OPINION (Spotlight Weekly)

Framework For The Control Of Corruption A Nepali Perspective

By Ganesh Raj Sharma

Before entering into the subject matter about Nepal in the South Asian context, it would be relevant to mention the finding of the Berlin-based Transparency International. Among least corrupt countries, Singapore is ahead of Britain and the United States and Hong Kong is ahead of Germany and France. Brazil, the 49th least developed country is much ahead of India, the only South Asian country listed in the report.

It is also interesting to refer to the report published in a recent issue of Economist regarding the corruption control measures in Brazil, which has improved its records of democratization and economic growth:

Every one of those files in a scandal I am investigating, says a senior prosecutor in Brasilia, waving his arm at the 97 fat folders on his shelves. In most cases he expects to find evidence of public money going astray, and to take the matter to the court. But, on the past performance, he expects that in half of them, he will win the court case but fail to recover the missing money , nor see the guilty jailed.

No country of South Asia can probably claim even to that extent of success in controlling corruption.

No country is seen immune from corruption. To keep corruption under control is a problem even in highly developed democracies. But that is much more complicated in the context of the countries known as the Third World. Developed countries are developed in the terms of institutions of governance and legal traditions to tackle that offence. Backed by highly industrialized economy and high rate of literacy, these countries have been able to keep the governance open, effective and accountable to their sovereign - the people. That system works in automation in which the leadership may have very little role. But the plight of the sovereign - the people - is precarious in developing countries. As institutions are fragile in their transitory phase, role of leadership is one of the key factors to determine the success of institutions. Singapore is an instance which has better record as a least corrupt country compared to even Britain and the United States mainly due to the role of its leadership. Other developing countries which have no such determined and capable leadership, are on the other extreme as the most corrupt, i.e., some countries of South Asia and countries like Nigeria.

All developing countries are not in similarity. Taken South Asia as a unit, it is the poorest part of the world. Population of the South Asia consists more than half of the people below the poverty line of the world. And, it has more than half illiterates of the world population. No country in South Asia has political stability. Each country of this area feels serious threats from its neighbor across its border. It is common to find a powerful under-cover operation in an attempt to destabilise the internal order of another neighbor. Age old distrusts, mistrusts and animosities keep them away from friendly dialogue and cooperation. In such an hostile external and internal environment, keeping governance open, accountable and effective is an uphill task, particularly for smaller countries. The problem of corruption is the net result of the total situation. Corruption thrives more in a situation of political instability. In a developing stage, every country has loopholes in the governance. No country of the South Asia is in a position to get rid of this handicap independently.

Historically, governance of the countries of this region developed on two distinct patterns. Countries of the previous British India had a long apprenticeship in the British form of administration and legal system. Despite rampant poverty and illiteracy, these countries inherited the structures of administration and forms and procedures of the British democratic standard. They had lived in a guarantee of good governance but were denied self-governance. Leaders like Mahatma Gandhi were right when they said that there cannot be a good governance without self-governance. There is a pressure of public opinion in all these countries after their independence to have the self-governance as good governance.

Nepal and Bhutan had different background of political development. Nepal, which has always been independent, has its own indigenously evolved institutions of governance. After the change in 1951 from feudal oligarchy to democracy, Nepal has been experimenting for an appropriate form of governance through various trial and errors. The present Constitution is the fifth one under trial after a great upheaval in 1990. Instability generated by that has its multiplier effects in the country. This kind of situation is very much vulnerable for anarchy and corruption. And, Nepal has been suffering seriously from that.

Problem of corruption has to be seen in the totality of the situation. A cause and effect relationship has to be taken into account to deal with this problem. It is an evil practice in the governance with a motive of unlawful gain to oneself or to others. Corruption has always been considered in Nepal as a serious crime against the state The great king Prithwi Narayan Shah who unified modern Nepal in 1768 had declared that even death penalty for a person taking bribe would not be unjust. It is evident that even death penalty could not eliminate the vice. Many benevolent dictators of the past as well as present failed to eliminate it by such harsh punishment. Democracy has its own strengths and weaknesses. Since 1951, Nepal has been experimenting with various forms of democratic governance having basic elements of separation of powers. representation and accountability. In the matter of controlling corruption, it has till now disappointing results despite the creation of a kind of public vigilance body. Since the broadening of the franchise for representation, politicians were encouraged to indulge in corrupt practices to come to power and have it by all means accessible to them. And, it is difficult to guard the guard.

Keeping public opinion against corruption in mind, a Commission for the Prevention of Abuse of Authority was created through the Third Amendment of the Constitution of Nepal in 1975. It had the power to investigate, prosecute and punish and all these powers vested into one authority. Its rule had an overriding strength over the constitution. It used to initiate investigation even on its own initiative. In due course of time, it proved by its functions that it was a modern version of the Star Chamber of the medieval England. It victimized public servants on the pick and choose method. Many notorious offenders escaped from its watch whereas credible persons were denied the benefit of doubt also. In a case of export of carpets a prime minister at that time and several senior ministers, governor of the central bank, secretaries of several ministries were put under trial and the case was ultimately turned into fiasco by a political upheaval in the country. One can draw conclusion by studying the case impartially that the commission was used as an instrument for political vendetta. In the change of 1990, that commission along with the constitution was abrogated. But history seems to be repeating in a different manner.

