COVER STORY (Spotlight Weekly)

Who Will Judge The Judge?

Equipped with excess power, Commission for Investigation of Abuse of Authority (CIAA) unleashes terror to government employees -summoning them and asking for clearance on various deals which it considers as irregularities. Thanks to its pick and choose modus operandi, the commission is selecting cases arbitrarily challenging the democratic system of governance. The recent case against a senior official of the Department of Road has invited a debate on the functioning of the Commission

By KESHAB POUDEL

Consider this irony. Commission for Investigation of Abuse of Authority (CIAA) is known not for its investigation procedures but for its demand to have sweeping power to contain corruption even as questions mount regarding the scrutiny of the commission's functioning itself. Anti-corruption body does not necessarily mean clean organization with high morality.

There is also a lurking fear that the commission may through its unbridled authority interfere in the procedures and decision making power of the executive.

Its performance in the last ten years have shown that CIAA's monopoly in corruption related matters added more problems than solving them. As a body which is neither accountable to the Parliament nor to the Prime Minister, the authority of CIAA is often misused by certain powerful individuals.

CIAA : In the eye of controversy

Although the Constitution of the Kingdom of Nepal 1990 envisages the CIAA as the ombudsman-like institution limiting its authority to investigate and present its report to the parliament, CIAA is now working as if it is the sole authority to fight against corruption.

"One of the main objectives of the CIAA is to investigate abuse of authority from the executive and public functionaries," says senior advocate Kushum Shrestha. (see box)

As the pick and choose method provides CIAA with sweeping powers to summon any civil servants for the purpose of investigation in any deal, the risk of the commission going overboard has been felt by many. The commission can summon any person for investigation on the basis of information received. This is the point, constitutional experts argue, where CIAA can exercise its power arbitrarily.

"An absolute discretion to pick and choose any person for investigation through any source -- disclosed or undisclosed -- of information can make it highly arbitrary and therefore highly vulnerable to corruption. Instead of controlling corruption, this institution may itself be indulging in corruption due to its arbitrariness in choosing cases for investigation. Let complaints come through credible channels like MPs," said eminent constitutional lawyer Ganesh Raj Sharma.

When accountability and transparency on the part of CIAA is missing, how can anybody expect free and fair actions from it. In many cases, CIAA has seemed clearly favoring one group to penalize others.

Shyam Prasad Adhikary - a senior engineer with the Department of Road - who was released on bail following acceptance of his property as guarantee by the CIAA, is the latest victim of the commission's arbitrariness.

There are many corruption related cases the CIAA receives through various sources. CIAA starts inquiry on only those which it thinks as proper.

After the verdict of Supreme Court on the Commission, CIAA has issued a notice making the Special Police Department, another administrative organ to check corruption, virtually defunct.

The creation of Commission, constitutional lawyers argue, does not mean the automatic dismantling of other institutions that are already in existence.

This is one reason why controversies often surround the preliminary investigation process of CIAA and consequently the results of its investigation. Discretionary power on the part of choosing cases is often questioned.

There have been many reports of the Commission's unjustified interference. The move by the Commission's functionaries ha even obstructed the development works including internationally funded ones.

In case of Swiss Development Corporation aided Lamosangu-Bhaktapur road Project, CIAA was found in controversy after it was seen actively taking the side of loser of the bid. After nearly a month of investigation, CIAA cleared the tender file giving certain directions.

Lamosangu-Bhaktapur project is not a single project delayed thanks to the interference by the Commission. There are dozens of such example. In Arniko highway project, the Commission asked to replace contractor.

"It is very pertinent to note that the Commission may interfere in the decision-making authority of administration by way of offering suggestions and may act as a substitution in the decision-making through a veil of offering suggestion. This will be the clear instance of abuse of authority," says a constitutional lawyer. Although it cannot enforce its advice, CIAA has been working as if they (advises) are mandatory.

In Adhikary's case, although the tender bid was completed in transparent and open manner, CIAA intervened in the last leg. CIAA's intention was questioned when it demanded the file on the following day of opening of tender as if it had no other inquiry matter other than this.

