Judicial custody of former anti-graft body chief raises questions over appointmentsUnless appointments are made in a transparent way without political motivations, the trend of choosing a person lacking qualifications will continue, observers say.
The Special Court order to send Deep Basnyat, former chief commissioner of the Commission for Investigation of Abuse of Authority, to judicial custody on the Baluwatar land grab case has once again raised questions over why people like Basnyat are appointed to lead the anti-graft body in the first place.
A person needs to have high moral character to be appointed as chief commissioner or commissioner of the anti-graft body as per the constitution.
The Special Court, which looks into cases related to corruption, refused to release him on bail as he had been accused of a serious offence—of creating fake tenants as well as transferring government lands in their names, according to Pushpa Raj Pandeya, spokesperson of the Special Court.
Basnyat is not the only one who, despite having a poor track record, still managed to head the anti-graft body.
Ignoring massive protests within political parties, Karki was appointed as chief commissioner in 2013 as a consensus candidate of the parties despite his history of allegedly playing a key role in suppressing people’s movement in 2006 and promoting gold smuggling during his bureaucratic career.
The integrity of Raj Narayan Pathak had also been questioned before his appointment as commissioner at the anti-graft body. He is also facing corruption charges from the commission itself after he was caught on videotape admitting to accepting Rs7.8 million to settle the ownership dispute of a Bhaktapur-based college when he was an incumbent commissioner.
“Officials of the commission being dragged into corruption case has smeared the image of the anti-graft body,” said Surya Nath Upadhyay, a former chief commissioner of the commission. “These cases have also raised serious questions over the intention of those who appointed them to run the commission. They should take first the biggest responsibility for controversial figures taking charge of the anti-graft body.”
He said that the political leadership’s tendency to choose a person who is close to a particular political party or political leader, instead of one’s qualification and integrity, has resulted in the appointment of controversial figures.
“This has also been the reason why the anti-graft body has been embroiled in controversy,” Upadhyaya added.
As per the Article 238 (2) of the constitution, the President appoints chief commissioners and commissioners of constitutional commissions based on the recommendation of the Constitutional Council.
The council is headed by the prime minister and has the chief justice, the speaker of the House of Representatives, chairperson of the National Assembly, the leader of the main opposition party and deputy speaker of the House of Representatives as members. It is therefore, essentially, political leaders taking key roles in appointments.
While making recommendations, the council needs to consider a host of factors including his/her social prestige, moral character, honesty, public attitude toward him/her and his/her previous service, if any, and professional experience, according to the Constitutional Council Act.
But experts say that these provisions are hardly followed.
Om Prakash Aryal, the advocate whose writ petition against the appointment of Lok Man Singh Karki turned to be crucial to end his tenure, said that sound academic qualification and track record are required to be appointed in constitutional bodies, including the anti-graft body, but political leaders hardly care about those requirements and the appointments are made based on power sharing deals and collusion with the interest groups.
“For example, Lok Man Singh Karki was appointed based on collusion as he was a consensus candidate among the major political parties of that time,” he said. “As long as the motive of those who have the responsibility to make appointments is malafide, legal provisions are not followed in their true spirit to appoint the best possible person.”
He said that people like Karki, Basnyat and Pathak might have been appointed by taking certain benefits from them or with a view to benefit from their appointments in future.
After Nabin Kumar Ghimire retired from the post of chief commissioner at the Commission for Investigation of Abuse of Authority in mid-September for age limit, the post as well as three posts of commissioner remains vacant. Acting chief commissioner Ganesh Raj Joshi and commissioner Sabitri Thapa Gurung will also retire early next year.
Amid talks about fresh appointments, concerns are also being raised whether Prime Minister KP Sharma Oli, who heads the Constitutional Council, will pick the right candidate as envisioned by the constitution and law as corruption scandals have emerged involving his ministers and political appointees.
There have also been reports of a deal having been made between Oli and president of Nepali Congress and leader of the main opposition Sher Bahadur Deuba over appointments.
The meeting of the Constitutional Council, scheduled for Sunday, was postponed after Deuba said he was not attending as his party organised anti-government rallies across the country on Monday.
Experts and observers say the indications are not right with legal provisions being made to shield political leaders from corruption cases.
According to a bill to amend the Corruption Prevention Act registered at the National Assembly, corruption cases have to be filed within five years since an alleged case of corruption has taken place. The existing law allows the anti-graft body to prosecute public officials any time. The bill to amend the law on the Commission for Investigation of Abuse of Authority has the provision that it cannot investigate into policy decisions of provincial governments too. At present it cannot investigate policy decisions of the federal government.
"Such laws are being introduced under the influence of interest groups and political leaders have a close nexus with them," said advocate Aryal.
According to Aryal, when the political leadership engages to profit from nexus with an interest group, how can appointments of the right person at the commission can be expected irrespective of how good legal provisions are made.
Gauri Bahadur Karki, former chairperson of the Special Court, also points out the trend to award people who are controversial.
"We saw former chief commissioner Nabin Ghimire rewarded for outstanding works with medals from the President right after his retirement even though he decided to suspend investigation on former communication minister Gokul Baskota and no case was filed against son of Finance Minister Bishnu Poudel, after he promised to return the land of Lalita Niwas, Baluwatar while many others were made defendants," he said.
Poudel is also the general secretary of the ruling Nepal Communist Party and close ally of Prime Minister Oli.
Ghimire was one of 594 recipients of titles and honours, decorations and medals, many of them controversially, distributed to those making “outstanding contribution to various walks of national life” on the occasion of Constitution Day in September.
Experts and observers said a transparent process for making appointments in the anti-graft body was required so that people's faith in it could be restored.
Karki suggested that a board of independent people could be formed to select the potential candidates and public hearing of those who are selected could be conducted to examine whether anybody has any fault.
Even though there is the provision of parliamentary hearing of those who are chosen by the Constitutional Council, the parliament committee has often become a rubber stamp to approve persons picked by the council.
Advocate Aryal said a vetting process could be introduced by making provision that the candidates require to declare their qualifications and qualities and making anybody who has made a false declaration ineligible.
"Even though the motive of political leadership remains central in making appointments in the constitutional bodies, such a checklist may also help choose better candidates," he said.
Upadhyay, the former chief commissioner of the Commission for the Investigation of Abuse of Authority, also said that the proper vetting by the parliamentary hearing committee could help pick a good candidate.
"It should be able to tell the Constitutional Council to reconsider the selection of any person who it finds not fit to hold the position based on evidence collected during the hearing process," he said.