The Supreme Court has sought copies of the Cabinet decisions taken during the tenures of former prime ministers Madhav Kumar Nepal and Baburam Bhattarai with regards to land transfers of Lalita Niwas in Baluwatar.

Justices Anil Kumar Sinha and Hari Phuyal ordered on Monday that the copies of the Cabinet decisions and other relevant documents, including the proposals that were made in relation to the transfer of government lands in the name of private individuals, be presented before the court.

The court was responding to a writ filed by senior advocate Balkrishna Neupane.

Neupane had filed the case on February 10 last year.

The court has asked authorities to present the copies of the Cabinet decisions taken on April 11, 2010; May 14, 2010; April 13, 2010 and October 4, 2012 and other documents through the Office of the Attorney General.

Nepal served as the prime minister from May 25, 2009 to February 6, 2011. Similarly, Bhattarai was the prime minister from August 29, 2011 to March 14, 2013. The Nepal-led Cabinet had decided to expand the area of the prime minister’s residence in Baluwatar by giving certain land to fake tenants.

Such a decision taken by the Cabinet on April 11 could not be implemented due to the refusal of the land reform office as per allegations made by a probe committee. Then, the Cabinet on May 14, decided to instruct the land revenue offices to implement the Cabinet decision.

The Bhattarai-led Cabinet had allegedly decided to register government-owned land in the name of a guthi. As there cannot be tenants in the government lands, Bhattarai-led Cabinet has been accused of facilitating land dealers to get hold of the prime lands through fake tenants.

“Originally, there was no ownership of any guthi in any portion of disputed government land in Baluwatar and there were not a single tenant. But fake tenants were created after bringing certain land under the ownership of a guthi just to give the land to some interest groups,” said former secretary Sharada Prasad Trital, under whose leadership the government had formed a probe committee on the Baluwatar land scam.

On February 5 last year, the Commission for Investigation of Abuse of Authority filed corruption charges against 175 individuals in relation to the Baluwatar land grab case.

The anti-corruption body, however, spared a number of key people, including Nepal and Bhattarai. The commission did not initiate action against Nepal and Bhattarai, saying even though the decisions to illegally transfer the government land into private hands were taken during their tenures, the decisions constituted “policy decisions”, which the commission cannot look into.

“If the court does not recognise those as Cabinet decisions as policy decisions, it will open the door for the commission to prosecute even Nepal and Bhattarai,” said Neupane, the lawyer who filed the petition.

Neupane in his petition had claimed that the decision to give the government land to any individual could not be categorised as a “policy decision” and it should not be immune from the anti-graft body’s investigation.

Nepal faces a possible prosecution at a time when he has been weakened in the CPN-UML, with Oli tightening the noose around him. On Monday only, the UML suspended Nepal and Bhim Rawal as members of the party for six months.

Nepal refused to comment on the court’s order.

Ever since the Supreme Court scrapped the Nepal Communist Party (NCP) and revived the UML and the Communist Party of Nepal (Maoist Centre) on March 7, things have not looked good for Nepal. Nepal had sided with Pushpa Kamal Dahal in the Nepal Communist Party (NCP), but with the court reviving the UML and the Maoist Centre, he was left with no option than to return to the UML fold.

Bhimarjun Acharya, a senior advocate, said the court order seeking copies of decisions taken by the Cabinet of Nepal comes at a time when Oli has suspended him and this does raise some questions.

“Even though the court seeking documents is a normal process, Oli appears to be in a bid to take revenge against Nepal,” Acharya told the Post. “Such tendencies of (Oli) may overshadow even the genuine issue (raised in this case).”

Another former prime minister Bhattarai, who is currently chairperson of the federal council of the Janata Samajbadi Party, termed the court order part of regular proceedings but he said that things should be viewed in a holistic way.

“The way Oli has been destroying and controlling all the organs of the state, it will lead the country towards disaster,” said Bhattarai, a fierce critic of Oli. “We must be cautious about Oli’s overall activities instead of focusing on tidbits, and if we fail to stop Oli before it is too late, the country will plunge into a crisis.”

Many legal experts and anti-corruption campaigners have for long been calling for an end to suspicious decisions which are usually given the cover of policy decisions. As per Section 4 of Commission for Investigation of Abuse of Authority Act-1991, the anti-graft body cannot investigate into policy decisions taken by the Cabinet.

“This court order shows that it wants to look into this case seriously,” said Acharya, the advocate. “Even though the court had earlier defined what a policy decision is, we can expect a comprehensive definition from the court as to what constitutes a policy decision.”

Earlier on September 24, 1996, the Supreme Court said decisions taken “collectively” by the Cabinet to fulfil promises made in the election manifesto constitute “policy decisions.” Even after that verdict, the Cabinet took controversial decisions with regards to Baluwatar land as well as many other public procurements.

“We need a comprehensive verdict regarding policy decisions,” said Acharya. “If the court says the decisions taken by the Cabinets led by Nepal and Bhattarai are not policy decisions, it opens the door for the anti-graft body to investigate and prosecute these two leaders as well as many other senior government officials.”

He said that in such a situation, the anti-graft body should investigate all people linked with the scam without discriminating against anybody.

Former chief commissioner of anti graft body Surya Nath Upadhyay said even if the court decides those Cabinet decisions were not policy decisions, the commission should establish a link between the Cabinet decision and how it benefited those involved in the decision in order to make any prosecution stronger.

The Baluwatar land scam was initially unearthed by a probe committee led by former secretary Trital and the case was pursued by the Central Investigation Bureau of the Nepal Police, before the Commission for the Investigation of Abuse of Authority moved the Special Court.

Trital told the Post that whatever decisions the Cabinets led by Nepal and Bhattarai took were not policy decisions.

“These decisions were taken by violating the laws,” said Trital. “So all those responsible for Cabinet decisions should be investigated.”

Tika R Pradhan contributed reporting.