Why Lok Man Singh is out of line

From Setopati: Nepal’s Digital Newspaper (07 May, 2016)

“My position on the Supreme Court order, Sajha Yatayat’s legal personality, CIAA’s activities, and on the matter of private property.”
Following the Supreme Court’s decision of 2 May 2016 to release me from the Commission for the Investigation of Abuse of Authority’s (CIAA) detention that began on 22 April, and my return back home from Bir Hospital with improvement in health, I hereby make the following statement.

1) The CIAA claims to be conducting its investigations on me in my capacity as the Chairperson of Sajha Yatayat, an autonomous cooperative organization, which, in my understanding, falls outside the jurisdiction and purview of the CIAA. The cooperative’s shareholders include several departments of the Government of Nepal, the Kathmandu Metropolitan City as well as common citizens. The CIAA’s interpretation of Sajha Yatayat’s status, meant purely as a means to target me as a critic of the CIAA’s Chief Commissioner, is certain to politicize and ‘governmental-ise’ this cooperative, which we have only recently (with the government’s support) reinstated as a public transport company. This action of the CIAA also has larger implications, as will ultimately be detrimental as a whole to the cooperative movement recognized in the new Constitution. Additionally, such interpretation of Sajha Yatayat’s legal personality will deal a blow to transport cooperative’s incipient efforts to provide ‘cheap, easy and secure’ public transportation in Kathmandu Valley and beyond.

Declared defunct by the then His Majesty’s Government in 2001, Sajha Yatayat was revived by a 2003 decision by Patan Appellate Court, on its conclusion that the cooperative was legally a cooperative rather than a government entity. Since my two-time election as Chairperson by Sajha’s General Assembly since 2011, the cooperative has achieved the following work:

i) A plot of the cooperative’s land in Birgunj sold by Sajha Yatayat Board decision to government-owned Nepal Telecom, following approval of the government’s Department of Cooperatives;
ii) Used the proceeds of the above sale, following necessary legal procedures and global tender process, to purchase 16 buses to help develop Kathmandu Valley’s public transportation system, with bus service re-started in April 2013.
iii) In partnership with the Kathmandu Metropolitan City, 30 additional buses ordered last month at the cost of NPR 10 crore.
iv) With the approval of Nepal Government, proceeded with plans for the ‘Sajha Southasia Centre’, a multipurpose civic centre and convention centre on the nearly 23 ropani of property owned by Sajha Yaayat at Pulchowk, Lalitpur.

2) It is my understanding that the CIAA used Sajha Yatayat, and its forcible interpretation of the cooperative as a government entity, as a backdoor entry to harass me. The goal was to try and muzzle my independent writings on and involvement in matters of civil rights, human rights and urgent geopolitical issues. This is continuation of the vindictive effort to silence those who, like me, have been vocal against the appointment of Lok Man Singh Karki as Chief Commissioner. The opposition to the Chief Commissioner’s appointment was related to his past record, but there is reason to oppose his continuing in office due to his record since his appointment three years ago.

3) Simple ethics and legal procedure would have demand that the Chief Commissioner recuse himself from investigations on matters related to me, given my recorded vehement opposition to his appointment to the CIAA. Yet, available documents on my case reveal that Lok Man Singh Karki has been leading and directing the investigations. My only recourse to the Chief Commissioner’s abuse of his authority would lie in the country’s laws and the courts. It was clear to me and my legal advisors that my arrest by the CIAA was illegal, and its decision to detain me was a violation of my fundamental rights. On 2 May 2016, the Supreme Court, responding to a habeas corpus writ petition of my spouse Shanta Dixit, decided to:

i) Release me from the CIAA’s detention;
ii) Nullified the Special Court’s sanction to detain me;
iii) Ordered the CIAA that any future investigation on me must proceed without arrest and with proper summons to appear before it if required.

I trust the CIAA will follow the honorable court’s decisions, even though it has not done so in the past on my case and those of so many others.

4) Following my release, I intend to continue to act on my belief that my arrest by the CIAA was against established laws, principles and precedents, as well as the Commission’s own guiding laws and regulations. At the centre of my position against the CIAA’s prejudiced procedure is the Supreme Court’s interim order of 5 January 2016, responding to my case before the Supreme Court against the Commission’s investigations against me. The order of the bench led by then Chief Justice Kalyan Shrestha states that the investigations by the Commission against me are in contravention of both the CIAA Act (2048) and CIAA Regulations (2056). The order clearly states any future action must clarify the authority and applicability of the relevant laws to the particular case, and that any and every activity cannot be sanctified in the name of ‘investigation’. Essentially, in my case, while the decision to proceed with investigations have to be agreed upon between the CIAA commissioners sitting together, in my case the Chief Commissioner appears to have proceeded with only one other commissioner on hand.

