The crisis at CIAA owes to our lack of understanding of process of appointment and removal of anti-corruption agency heads
In 2011, our political leaders played a joke on Keshav Prasad Baral by appointing him a commissioner of the CIAA without first appointing the Chief Commissioner, who, as per the then constitution, was to administer the oath of office to other commissioners. But without anyone to administer him his oath of office, Baral could not join the CIAA and carry out his duties. He therefore became a pendulum, ghar ko na ghat ko. This situation prevailed until the appointment of Lokman Singh Karki as the Chief Commissioner in May 2013.
Earlier, the political leaders had enacted another joke when the CIAA was kept without a chief from 2006 to 2013. Then, from nowhere, the electoral government headed by the sitting Chief Justice Khil Raj Regmi thought it more prudent to appoint the new chief commissioner than to hold CA elections.
With Baral as the sole commissioner, chief commissioner Karki enjoyed almost uninhibited monopoly power over the CIAA. Only at the end of February 2015 did our political masters realize that things at CIAA were starting to get out of control. With a view to neutralize the growing power and influence of Karki, they injected five more commissioners in the body, purely under political bhaagbanda. With Baral’s retirement in 2015, and now, Karki’s forced exit following the Supreme Court order, there are five commissioners currently working in the CIAA.
In addition to annulling Mr Karki’s appointment, the Supreme Court on January 8th also issued a mandamus order to the defendants to appoint a new Chief Commissioner.
However, there is a constitutional glitch in implementing this order. The new constitution has prescribed a maximum of five commissioners in the commission. But the CIAA already has five commissioners and, again, as per the constitution, none of them can be re-appointed as the chief commissioner. The only way out for the government is to wait till a commissioner’s position will be vacated.
There is yet another glitch: Out of existing five commissioners, there are impending cases against four, also in the Supreme Court, questioning their eligibility, much as happened in Karki’s case. The one remaining commissioner, Raj Narayan Pathak, is the target of Dr Govinda KC. One of Dr KC’s demands is that Pathak too be impeached like Karki. In a nutshell, until the court gives its final verdict on the pending case against the four commissioners, the mandamus order cannot be implemented. So there won’t be a new CIAA chief commissioner for some time yet. Given the never-ending political flux, chances are this state of vacuum could be perpetuated far into the future. Either by design or default, we are enacting another joke on the beleaguered CIAA.
Besides this technical quagmire that the CIAA has been pushed into, there is one more pending issue in the parliament. This has to do with the impeachment motion filed against Karki on October 19th, 2016. Incidentally, on January 8th, when the court gave its final verdict on the appointment of Karki as CIAA chief, the parliament handed over the impeachment motion for ‘review and study’ to an 11-member Impeachment Recommendation Committee (IRC). What will the parliament do with the motion? Will it quash or freeze the motion, saying that it need not act when the court has already annulled Karki’s appointment? Or will it go ahead with the motion?
As Karki has pointed out, there is also an issue of conflict of interest within the IRC. Of its 11 members, five are also signatories to the impeachment motion. One cannot be a judge and jury at the same time.
At the outset, further discussion on impeachment motion would be like trying to kill a tiger that is already dead. However, the court order on appointment review and the registration of impeachment motion in parliament are altogether different things. If one is related to Karki’s appointment, the other is related to his performance when in the post.
Interestingly, appointment and dismissal of chiefs of anti-corruption agencies (ACAs) are considered two most sensitive issues that determine the effectiveness of these agencies.
A study conducted by U4 Anticorruption Resource Centre in 2015 spanning 44 countries revealed that there are no ideal procedures for appointment and removal of ACA heads but it concludes with a pertinent finding for Nepal.
It says: “Both appointments and removals benefit from an open process that includes several stakeholders. The benefits are obvious: a sound appointment process can broaden support for an agency’s work and lead to selection of a more effective head, and a clearly defined removal process can make it difficult for those in power to terminate an ACA head for the wrong reasons.”
The current crisis at the CIAA arising out of departure and possible impeachment of its chief Lokman Singh Karki owes primarily to our lack of understanding of the process of appointment and removal of ACA heads. When constitutionally independent organs of the state, namely, the judiciary and the parliament start taking independent actions on two different issues—appointment review and performance review—of the head of another constitutionally independent body, the CIAA in this case, who knows, the two might in the future find themselves on a collision course?
Imagine what will happen if the parliament fails to secure two-thirds majority that is required to pass the impeachment motion against Karki. In the name of punishing an individual, one must not sacrifice an institution. The subtle difference between the two is what our policymakers have failed to grasp. The basic problem of Nepal’s anticorruption drive has nothing to do with plucking out one or two rotten eggs to save the rest. It has to do with the misguided effort to sanitize the whole crate that holds these eggs.
Perception and reality
The author is a freelance management consultant
