Attorney General Bhandari's Tenure Marked by Controversial Decisions

Kathmandu. The Attorney General Savita Bhandari, who served as the legal advisor to the interim government led by Sushila Karki, spent her tenure making controversial decisions.

From her appointment as Attorney General until the final moments of her term, she could not remain free from controversy.

Decisions made in various cases, including granting acquittal to a clinic linked to her own daughter in an egg trafficking case, drew Bhandari into controversy.

• Decision to Withdraw Cases of Money Laundering and Organized Crime Involving Rabi Lamichhane

On Poush 30, Attorney General Bhandari decided to amend and withdraw the cases related to 'Organized Crime' and 'Money Laundering' in the cooperative fraud cases involving Rabi Lamichhane, chairman of the Rastriya Swatantra Party and former Home Minister.

In a seven-page 'Comment and Order' from the Attorney General's Office, instructions were given to the District Government Attorney Offices to only press charges against Lamichhane for cooperative fraud and drop the other two serious charges.

Following the filing of a writ petition in the Supreme Court against this decision by the Attorney General, the applications to withdraw the claims of 'Organized Crime' and 'Money Laundering' in the cases pending in the District Courts of Kaski, Kathmandu, Rupandehi, Chitwan, and Parsa concerning Rabi Lamichhane have currently been stayed.

• 'Clean Chit' to Her Own Clinic Involved in Egg Trafficking

Bhandari, who assumed the responsibility of Attorney General on Bhadra 29 after the formation of the interim government driven by the Janji Andolan (People's Movement), made a decision right at the start to give a 'clean chit' in the egg trafficking case involving a clinic connected to her own daughter.

Although widespread opposition arose against her first decision as Attorney General, Prime Minister Sushila Karki remained silent. Widespread criticism followed the decision by the legal advisor of the government formed by the Janji Andolan to not prosecute those involved in the egg trafficking case concerning the clinic she was associated with, 'Hope Fertility and Diagnostic Pvt. Ltd.'

Deputy Attorney General Sanjeev Raj Regmi of the Attorney General's Office signed the decision not to prosecute the doctors at the clinic. Although Attorney General Bhandari claimed she was not involved in that decision, she will have to take responsibility since a Deputy Attorney General under her jurisdiction signed it.

The police had initiated an investigation against two clinics in Kathmandu for allegedly collecting eggs illegally from young girls and selling them to infertile couples for the purpose of childbirth.

The case file was closed after the Attorney General's Office decided not to proceed with the case, even though the government lawyer's office was preparing to move forward after completing the investigation against Hope Fertility and Diagnostic Pvt. Ltd. operating in Babar Mahal and Angel Fertility Clinic operating in Maharajgunj.

The Bureau had arrested five individuals, including three doctors from Hope Fertility and Diagnostic Pvt. Ltd. Those arrested were Dr. Asim Adhikari, Dr. Swasti Sharma, Dr. Malina Chaudhary, Justina Pradhan, and Alisa Oli. Among those arrested, Dr. Swasti Sharma is the daughter of Attorney General Bhandari's maternal aunt (a sister by relation). The Kathmandu District Court had released the accused on personal appearance bond after ordering an investigation while they remained out of custody.

The constitution grants the Attorney General very significant authority. Article 158, Clause 2 of the Constitution states, 'The Attorney General or government lawyers under his/her authority shall represent the Government of Nepal in cases where the right, interest, or concern of the Government of Nepal is involved. Except where otherwise provided in this Constitution, the Attorney General shall have the final authority to institute or not to institute proceedings before any court, judicial body, or authority on behalf of the Government of Nepal.'

It has been commented that the Attorney General's Office has been making decisions according to its self-interest based on this provision mentioned in the Constitution. In particular, the Attorney General is responsible and accountable to the Prime Minister. Article 157, Clause 2 of the Constitution states, 'The President shall appoint the Attorney General on the recommendation of the Prime Minister.'

• Decision Not to Appeal in Minor Rape Case

Another controversial decision made by Attorney General Bhandari was not to appeal in a sensitive case concerning the rape of a minor.

This was Bhandari's second controversial decision after becoming Attorney General. On Kartik 16, she decided not to appeal in the Supreme Court against Sushil Chataut, the accused in the case of the rape of a 13-year-old minor.

The Attorney General's Office provided two grounds for not appealing in the minor rape case. The first ground was that the victim girl submitted an application not to pursue the case further, and the second was that the victim gave testimony in court contrary to what she stated during the investigation. Based on these two grounds, the Attorney General's Office decided not to appeal.

The Lalitpur District Court had sentenced businessman Chataut to 18 years and one month in prison and ordered him to pay eight lakh rupees in compensation for the charge of raping a minor girl. However, the Patan High Court overturned that verdict and acquitted Chataut in Jestha of 2081 BS. Chataut was accused of raping a girl kept under his own care.

Article 158, Clause 2 of the Constitution mentions that the Attorney General has the final authority to institute or not institute proceedings on behalf of the Government of Nepal. However, the Supreme Court has clarified that such authority cannot be exercised arbitrarily.

In a writ petition filed after the decision was made to prosecute some accused and not others in the case of the rape of Police Constable Suntali Dhami, the Supreme Court interpreted this matter. The bench of then-Justices Balram KC and Bharat Raj Upreti ruled in 2067 BS that the fundamental right to justice guaranteed by the constitution was violated by the decision of the government lawyer's office, leading to the case being reopened. The Supreme Court mentioned in its verdict that since the government provides legal defense and other services on behalf of the victim until the final stage, the government cannot evade this responsibility.

This verdict is published as a precedent in the Nepal Law Gazette. Precedent is applicable like law.

In the final moments of her tenure, just last Sunday, Attorney General Bhandari decided not to let a government-initiated case related to tax evasion reach the court. This was despite the fact that the District Government Lawyer's Office in Lalitpur, in coordination with the Attorney General's Office, had initially decided to proceed with the case after determining that the Internet Service Provider company WorldLink had evaded taxes.

The Inland Revenue Department had submitted an investigation report to the District Government Lawyer's Office in Lalitpur with the opinion that a case should be filed against WorldLink and its directors/officials for tax evasion and misappropriation of telecommunication service fees. That report was decided by the District Government Lawyer's Office not to proceed with the case, went through the High Government Lawyer's Office, and reached Attorney General Bhandari, whose endorsement on Sunday means the government can no longer make a legal claim for the revenue.