5) As a student of law, I firmly believe that rule by due process and the dignity of the premier judicial institution of the country is essential for social, political and economic progress. Hence, my worry over the CIAA’s flagrant defiance of the 5 January court orders in my case, which also reflected its acts of impunity in earlier cases. I would have been agreeable if the CIAA had corrected its course and conducted its investigations on me on the basis of the 5 January order, which it did not. Nor did the Chief Commissioner wait for my pending case in the Supreme Court to come up for final decision. In fact, the galloping unaccountability of the CIAA vis-à-vis the court order was evident for all to see as it continued its probing into the private, cooperative and non-governmental institutions I am affiliated with. Not only did the CIAA carry on its own un-sanctioned activities, the Commission also put untoward pressure on various government ministries, departments as well as the watchdog Social Welfare Council to look into my papers purely for its own purposes. It is important to note that many government offices, fearful of the CIAA, have created hurdles in processing standard paperwork related some these organizations.

In this sequence of obstinate moves, as the CIAA summoned me for clarification, I replied in writing with my arguments and understandings on the matter – that presenting myself at the CIAA would be tantamount to disobeying the 5 January Supreme Court order. If the CIAA was willing to be brazenly be in contempt of court, my own values did not allow me to do so. It was in the context of my response to the CIAA that I was arrested by the CIAA, deploying around 25 police officers and kept in the lock-up. This arrest has been now deemed illegal by the Supreme Court, paving the way to my release.

6) It cannot be a crime for an individual or his/her family to own property. Our state recognises the concept of private property as well as the citizen’s right to lawfully acquire and put such property to use. It is my family’s and my belief that it is not appropriate to use one’s property merely for private consumption and accumulation of further wealth – that commercial application of wealth can be made in positive and creative pursuits for public awareness and community benefit, such as through running educational, journalistic and publishing institutions.

7) The CIAA demonstrated its abuse of its constitutional, legal and ethical authority not only regarding its investigation into Sajha Yatayat cooperative, but by probing into my private, cooperative and commercial activities. It claims to be investigating me for amassing disproportionate wealth through my position as the chairperson of Sajha Yatayat, but the investigators appear uninterested in specifying what and how much wealth I have acquired since 2011 when I was elected chairperson of the transport cooperative. Instead, the investigations have shown inordinate interest in the ‘amassing’ of familial property since even before I was born. Likewise, the CIIA continues to investigate my involvements in cooperative, commercial and non-governmental institutions. Rather than investigating the complaints made against me by unnamed sources, the CIAA has publicized the unsubstantiated and un-investigated complaints through its public notices. Further, the CIAA even saw fit to leak the property details that I had voluntarily submitted to it, as if they were the outcome of its heroic investigations. These property details were presented to news outlets through the medium of the state-run news service Rashtriya Samachar Samiti (RSS). In time, I will be seeking answers and remedies to these ethical and legal violations.

8) Like all responsible citizens, I would hope that a powerful body such as the CIAA would act with responsibility and accountability under the law. Its scrutiny over public officials, when done without prejudice, will help in guiding society and economy towards good governance and prosperity. But if the CIAA chooses to exploit the public’s legitimate concerns over corruption in our society to start a populist campaign to carry out personal vendettas, settle political scores and be a wiling tool of geopolitical ‘designs’, then the government will find it difficult to function, and the country will be doomed to instability and crisis. The CIAA’s present authoritarian streak has over the past couple of years unjustly hurt the reputation and morale of many law-abiding citizens and public officials, and any diligent study will show that the Commission’s overall activities has actually weakened state institutions as well as the drive for development and good governance. The CIAA should not be misused as someone’s private institution, to be deployed as a tool for aggrandizement and vendettas.

The CIAA’s team does include commissioners with the same constitutional rights and duties as the Chief Commissioner himself, individuals who have a clean public record and demonstrated expertise in administrative and academic arena. There would be a surge in the citizens’ hopes and expectations of the CIAA if these commissioners would be proactive in saving the institution.

9) I have the following request to make of the Chief Commissioner of the CIAA: please follow the legal directives and precedent set by the Supreme Court in the several judgments and orders it has passed against the CIAA, including by the immediate past Chief Justice as well as the sitting Chief Justice. The Chief Commissioner is duty bound to act within the legal and ethical bounds defined by the court in these judgment and orders. If not, many other law-abiding citizens and officials are likely to be wrongfully prosecuted by the CIAA in the coming days, and overall there would be a brake on the wheels of governance and socio-economic development. Can an important and influential body such as the CIAA ignore ethics, norms and laws of the land? And if it does so, can the informed citizenry afford to stay mute?

10) The Supreme Court’s order for my release under the habeas corpus petition has given me renewed energy to fight for rule of law, civil rights and good governance. I received much encouragement from my colleagues and friends who spoke out against the CIAA’s illegal and arbitrary detention, from Nepal, from Southasia and from across the seas. I also realize that there is a trend of authoritarian forces becoming more innovative in their attempts to silence dissent and independent voices, not just in Nepal but all over Southasia. Now free and also discharged from Bir Hospital, I thank all fellow-warriors, particularly the lawyers and journalists, who understand the level of danger the CIAA’s topmost leadership represents to our society. I also express gratitude to the medical professionals for their support, as well as the police hawaldars and jawans for their kindness. And family, of course, is family.

(Kanak Mani Dixit was released from CIAA detention by the Supreme Court on 2 May 2016, Monday, and from Bir Hospital on Thursday. This statement is translated from the original Nepali.)

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