The Commission for Investigation of Abuse of Authority has indicted 175 individuals over the Lalita Niwas land grab but a number of key people have been passed over, raising questions among legal experts and former bureaucrats over whether the anti-graft agency’s intentions were politically motivated.

The commission had filed corruption cases against several individuals, including three former ministers, but stopped short of indicting Nabin Poudel, son of Nepal Communist Party (NCP) General Secretary Bishnu Poudel, and Supreme Court Justice Kumar Regmi, on the grounds that they have agreed to return the plots of land they own in a prime location in Baluwatar, known as Lalita Niwas.

A senior official who was involved in the Baluwatar land grab probe said that the anti-graft agency had given a clean chit to “some powerful individuals”.

“The commission must have avoided them because of their political connections,” the official, who spoke on condition of anonymity, told the Post. “Not indicting someone just because they have agreed to return the land is nonsense. You cannot get a clean chit if you return what you have stolen. That’s a crime.”

Concerns have also been raised over the bad precedent the commission’s move will set, as it has decided not to file cases against individuals who've agreed to return the property that a government probe committee said they acquired illegally.

Bishnu Poudel, the ruling party general secretary, had bought plots with a total area of eight anna (31.79 sq metres per anna) at Lalita Niwas from Madhabi Subedi and Uma Kumari Dhakalni in 2005. Subedi and Dhakalni had acquired these two plots from Machababu Prajapati, a tenant. The probe committee is not certain whether Prajapati is a genuine tenant or a fake one established by Dhakal and Subedi.

Poudel had then registered the land in his son Nabin’s name.

The commission has concluded that when the land came into Nabin Poudel’s ownership, it had already changed hands twice, and hence exempted Poudel from any wrongdoing.

Advocate Bhimarjun Acharya said the anti-graft body took the decision based on individuals rather than on the rule of law.

“Such decisions cannot be taken based on the individuals involved. The law should apply to all citizens equally,” Acharya told the Post. “The reason given by the commission on Bishnu Poudel’s issue cannot be justified. That is not lawful.”

According to Acharya, the way the commission has made its move shows that it has been politicised.

“It is clear that the decisions were taken in the spirit of vengeance,” said Acharya. “The commission spared former prime ministers Madhav Kumar Nepal and Baburam Bhattarai, but it has sought action against those who took the proposal to the Cabinet. I wonder if they would have indicted Bijay Gachhadar if he was in power.”

The commission has spared prime ministers Nepal and Bhattarai, even though it has admitted that the decisions to illegally transfer government land into private hands were taken during their tenure.

The anti-graft agency has said that the former prime ministers were not indicted because the decisions were the Cabinet’s policy decisions, over which it has no jurisdiction.

The commission did not indict Nepal and Bhattarai based on Section 4 of the Commission for Investigation of Abuse of Authority Act, which says the anti-graft body cannot investigate the “policy decisions” of the Cabinet or the committees under it.

But legal experts and anti-corruption campaigners say there is still confusion over what constitutes a policy decision.

According to them, a Supreme Court verdict passed on September 24, 1996 gives the commission ample ground to file cases against Cabinet decisions.

The verdict, issued by then chief justice Surendra Prasad Singh and justices Keshav Prasad Upadhyaya, Laxman Prasad Aryal, Kedar Nath Upadhyay and Udayaraj Upadhyaya, said that only decisions taken by the Cabinet to fulfil promises made in their election manifesto constitute ‘policy decisions’.

“In a multiparty democratic constitutional system like ours, various political parties contest elections with specific policy and political programmes. It will be the moral duty of the party that forms the government to implement those policies and programmes,” the verdict said. “The significance and appropriateness of a policy decision are proved with people giving a majority to the party that forms the government under the Constitution of the Kingdom of Nepal 1990.”

The verdict, however, allows the commission to investigate ‘policy decisions’ if such decisions are not part of the ruling party’s election manifesto and are taken by the Cabinet or Cabinet’s committees in order to benefit particular individuals.

The court had passed the verdict in response to a writ filed by advocate Bal Krishna Neupane demanding that the anti-graft agency be given the authority to investigate Cabinet decisions.

“The verdict has clearly explained what a policy decision of the Cabinet or a Cabinet committee is,” Neupane told the Post. “As per the verdict, any Cabinet decision collectively taken to fulfil the promises made during the elections is outside the jurisdiction of the anti-graft body. All other Cabinet decisions can be investigated by the commission.”

According to Acharya, accepting bribes and transferring government properties to individuals do not qualify as “policy decisions”; they are simply “decisions” taken in the interest of certain individuals or firms.

“The commission has indicted those who are not in power but refused to initiate action against those who are in power,” said Acharya. “This simply is revenge. People will now question the credibility of the anti-graft agency. This move has sent a message that those who are not in power will have to face criminal charges.”

Some former bureaucrats said the erosion of conscience in the machinery of the state over the years has been fuelling corruption.

“While constitutional provisions are guiding principles in general, at times the state needs to use its conscience,” said Dwarika Nath Dhungel, a former secretary and long-time anti-corruption campaigner.

Dhungel said corruption has been thriving in Nepal because of the nexus between politicians, businesspeople and bureaucrats.

“In this Lalita Niwas land grab case also, it is apparent that all three actors—politicians, businesspeople and bureaucrats—are hand in glove. They worked in cahoots to transfer government property into individuals’ names,” Dhungel told the Post. “The country’s top constitutional body tasked with dealing with corruption cases should have made some prudent moves, rather than being selective while filing the cases.”

As far as Nabin Poudel and Regmi are concerned, according to Dhungel, it’s bizarre that the anti-corruption commission says someone is not corrupt because they have agreed to return the property they had grabbed. “The move of not indicting Bishnu Poudel and Regmi is ludicrous,” he said.

Former prime minister Bhattarai agreed that his Cabinet had taken a “policy decision” on some three ropanis of land. “But it was taken after ‘thorough scrutiny’ from then chief secretary Leela Mani Paudyal and the Cabinet's social committee,” Bhattarai told the Post. He, however, found fault with the anti-graft agency’s procedures and existing laws, saying the way the Commission for Investigation of Abuse of Authority functions, it cannot dig out corruption cases in an appropriate manner.

“Due to the existing procedures of the probe, many innocents could get indicted,” said Bhattarai, now chairman of Samajbadi Party Nepal.

He also questioned the provision of electing the chief of the anti-graft body by the Constitutional Council, calling it a flawed system.

“A special ombudsman should be in place and he should be accountable to the legislature instead of the executive head,” said Bhattarai.

Nepal’s anti-graft agency over the years has lost its image for acting at the behest of the politicians, and anti-corruption campaigners, too, have called for immediate reforms.

One of its commissioners, Raj Narayan Pathak, last year was found guilty of taking a bribe to “settle” a dispute related to an engineering college. In the Lalita Niwas land grab, one of the accused is former chief commissioner Deep Basnyat. He has not been charged for his actions as an anti-graft official, but for preparing a proposal to transfer the government land into individual names when he was a secretary at the Ministry of Physical Planning and Works in 2010 in the Madhav Kumar Nepal Cabinet. Congress leader Bijaya Gachhadar, who was then minister for physical planning and works, had taken the same proposal to the Cabinet, for which he has been indicted by the anti-graft agency.

Dhungel said the prime minister has to take the responsibility for all Cabinet decisions. He also questioned the role of the then chief secretary.

“The chief secretary is the main adviser to the prime minister and he is equally responsible for any Cabinet decision,” Dhungel said. “Those who have been given the clean chit because the land was registered in their kin’s name must also be held responsible as the land was acquired using their influence.”