The Central Bureau of Investigation (CBI), a prime anti-corruption institution in India, needs to seek permission from the government for every enquiry it conducts, while the Central Vigilance Commission (CVC) enjoys mainly recommendatory powers. At present, around 9,910 corruption cases against high-profile officials and politicians are pending, because the CBI lacks manpower to investigate them. CBI’s track record shows that it has succeeded mostly in politically neutral corruption cases. This explains why Hazare´s crusade against corruption gained so much steam.
LURE OF LOKPAL
What is evidently true is that the existing anti-corruption law and agency in Nepal is stronger in light of legal mandate than the existing mechanism India has in place. Yet, we have failed to bring down corruption levels. This analogy unravels the truth that anti-corruption law alone may be inadequate to root out corruption.
Public furor was legitimate as the government tried to strip the Lokpal Bill of its powers by drafting it singlehandedly, which was quite toothless and had numerous glaring loopholes with the possibility of making the whole anti-corruption mechanism a sham exercise. It is expected that if the government considers 34 points submitted by civil society for the draft bill, corruption in India would plummet by 90 percent and people don´t have to pay bribes to claim their entitlements. The Transparency International´s survey revealed that poor people in India pay over US$200 million annually in bribes to access ‘free’ services, including police, hospitals, schools and employment benefits.
A World Gallup Poll in 2010, released by a US-based agency shows that almost half (47 percent) of respondents said that the level of corruption in India was higher than it was five years earlier, while 27 percent said it was about the same. Being wary of corruption, India, after more than six decades of its democratic exercise, is now envisioning Lokpal, as an independent anti-corruption institution. The Lokpal, a proposed merger of CVC, departmental vigilance and CBI´s anti-corruption branch, will have more teeth to independently investigate and prosecute the corrupt, if it comes through the parliament in the form as proposed by the civil society.
A 10-member joint committee formed by the government has been facing heated debates and struggling hard to strike a balance between civil society’s progressive and the government´s defensive provisions against corruption. Under the prevailing law, a minister can be prosecuted only after a sanction from the prime minister while the Lok Sabha Speaker or the Rajya Sabha Chairman has to give a nod for actions against members of parliament. Civil society activists are demanding that the Lokpal be provided with the power to initiate a suo motu probe into allegations of corruption against ministers, parliamentarians and senior bureaucrats. However, the Indian government is painstakingly reluctant to this proposition because of which civil society activists fear that the government version will create a Lokpal of less than 35,000 officers above the rank of a joint secretary with no powers on members of parliament, the prime minister or the judiciary.
The committee, amidst sharp differences between these two camps, has built consensus on seven out of 34 points of civil society, such as assets amassed through corrupt means by a public servant will be frozen during the investigation and liquidated on his being proved guilty to make good any loss to the state exchequer. To make it more powerful, the committee has agreed that any assets owned by public servant that have not been declared but found later will be considered obtained through corrupt means. Lokpal has been given draconian powers of contempt, search and seizure, laying traps and telephone interceptions. Skeptics fear that it would make Lokpal a "super cop".
The Lokpal has authority for “interdiction,” an order preventing the public servant from transferring any asset. If the person is convicted of corruption, the court will have to decide the amount of loss caused to the government and reimburse the same from the convicted party. Lokpal has been given the power to verify assets declared by elected representatives with his/her declared source of income in his/her tax-returns. Similarly, in order to avoid political influence and appointment of corrupt persons as Lokpal members, the selection has been proposed to be made through an independent committee of judges, citizens and constitutional authorities but not by politicians.
CIAA: POWERFUL YET CREAKY
The government and the civil society members are up in arms for creating an independent and the most powerful anti-corruption agency in India, which they do not have as yet. In this backdrop, I pondered over what rendered us inefficient in fighting corruption. Is it because we do not have strong laws, institutions or willingness? A comparative analysis made me feel proud because our laws are not any less comprehensive than what India is trying to obtain through the proposed Lokpal Bill. Unlike India´s CBI, the Commission for the Investigation of Abuse of Authority (CIAA) can investigate and prosecute major branches of the government and enjoys authority for a suo motu investigation into allegations against the prime minister, ministers, parliamentarians and bureaucrats. It can independently act on any public complaints and can even freeze bank accounts and properties of the accused and their abettors. Compared to the proposed Lokpal, CIAA only lacks wiretapping powers.
What is evidently true is that existing anti-corruption law and agency in Nepal is stronger in light of legal mandate than the existing mechanism India has in place. Yet, we have failed to bring down corruption levels despite having such a powerful anti-graft body. This analogy unravels the truth that anti-corruption law alone may be inadequate to root out corruption unless devoid of strong political commitment.
Across South Asia, CIAA is a unique and an independent anti-corruption agency bestowed with multiple roles of an ombudsman, an investigator and a prosecutor. Nonetheless, Nepal continues to portray herself as a corrupt country with some notches upwards, every year in global indexes and corruption reports. The Corruption Perceptions Index 2010 shows that Nepal is ranked the worst amongst India, Pakistan and Bangladesh on public sector corruption, both regionally and globally. No country in the region though, has an anti-corruption body as powerful as the CIAA. This paradox shows that dealing with corruption in countries like Nepal is not only about laws, regulations and institutions but also about the problems of creating political will to implement them and make these institutions and their functionaries vibrant.
The post-1990 period, which I prefer to regard as a complete debacle in terms of political commitment and initiatives against corruption, has taught us some painful lessons. Improving the quality of regulations, strengthening judicial independence, establishing strong institutions and empowering civil society are indeed preconditions for effective anti-corruption approach but without a political will, which is a second precondition, success is not that easy. Otherwise, why is this regionally most powerful anti-corruption institution left without its chief commissioner for more than four consecutive years? All of us know that because of pathetic political will and accountability, CIAA has been pushed into a sorry state at present. Had our political parties been accountable toward people, they would not have dragged their feet to fill in vacancies at the CIAA for years.
Government even in a democracy will not deliver until people make it deliver. On issues like anti-corruption and good governance, government will not cave in unless there is strong public pressure. This is what an anti-graft campaign led by Anna Hazare has taught us. Maybe, we also need to gather at Basantapur to apply pressure on the government to appoint CIAA commissioners and implement anti-corruption laws as well. Since our politicians have miserably failed to prove their mettle in fighting corruption, civil society movement in India can be an insight for us due to its meticulous blending of political wisdom and social need in the fight against corruption.
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