Judges are not allowed to be arbitrary

Based on the decision of the authority dated 8th December 2079, he was suspended from the letter dated 12th December by the Secretary General of the Parliament. Gurung was elected as a member of the House of Representatives from Manang in the general election 2079. In this way, the suspension was lifted without even revealing any law on the power of the authorities and the court order. Speaker Devraj Ghimire, who was adamant about lifting the suspension of Congress MP Gurung, gave up his stance only after the full text of the verdict came out.

MP Gurung was found guilty by a special court on 15 February 2079 in a corruption case related to the operation of 60 ropani land of Fun Park in Kathmandu. It was also decided to impose a fine of Rs. His appeal is pending in the Supreme Court. Decisions and letters to automatically suspend him based on the decision of the authority and the letter of the Secretary General Article 20(5), 87, 246(3) of the Constitution of Nepal, Article 9 of the Parliament Secretariat Act 2064, Rule 248(3), (4) of the House of Representatives Rules 2079 It has been canceled on Chait 16 as it is flawed in terms of usage and interpretation. Article 20, sub-section 5 of the constitution, which was used as the basis for suspending

, states that "a person who has been charged under the right to justice shall not be considered guilty until the crime committed by him is proven." All citizens will get the constitutional guarantee. Accordingly, it was seen that a ground was taken for lifting the suspension that the offense was not proved. There is no dispute that MP Gurung was convicted and fined in the corruption case. He has been found guilty.

Article 87 only prescribes the qualifications for being a member of the Federal Parliament. This article does not mention whether the court has found him guilty or not. Article 246(3) provides that the election commission shall decide if a question arises regarding the qualification of a candidate who has been nominated as a candidate for the federal parliament but the election result has not been announced. According to that provision, if the complaint filed while he was a candidate was determined to be fined by the decision of the special court, he was elected as a candidate because there was no obstacle until he became a candidate.

Section 9 of the Federal Parliament Secretariat Act 2064 provides for the work, duties and powers of the Secretary General. It does not include the authority to notify the MP of suspension based on the authority's decision and letter. For the same reason, it seems that the general secretary's letter is against the law. Based on Rule 248(3) and (4) of the House of Representatives Rules 2079, in accordance with the provision in Rule 248, information about the arrest of a member must be given immediately to the House, in accordance with Sub-Rule 3, anyone who is in custody or absconding from any court in a criminal case punishable by imprisonment for three years or more or showing moral turpitude. In such a situation, there is a provision that the member cannot do any work and will remain suspended.

In sub-section 4, if a member is sentenced to imprisonment by a court decision in a criminal case, such member shall be deemed to be automatically suspended for the entire period of imprisonment, or if he is serving the prison sentence, or if the payment is pending or until the imprisonment is not paid after being arrested, such member is automatically suspended. According to this, it seems that the grounds for lifting the suspension are based on the fact that there is no sentence of imprisonment and there is no need to stay in prison.

The controversial MP Gurung has been found guilty of corruption under the Prevention of Corruption Act 2059. According to Section 33 of the same Act, there is a special legal provision in which a national servant is incarcerated on corruption charges and if a case is filed in a special court authorized according to Section 36, he will be automatically suspended until the case is resolved. In Section 3 of the Civil Code 2074, it is mentioned that "if there is a separate provision in the existing law for the matter regulated by this Code, the provision of this Code shall not have any effect on such matter".

Similarly, in section 5 of the Criminal Code 2074, it is said that 'if there is a provision to punish a specific act as a separate offense by a specific law, the same law shall be applied in relation to such offence'. In this way, it is found that the special laws made separately do not apply to the general laws. Corruption law is a special law. A special law is needed. There is no dispute that the post of MP is a national servant. Section 33 of the Prevention of Corruption Act has made a mandatory legal provision that any civil servant who is charged with corruption will be automatically suspended as soon as the corruption case is filed. Any dispute or question arising out of the

issue should be followed by due process of law. The legal recourse in relation to the verdict in Gurung's corruption case or any order created by that case is an appeal or an application for an order. Only if there is no legal provision of remedy in relation to the case, one cannot enter into the area of ​​writ of exclusive right to be adopted.

However, without taking the path of legal remedy, by entering the writ area of ​​special rights and trampling the pending appeal, the Supreme Court took the writ area which should not be accepted and ordered the suspension to be lifted. It is not found that there is any constitutional or other legal provision to invalidate the provisions of the Special Act on Corruption. Even the joint bench of the Supreme Court has not interpreted the section 33 of the Corruption Act 2059 and explained that the provisions of this act cannot be applied to the MPs.

