National 2 (Spotlight Weekly)

Checks Without Balances

By endorsing three anti-corruption bills, parliament abdicates its constitutional obligations to an unaccountable body

By KESHAB POUDEL

After the passage of two anti-corruption bills, the status of ministers has been reduced to that of head clerks. Whatever policy decision a minister ó elected by the people ó takes will be subject to scrutiny of the Commission of Investigation of Abuse of Authority (CIAA), a body that is not accountable to the people. The spirit of the bills clearly points out that even for policy decisions, ministers will have to be responsible to the CIAA rather than to parliament.

Despite the adverse constitutional implications the bills would have on the political system and parliamentary practices, the leaders of ruling and opposition parties, ministers and MPs found time to rejoice over their "victory". Leaders and MPs of the opposition parties are understandably happy because the bills protect them, especially since policy decisions by legislators do not fall under the scrutiny of the CIAA. Ministers and civil servants, however, have suffered a setback that would have far-reaching consequences on their ability to discharge their constitutionally mandated roles.

Stawarts of parliament : Not aware of consequences

The reality that the Anti-Corruption Bill 2002 and the CIAA Amendment Act passed by parliament last week hit at the heart of the principle of parliamentary supremacy is bad enough. That members chose to celebrate the endorsements as a red-letter day for democracy added to the tragedy.

"This is a major achievements of the winter session of parliament, since we have been able to give sweeping powers to the anti-corruption body to scrutinize decisions of ministers," said chairman of the House of Representatives Public Account Committee and UML MP Subhas Chandra Nembang.

Members of the ruling party share Nembang's views. "We have agreed to give sweeping powers to the anti-corruption body in order to ensure stern and prompt action against the corrupt," said Tek Bahadur Chokhal, chief whip of the Nepali Congress parliamentary party. "No one is now immune from prosecution."

No matter how noble the motives of Nembang and Chokhal may be, their confidence may be misplaced. The argument that widening the CIAA's jurisdiction to include policy decisions of ministers will translate into less corruption is fallacious at best. Although it would serve to restrain ministerial overreach, the CIAA Act threatens individual freedoms enshrined in the constitution.

The amendment gives additional powers to the CIAA, including the right to put the accused in prison and demand hefty bail. But how will the organization use these powers? Making the anti-corruption body more powerful does not mean that it is going to be efficient. Although the new act will replace the Anti-Corruption Act 1962, it will not make much difference on the ground. One thing is certain, though. The CIAA will find itself engulfed in deeper controversy in the days ahead.

CIAA : Power without occountability

One of the dangerous features of the bill lies in its transformation of the role of the parliamentary form of government without actually amending the constitution. According to the constitution and long-standing parliamentary convention and practices, ministers are responsible ó individually and collectively ó only to parliament for their policy decisions.

Crime is a different thing, but without going into the merit of the policy decision for element of criminality, a minister or anybody, for that purpose, is subject to criminal jurisdiction. This is an entirely different proposition. For that, one doesn't have to surrender policy-making power to the CIAA. "It is a pity that our parliamentary jurists or law professionals failed to distinguished between the policy-making power of a minister and the crime of corruption," said a constitutional lawyer.

No quasi-judicial power is subject to the scrutiny of an investigating authority or by a police official. But the present bills have, unfortunately and rather ignorantly, handed over such power to the CIAA, which the constitution does not intend or authorize.

Although the new anti-corruption bill and the CIAA amendment bill have revised the quantum of punishment, fine and other investigation procedures, one of the unfortunate effects is the abolition of the four-decade-old institution of the Special Police Department under the Home Ministry. The institution has now been handed over to the CIAA for no fruitful purpose.

The responsibility of civil servants, too, has now shifted to the CIAA. The position of civil servants has been made further vulnerable by keeping open-ended investigating jurisdiction for any decision made by them. So the loyalty of civil servants will automatically shift to the CIAA, instead of their respective ministers. How are efficiency and discipline in the civil service going to be ensured by transferring the system of accountability, which the constitution does not recognize?

When a minister cannot protect civil servants, they will no longer feel the need to remain loyal to him. The minister will have no discretionary power for taking departmental actions against his civil servants. Instead, the minister will be punished if he fails to follow the CIAA's recommendations. In this way, the minister's position has been reduced to that of another civil servant.

Whatever positive reforms or improvements that may have been introduced by the new legislation have been nullified these unusual and unconstitutional provisions. Some of the clauses in the proposed bills can be challenged in the court of law.

