Says court's interference could end AG's institutional, functional autonomy
KATHMANDU, MAY 1
Chair of Rastriya Swatantra Party Rabi Lamichhane today submitted a written reply to the Supreme Court in response to a case filed by Yubaraj Paudel 'Safal' saying that he did not commit passport offence as claimed by the petitioner.
Lamichhane argued that Attorney General Dinmani Pokharel's March 20 decision not to prosecute him under Passport Act was in line with his constitutional power granted by Article 158 (2) of the constitution and the court had no authority to interfere with the AG's institutional and functional autonomy.
He stated that he did not obtain Nepali citizenship with the intention to commit passport offence and his passport was rendered invalid when the SC declared that his Nepali citizenship did not remain valid after he obtained American citizenship.
Lamichhane argued that Article 158 (2) of the constitution gave the Attorney General the final authority to take a call on whether or not a case should be filed and that should be a final decision. He said the AG enjoyed functional independence and professional immunity under Article 158 (2) of the constitution, which was also endorsed by the SC in a case law 20 years ago. He said that Article 133 of the constitution which allows the SC to use extraordinary powers cannot render Article 158 ineffective. These two articles are not contradictory but of equal prominence, he argued. He said the power exercised by the Attorney General and his office, including by government attorneys under delegated power, was in line with the adversarial system of prosecution which Nepal practises and if the court interfered with this system, it could alter the prosecution system into an inquisitorial one which was not the spirit of Nepal's laws and legal system.
He added that if the court interfered with the AG's decision on prosecution, then it could end the AG's institutional and functional autonomy.
He said the AG's decision not to file case against him was right in that there was no victim, no embezzlement of public property or abuse of public authority. Hence, the AG's decision was right. He said he did not use his Nepali passport.
The SC had issued a show cause notice to defendants. Safal filed a new writ petition against Lamichhane after AG Pokharel decided not to file case against him.
Stating that Lamichhane had obtained Nepali passport on 27 May 2015, when he was an American citizen, Safal argued that Lamichhane should be punished for obtaining Nepali passport by concealing the fact that he was an American citizen when he applied for Nepali passport.
Lamichhane had obtained Nepali citizenship on 22 February 1994, became a US citizen on 5 March 2014, and renounced his American passport on 28 June 2018.
Safal argued the AG had exceeded his brief when he decided not to file case against Lamichhane and thus his action was arbitrary and malicious, which obstructed delivery of justice. He urged the court to quash the AG's decision not to file case against Lamichhane and direct the OAG to file case against him under passport laws.
Lamichhane said the petitioner filed the petition against him ahead of April 23 byelection to ruin his election prospect in Chitwan-2 constituency from where he contested the election.
A version of this article appears in the print on May 1, 2023, of The Himalayan Times.