Another case in point could be the inclusion of the name of former RSS chief Mathabar Singh Basnet (who is currently the chairman of Gorkhapatra Corporation) in the annual report of the Commission. Basnet, who was previously acquitted in a computer purchasing scam by the Commission, was later recommended as unfit by the Commission for any future government appointment.

"The CIAA's decision was politically motivated as some of my party rivals influenced the commission's top brass to issue such recommendation," said Basnet. He has recently filed a case at the Supreme Court against the Commission stating its recommendation (saying him unfit for government appointment) is not in accordance with the natural law which says nobody can be tried twice in a same case.

In the recent case of Shyam Prasad Adhikary, too, the CIAA suddenly summoned him and started inquiry. The intention of CIAA was unmasked after one of the Bitumen suppliers - whose tender was disqualified in a tender bid - phoned a senior official at the Department of Road and threatened him of consequences similar to that of his colleague (Adhikary) who had rejected his proposal earlier.

"For investigation to be exact, it demands expertise and training but non of the commissioners at CIAA are trained in the art of investigation and prosecution," says an expert.

Although the commission can issue warrant for arrest if it thinks that the person being investigated is likely to destroy evidence or interfere with the investigative process, it uses this prerogative only to harass people.

In Adhikary's case, the supplier whose tender was disqualified is said to be a close partner of Bal Krishna Khand, head of Nepal Tarun Dal, the youth organization of Nepali Congress party. The officials at the Department say that he had pressurized them many times to award the supply tender to the party and threatened them of dire consequences if it was awarded to others. Khand could not be available for comment regarding his involvement in the process.

Some sources close to the CIAA also do not rule out the possibility of nexus between the CIAA's top brass and politicians at a time when two senior most commissioners are in the race for the vacant post of chief commissioner. "In this stage of race, the backing of Congress leaders could be vital to the appointment of chief commissioner," said a source on condition of anonymity.

According to the article 98 (1) of the Constitution of Kingdom of Nepal 1990, the commission may, in accordance with law, conduct or cause to be conducted inquiries into, and investigations of, improper conduct or corruption by a person holding any public office. The spirit of the constitution is that CIAA is just an investigation authority as only the relevant court of law will ultimately decide whether any charge is justified.

The CIAA Act 1991 says with regard to corruption, it is not necessary for the commission to wait for a complaint to be registered and it may pursue a suo moto inquiry at any time within five years of an alleged act of corruption taking place.

"Current instances of calling public officers and demanding security of cash is an example of excessive power exercised by CIAA," says senior advocate Kushum Shrestha. "There are several instances of harassment and injudicious practices in the CIAA's action. The lack of mechanism of transparency, accountability and supervision in the act of commission has opened up the possibility of making it a despotic body."

The absolute power to choose the case makes CIAA a body that can be used to terrorize honest and efficient bureaucrats. Due to this power, it undermines misuse of authority by political leaders and often victimizes honest bureaucrats who lack political backing.

After the case against Adhikary, the decision-makers at the Road Department are feeling sense of insecurity. "We will not open other tenders as long as there is a clear law regarding tender. When a person who worked in accordance with laws could be sent to jail, it is very difficult now to work for others in similar tenders," said Bhagwan Shrestha, an engineer at the Department of Road.

CIAA, however, defends the decision. "We start the prosecution only after initial investigation proves that there is something wrong. CIAA is fulfilling its constitutional obligation," says acting chief commissioner Madhav Dutta Bhatta. (see box)

As soon as he received the summon letter from CIAA, Adhikary - a senior engineer at the Department of Road - smelt something wrong on the part of CIAA. Before rushing to the Commission's office at Babarmahal on 12 March, 2000, he discussed the issue with his colleagues.

After two hours of interrogation by CIAA's investigating officers, Adhikary was demanded security worth 4.6 million rupees for his release just 15 minutes before the office hour closed.

Adhikary presented his property as guarantee for his release with papers of technical evaluation of Tax office and municipality. CIAA's investigating officers, however, rejected the evaluation and sent him to Dillibazar jail.

