What the common man has experienced so far is that corruption has not decreased even by an inch; rather its tentacles have spread to every sector of our society. A common Nepali citizen still has to dole out bribes to get anything done in public offices. The problem is: Those who are supposed to curb corruption are themselves not interested in it. Their interest is better served in situations where corruption flourishes.
The forerunners of anti-corruption movement were hoping that some improvements would be made in the new constitution but their hopes have been completely dashed.
Let’s explore a recent move by our politicians. The Constituent Assembly (CA) Committee for Determining the Structure of Constitutional Bodies has produced a draft concept paper. The Commission for the Investigation of Abuse of Authority (CIAA) is among the eleven odd constitutional bodies ranging from Civil Service Commission to a Commission devoted to the promotion of rights and development of Madhesi people which have been recommended for inclusion in the constitution. Much could be said about their “wisdom” or “whim” of prescribing eleven bodies for inclusion in the constitution. However, this write-up is devoted to CIAA only.
While devising the rights and duties of CIAA, they have knowingly made it a crippled body not apt to be accorded a constitutional status. As a matter of fact, in one of the talk shows in a local television a couple of days back, the chairman of the above-mentioned committee said in no unequivocal terms that they have really clipped the wings of CIAA and they feel that they have rightly done so to control it. This suggests that they don’t want to see an effective CIAA. As a matter of fact, CIAA has already been less effective particularly in the case of departmental action against those public position holders who have been found to be indulging in “improper activities” in the course of their duties.
Improper activities in the law have been defined as violation of the procedures of law, arbitrary use of authority, non-performance of duty, shifting of responsibility, obstruction of the process of law, etc. In the case of such activities, CIAA is allowed to investigate but cannot pass any judgment or sanction. It can simply point out its findings to the concerned authority of the government. Paradoxically, the kind of improper activities for which CIAA will recommend departmental action do not fall within the jurisdictional right of the governmental authority, which is supposed to take the action. Hence, the case either remains in limbo or some cautionary strictures are issued to the offender, which is far different than departmental action. It is a mockery of the investigation conducted by CIAA if it can easily be flouted by a functionary of the government, which is much junior to CIAA in terms of its status.
The forerunners of anti-corruption movement were hoping that some improvements would be made in the new constitution. Their hopes have not only been dashed but the future of CIAA has been made bleak by clipping its authority substantially. The proposed provision has further made an additional suggestion to the total weakening of CIAA, by providing a clause that the jurisdiction of this body may be taken away in the case of a particular category of civil service functionary by an ordinary law. One does not find any sense in according CIAA a constitutional status if its jurisdiction can be taken away by a simple legislation. It is like saying that the simple legislation is supreme than the constitution. If this is the kind of psyche of the constitution drafters, they should better do away with CIAA rather than hoodwinking the public by providing it constitutional status.
The proposed provision renders yet another deadly blow to CIAA. The draft requires CIAA to place its investigation before the Attorney General (AG) for his advice and is bound to obey his/her direction as to whether and in what manner to proceed with the case. It cannot file the suit in the court independently. In practice, it shall have to obey the dicta of the AG on every step of the investigation. The provision makes the constitutional body subservient to a non-constitutional body. This reduces this body to a department of investigation of the police. If this is what the CA members want, there is no raison d’etre for keeping the CIAA as a constitutional body. Better do away with it. You shall have a free ride. Congratulations!
(Writer is former chief commissioner of CIAA.)
surya@upd.wlink.com.np
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