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PROPERTY PROBE COMMISSION |
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PROPERTY PROBE COMMISSION |
A Political Gimmick Instead of using the
existing acts, the government entrusts judges with the controversial task By KESHAB POUDEL "We will publish the names of
high-level officials, employees and political appointees who do not file their property
statements and such persons should be placed in the black list. We will take all necessary
legal action against those who impede our work."
This statement, published in one of the
national dailies recently, was not given by any police officer. It was the declaration of
Bhairab Prasad Lamsal, a judge of the Supreme Court and chairman of the High-Level
Property Probe Commission. Responding to growing public clamor against
corruption in politics and other sectors of the state, Prime Minister Sher Bahadur Deuba
formed the commission to find out the scale of the real situation. Had Deuba and his
government taken action against a few dozen politicians of the last 12 years, the
constitution of a high-level commission would not have been necessary. Instead of proceeding to investigate and
confiscate the property of a handful of individuals, Prime Minister Deuba set up a
commission with the jurisdiction to probe the property of more than 100,000 politicians,
high-level officials, gazetted third class officials and family members. As per the mandate given by the Probe
Commission Act 2026, the commission has developed its own work procedure. The
commissionís seven-page form (seeking information on property and other asset) forwarded
to politicians, high-level employees and political appointees tries to cover almost all
relatives of such persons, ignoring the right to privacy guaranteed by the Constitution of
the Kingdom of Nepal 1990. The questions resemble those of a charge-sheet rather than a
fact-finding initiative. If one goes through the probe commissionís
individual property statement form, it is impossible for the person to write the truth. It
would take a sharp-eyed sleuth to know about the exact assets and property of oneís kith
and kin. Along with seeking details of the property of the concerned official, the
commission also demands information on the property, bank deposits and other account
details of the employeesí family members, including father, mother, son, daughter,
brothers, sister, father in law, mother in law, sister in law, brother in law, grandson,
grand daughters and other close relatives. Any under- or mis-reporting of the assets and
property of oneís relatives would be tantamount to breaching the commissionís rules and
could invite six months of imprisonment. In a closed society like Nepal, it would be
impossible to correctly report the property and assets of close relatives like in-laws. Under the existing laws and regulations,
the family is a unit defined in various legal contexts. The Land Reform Act, Civil Code
Act and Anti-corruption Act have their own definitions. The commissionís definition seems
to be as extensive as it is vague. Although the commission is a judicial panel
consisting of Supreme Court judge Lamsal and two other retired judges of the apex court,
Udaya Raj Upadhyaya and Gyendra Bahadur Shrestha, its work procedures give another
impression. "It seems that the commission is conducting criminal trial," says a
lawyer. How can an employee or a political
appointee know the property of his or her relatives? If the recent statements and notice
of the chief of the commission is any indication, it seems that the panel wants to perform
investigative duties like that of any police institution of the state. Despite adequate legal provisions to
investigate, to try and to convict individuals on corruption charges, the government has
formed a commission that could put the whole issue in a never-ending process. "How
can a commission which has limited time and employees complete a gigantic task resourceful
state institutions have been able to do in the last 12 years," asks a legal expert.
"If the intention of the government was honest, it would not have formed a commission
but would have ordered police and other investigative institutions to complete the job.
This is just another way of fooling the common people." Condition of Property Disclosure The commission cannot force individuals to
disclose the property without citing particular acts. Under Article 22 on the Right to
Privacy in the Constitution of Kingdom of Nepal 1990, except as provided by law, the
privacy of the person, house, property, document, correspondence or information of anyone
is inviolable. According to criminal proceedings, a person
has to file a complaint to start an investigation suspecting actions and performance. Then
the cases pass through the stages of prosecution, trial and conviction. But, the
commission has threatened to put citizens in the black list as if they were convicts. And
that, too, based on what is essentially a fact-finding endeavor. According to criminal
proceedings, the status of individual has to pass through the stages from a suspect in
formal complaint, accused in investigation, witness in trial and convict only after the
verdict. One cannot declare someone a convict just
because he or she has declined to appear before the commission. In the case of property
declaration, there are three provisions under which an individual can be compelled to
disclose his or her property. For civil servants, Section 54 of the Civil Service Act 2054
has made a mandatory provision to disclose personal property to the concerned authority
after taking the oath. Such officials also need to update the statement annually. According to Clause 50 (1) of the
Prevention of Corruption Act 2002, each individual who holds public office should submit a
statement of his property or that of family members to the authorities appointed by the
government. Such officials need to renew the property statement at the end of every fiscal
year. If the statement is not disclosed to concern authorities, the property of such a
person can be investigated, assuming that it has been accumulated through illegal means. The court can compel an individual to
present movable and immovable property in case of a dispute of partition of parental
property under the Civil Code Act. In case someone is convicted on a murder charge and the
accused is awarded life imprisonment with fortification of property, the court can compel
the disclosure of personal property. If there is an allegation of corruption or
related offence, then there are different legal processes to investigate and prosecute,
hold trial and prove guilt. "The fact that the governments of the day for the last 12
years have failed or did not care to initiate any legal actions against any of those
people itself is sufficient proof that the state has no sufficient evidence against any of
these people," argues a lawyer. Jurisdiction of Commission Clause 4.3 of the Investigation Commission
Act 2026 (Amendment 2050) authorizes such a commission to call any person to
investigation. However, it cannot compel the disclosure of property without citing any
law.