"It is a matter of great pity and grave concern that our sovereign parliament and its executive have failed to realize their constitutional duties and responsibility of protecting their own rights, duties and the constitution," said an analyst.

Supreme Sourt : How will it react?

Even after acquiring these new powers, the CIAA and its functionaries still would not be responsible to anybody under the constitution. "When our parliamentarians and government ministers realize their mistakes, it will be too late for them to correct the imbalance," said an analyst.

"The clause that permits the CIAA to scrutinize policy-level decisions of ministers is against the spirit of constitution and is void ab initio (from the very beginning)," said senior advocate Mukunda Regmi, one of the framer of the constitution. "Chief Commissioner Surya Nath Upadhyaya is himself a legal expert. I read in the newspapers that the clauses have been added at Upadhyaya's insistence. Upadhyaya made immense contributions when we were drafting the constitution. I can't understand how such a person could have sought the incorporation of clauses that destroy the basic spirit of the constitution."

In a parliamentary democracy, the elected government is constrained from making appropriate policies when an institution is given the right to scrutinize it. Moreover, this goes against the spirit of the constitution

and the apex court would declare the clause void. The apex court in 1996 already rejected the demand to allow CIAA to scrutinize policy-level decisions on the ground that it is against the spirit of the constitution in a writ filed by advocate Bal Krishna Neupane.

Constitutional lawyers argue that relentless propaganda and ignorance of constitutional provisions on the part of ministers and MPs led to this surrender of executive and parliamentary authority to a body which is neither accountable to parliament nor fully qualified to exercise such sweeping authority. The only aim seems to be to control the elected body through a method not prescribed in the constitution.

The provision for establishing a new vigilance center is not new. But how will it function? One cannot see any sense in dismantling an old institution and establishing a new one in the absence of a clear purpose. Although the demand for a special tribunal instead of a special court has been rejected, the bill gives sweeping powers to the CIAA to put anyone in custody in a case related to corruption.

As soon as three anti-corruption bills become law, decisions taken by ministers can be questioned by investigating officers. Among the three bills, the Anti-Corruption Bill 2002 and the CIAA Act Amendment Bill 2002 will encroach upon the authority of cabinet ministers and other executive officials. The CIAA can even take departmental actions against ministers and other officials.

Thanks to the members of parliament, the three bills have altered the constitutional balance without even having initiated a formal amendment process. The supremacy of parliament ó achieved after a long struggle that culminated in the dismantling of the Panchayat system in 1990 ó has been surrendered to another arbitrary and unaccountable institution. Furthermore, the prime minister may no longer feel committed to deliver clean administration as his authority has been surrendered to the CIAA though parliamentary sanction.

Article 35 (3) of the constitution specifies that the responsibility of issuing general directives, controlling and regulating the administration of the kingdom of Nepal shall, subject to this constitution and other laws, lie in the council of ministers.

Article 98 (1) on the functions, duties and powers of the CIAA, says: The CIAA may, in accordance with law, conduct or cause to be conducted inquires into, and investigations of, improper conduct or corruption by a person holding any public office.

However, Clause 4 added in the act allows the CIAA to scrutinize policy-level decisions of ministers. This violates Article 35 (3) of the constitution and would be automatically deemed null and void. Article 1 of the constitution says: "This constitution is the fundamental law of Nepal and all laws inconsistent with it shall, to the extent of such inconsistency, be void."

According Article 88 (1) of the constitution, the Supreme Court is under constitutional obligation to declare such law void and unconstitutional, but nobody knows how quickly it will take up such a case.

As Nepal's experience with constitutional exercise is relatively nascent, it would not be easy to convince the Supreme Court to declare the clause null and void. On many constitutional issues, including one concerning the CIAA's encroachment into the constitutional rights of the attorney general, the response of the apex court was frustrating. Attorney-General Badri Bahadur Karki resigned because of the decision of the apex court, which he concluded paved the way for encroachment upon his and his subordinate prosecutors'

professional independence.

How will these articles be applied in the context of the new Anti-Corruption Act and the CIAA Act? "It seems that the MPs either don't know the serious implications of the proposed bill or they have been totally misled by their politico-legal counsels," said a constitutional lawyer.

In a wave of populism, the ruling and main opposition parties have introduced erratic changes in the anti-corruption legislation, which is tantamount to constitutional amendment through the back door. The clear implication is that Nepal may be heading towards a non-parliamentary system.