NATIONAL 1 (Spotlight Weekly)]

On The Move

The CIAA starts working under a new leadership. Is it acting within the principles of rule of law?

By KESHAB POUDEL

In a democratic set-up, respect for the rule of law by institutions guarantees the fairness in the functioning of state mcahinery. When an institution with enormous power starts to work arbitrarily, fear and panic tends to grip the public.

Soon after taking charge, the new leadership of the Commission of Investigation of Abuse of Authority (CIAA) started its job amid suspicion whether it was following the rule of law. Whatever the decisions and actions taken within the existing system, they must respect the rule of law as the constitution does not permit any institution to function in a high-handed manner.

Shrestha : Need fair play

"I am happy to see that the CIAA has started functioning, but that is not the final step in combating corruption. It must book the culprits and punish them in accordance with the existing law," said advocate Bal Krishna Neupane. "The latest action of the CIAA has enthused society that there is an organization that can fight corruption."

Others, however, see something wrong in the procedure adopted by the CIAA in suspending individuals before proving their guilt. In the Lauda Air deal, the commission asked the government to suspend the executive chairman of the RNAC, Hari Bhakta Shrestha. Following that recommendation, the government has suspended Shrestha.

Although the commission argues that Shrestha's continuity in his post may obstruct the investigation process, others see the process itself is not in accordance to with constituional obligations.

Under Clause 19 (3) of CIAA Act 2048 B.S., if the CIAA finds a rational basis that a concerned officer, who is charged by the CIAA of corruption and misuse of authority, or an individual may destroy or demolish the evidence of corruption and his remaining in the post may disturb the investigation process, the CIAA can write to the government or concerned office to suspend the individual.

The commission argues that it is the sole body in controlling corruption. "The CIAA is emerging legally and constitutionally as one of the effective institutions to control and prevent the abuse of authority and corruption in the country," said Surya Nath Upadhyaya, CIAA chief commissioner. (See interview SPOTLIGHT January 12-18)

Neupane : 'Stick to rule of law'

The constitution, however, has special provision to protect the right of individuals from the monopoly of the state. Article 14(3) of the constitution says: No person accused of any offence shall be compelled to be a witness against himself. In such a situation, how can the CIAA use the clause to force him to speak against himself.

If the person is later acquitted of the offence, lawyers ask, who will compensate for the mental and physical trauma he or she suffers in society. The CIAA's justification in having Shrestha suspended is, therefore, weak, according to lawyers.

The constitution guarantees the fundamental right of presumption of innocence till proven guilty. The CIAA is not a court of law itself because it is not the function of the CIAA to establish or absolve anybody of any guilt. There are two layers of court of law (Appellate and the Supreme Court) that have to rule against the individual before he or she can be termed guilty.

On the equally controversial issue of recruiting teachers, the CIAA intervened in the examination process. Although the interview of the teachers started following the mandamus ordered by the Supreme Court a few months back, the commission found no time to take note of the order.

"How can it intervene in the process when it is still in the process of completion?" asked Keshab Prasad Bhattarai, President of Nepal Teachers Association.

It seems interesting that the CIAA, vested with so much power, should prefer publicity to action to investigate the real culprit in cases of corruption and abuse of authority.

During the Panchayat days, the Commission on Prevention of Abuse of Authority used to send officials into panic as it had the right to both investigate, prosecute and hear the case. This is the reason the 1990 constitution clearly laid down CIAA as merely an investigation authority.

In the last three weeks, the CIAA has already ordered investigations in two major issues including Lauda Air Deal and recruiting of teachers.

Experience has shown that the CIAA cannot be popular as long as the institution works arbitrarily. This is the reason it needs to work within the purview of the constitution and principles of rule of law.