in the anti-graft body’s investigative capacity and weak prosecutorial process, even a more efficient judicial system cannot enhance corruption conviction rates. The Commission for the Investigation of Abuse of Authority (CIAA) had charge-sheeted 36 police personnel including two APC suppliers in the Sudan scam. But the court convicted only five and gave clean chits to 31 cops; after it spent 19 months probing the case. This has put a big question mark on CIAA’s investigative competence and prosecutorial strength. Every prosecution should be rigorously tested before it is taken to the Special Court. Pre-testing ensures quality of prosecutions and high success rates.
Delayed verdict on corruption cases has led to cynicism over our justice system. In recent decades, lengthy litigation has eroded trust in the judiciary with hundreds of corruption cases left pending for years. The apex court is clogged with more than 300 corruption cases now. The backlog includes a dozen high profile cases against former ministers, senior bureaucrats and police chiefs. In fact, the SC’s delay over verdict on appeals has put a damper on the CIAA.
We must understand that anti-graft body´s effectiveness cannot be enhanced without efficient adjudicative capability of the courts. Failure to synchronize institutional capacity and performance of these two most important institutions has hugely undermined our past anti-corruption efforts. But it seems our political classes do 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 almost six years. This protracted vacuum allows us to gauge the level of political commitment toward controlling corruption at the highest corridors of power.
The CIAA was given more teeth in 2002 but we failed to institute reforms in the Special Court’s jurisdiction. This dented Nepal´s commitment to anticorruption. State-led anti-corruption drive, anti-graft body and courts are inseparable entities. Underperformance of one severely affects the other. We can´t expect CIAA to effectively tackle corruption unless the judiciary becomes equally proactive and competent in adjudicating the case within the defined timeframe. Thus, Nepal needs to institute urgent reforms and strengthen these crucial institutions. Only then will our efforts begin to give fruit.
The writer is Deputy Director of Good Governance Program at Pro Public
pbhattarai2001@gmail.com
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