In an unprecedented case of corruption, a commissioner at the apex anti-graft agency has been accused of receiving bribe, and reports that the incident was in the knowledge of the political leadership have once again made it evident how pervasive corruption is in Nepal.

Experts on good governance and anti-corruption movement say graft charges against a commissioner of the Commission for Investigation of Abuse of Authority (CIAA) have exposed the thin veneer of order beneath which corruption thrives in Nepal.

“If it is the case of political leadership maintaining silence even after knowing about the incident, as reported in the media, then this is unfortunate,” Narayan Manandhar, who extensively writes on corruption issues, told the Post. “It has raised questions if there had been behind-the-scenes negotiations and bargaining.”

The reports suggest the prime minister and senior leaders of the ruling Nepal Communist Party (NCP) knew about the video about four months ago. The issue was also shared across the top leadership of political parties.

After the reports surfaced, lawmakers from the ruling party said on Thursday they were preparing to file an impeachment motion against Pathak.

During a meeting with lawmakers of the ruling party on Thursday, Prime Minister KP Sharma Oli had instructed them to start preparations for filing the impeachment motion.

But on Friday, Pathak tendered his resignation to the President.

Khemraj Regmi, president of Transparency International-Nepal, said the way things have unfolded only perpetuates impunity.

“The resignation could have been blocked,” he told the Post. “The prime minister should have advised the President against giving Pathak an opportunity to tender his resignation to ensure that he is subjected to prosecution for corruption,” Regmi added.

“In our parliamentary system, the prime minister is also the leader of Parliament. He should have informed the House and made it active as soon as he got the video evidence against Pathak.”

Pathak was embroiled in a controversy after video leaks showed him admitting to have received money to settle a case related to Nepal Engineering College. The college dispute had landed in the anti-corruption watchdog about a year ago. The Changunarayan-based college, established as a non-profit social academic institute in 1994, was caught in a dispute after a group led by Lambodar Kumar Neupane attempted to convert it into a private limited company in May last year.

According to a college source, who sought anonymity because he was not authorised to speak to the media, those who wanted to save the college from being a profit-making company had filed a case at the anti-corruption body.

The Neupane-led group—through various individuals—had then approached Pathak who promised to “settle the case” in return for Rs7.8 million. But months later, those who had bribed Pathak enquired him about the progress and made a video in which he reportedly admitted to receiving the bribe.

Read: Nepal falls two places to 124 on Corruption Perception Index

Prosecution or reward?

Pathak’s resignation has left legal eagles scratching their head. Had Pathak been removed through the impeachment motion, he would have lost all the state facilities he was entitled to as per Article 101 (9) of the constitution.

The resignation means he will, unless he is tried in court and convicted of graft, lead a “retired” life enjoying the state facilities. Some legal experts, including officials at the anti-graft agency, say Pathak may not be subjected to prosecution because he has already resigned.

They cited Article 239 (3) of the constitution which says the commission can initiate action against an office bearer of a constitutional body after he or she is removed from the post through an impeachment motion.

But Surya Nath Upadhyay, former anti-corruption chief commissioner, said this constitutional provision would not prevent the watchdog from initiating action against Pathak.

“There is compelling evidence to initiate a probe and to prosecute Pathak. If the commission dares, there is nothing that can stop it from prosecuting,” Upadhyay told the Post. “I don’t think any court would interpret the provision of the constitution than someone holding a public post who is caught red-handed taking bribe should get impunity.”

According to  those who were involved in drafting the new constitution say that the spirit of Article 239 (3) of the charter is that those who hold public posts like a CIAA commissioner or a judge should not be constrained by any future risk while performing their duty.

“But, the resignation of Pathak has ignited a debate over the constitutional provision,” said Radheshyam Adhikari, a Nepali Congress lawmaker who is also a lawyer. “This is an issue that the Supreme Court should interpret.”

Stakeholders said the dispute would not have arisen had the political leadership maintained a firm ground and pushed for impeachment motion against Pathak.

Regmi said impeachment  motion should have been initiated without letting him resign.

“As long as such persons are saved from prosecution, this will encourage people holding posts in constitutional bodies to amass property without any fear—and resign after their shenanigans become public,” he said.

If Pathak gets impunity, he will also be entitled to state perks. As per the Act on Remuneration, Conditions of Service and Facilities of the Authorities of the Constitutional Bodies, an office bearer of a constitution body who resigns is entitled to one month’s remuneration as an additional facility, in addition to the remuneration to which he or she is entitled until the day of which he or she is incumbent in his or her respective office.

“Should such person get impunity in a corruption case just for holding the post in constitutional body just as the CIAA strips hundred of non-gazetted civil servants of all state facilities for taking bribe of a few thousand rupees?” asked Regmi.

Heart of the matter

While the voice for initiating prosecution against Pathak is getting launder, questions have also been raised about those who recommended Pathak for the post of CIAA commissioner.

On February 27, 2015, a meeting of the Constitutional Council led by the late prime minister Sushil Koirala recommended five names including Pathak, who had just retired as the deputy attorney general.

According to Regmi, the Constitutional Council where the prime minister, the opposition leader, Speaker of Parliament and the chief justice are members, was envisioned to ensure that appointment to key constitutional bodies would not be made in the interest of a single political party. He complained that the council had become a body to recommend the names as proposed by the political parties after the power-sharing agreement.

“Pathak was recommended as a part of power-sharing agreement between the political forces. Such appointment is being made to save themselves from future prosecution in case of corruption,” he said.

Pathak was recommended from the quota of the Madhes-based parties. Article 238 (6) of the constitution has set the eligibility criteria for a CIAA commissioner. A person with high moral character, one who is not involved in any political party as its member at the time of appointment, and the required academic qualification and experience can become a CIAA commissioner.

The Constitutional Council had failed to recommend individuals with high moral integrity. This was reflected in the appointment of Lokman Singh Karki as the chief commissioner in May 2013 and Pathak, who was appointed a commissioner two years later. The Interim Constitution also required high moral integrity of a CIAA commissioner candidate.

On January 8, 2017, the Supreme Court disqualified Karki to head the CIAA arguing that he lacked the high moral ground and qualification for the job. “The irony is that Lokman was disqualified but his work as the CIAA chief were considered qualified,” said Manandhar. “What’s more, those who recommended him to head the CIAA have been walking as heroes.”

Despite strong protests from several quarters, the political leadership in 2013 recommended Karki to lead the CIAA, citing their unspecified “compulsion”. He later faced the charge of running a revenge mission against those who had stood against his appointment. This ultimately led to his own downfall.

On the other hand, Pathak, who also faced the accusation of colluding with Karki in his revenge mission, is accused of intervening in the entrance exam of Kathmandu University in June 2016 after the university refused to pass Pathak’s daughter to study at KU’s Medical School.

Former CIAA Chief Upadhyay said the culture of making appointments based on political power-sharing without considering the moral integrity has resulted in unfortunate incidents involving the CIAA commissioner himself.

“Appointments based on political power-sharing do not necessarily lead to bad appointments,” he said. “But political parties themselves can choose good people for their quota which was not done in Pathak’s case.”

Like Karki, the incident involving Pathak once again smeared the image of the CIAA. “As we were working to restore CIAA’s image damaged by Karki by filling large-scale corruption cases at the Special Court, Pathak once again took us back to where we had started,” said a commissioner on condition of anonymity.