NATIONAL 5 (Spotlight Weekly)]

Restraining Order

The apex court declares the Commission of Investigation of Abuse of Authority's actions unconstitutional

By KESHAB POUDEL

Over the last year, many decisions of the Commission of Investigation of Abuse of Authority (CIAA) have come under the scrutiny of the Supreme Court. With characteristic restraint, the court has been interpreting the constitution and clarifying the role and duties of the CIAA. While interpreting the constitution, the apex court has maintained utmost consciousness.

Supreme Court : Guardain of the constitution

In a case filed by former minister of education Govinda Raj Joshi, who challenged the CIAA's recommendation against him on the issue of the teachers' examination results, the court nullified the order of the anti-corruption agency.

According to Article 41(1), conduct of government business, the allocation and transaction of business of His Majesty's Government shall be carried out as set forth in rules approved by His Majesty.

Article 41(2) says no question shall be raised in any court as to whether or not rules made pursuant to Article 41(1) have been observed. Many were taken by surprise by way the CIAA decided to make its recommendation against the minister, who took his decision under the provisions of cabinet regulations.

"In such a decision, even the Supreme Court cannot intervene. How did the CIAA think it had to power to intervene?" asked senior advocate Mukunda Regmi. It seems that the CIAA has intervened without even knowing the basic provision of the constitution. "Under this article, the executive enjoys prerogative power which even the court of law including the Supreme Court cannot question," said Regmi.

Along with the recommendation to take action against Joshi, the CIAA also issued a directive to the government to cancel the results of the examination taken by the Teachers Selection Committee. The examination conducted by the committee under the minister of education's decision as per the prescribed procedure and existing provisions of law and the consequent result could not be overturned except by the Supreme Court in exercise of extraordinary power under the Article 88(2) of the constitution.

But the CIAA, it seems in ignorance and total disregard to the rule of law, had intervened and issued the order directing the commission and the Ministry of Education to nullify the results of 84,000 teachers.

The CIAA seemed to fail to understand and appreciate the correct legal position as per the interpretations given by the Supreme Court in similar cases in the past. Had it respected the law, the CIAA should not have intervened in the results of the teachers.

"Once again the court has rightly and strongly overruled the action, opinion and decision taken by the CIAA. It must serve as a final blow to CIAA's proclivity to take arbitrary decisions in future," said a senior lawyer. A bench comprising Chief Justice Keshav Prasad Upadhyaya and Judge Kedar Prasad Giri took the decision.

The apex court has clearly said that the CIAA has no right to issue directives akin to the order of mandamus, which is the prerogative of the Supreme Court. "It is surprising why the CIAA time and again takes such kinds of actions which are prima facie and beyond its jurisdiction," the lawyer said.

The Supreme Court declared unlawful the decision of the CIAA to open the case a year after the action in question had been taken. Under the existing CIAA Act, no complaint can be accepted and entertained beyond the one-year time limit from the date of the commission of the act. The CIAA seemed to ignore the clear provision of law, which could amount to abuse of authority by the CIAA itself.

According to 98(1) of the constitution, the CIAA may in accordance with the law, conduct or cause to be conducted inquiries into, and investigations of, improper conduct or corruption by a person holding any public office. It is high time parliament evaluated the performance of the CIAA itself.