6-12 May 2016 #807

Not Silenced

What do you do when an Executive agency set up to stem the rot is itself rotten? Fall back on the Judiciary and Parliament

After ten days of detention by the Commission for the Investigation of the Abuse of Authority (CIAA), the Supreme Court ordered the release of journalist and Himalmedia co-publisher Kanak Mani Dixit on Sunday. Acting on a petition for a writ of habeas corpus, the bench comprising Chief Justice Sushila Karki and Justice Jagadish Sharma Poudel -- in a landmark decision -- termed the detention unlawful and warned the CIAA not to take anyone into custody without furnishing sufficient and appropriate reason. A precedent has now been set, whereby the CIAA can no longer continue to act ultra vires with impunity.

The Supreme Court concluded that the CIAA had over-reached its mandate, and raised serious questions about the watchdog’s activities in the past. Before Dixit, the CIAA had filed cases against two lawyers, Sambhu Thapa and Jyoti Baniya, who had also opposed the appointment of Lok Man Singh Karki as CIAA chief in 2013. The CIAA coerced the Internal Revenue Service to raid Sambhu Thapa’s law firm, and even then the Supreme Court had rebuked the CIAA because its behaviour was against the law. The court also dismissed the case against Baniya. So the decision in the Dixit case is the third time that the Supreme Court has found the CIAA’s actions ultra vires. 

Ever since the strategically premeditated appointment of Lok Man Singh Karki to head the CIAA, we have seen a gradual but far-reaching erosion of the freedoms guaranteed to us and enshrined in our Constitution. He has used intimidatory tactics, threats and improper rewards to persuade powerful institutions and individuals to do his bidding. A creeping counter-revolution is taking the country back to authoritarianism not by force of arms or mass arrests, but by the blatant and unchecked abuse of authority by the very institution created to curb it.  

In the three years since his appointment, Karki has made the CIAA an extra-constitutional cradle of political power working hand-in-glove with business syndicates, political cartels and at the behest of external agencies. Kanak Mani Dixit was merely the latest pawn in Karki's chess board, but there are larger geopolitical forces moving the pieces for him. Many who had run afoul of Karki in the past have been issued CIAA summons or been hauled over the coals. 

On the pretext of investigating corruption, the CIAA has systematically targeted bureaucrats, police, politicians, professors, journalists, lawyers, civil society activists and campaigners for pluralism. The intimidation and threats have instilled a culture of silence that has been destroying our democracy and rule of law. Most politicians, civil society and sections of the media were too afraid of the CIAA to publicly denounce Dixit’s detention on 22 April.

They did not protest either when Dixit was denied access to his lawyers for a full 72 hours after his detention, a flagrant violation of Article 20 of the Constitution, which guarantees an arrested person the right to legal representation. The Federation of Nepalese Journalists issued a feeble statement signed by a junior functionary, but only after its global umbrella body, the International Federation of Journalists issued a strong statement. The Nepal Bar Association, which has always been at the forefront of the struggle for democracy in this country, refused to speak out. 

To be sure, many among Nepal’s politicians, civil servants, legislators, and even heads of sports bodies, are rotten to the core. The CIAA was set up precisely because organs of the state could be co-opted by organised criminals enjoying political protection. But today that very institution has been infiltrated and is controlled by a persona epitomising the collective scourges his office is tasked to investigate. 

What do you do when an Executive agency set up to stem the rot is itself rotten? Or when politicians whose closets rattle with skeletons keep mum? To counter abuse of authority by a constitutional body we can only fall back on two other constitutional bodies: the Judiciary and Parliament. Sunday’s Supreme Court verdict on Dixit’s case is a refreshing and timely reminder that the Judiciary has not yet been silenced, and that Nepal’s first female Chief Justice has defied pressure and acted without fear or favour to establish the rule of law. It remains to be seen if the Legislature will show the same fearlessness and stand up to this culture of silence. But then Parliament has plunged headlong into a political crisis this week.

We have been reminded that Nepal’s democracy is still fragile, our freedoms need to be protected from authoritarians in our midst. Those who remained silent during this whole sordid episode might need to be reminded of the famous message: there may be no one left to speak out when they come for you. 

Read Also:

Silenced, Kunda Dixit

Clampdown on dissent, Tapan Bose

Lok in the time of Loktantra, Bidushi Dhungel

Meaning of CIAA verdict, Kiran Nepal

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