According to Section 5 of the Evidence Act 2031, according to the provisions of the Constitution and Laws, the Court should take information on its own, the Prevention of Corruption Act 2059, and the precedents of the Supreme Court. It has been explained by the Supreme Court in various disputes that special laws are applicable and not general ones. (Full Bench Rukmashamsher Rana v. Council of Ministers, NECAP 2054 No. 6304 No. 1, p. 8).

The law has been misinterpreted by the Supreme Court's order not to suspend MPs as if they had not committed a crime if they were fined in a corruption case. According to this interpretation, the defendants, including the widebody corruption cases, who were automatically suspended due to the corruption case, will also claim that the suspension be lifted. This order of the Supreme Court may create a situation where there will be no suspension if there is a corruption case not only against any parliamentarian but also against any public servant tomorrow. It does not mean that MPs who have been convicted of corruption will get benefits and others will not. Now it is natural if the defendants in the cases like Nepal Airlines, Security Printing Press and others demand the suspension to be lifted based on the example of Gurung's case.

The owner of Pappu Construction and the then MP of Parsa-3 Harinarayan Rauniyar was suspended on 21 October 2075. The Supreme Court explained that the suspension cannot be lifted as the rules of the House of Representatives do not narrow the provisions of the law on corruption. The bench of Chief Justice Deepak Kumar Karki and Nahkul Subedi said that the said provision of the regulation could not be interpreted as limiting, curtailing or rendering ineffective the special provision in the Act with regard to corruption cases. While ordering the lifting of the suspension in the case of Gurung, it should have been sent to the full bench if it did not agree with the explanation given earlier by the joint bench in Rauniyar's case. Failing that, the suspension was quickly lifted.

When Gurung was fined in the corruption case, the question has been raised that what do the Chief Justice and judges say about the misinterpretation of the constitution and the law so that the charges are not suspended. Is it possible to sit on the bench and act casually? Can the Chief Justice and other judges say that this order is correct? The entire judiciary has been accused of misinterpreting the Supreme Court, doing party politics for the MPs and the powerful, and creating a liberal new jurisprudence for the corrupt. The belief of the West that whatever the judge says is the law has been shaken. If this order is correct, it should be announced publicly by the Chief Justice. If not, the Chief Justice should automatically take this order into judicial notice.

Now the Chief Justice has to do two things. Even if the petition for first party review is not received, a continuous hearing should be initiated in the full bench. Secondly, regarding whether or not this order is against the constitution and the law, an investigation should first be carried out by the senior judges of the Supreme Court, as in the drug case of Gordon Williams Robinson and the 669 kg hashish case of Dil Bahadur Gurung. Robinson, who was arrested at Tribhuvan International Airport with 2 kg 315 grams of brown heroin, was sentenced to 17 years imprisonment and a fine of Rs 10 lakh by a special court on 18 November 2059. Supreme Court Justices Krishna Kumar Burma and Baliram Kumar acquitted Robinson, later reversed by a full bench. The judges were forced to resign after being investigated by the Supreme Court.

Dil Bahadur Gurung, who was caught red-handed while sending 669 kg hashish to Canada, was sentenced to life imprisonment by the district court. The Court of Appeal upheld the district's decision. However, a single bench of the then Supreme Court judge Parmanand Jha ordered Gurung's release on 9 July 2062. After widespread criticism of the order, an inquiry committee was formed on August 7, 2062 under the chairmanship of the then Supreme Court judge Anupraj Sharma with Ram Prasad Shrestha and Khilraj Regmi as members. After the committee found him guilty, he was demoted and sent as Chief Justice of Biratnagar Appellate Court. Some judges have resigned and stayed at home due to wrong orders and judgments.

This order regarding Gurung has defied the rule of law and good governance. If this order continues, the political leaders will be happy, the Congress will be even happier. Tomorrow, other leaders will also rejoice in the self-confidence that they will benefit from this order. But this prejudicial order is making the country's judiciary, late Chief Justice Hariprasad Pradhan, Vishwanath Upadhyay and former Chief Justices cry. Not only a sitting judge or a former judge, not even a lawyer can say that this order is correct.

Gurung, who was found to be corrupt, has now reached the role of law-making legislator. He will not only be involved in anti-corruption policy making by sitting in various parliamentary committees, but he will also preach to judges, police and professors. A person who is found to be corrupt will make laws for good governance and legal order. There should be a constitutional interpretation on whether a person convicted by the court in a corruption case can work as a member of parliament or not. Keeping this dispute alive is like declaring that justice is dead in Nepal. There will be no future of justice. Nepal will be heaven for corrupt people. Now it is in the hands of the Supreme Court to decide whether to give justice to Nepali citizens or make the country a 'paradise' only for corruption.

– Karki is the former president of the special court.