Skeletons in the closet
- Anti-corruption drives must focus on preventing corruption, instead of focussing solely on digging into the past
Sep 10, 2014-
The newly elected president of the Federation of Chambers of Commerce and Industry (FNCCI), the apex body of Nepal’s private sector business community, has been dragged into serious controversy over corruption allegations made almost 36 years ago when he worked as an account officer for the government’s Department of Water and Sewerage. The issue came up during FNCCI elections in April 2014, but has died down since. Many took it as a smear campaign by his electoral opponents. However, the Kathmandu District Court’s decision of August 29 in regards to a writ petition charging him with not completing his penalty terms has not only made his newly acquired presidential position shaky, but has also brought to the fore a host of questions related to how we deal with past corruption crimes, whether convicted or not.
The case of the president-elect
It has been reported in the media that president-elect Pradeep Jung Pandey was charged with corruption by the then constitutional anti-graft agency, the Commission for the Prevention of Abuse of Authority (CPAA), the predecessor of the present-day CIAA. It has also been reported that on June 20, 1984, the Appellate Court convicted Pandey of the crime and ordered that he be relieved of his job with a penalty of a three-year jail term, a Rs 5,000 fine and that Rs 965,782.75 be recovered from him. The writ petitioner at the Kathmandu District Court alleged that Pandey had only served five months in total and hence, his sentence of a year, nine months and 27 days was outstanding.
The petitioner and the defendant may have their own points of view over this legally complicated case involving a high-profile individual but it poses to us an interesting question: How should we deal with corruption crimes committed in the past?
The first and most important question that comes to mind is the extent of retroactive application of the law or laws. Say, Pandey, the FNCCI president-elect, had, as reported in the media, committed the crime and has yet to complete his penalty terms, should we open up the closet now?
In that case, one may be tempted to bring in the case of convict Charles Sobhraj, now fighting a legal battle against a crime he committed decades ago. The issue, however, is totally different. First, unlike Sobhraj, who happened to be a fugitive on the run, Pandey is very much a respectable citizen living and doing business in Nepal. If he was involved in corruption in the past, what kept the judicial administration quiet for so many years? And who is to be responsible for this delay by the court?
Another question that comes into mind is: Why was Pandey released after serving only five months in prison? If he was released on grounds of good behaviour, there is no point in bringing a case against him now.
A question also revolves around the FNCCI electoral code of conduct. If the code had specified qualifications for the president, why was Pandey allowed to contest the election in the first place? To what extent of time can one stretch the FNCCI code of conduct? Will he now step down on moral grounds? What will the FNCCI do? Most probably, the institution will keep quiet, as the subject matter is sub judice at the courts. But what will happen if the notoriously slow judicial system gives its verdict after the president’s tenure has expired? This could only be a time buying strategy, but it will not solve the problem. More delays means further tarnishing of the institution’s image.
While it is true that the verdict of the court cannot be dismissed, there have also been a lot of changes over the last 36 years. Not only have Nepal’s approaches to anti-corruption laws and institutions changed, even the regimes have changed. The important question here is to ask: Can we file corruption charges against somebody for crimes committed during, say, the Rana regime? Obviously, there can be two voices. Some may say yes while others may say no for pragmatic reasons. Let me remind readers that anti-corruption agencies in a few other countries, such as the Anti-Corruption Commission (ACC) in Bangladesh, are literally swamped with tens of thousands of backlogged corruption cases handed to the agency from the past, stretching back to its independency days. Our situation is not as bad as that of the ACC in Bangladesh but someone visiting the CIAA repository room for corruption complaints can easily get a feel of the situation. To the best of my knowledge, there must be over 100,000 corruption complaints bundled in plain white cotton with marked numbers.
In the aforementioned FNCCI case, the court has already issued its verdict. The issue now is with the completion of the remaining prison term and, more importantly, the legitimacy of the electoral code of conduct. However, the case also opens up the issue of how we deal with past corruption crimes in a new setting? The law bars political leaders convicted of corruption from contesting elections for only six years. (However, it has been reported that political parties are negotiating to introduce a lifetime ban for politicians convicted of corruption.) If there can be an exception for politicians, why cannot the same be applied to others?
Interestingly, during the last CA elections, we did not see any of the big-wig convicted political leaders, who had completed their prison terms, contesting elections. Maybe they decided to stay out of politics on moral grounds or maybe they expected to lose. However, we have seen the heroic welcome accorded to them by their supporters when they were released from the prison after completing their terms.
What is to be done?
Many anti-corruption experts believe that an effective anti-corruption campaign cannot be launched by indulging in crimes committed long in the past. There are pragmatic and moral reasons for this. First, limited resources may be wasted investigating past crimes. Second, there can be allegations about personal vendettas or attempts to settle scores. Third, the crime may have been committed in a different context and it may not be relevant to judge the crime by today’s standards.
So what could be the possible options? Bertrand de Speville, former commissioner of the world renowned Hong Kong anti-corruption agency, the Independent Commission Against Corruption (ICAC), writes of six possible options, ranging from ‘doing nothing’ to declaring amnesty. In between, are options like establishing ‘truth and recompilation’ type commission; restricting new laws from being applied retroactively; establishing a separate channel to deal with past crimes; or fixing a clear line of demarcation to investigate past corruption crimes.
In any case, an anti-corruption drive should focus on preventing present and future corruption, rather than simply digging into the past.
Manandhar is a freelance consultant with an interest in corruption and governance issues
Published: 11-09-2014 09:13