NATIONAL 2 (Spotlight Weekly)]

Morality In Jeopardy

CIAA chief Surya Nath Upadhyaya appeared before a government-appointed inquiry panel and recorded a statement on alleged irregularities in the Mahakali Irrigation Project

By KESHAB POUDEL

Upadhyaya: Under scrutiny

When Commission for Investigation of Abuse of Authority (CIAA) chief Surya Nath Upadhyaya himself was summoned by an inquiry commission formed in accordance with the directives of the Public Accounts Committee of the House of Representatives to explain his role as chairman of the Mahakali Irrigation Development Board and secretary to the Ministry of Water Resources in alleged irregularities committed in the Mahakali Irrigation Project, the question of morality has come under jeopardy.

"I have not become a smaller man by going to the commission to give my opinion. My height has not shrunk. I don't think the height of those who summoned me has shrunk either," said Upadhyaya. (Kantipur, June 26)

Whatever Upadhyaya said about himself, the summons has raised questions about the credibility of institutions like the CIAA.

The PAC also issued a directive on the dispute pending before the International Court of Arbitration (ICA) and urged the government to take an appropriate decision keeping in view the national interest. In order to execute the directive issued by the PAC, the government decided to form a three-man commission under the chairmanship of former secretary Dr. Bholanath Chalise in accordance with Commission of Inquiry Act two months ago.

Even main opposition party leader Madhav Kumar Nepal described the commission's decision to summon Upadhyaya as part of political vendetta. Interestingly, the investigation commission was formed under the directive of the PAC, whose chairman is the central committee member of the CPN-UML.

The commission can recommend departmental actions. The PAC sensed probable irregularities and corruption in the execution of the construction project and directed the government to further probe the issue.

Chalise : Tough job

After the PAC's probe and recommendation for further investigation on allegations of corruption and abuse of authority in the Lauda Air deal, the opposition demanded the resignation of Prime Minister Girija Prasad Koirala.

What will be the moral advice and lesson when an inquiry commission formed under similar circumstances summons the CIAA chief commissioner and commissioners?

Upadhyaya's defenders -- and lawyers who vehemently opposed the attorney-general's functional immunity in the court battle two months ago -- now claimed total immunity for CIAA chief for acts of omission and commission done during his role and responsibility as secretary.

The Supreme Court in its recent decision on CIAA vs Attorney General stated that no one has legal immunity in corruption- and irregularities-related cases.

After completing the probe, the inquiry commission will present its report to the government. If there necessary, the government forward it to the CIAA for investigation and prosecution of alleged corruption and abuse of authority.

Many see the panel's decision to summon Upadhyaya, who practiced arbitration law after his retirement from the government, as an erosion the credibility of the institution whose role is to check corruption and irregularities.

The inquiry commission, which was constituted to investigate and report on the question of irregularities committed in the course of implementation of construction work of Mahakali Irrigation Project by an international contractor, leading to the claim of about Rs 150 million by the contractor, has summoned many officials and technical staff of the ministry.

The inquiry commission was constituted under the Commission of Inquiries Act having the same status as that of past Dhamija commission of inquiry which had summoned Koirala for acts committed during his first tenure as prime minister.

As per the mandate issued by the government, the committee is required to investigate into the question of irregularities, negligence, acts of omission and commission deliberately or negligently, if any, by any of the officials responsible for the execution and implementation of the construction agreement signed between Mahakali Irrigation Board and Koneco Pvt. Ltd.

The agreement was signed in July 1994 for an initial amount of Rs. 645,024,500. The work was completed in June 1998 but the contractor placed a claim for damage and compensation for a further amount of Rs. 150 million with the committee. When the committee failed to accept the contractors claim, the contractor took recourse to the arbitration clause stipulated in the contract and filed a formal claim before the International Court of Arbitrators on April 13, 1999.

After the receipt from the ICA to the government for its reply and response, the government decided to settle the matter through negotiations rather than defending its position before the ICA. Both sides resorted to talks through their teams of negotiators and finally agreed to a settlement of an amount of Rs. 70.73 million.

When the government was about to release the money as negotiated between the parties last July, the PAC took up the matter for investigation. After a month's deliberation and inquiries, it decided to issue a directive, inter-alia, that the government should not pay the negotiated amount to the contractors and should withhold payment with immediate effect.

The PAC also sought to find out the circumstances that gave rise to such a unreasonable and illegal claim. It stressed that the official responsible by way of negligence, mala fide actions or irresponsible and irregular activities whatsoever, should be thoroughly investigated and held responsible for the loss.

Observers are of the view that if the loss resulting from the Lauda Air agreement could be considered corruption, then probably the negotiated amount paid to the contractor awarded by ICA could definitely be considered an act of corruption by the official responsible.

In the process, the commission exercising the power conferred by the act summoned officials past and present responsible for the implementation of the agreement. Incidently, the chief commissioners of the CIAA as secretary to the Ministry of Water Resources was chairman of the Mahakali Irrigation Committee during the initial period of the signing and implementation of the project.

"The matter was so obvious and he was not summoned as CIAA chief but rather as former chairman of the Mahakali Irrigation Board. Therefore, the claim for immunity by him or on behalf of him is clearly misplaced and not supported by law and logic," said a legal expert.

The claim of immunity in this case relates to something done in the past in a different capacity by a civil servant. However, the question of immunity cannot be stretched to shield illegal acts like corruption.