Nepal is a country in transition, awaiting the promulgation of a constitution. Previous constitutions have elaborated on the relationship between the executive and the judiciary, including the Interim Constitution under which Nepal is governed at present. The purpose of this article is to inquire into how some government agencies, such as the office of the Chief District Officer (CDO, jilla karyalaya), are misusing their quasi-judicial powers. The offices of land revenue (malpot) and land reform (bhumi sudhar) have also been following such practices. Some make their decisions even when a court of law is already investigating the case, making interventions into a sub judice case.

Case in point

In January, the Patan Appellate Court had asked the Kathmandu CDO to send over some original documents relating to the granting of citizenship certificates without following required procedures. However, the CDO did not respond to the court’s orders. The Appellate Court fined the Kathmandu district office Rs 100. The district office then did send over the documents but only the photocopies, not the originals. The office was perhaps concerned that the court would discover its irregularities and thus, disobeyed the directive of the court. Two judges from the Appellate Court, instead of taking action against the district office, gave up the matter entirely and took punitive action against one of the parties, creating a situation that could be called the decision of a ‘kangaroo court’. One of the judges who took part in the decision was a women’s rights activist from Pokhara who abandoned the court’s course in investigating fraud but instead, tried to adversely punish one of the litigant parties.    

In this manner, the jilla karyalayas of the country are abusing the judicial powers at their disposal and flouting the principle of rule of law and an independent judiciary. It is primarily in the case of granting citizenship certificates that the Kathmandu District Office abused its authority and one is left wondering if the section of the office dealing with citizenship is involved in corrupt practices. This scribe too was victimised by the office. The Kathmandu CDO office is well known for taking arbitrary decisions on its own and has been emboldened to pursue such actions due to impunity after having utter disregard for the rule of law. The vast majority of Nepalis are less educated and are not aware of their rights. Thus, they may not have the wherewithal to protest the treatment that they receive. The Commission for the Investigation of Abuse of Authority should therefore take a close look at the citizenship section of the Kathmandu District Office. In some cases, this office has even issued more than one citizenship certificate with different numbers to a single individual in a sub judice case to manufacture evidence. This shows the extent of their malpractices.

But what is more intriguing here is the reaction of the Patan Appellate Court. The court did impose a fine of Rs 100 on the chief of the Kathmandu District Office, a fact that was published in Gorkhapatra and Annapurna Post. But the court, in its next sitting, decided to forget the fake citizenship issue and made a decision regarding the issuance of fake citizenship certificates in utter disregard of the decisions of two Supreme Court Chief Justices, Khil Raj Regmi and Ram Kumar Prasad Shah. Supreme Court Chief Justice Ram Kumar Prasad Shah had ruled on a writ filed on the same case that proper procedure for determining if the citizenship papers were issued legally be ensured. The appellate court decided not to follow the decision of the Supreme Court given by a judge who is now the Chief Justice.    

Some consolation

Nepal is signatory to several United Nations conventions, including the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights (ICPR), which it ratified in 1991. According to the Treaty Act, treaties and conventions signed by Nepal take precedence over national laws if there is any conflict between the two. Article 18 of the ICPR states, “Everyone shall have the right to freedom of thought, conscience and religion” and Article 19 says that freedom of expression shall include freedom to seek, receive, and impact information and ideas of all kinds regardless of frontiers, either orally or in print. On the other hand, some restriction may be imposed by the judiciary to prohibit personal criticism of judges in the interest of public order. While personal criticism of judges may invite contempt, the criticism of a verdict or an order itself falls within the right to freedom of expression.

In this regard, despite the fact that corruption and impunity is so widespread in Nepal that even well-educated persons are victimised, the only consolation is that freedom of expression is still in force, which can make the exposure of such abuses possible.

Raj is a former staff member of the UN Secretariat and secretary of the Nepal chapter of International PEN, an organisation of writers dedicated to freedom of expression