"This is injustice," said a freely weeping Adhikary after he was released on bail on Friday (March 13) at the premises of CIAA where he was welcomed by hundreds of his colleagues.

Although CIAA tried to justify its decision, it didn't find any plausible argument to justify the selection of the case and subsequent detention of Adhikary.

The punishment handed down to him came as a rude shock to Adhikary who had even defied to follow ministerial order in August, 1999 to award the tender bid to some other party.

Regarded as a friendly, competent and honest engineer at the Department, Adhikary never compromised with his principle during his career, say his colleagues.

Explaining their arguments to the press, the engineers at the Ministry of Works and Transport said that Adhikary was an efficient and honest officer. This is the reason Adhikary enjoys considerable support within the ministry.

"We detain individuals only after we find evidences on corruption and irregularities," said Rewati Raj Kafle, spokesman of CIAA. "The person was detained as per the law."

Nobody is buying the CIAA's claim at a time when most of the files on the involvement of ministers in irregularities are collecting dust in its closed drawers. "CIAA arrests efficient and honest employee who can not bribe them," says advocate Bal Krishna Neupane whose public litigation widens the authority of CIAA. "I am very frustrated with the functioning of the CIAA which has now become an institution to punish honest employees."

The Constitution of the Kingdom of Nepal 1990 and decision of Supreme Court placed CIAA as the ombudsman in Nepal like in many other countries to ensure a higher degree of proper conduct and commitment from persons holding high level office.

In Nepal, the role of CIAA has been misinterpreted and misunderstood and commissioners always consider that they need more authority like those in the days of Panchayat.

As officials and commissioners at the CIAA receive the legal shield against their actions, there is a possibility of wider use of power to detain and harass employees.

According to the CIAA act, it has the power to punish persons creating wilful obstructions to the process of investigation and no commissioner, commissioner official or officers deputed by the commission can be prosecuted in any court for an act done by him in good faith.

At a time when officials at the Commission are being criticized for violating authority to terrorize civil servants, it is necessary to make the commission's report accountable to the Parliament. In the Commission there are only few instances of taking departmental actions against concerned investigative officers for their misgivings.

In the last one year alone, CIAA investigated many high profile cases like Chase air scam, but it only caught small fishes letting the big ones go scot free.

The commission's report does not include the misuse of money by members of parliament neither does it show any guts to investigate the corruption committed by ministers.

"The essence of ombudsman's technique is to receive the complaint informally, to enter the government department, to speak to the officials and read the files, and find out exactly who did what and why. No formal procedure is involved at any stage, nor is any legal sanction in question. The system can be adopted with short and simple legislation, or even merely administratively, and countries with written constitution have no need to amend them. This ready adaptability is another of the reasons for the ombudsman's world-wide appeal," says H.W.R Wade in a famous book "Administration Law".

At a time when Prime Minister Krishna Prasad Bhattarai has set up two different committees to recommend proposals for controlling corruption, Commission of Investigation of Abuse of Authority (CIAA) is once again in news.

The commission investigated more than 300 cases during the last fiscal year, it referred 31 persons for departmental actions and warned another 54.

Although the Commission has the right to punish politicians, its annual report shows it is more fond of bureaucratic corruptions.

According to the clause 2 (a) of Corruption Prevention Act 1961, every person whether nominated, elected or appointed in the public life can be prosecuted.

According to the clause 15 of the Act, if a public servant is found to accumulate money disproportionate to his known source of income, government can confiscate such property. This clause also states that such person who has accumulated disproportionate property has to justify how it was accumulated. If the individual fails to justify, it can be confiscated without any other proof.

During the year 1998-99, the CIAA received 1313 cases of complaints related to the misuse of authority and corruption and settled 861 of them.

The figure was lower than the previous two fiscal years. The CIAA received 2019 and 1905 cases respectively in the fiscal year 1997 and 1998.

As a bill on CIAA is already in the House of Representatives, it is high time for the members of parliament to make the role of CIAA clear and make it accountable to the parliament via parliamentary committees. Otherwise, in the absence of a clearly defined role, it will be used by unscrupulous people to terrorize civil servants and/or politicians.