The Constitution of the Kingdom of Nepal 1990 reintroduced this body as the Commission for the Investigation of Abuse of Authority with its revised role. In essence, the present constitution has given it mainly the role of a vigilance body accountable to Parliament. But the law enacted by Parliament has assigned it powers of the executive. Officials of the Commission consider their power inadequate to punish offenders, whereas, agencies of the government complain against its encroachment over the domain of the executive. As an instance, the Constitution has conferred power on the Attorney General to give the final consent to launch prosecution in the crime against the state. And, corruption is a crime against the state under the law of the country. The Commission filed several cases without the final approval of the Attorney General which was, at the appeal stage, rejected by the Supreme Court. But the Supreme Court did not interpret the law clearly and the confusion is yet to be cleared. It can hardly be presumed to pronounce against the words and the spirit of the constitution.

In the meantime, the government, being pressurized to take strong measures against corruption has placed before Parliament three bills regarding the offence and punishment for corruption, establishing a special tribunal to deal with such cases and an amendment in the law regarding the powers and functions of the Commission. Till now, the law in Nepal has presumed the innocence of a person till the charge against him is proved beyond reasonable doubt. Element of motive was necessary to establish the guilt. That would not be necessary after the promulgation of this Act.

About the formation of the tribunal, provisions of the constitution have been disregarded. The constitution has guaranteed the people to be tried and punished by regular courts only, justices of which are appointed by this Majesty the king on the recommendation of the judicial Council. Persons guilty can be imprisoned upto ten years and their properties can be confiscated by a tribunal now, officers of which are mixed from the administration. Nepal is a signatory to several civic and political rights of the people assuring them to be tried by regular court, judges of which have several such protections. Proposed amendment in the Act regarding the Commission for the prevention of abuse of authority also appears against the letters and the spirit of the constitution. The government which has lost its powers to discipline public servants lawfully, has exceeded its limit to initiate such bills of Draconian effects.

Too much unrealistic and populist pressure upon the government to deal sternly with the problem of corruption may have adverse effects upon the liberties and rights of the people. As the bill expresses, there would be no courage left upon public servants to bear the risk in taking decisions and executing fearlessly. In the past oligarchic rule, there had been very harsh laws which made the bureaucracy of Nepal introvert, timid and conspiratorial. That character revived during the arbitrariness of the Panchayat rule. Now, the same old wine is being put into a new bottle. Nepal is again going to be in an authoritarianism under a populist garb. Dream of the people with a majority under poverty and illiteracy again going to be disturbed by populists and powermongers.

In a country like Nepal, among several priorities, control of corruption also must be there. But it should not be at the cost of democratic ideals and prospects of economic development. Too much emphasis upon repressive measures in the pretext of controlling corruption may contribute to introduce despotism from the back door. Had it been possible to eliminate corruption by harsh punishment, there would not have been this offence in dictatorial regimes.

There is a genuine question haunting the mind of the common people as to why they, as declared by the Constitution, do not feel sovereign power with them? What remedy they have when their representatives in power abuse that for personal greed and petty interests? Why Judges and officers fail in their obligations? How their ballots can correctly be reflected into results? And, how the evil of corruption can be controlled? Answers to all these questions are there with democracy. And, democracy requires the people to play their part also. In the matter of corruption, vigilance of the people has changed things in Nepal. As for example, special facility to members of Parliament and high officials to import luxurious vehicles had come in serious criticism by the people. Press played its part effectively. Politicians apprehended its repercussions in their ensuing elections. And, thus, there was a change in the policy.

In our nascent democracy, there is a tendency to ignore the importance of public opinion. Finding no quick response, over-enthusiastic among the people take resort to arms and violence in desperation. Results of such actions ultimately harm the people more. Democracy is a slow but stable remedy of all public grievances. Once the power of public opinion asserts, no authority in a democracy can persist for long in its unfair act. Parliament is one of the supreme forum to ventilate grievances of the people. To make Parliament more responsive to public interests, political parties have come into competition. To assist the people and parliament, the Commission can be of great use if it confines within its role as an authority accountable to parliament. The constitution facilitates that which the Act of Parliament has made confusing. The need is to remove the confusion and preserve the constitution.

Regarding the information to the people and formulation of public opinion, the World Bank, the sovereign of all sovereigns of the world, in its report of 1997, suggests that the "availability of information helps citizens discipline public officials at the ballot box and through other avenues of protests, such as challenges and direct petitions to decisionmakers." It mentions some specific ways available to the people in a democracy:

-In democracies, citizens can vote officials out of office if they believe them to be corrupt. This gives politicians an incentive to stay honest and work for the interests of their constituents.

-If courts are independent and citizens can sue to force the government to comply with the law, this opens another route to control government malfeasance.

-Public exposure of corruption through the media is another option. Even undemocratic rulers are likely to be sensitive of public opinion, if only because they wish to avoid being overthrown. A free press can be a vital check on abuses of power, especially in countries that lack other means of constraining politicians and bureaucrats.

There is a lurking fear before all fragile democracies that unthoughtful movement against corruption may give opportunity to corrupt elements to do away with the democratic system with an illusory promises of good governance. Whatever measures are adopted, corruption is a menance with which the world and particularly the Third World, has to live with for long.

The paper was presented at the 8th SAARC LAW Conference