No one is above the law but some crime accused seem to be, in Nepal

Nepalis are well familiar with the extractive nature of the state. Political elites enjoy better facilities than ordinary people. The fake Bhutanese refugee scam, according to observers, further exposes institutionalized forms of discrimination.

NL Today

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Kathmandu: The arrest of those accused in the infamous fake Bhutanese refugee scam was a (pleasant) sight for the Nepalis who are sick of lack of rule of law, corruption and misgovernance. 

Police arrested around 16 persons so far in connection to the crime. Most of them appeared to the public with masks, handcuffed.

This was not the case with all of those arrested in connection to the refugee scam. 

Two were the exceptions: Former Home Minister Bal Krishna Khand and former Deputy Prime Minister Top Bahadur Rayamajhi. 

While others were being led to the court in police chains,  Khand and Rayamajhi were walking, putting on a confident face and in celebratory countenance without any sense of remorse and guilt, without handcuffs. The two are reportedly being placed in well-equipped luxurious rooms.   

The different treatment received by the two former ministers exposes not only how the so-called VIPs are given undeserved facilities in prison but also how the state discriminates between those who are powerful and the powerless, or those with influence and connections and those without.

As of now, if the refugee scam has exposed anything big, it is the discriminatory behavior of the state.  There is an open double standard here. Khand and Rayamajhi are not handcuffed,  while the rest of the other accused are.

This has raised a question: Is there discrimination in justice delivery as well? People are outraged. On Sunday, as Khand was being taken to the District Court, Kusum Khadka, a common citizen shouted: “ Why hasn’t he been handcuffed? He is the one who is selling out the Nepali people by making them refugees?” Khadka is the representative of all those who are angry with the authorities for treating the accused differently. 

Every accused is equal in the eyes of law, unless they are proven innocent they are accused. Every accused should be treated in the same way, said Subhash Adhikari, who has been raising a campaign against corruption.  Either every accused should be handcuffed or none should be.  The state cannot give special treatment to former ministers, he added.  According to him, the discriminatory behavior by the police has challenged the constitutional norm that everyone is equal in the eyes of the law. “This is an open discriminatory behavior by the state.”

Sushil Thapa, another anti-corruption campaigner, has a similar view. “Different treatment by the police to those holding political posts in the same crime raises the question of impartiality in implementation of law,” he said. According to him, such a practice erodes people’s trust in the justice system. He argues that such a practice needs to be corrected.

Public react with rage

The state-sanctioned discrimination is stark in the medical care between the common people and the politicians. While the common people have to walk from pillar to post to secure government’s assistance of Rs 100,000 for the treatment of serious diseases, the government allocates millions for the treatment of minor ailments of the political leaders. While the politicians have easy access to all kinds of facilities, people have to struggle for the same.

Bishodeep Lamichhane, civic activist, is angry with the way the so-called VIPs are being treated. “They say the law is blind, the refugee scam showed the same,” he said, referring to how the state authorities turn blind eyes to the notion of equality when it comes to dealing with commoners and powerful people. 

Other observers also smell a rat. Chyawan Ghimire says the discriminatory behavior reflects the intention of the state to protect the powerful. “This has raised a question of whether the state is actually trying to protect the criminals with access to political power,” he said. 

Nepal constitution has ensured the right to equality. Article 18 of the constitution states: “All citizens shall be equal before law. No one shall be denied the equal protection of law.” Legal experts, however, believe that the discriminatory treatment by the state agency does not go in line with the constitutional provision of equality.

Former secretary of Supreme Court Bar Rishi Ram Ghimire said “‘no one is above the law’” is not just a saying.” Nobody should get special privilege before the law, he adds.

“Generally, police handcuff the accused to ensure that no one skips the process. It does not mean that only high profile politicians do not flee and ordinary citizens do. Double standard of the state in the similar type of crime is not acceptable in democratic regimes.”

There is even no ground to claim that high profile accused do not flee. For example, Top Bahadur Rayamajhi was at large for days since the police issued the arrest warrant against him. It is one thing for the police to be assured that the crime accused do not escape from the authority, says Satish Krishna Kharel, expert on criminal law.  “But they need to prove that they have not treated the accused in a discriminatory manner,” he said.  “Look, some have been kept in the prison cells while others are in luxurious rooms with beds. Discrimination is open and clear.”