Debate rages over current relevance of Commission for the Investigation of the Abuse of AuthorityThere is no alternative to making the constitutional anti-graft agency effective, and for that choosing the right person to head it is imperative, experts say.
The failure has been consistent in different ways.
Either the Commission for Investigation of Abuse of Authority does not file cases against the big shots allegedly involved in corruption or when it does there is not enough evidence against them, meaning there has not been enough investigation into the cases and the court fails to acquit them.
Instead, the constitutional body is found to be spending its energies on cases of petty corruption like in one involving a junior official at a land revenue office in Kathmandu for all of Rs 1,000. He was acquitted but not before he had committed suicide.
In contrast, according to a report by Kantipur, the Post’s sister paper, the commission is preparing to exonerate former communications minister Gokul Baskota, a close confidante of Oli, who was caught on tape negotiating Rs700 million bribe.
Some experts have started questioning if the institution of the commission itself is relevant today. The concerns are being raised at a time when the ruling and the main opposition parties are reportedly in negotiations to find the new chief commissioner after the tenure of Nabin Ghimire as chief came to an end last month.
“It has failed to fulfil its constitutional responsibility except in a few cases,” said Srihari Aryal, an anti-corruption campaigner. “It was established since police cannot investigate cases where there are big politicians involved. But it has rarely brought politicians to book. If it continues to fail to fulfil its responsibility, what is its relevance?”
The concept of the commission was envisioned amid concern that existing government agencies like the police could not function without political influence.
But, widespread belief is that it failed to keep away from the influence of politicians who appointed the commission’s officer bearers.
The chief commissioner and commissioners are usually retired bureaucrats and they have close connections with politicians over their long years of service and may not be very effective at taking action against them.
“Former government secretaries do have the tendency of looking at hierarchy and they tend to forget that the commission is an independent institution outside the influence of the executive,” said Bipin Adhikari, an expert on constitutional law and former dean at Kathmandu University School of Law.
Political parties have always tried to ensure that people they can control become the chief commissioner and commissioners.
During the period of Nepal’s political transition after 2006, the position of the chief commissioner remained vacant till 2013 as there were frequent changes of government and political parties could not agree on anyone.
But after they finally agreed to appoint Lokman Singh Karki to head the anti-corruption body, its image nosedived.
Karki was a controversial figure, allegedly involved in gold smuggling and, most controversially, playing a crucial role in suppressing people’s movement in 2006.
“His move to run a parallel power centre again exposed the danger of unrestricted power in the hands of an unelected institution,” said Aryal, who is a senior lawyer and former president of Transparency International Nepal, an anti-corruption advocacy group.
Karki’s relentless drive to run a parallel power centre was halted only after a group of legislators registered an impeachment motion against him at the Parliament Secretariat. The scrapping of his appointment by the Supreme Court in January 2017 restored balance in favour of politicians, many of whom were targets of Karki.
“Only by appointing competent persons with integrity as chief commissioner and commissioners can the commission be made effective,” said Om Prakash Aryal, the advocate who filed a case against Karki in the Supreme Court. “But politicians seek to appoint persons who will not target them in the future for corruption.”
It is not only politicians but also some commissioners who have been accused of corruption and cases against them have not moved forward.
The commission itself filed a corruption case against former chief commissioner Deep Basnyat in the case of Baluwatar land scam and he is also facing separate investigation from the Department of Money Laundering Investigation on charges of transfer of properties illegally earned by him to the foreign countries.
Another ex-commissioner Raj Narayan Pathak also faced corruption case at the Special Court after he was caught in a video tape admitting that he had received the graft of Rs7.8 million to settle the issue of an engineering college in Bhaktapur.
“So it is essential that the constitutional council appoint good and clean persons to the anti-graft body,” said Adhikari. “For this, the role of the prime minister, who heads the constitutional council, remains crucial.”
Adhikari thinks it would be better to make an ex-judge, whose track record is admirable, the chief commissioner, as they usually function outside the influence of the executive during their career.
“But constitutional amendment will be necessary for this,” he added. In India, half of the eight-member team of Lokpal, a similar institution like the Commission for Investigation of Abuse of Authority, are the former judges.
A bill to amend the Commission for Investigation of Abuse of Authority Act has been registered at the National Assembly, to authorise the watchdog to look into non-governmental organisations and banks.
According to the bill, banking agencies, medical colleges, public limited companies, institutions receiving funds from any of the three tiers of government, in addition to any institution designated a “public institution” in the Nepal Gazette, fall within the purview of the commission.
“It should also be authorised to look after transactions of political parties and their leaders as that would be one way to bring political corruption under control,” said Aryal, the senior advocate.
Currently, only the Election Commission looks after the transactions of parties and it does not do that effectively enough.
Another senior advocate, Shambu Thapa has a more radical proposal to make the commision more effective.
“It is better to have a separate service for the commission under the civil service, which will help increase the professionalism among the staff there,” said Thapa. “A system of appointing commissioners from within that service could be developed and this would help bring independence in its functioning.”
With corruption rampant within the government system, there is no alternative to having a watchdog and making it effective, experts agree.
“People’s expectations of the commission are high. So it is natural that people are disappointed with the delivery of the commission,” said Surya Nath Upadhyay, former chief commissioner of the commission.
“It is necessary that an anti-corruption body remains even to create an environment of fear among those who try to be involved in corruption,” Adhikari said.