NATIONAL 5 (Spotlight Weekly)]

Upadhyaya Indicted!

In its tenth annual report, the Commission of Investigation of Abuse of Authority indicts its own chief, Surya Nath Upadhyaya, for improper conduct committed during his tenure as secretary to the Ministry of Agriculture

By KESHAB POUDEL

After the submission of the Commission of Investigation of Abuse of Authority (CIAA) report to the House of Representatives as directed by His Majesty the King, the chief of the CIAA appears to have lost the moral authority to stay on in the post. The indictment has also raised questions about the efficiency and capability of the Constitutional Council in checking the background of candidates appointed to constitutional bodies.

Although CIAA Chief Commissioner Surya Nath Upadhyaya, a self-styled anti-corruption crusader, himself has been indicted for abuse of authority (improper conduct), surprisingly nobody in the media, intellectuals and lawmakers have raised this fundamental question: Can a man continue in office when he is indicted by his own report?

When the CIAA sent a letter to former prime minister Girija Prasad Koirala referring to the role of the cabinet in the controversial Lauda Air deal and warned former minister Govinda Raj Joshi for his involvement in the appointment of the teachers, everyone raised questions of morality and demanded their resignation. What makes the current case qualify for the deafening silence? Could anything be more authentic than the CIAA’s own report?

When the council was considering appointing someone to head the CIAA, it should have looked into the report and files of the CIAA. It was nothing short of abysmal failure on the part of the council to have ignored the personal record of this particular candidate.

Legal practitioners also question Upadhyaya’s own role in withholding the truth of his past, pushing the CIAA and the council into controversy. If such a situation were to happen in other parts of the democratic world, the person would be taken in under the charge of perjury.

"Had it been disclosed before, he would have been disqualified for the post. That means Upadhyaya lied to the highest authority of the country," says an analyst. "This proves that the inquiry before appointments to such a high-level commission seems to be very loose. Anyone could easily bypass the council."

"This episode shows that his [Upadhyaya’s] past conduct was not good and he withheld information about his indictment. But he cannot be impeached on the grounds of this report," says senior advocate Mukunda Regmi.

When the conduct of an individual nominated to the post was improper, whose responsibility is it to have allowed the appointment to go through? Although the Constitution of the Kingdom of Nepal 1990 has not defined what constitutes improper conduct, the CIAA Act, enacted by the parliament under the authority of Article 98(4) defines the term as any wrongful act done by a public official knowingly or negligently.

Abuse of authority includes corruption as well as improper conduct. According to the act, the improper conduct means failure to perform an act within his jurisdiction, or performance of an act outside his authority; non observance of procedures obligatory to the making of any decision or issuing of an order; use of authority for a purpose other than that specified in, or in contravention of, a concerned law.

On Page 54 of the report, Upadhyaya is indicted for nominating an individual for scholarship by violating the set standard under the influence of particular minister of that time. The report sees the decision as an improper. Why Upadhyaya failed to make a full disclosure before the Constitutional Council regarding his indictment by the CIAA is another matter.

The council consists of the highest functionaries of the countries: the prime minister, chief justice, speaker of the House of Representatives, chairman of the National Assembly and leader of the main opposition party.

By this act of non-disclosure, Upadhyaya brought great embarrassment to those who appointed him. Who is going to take responsibility for this serious lapse?

Others defend the right of parliament to take necessary steps against the accused. "Upadhyaya misled high officials of the council by concealing his record," said another lawyer. He was under obligation to disclose this fact of indictment on abuse of authority. No such person can be appointed as chief of a commission. "How can one remain in the power on moral ground?"

If Upadhyaya thought he was innocent and was dissatisfied with the CIAA’s indictment, he should have gone to the Supreme Court. "He chose not to mount a challenge in court, which clearly means that he accepted the guilt," says a lawyer.