Off the hook
- The draft constitution seeks to limit the powers of the Commission for the Investigation of Abuse of Authority
Jul 14, 2015-
There is a paradox that affects every anti-corruption agency: If it does anything, it is blamed for doing it, and if it doesn’t do anything, it is blamed for doing nothing.
Nepal’s constitutional anti-graft agency, the then Commission for the Prevention of Abuse of Authority (CPAA) and its present day avatar Commission for the Investigation of Abuse of Authority (CIAA), has come a long way with marked vicissitudes. The CPAA, conceived in 1975, was established in 1977. Its delayed birth indicated that the regime in power then was not serious about tackling problems of corruption, especially those of a grand scale. To deal with petty corruption, the Special Police Department existed within the Ministry of Internal Affairs. Saving the lone case that goes by the name of the ‘Carpet scandal’, the CPAA remained defunct despite having sweeping powers to investigate, prosecute and adjudicate on corruption.
The end of Panchayat regime in 1990 gave birth to the present day CIAA, limiting the agency to investigating and prosecuting corruption. The adjudication power rested with the judiciary. For more than a decade, the body remained defunct and defanged until new anticorruption laws were drafted in 2002. The time between 2002 and 2004 marked the glory days in the history of the CIAA. However, with political regression, the body was overshadowed by the establishment of another powerful agency called the Royal Commission for Controlling Corruption (RCCC) in 2005. The Supreme Court eventually declared the RCCC unconstitutional in 2006. Meanwhile, the CIAA remained without a leader for eight years (2006-2013).
How lawmakers made a joke out of the CIAA can be evidenced by the appointment of a commissioner without first appointing the Chief Commissioner in 2011. In the absence of a Chief Commissioner before whom the appointed commissioner was to take oath, the latter had nothing to do for two years until Lokman Singh Karki was appointed as chief commissioner in 2013. No one is sure why and how Karki was appointed to the position. However, one thing is sure: the CIAA has become an abomination for politicians.
The committee formed in the first Constituent Assembly (CA) to determine constitutional bodies sought to clip the wings of the CIAA by doing away with its prosecution power. It recommended that the agency acquire prior approval from the Office of the Attorney General before filing corruption cases in the court. It also proposed that the CIAA be reduced to a three-member team, including a chief commissioner that is appointed in a proportionate and inclusive manner. The committee also suggested that the agency be renamed the Federal CIAA. This was with the expectation that more CIAAs would later be established at the provincial level. There is a separate debate going on in the field of academia over the issue of whether anticorruption functions are better served by centralised or decentralised operations. I wish our lawmakers had the intellectual capacity to grasp an understanding of anticorruption.
The lawmakers’ distaste for the CIAA can be seen in the recommendations made in the draft constitution too. The draft proposes that the CIAA have five members, including the chief commissioner (Article 237). Interestingly, we already have six members in the CIAA. Unless the authors of the constitution visualised one member to be retiring soon, one out of the existing five members has to go home. To complicate matters further, Article 237(6) seeks to guarantee the terms and conditions of the members.
It was only in April of this year that lawmakers expanded the size of the CIAA from two to six, with the induction of four members under the political bhaagbanda system. As reported in the media, this was done to neutralise the growing clout of the chief commissioner. Reducing the CIAA by one or two members, here and there, does not make a significant difference in its performance. The bigger challenge for the anti-graft agency will be fulfilling its new roles and mandates.
As per the existing Interim Constitution, the CIAA is responsible for taking actions against of the corrupt acts and improper conduct by public officials. For corruption, the agency can file cases in the court and for improper conduct, it can recommend departmental actions. Besides these, the agency is also allowed to investigate corruption cases by the judges, constitutional bodies and the army officials after they are relieved from their positions for their misconducts. The draft constitution (Article 238) now limits the CIAA to acting against corruption charges. It is relieved from taking actions against improper conduct. It is unknown whether the agency retains corruption prevention and anticorruption education and awareness functions. Based on the data of complaints lodged at the CIAA, the new provision amounts to an effective curtailment of the Commission’s workload by 40 percent.
Quashing the agency
Whether the CIAA should be made responsible for taking action against improper conduct or not is a matter of debate and discussion, but the proposal has come just after the CIAA expanded its area of operation by establishing five regional and five sub-regional offices. Moreover, the proposal is being made at a time in which the agency is looking forward to amending anticorruption laws in line with the United Nations Convention on Corruption mandate that covers corruption crimes in non-public sectors.
Given that Nepal is witnessing a mushroom growth in anticorruption agencies with overlapping jurisdictions, there is a need to rationalise the anticorruption sector. However, the present move seems to have come without adequate study, consultation and preparation. Had this not been the case, there would not be such a marked difference between what was proposed earlier and what is being proposed now. It would be a different matter if the drafters of the constitution sought to treat ‘improper conduct’ as an ombudsman function. This scribe is of view that anticorruption functions should be concentrated in a single agency. I am not sure how lawmakers are going to address money laundering, public procurement and revenue leakages as corruption-related crimes. Currently, these issues are dealt with separately by different agencies under the executive.
Infuriated by the proposal to curtail the powers of the CIAA, former Chief Commissioner Surya Nath Upadhaya wrote an article saying it is better to do away with the constitutional anticorruption agency rather than pretending to have one sans dequate power and independency. Politicians in Nepal are in a fix: They do not like having a CIAA, but at the same time, they cannot do away with it. The solution seems to be corrupting an anti-corruption agency.
Manandhar writes extensively on governance and corruption issues
Published: 15-07-2015 08:15