Allegation of Rape, and constitutional provisions: Ramifications of the Mahara-Shahi case

Reporters Club: The recent allegation of rape and abuse to Ms. Roshani Shahi a government employee by former Speaker of the House of Representatives and Senior Leader of the ruling Nepal Communist Party Krishna Bahadur Mahara has taken national headlines by storm. It has also brought the attention of global media in this matter putting the image of Nepal in a peculiar condition.

In order to bring the constitutional remedies and challenges ahead to elect a new speaker, and the constitutional provisions regarding such a sensitive matter a press interaction program was organized at the Reporters Club Kathmandu, which was presided over by the President of the club journalist Rishi Dhamala.

This press interaction program brought in several legal experts to bring in their opinion regarding the entire matter. Speaking at the press interaction program General Secretary of the Nepal Bar Association Lila Mani Poudel said that “the provision enlisted in our constitution does not allow a speaker of the same party to hold the position, and it also enlists that the position has to be equally distributed among different genders”.

(General Secretary of the Nepal Bar Association Lila Mani Poudel) 

Talking about the Mahara-Shahi case, Poudel further stated that “there needs to be a fair investigation regarding the entire matter that has brought national attention. The victim, in this case, has not formally filed any FIR, and she has been changing her statements regularly making it difficult for the police to ascertain the facts. The allegation of rape has to be thoroughly investigated upon, and there should be no external influence regarding this matter.

If found that the victim is hostile toward the investigative team, and in case of no cooperation then there are provisions of penalty and incarceration. Mahara has submitted his resignation, and will no longer be in position. The parliament is not in session, so it will be informed by the Deputy Speaker of the house when the winter session begins”.

Former Vice-President of the Nepal Bar Association Tika Ram Bhattarai said that “the matter will only resolve after the formal completion of the investigation by the Nepal Police. The new parliament session will formally take its course in selecting a new Speaker for the House of Representatives.

(Former Vice-President of the Nepal Bar Association Tika Ram Bhattarai)

If found guilty then Mr. Mahara would have to resign and give his membership up as the Member of Parliament too, but if found innocent and he gets a clean chit from the investigative team then there is a small window of opportunity through elections that he can be reinstated into this position, although the law states that both the Speaker and the Deputy Speaker cannot be from the same party.

Similarly, if Roshani Shahi is found to give misleading statements, then not only will she be charged with cybercrime, she will also be penalized for character assassination. The victim, in this case, has to comply and provide total cooperation including various procedural methods such as DNA, lodging a formal FIR, and providing factual details regarding the entire incident”.

Former Vice-President of the bar association Bhattarai further said that “the current news in the media regarding the incident and changing statements will not help the investigating team and will further complicate matters. There has to be one single stance, and while women have respect, so do men, and character assassination is also against the constitution and a crime. There are various provisions regarding the allegations of which if any proof that the former speaker is guilty then for rape there is a provision for 15 years of imprisonment, for violence against women there are 3 years of imprisonment and for outraging modesty and slander there is a provision for imprisonment of 1 year.

The police will determine through its investigations as to what form of crime has taken place, and that if the lady is entirely mentally unfit then that has to be proven as well in order to bring out the necessary truth regarding the case”.

Speaking at the program Dr. Chandrakant Gyawali a constitutional expert said ” we have a democratic multi-party system where 165 members are now legally eligible to be the new Speaker of the House of Representative, although the provision states that one party cannot have both the positions so there will be a new Speaker when the parliament session begins according to procedures followed by the ruling of the house”.

(Dr. Chandrakant Gyawali) 

Talking about the case Dr. Gyawali stated that the victim has approached the legal authority by informing them over the phone dialing the 100 number, which is enough for the police to investigate into the matter although a formal FIR needs to be filed.

The victim, in this case, has been changing her statements and turning hostile toward the investigating team which is posing hurdles to get to the bottom of the truth, although the Supreme Court in the case of Annapurna Rana had granted the right to privacy and self-determination. The victim here has to cooperate with the investigating unit, and also take a stand and bring in factual details of the incident and her allegation.

A person is innocent until proven guilty, so if this matter lingers and the former Speaker gets a clean chit then he can retain his seat as a Member of the Parliament and also through the process of elections come back as the Speaker but which is highly unlikely.

The police also have to provide and look into the matter of whether the victim is in a position of being threatened and the case influenced. It is an unfortunate incident that has ruined the image of not only the respectable position of the Parliament but also the country”.

Finally speaking at the program Ms. Laxmi Dahal Rawal General Secretary of the Nepal Democratic Lawyer’s Association stated “an impartial free and fair investigation needs to take place regarding this incident. There should be zero tolerance towards such crimes, but we must investigate this matter holistically to bring out the real truth. We cannot let such incidents repeat again, and if proven innocent then the victim, in this case, will be penalized for trying to character assassinate the Speaker of the House which is an extremely honorable position in the Parliament”.

(Ms. Laxmi Dahal Rawal General Secretary of the Nepal Democratic Lawyer’s Association) 

Secretary Rawal further stated that “if the victim is depressed or mentally ill then it needs to be certified from a Doctor”. Regarding the incident, she said “we cannot let the powerful get away with crime and abuse authority, there has to be an impartial investigation into the matter, while at the same time a counter case of character assassination can be filed if proven innocent. This case has ruined the image of the country and has proven to be a big disaster”.

While the experts spoke regarding the aspects and constitutional remedies regarding the case, it is still unclear that why the victim turned hostile giving a different statement to the media within 24 hrs. of her first accusation. It is also questionable that as a patient suffering from depression why was she under government service and whether this was recent or recurring? A thorough physical examination is required as the victim in her video looks physically and emotionally traumatized.