National 2 (Spotlight Weekly)

Cautious Optimism

Less than 24 hours after obtaining new powers, the anti-corruption watchdog raids the homes of 22 government officials

By KESHAB POUDEL

After securing enormous arbitrary powers under two new acts, the Commission of Investigation of Abuse of Authority (CIAA) raided the houses of 22 senior and junior officials working under the revenue service of the Ministry of Finance. The August 17 midnight raids, which came less than 24 hours after the CIAA Amendment Act received the Royal seal, have sparked a new wave of fear inm the civil service — and generated much anticipation in society.

Upadhyaya : All eyes upon him

Since the CIAA raided the officials' residence without the formation of the concerned court, it had to postpone by a few hours the process of producing the accused before the judiciary. Earlier, the appellate court was assigned to accept corruption-related cases. Clause 31 of CIAA Amendment Act has changed that provision and simply mentions the term "concerned court." After a long legal dilemma, the CIAA made its own interpretation of the term and sent the accused to the district court for remand.

A team of investigative officials knocked the doors of 22 officials working under the Finance Ministry on the midnight of August 17 and recovered huge amounts of cash and ornaments. The CIAA raided the houses under Clause 20 of the Corruption Prevention Act under which it can investigate any official's property if it believes his or her living standard is higher than what the source of income would allow. This clause authorizes the CIAA to exercise enormous arbitrary powers to search, confiscate, seal and arrest. This has raised fears over the possibility of innocents being harassed.

Calculated and well-planned, the midnight raids seemed to have been prepared at least a month in advance. But few understand the rationale behind the commission's decision to pick 22 officials from a ministry that has over 3,000 employees. The CIAA arbitrary pick-and-choose powers have a history of misuse. It is unclear how the CIAA will proceed now, but it seems the commission may use those arrested as "approvers" against top officials.

Cautious Response

Although the CIAA's action has drawn wide support among a populace that had been growing increasingly wary of the deepening roots of corruption, there also is palpable concern over the possible misuse of authority. "Power tends to corrupt and absolute power tends to corrupt absolutely," said Lord Acton, the prominent English judge. That dictum is on the minds of many people who are cautiously watching whether the CIAA's arbitrary power might be used to create panic rather than to combat corruption.

News headlines and media displays of the officials' property would bring short-term popularity for the CIAA. The commission's real challenge lies in collecting evidence so that it can punish wrongdoers and provide relief to the general public.

During the Panchayat days, the Prevention of Abuse of Authority Commission arrested and prosecuted officials on charges of corruption. But on appeal, the court dismissed the cases filed and decided by the commission. The exercise became a symbol of legal terror.

CIAA's Challenges

The challenge of the CIAA is to build cases strongly and proved that its decisions are not based on bias or arbitrariness. Raiding the houses of the accused is one thing. Prosecuting them in open court trial is different. If the CIAA's case ends up amounting to little more than raids based on the officials' questionable living standard, people will start to question the credibility of the institution. Moreover, if the CIAA ended up conducting a media trial, it would squander the popular support the raids have brought.

No Nepalese individual in history has been successful in exercising sweeping authority and keeping popularity together. The new acts have made the CIAA granted additional powers to fight corruption, but the organization does not have the institutional infrastructure and pool of employees to bear the responsibility.

The investigation officer has been authorized to exercise the power of police chief in terms of mobilization of the police and right of prosecution. In the absence of a proper system and institutional mechanism, individual freedom would come under threat.

The CIAA has completed its initial task and is preparing charge sheets against the accused. But the greater challenge lies in front of the open court. Since the court delivers its verdict on the basis of evidence presented by the investigative authority, the CIAA would have to step up the quality of its work.

If the CIAA is unable to exercise its powers as per the act or uses them haphazardly, it will undermine itself. Moreover, parliament might feel compelled to withdraw those powers. During the Panchayat days, the Prevention of Abuse of Authority Commission had powers of investigation, prosecution and judging. Its judicial power was removed in 1990 following the agency's use as a political tool.

Judiciary's Role

After the investigation, the case will be prosecuted in court. As parliament has made the investigative agency more powerful, the judiciary now has the important duty of deciding whether there is any arbitrary exercise of power.

Checking the authority of a powerful agency like the CIAA remains a challenging task for the judiciary. The court has to strike a balance between the populism generated by the CIAA actions and the imperative of protecting the rights of the individuals. Because of weak and populist methods of investigation by the CIAA, the courts in the past have not found adequate evidence to send the culprits in prison.

Unlike in authoritarian regimes, the CIAA has to adhere to the rule of law, passing every side of the judgment. Whether in the Lauda, Chase Air or Nepal Bank scams, however, the CIAA seems to have shown greater interest in a media trial.

For the moment, the CIAA seems to have acquired the benefit of the doubt. "This is still an early stage to comment on the action and one has to see how the events unfold," says a lawyer. "This is neither the time to rejoice nor to discourage the CIAA for its actions. We need to be cautious. As the CIAA has hurriedly taken the actions, it is yet to justify its actions."

Upadhyaya's Challenge

CIAA Chief Commissioner Surya Nath Upadhyaya has many challenges ahead, now that he has secured sweeping powers from parliament to wipe out corruption. How Upadhyaya follows the rule of law and protects the image of his institution will be closely watched in the days and weeks ahead. "We will take sterner action against the corrupt and wipe out corruption from society," he told Radio Nepal.

The CIAA raid, under the leadership of Upadhyaya, involved more than 100 civil servants, lawyers and police. Although it was said to have been planned and carried out under the utmost secrecy, some photographers of leading newspapers and television cameramen seemed to have been tipped off.

Whatever course the cases take, Upadhyaya will have to share the responsibility. As a former secretary to the government, Upadhyaya understands he has to move very cautiously so that his actions can be justified in court. Before blaming others in the event of failure, Upadhyaya must improve his method of investigation so that no innocent person becomes the victim of the state's arbitrary actions.

This is not the first time the CIAA has raided the houses of senior officials. It has already arrested dozens of bank officials and sent them to jail. As Upadhyaya is himself a trained lawyer and served as member-secretary of the constitution drafting commission, one can expect his actions to be based on the rule of law.

Nepalese history has shown that an unaccountable body that enjoys enormous powers often misuses them to harass individuals. Upadhyaya and his team have to show that their fight against corruption is genuine. That can happen when the commission retains an image of a law-abiding body.

Amid continual demands from the CIAA for more authority, parliament unanimously passed the bill in the last session when the government was morally too weak to resist it. The CIAA Amendment Act and Corruption Prevention Act have many provisions that can be used against individual freedom.

As an investigative body, the primary function of the CIAA is to investigate corruption and misuse of authority and to prosecute the concerned individuals. The court exists to safeguard individual freedom and to uphold the rule of law.

There is no place for arbitrary actions in a democratic country. As former US president James Madison said in 1822, "A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both, knowledge will forever govern ignorance; and people who mean to be their governors must arm themselves with the power which knowledge gives."

The soul of a democratic system is the ability of ordinary citizens to hold government officials accountable for their actions. Known as transparency, this essential democratic process takes many forms but all allow concerned citizens to see openly into the activities of their government, rather than permitting these processes to be cloaked in secrecy.

In an open society, the CIAA cannot expect to control corruption by generating fear and panic. The firm application of the rule of law and a transparent system of governance will serve the cause of justice and enhance the image of Upadhyaya and his organization.