‘CIAA Is An Enigma’

— Kushum Shrestha

Eminent constitutional lawyer KUSHUM SHRESTHA is known a a man who holds firm convictions regarding the constitutional processes. Shrestha spoke to SPOTLIGHT on different issues surrounding the constitutional body to check corruption -- the CIAA. Excerpts:

How do you see the role of CIAA?

In our country, the concept of ombudsman has been a misnomer. The previous constitution created Abuse of Authority Prevention Commission. When it came in the form of law, it became just like a star chamber - a body which was against the very concept of natural justice. The commission was acting as informer, prosecutor, commital for trial and judge -- all rolled into one. The past history of the commision was much criticized by public and known as an instrument used for oppression especially to guided by political purposes. The present constitution provides the Commission for Investigation of Abuse of Authority (CIAA). The present constitution has taken away many of its features making it just like a trial judge but the hangover of the privious commission still persists in the present commission.

How is the CIAA functioning at present?

There are several instances of harrassment and injudicious practices in the CIAA's action. The lack of mechanism of transparancy, accountability and supressor in the Act of commission has opened up the possibility of making it a despotic body. In this case, we must rember the famous dictum of Lord Action "Power corrupts. Absolute power corrupts absolutely."

How do you find the present CIAA Act?

The law while conferring power presumes that the power may be misused. Therefore, the legislature and principle of law lays down provision of limitation of power including supervision of that power, accountability and transparency of the body exercizing the power. Unfortunately, the law has not evolved in such limitation. Current instances of calling public officers and demanding bail amount is an example of excessive power. The public authority, whosoever, must respect principal of justice and act in good faith in exercize of power.

So,how do you view the CIAA in Nepal's context?

In my opinion, this commission is an enigma. It is not ombudsman as understood in the Swedish concept because ombudsman is an independent high profile high commisioner appointed by the parliament to investigate abuse of power by public officers and to report to the parliament. Thus, CIAA is not such a body. Neither it is an independent investigating officer nor it is the body appointed by the executive whose action is supervised by the judiciary and who is responsible to the parliament. CIAA warrants such a person who is competent in prosecution.

‘CIAA Is More Corrupt Than Any Other Institutions’

— Bal Krishna Neupane

Advocate BAL KRISHNA NEUPANE - who had filed a public litigation to strengthen the Commission for Investigation of Abuse of Authority (CIAA) - is frustrated with the present functioning of the CIAA. He is saddened by the irony that the topmost anti-graft body has been reduced merely to an agency to terrorize honest persons. Neupane spoke to SPOTLIGHT on various issues related to the corruption and the CIAA. Excerpts:

How do you look at the functioning of CIAA?

It has become an agency that files cases against honest employees while protecting the corrupt ones. CIAA undermines genuine cases of corruption but picks up misrepresented cases. In fact, the commission itself files cases where it is in weak position and then takes a swipe at the court after losing them. It even harasses simple and honest employees while letting the corrupt ones who share the bribes with it go scot-free.

Do you mean to say there is corruption within CIAA?

Yes, CIAA is more corrupt than any other institutions. If it is allowed to function in present manner, it is going to be most corrupt office.

But, the commission is demanding more authorities to deal with corruption. Do you find their demands justified?

If CIAA is given more authority, it will become more corrupt.

You are the one who filed a public litigation in the court demanding more authority to CIAA. Why are you so frustrated now?

I am frustrated because the commission has failed to work according to the spirit of the Constitution. If you look at the past character of the Commission, there is nothing to be happy about. The experiences have shown that CIAA harasses clean and honest people. The agency protects the corrupt by filing weak cases and even by destroying evidences. It files a case only after it gets nod from certain persons.

Are not your arguments biased?

If you set up an independent commission to investigate on the performance of the CIAA, many evidences will appear to prove it (as corrupt institution). It catches only small fishes and sends to jail only a handful of small employees. Big and powerful ministers and politicians are let go scot free.

How do you find the Commission's demand for special court?

If special courts are set up, CIAA will emerge as another unconstitutional and authoritarian agency.