"The high-level property probe
commission is not an investigative authority, as it seeks information not to prosecute but
just to solicit it. As a fact-finding commission, nobody is accused before it. Those
persons who appear before the commission - to give evidence, advise and report information
- are just witnesses," the lawyer adds. Interestingly, newspapers are trying to
project the fact-finding commission as an investigative agency with the authority to
indict individuals. Moreover, it seems the commission is conducting criminal trials.
According to legal practices, its report is not a complaint. It cannot prosecute nor
convict anyone. The country has adequate laws under which
the government can investigate the property of anyone, but nobody seems serious about
strictly implementing them. As the commission does not have any enforcing rights, its
recommendation is not mandatory on the government. The High Level Property Probe Commission is
like that of the Mallik and Dasdhunga panels. In operational terms, it is akin to those
set up to probe the Dhamija and Mahakali irrigation scam, and the Twin Otter crash, since
all of them were constituted under the Probe Commission Act 2026. The High-Level Property Probe Commission
was constituted by King Gyanendra in accordance with the provision of Clause 3(1) of the
act with the mandate to investigate he property of ministers gazette third class officers
and all other persons holding public positions after the restoration of democracy in 1990.
The commission is collecting property
statements of heads of constitutional bodies, deputies, members, bureaucrats down to third
class gazetted officers and others whom it may deem necessary. Similarly, the commission
has been authorized to probe all political appointees and politicians up to the district
level. According to the commission, it has received more than 25,000 forms out of the
36,000 it had sent out. "The state can set up [such a]
commission to accumulate specific information, facts and figures to correct to particular
problems. To enable the administration to discharge effectively the multifarious functions
entrusted to it, it needs to exercise broad powers of conducting investigation and inquiry
into various matters. The primary purpose of this technique is to collect information with
a view to decide upon a further course of action to meet given situation, or to find
correctives to a given problem," write M.P. Jain and S.N. Jain in the Principles of
Administrative Law. "While an investigation (or inquiry)
may not always result in any follow-up action subsequently, and may not subject the
individual concerned to any liability, nevertheless, the initiation of investigation by
itself may have serious consequences, mental agony and expenses and his reputation and
business may stand injured in the process. It is, therefore, necessary to reconcile the
administrative exigency of holding an investigation into the affairs of an individual with
his interest and rights by providing adequate safeguards subject to which the
administration may invoke its power of investigation." Unfortunately, our legislation falls short
of such safeguards. Under counter party legislation (one can follow the conduct of the
inquiry on Tehalka.com issue in India) where would-be affected parties are entitled to
representation through lawyers and witnesses are grilled through cross examination as is
done in any court of law. "The persons involved in legal
practices seem to be ignorant of the basic differences between criminal investigation,
criminal legal procedures and fact finding commission," argues a lawyer. In other
countries, the practice of forming such a high-level commission for the purpose of making
an inquiry into any definite matter of public importance and performing such functions as
may be specified. Although the Probe Commission Act 2026 has similar intentions, it does
not have the clarity of the laws in existence elsewhere. "The commission was set up to divert
attention of the people from the non-functioning of the government to cover corruption and
irregularities," says a political analyst. The commission has created panic when it
was supposed to have given valuable suggestions to the government. Despite the fact that
it has no power to condemn and convict anyone, the commission is trying to prove itself as
an agency of trial. "It is just a fact-finding commission.
It can summon anyone. But summoning any evidence or collection of evidence is to support
the fact, not to frame a charge-sheet. It cannot file a charge-sheet in any court of
law," a leading lawyer says.
It is a civic duty to help the commission
to complete its inquiry, but the status of the person who appears in the commission is not
that of a convict but just of a witness. The committee is treating them as if they are
convicts. "Newspapers are creating more
complications and confusion. The primary function of the media is to protect,
promote and
preserve the basic rights and interests of every citizen of the country. Unfortunately,
some people are indulging in condemnation and conviction through a media trial," says
the lawyer. As a fact-finding commission, it has no
power to pass an order which could be enforced proprio vigore, but everybody sees the
panel as a trial and prosecution body. In the politics of populism, nobody seems to dare
to challenge the way the commission is trying to squeeze individual freedom. It is the
role of state to find out who is dishonest and corrupt. It is not the job of individuals
to prove their innocence before any commission. |
Send your feedback to the
editor: spotligh@mos.com.np |
