Supreme Court bars anti-graft agency from conducting sting operationsThe bench says such an act is against the constitutional and legal provisions and the principle of criminal justice.
The last time the Commission for Investigation of Abuse of Authority had conducted a sting operation was on April 8 when it arrested Police Constable Kasindar Yadav red-handed with bribe money.
The anti-graft body said in a statement the same day that Yadav, employed at the Area Police Office, Sitagunj, Sunsari, was arrested with Rs40,000 provided to him by service seekers at the gate of the Nobel Medical College in Biratnagar.
The constitutional body now will no longer be able to launch such operations again and those arrested through such sting operations won't face any trial.
The Supreme Court on Wednesday barred the commission from conducting sting operations, saying such an act is against the constitutional and legal provisions and the principle of criminal justice.
The Constitutional Bench of the Supreme Court led by Chief Justice Cholendra Shumsher Rana, with Justices Deepak Kumar Karki, Meera Khadka, Hari Krishna Karki and Ishwar Prasad Khatiwada as members, issued the order.
The anti-graft agency has long been conducting sting operations—in some cases its own officials pose as service seekers to bribe officials and catch them “red handed while receiving the bribe”.
The court has said people arrested through sting operations do not need to stand trial.
The court was responding to a writ petition filed by advocate Bishnu Prasad Ghimire.
The bench has nullified Clause 30 of the regulations of the Commission for Investigation of Abuse of Authority Act-1991 which allowed it to conduct sting operations.
“Clause 30 of the regulations is nullified from Wednesday as per Article 133 (1) of the Constitution,” reads the court verdict, a copy of which was seen by the Post.
Clause 30 of the Regulation of the Commission for Investigation of Abuse of Authority Act-1991 states that “the commission can provide bribes to public officials demanding bribes through its own employee or the person from whom the bribe has been asked during the process of investigation once a complaint is registered against such public officials.”
The court said Clause 30 of the regulations is against the provision related to fair hearing as per Article 20 (9) of the constitution and against the spirit of Section 3 of the Corruption Prevention Act-2002.
“This clause is also against the principle of the criminal justice system, due process and judicial principles regarding evidence collection,” the verdict states. “This provision encouraged the investigating officer to use power in a discretionary way.”
Spokesperson at the commission Narayan Prasad Risal said that the commission has not made any opinion regarding the verdict. “We will first study the full verdict of the commission,” he said.
The commission has long been accused of attaching undue priority to sting operations in which mostly junior government staffers are arrested with a few hundred or a few thousand rupees in bribes, and not targeting top officials involved in large-scale corruption scandals.
According to the commission’s annual report, of the total 441 cases it had filed in the last fiscal year, 205 are related to grafts, mostly exposed through sting operations. In the current fiscal year, so far the commission has conducted 61 sting operations and filed 56 cases, according to the Risal.
Last year, a government official’s acquittal on corruption charges by the court a year after he committed suicide over graft charges filed against him put a spotlight on the commission and stoked a debate on its independence, relevance and need.
The commission on September 16, 2019 had filed a corruption case against Ramhari Subedi, a non-gazetted staffer at the Kalanki Land Revenue Office, for accepting Rs1,000 in bribe. A week later, on September 23, 2019 Subedi killed himself. But he was acquitted by the Special Court on July 14 last year.
Experts on corruption say it will take some time for the impact of the court’s decision on anti-corruption efforts to be seen.
“One thing, however, is certain that there will be fewer complaints against bribe-taking,” said Surya Nath Upadhyay, former chief commissioner at the anti-graft body. “On the other hand, this will further embolden corrupt public officials.”
Upadhyay, however, said the latest court decision would not bar the commission from launching anti-graft operations by using service seekers' money.
But questions remain whether the service-seeker involved in paying money to a government official to help the investigations also faces punishment as per the law because it is illegal to offer bribe.
As per Section 3 (3) of the Corruption Prevention Act-2002, whoever gives money to a public servant or any other person in order to do or forbear to do any function for personal interest or causing loss to public office shall be liable to a punishment depending on the degree of the offense committed.
“We can make any comments about these concerns only after studying the full text of the verdict,” said Risal, the spokesperson for the anti-graft agency.
Sting operations had become a norm during the tenure of Lokman Singh Karki at the anti-graft agency, and on most of the occasions, junior government officials used to be the target.
It's not yet clear whether the court decision to ban sting operations comes as a setback for the anti-corruption agency, but those who have worked in the field of good governance say there are other ways to fight corruption apart from sting operations if officials work honestly.
“The intention and priority of the leadership of the commission are important in the fight against corruption," said Upadhya, the former chief commissioner at the agency.