Narayan Manandhar, an international consultant on anticorruption, contributes the following guest post:
Nepalese lawmakers recently promulgated a draft constitution that envisages new roles and responsibilities for its anticorruption agency, the Commission for the Investigation of Abuse of Authority. The proposed changes to the commission’s mandate shows how, if policymakers don’t have the guts to abolish an anticorruption agency, they can defang it by eroding its power and responsibilities. This recent effort is the latest attempt by Nepal’s elite to ensure the commission cannot do what it is supposed to do: fight corruption.
When the country was effectively ruled by the monarchy, power to take action against petty corruption rested with the executive while the royal palace retained the power to deal with grand corruption. A 1975 amendment to the constitution provided for the creation of an independent anticorruption agency with sweeping powers to investigate and prosecute and even adjudicate corruption crimes. The agency itself, however, was not established until two year later — its delayed birth a troubling sign that the regime may not have been as seriousness about tackling corruption as its rhetoric would have suggested. Indeed, save for a lone case nicknamed the Carpet Scandal, the constitutionally-mandated agency did almost nothing, most likely because the corruption it was tasked to tackle involved powerful people.
With the end of monarchical rule and the re-institution of multiparty democracy in 1990 the agency was given its present name. While the rechristened Commission for the Investigation of Abuse of Authority or CIAA continued to have responsibility for investigating and prosecuting corruption crimes, consistent with the return to democracy power to adjudicate corruption cases was returned to the judiciary.
The commission remained largely inactive until new anticorruption laws were approved in 2002. The years 2002-2004 were years of peak activity when it aggressively pursued allegations of corruption by public servants. When however the monarchy reclaimed political power in 2005, the CIAA was overshadowed by the establishment of another anticorruption agency, the Royal Commission for Controlling Corruption. The Royal Commission experienced some success, notably imprisoning a former prime minister on corruption charges. Perhaps too much. It was declared unconstitutional by the Supreme Court in 2006, leaving the CIAA as the main agency responsible for fighting corruption.
The commission survived the changing political winds albeit without any leadership from 2006 until 2013, thus making it mostly a toothless tiger. In fact from January 2010, after the retirement of the commissioners, the CIAA was managed by a career civil servant. It was reported that the body would have collapsed had the retiring commissioner not delegated his authority to the career employee before retiring. Further evidence that policymakers did take the commission seriously is shown by the appointment of a commissioner in 2011 without first appointing a chief commissioner. Without a chief commissioner to administer the oath of office, the appointed commissioner was virtually powerless. Finally in 2013 Lok Man Singh Karki was named chief commissioner and the CIAA was again able to operate though handicapped by having but two members, Karki and the 2011 appointee.
Nepal has been struggling to write a new constitution since 1977 under the auspices of a Constituent Assembly, and one issue with which the assembly has grappled is the mandate of the CIAA. In 2012 a committee appointed by the assembly sought to clip the CIAA’s wings by taking away its power to prosecute corruption cases. Fortunately, later in 2012, the assembly was dissolved and the recommendation to curb the commission’s powers put on hold – at least for awhile.
In 2013 a new government was formed, and it showed its interest in the commission by naming four additional commissioners to join Chief Commissioner Karki and the 2011 holdover commissioner. But whether the interest shown is healthy or not is debatable. The new members are patronage hires — appointed not because of their commitment to fighting corruption but because of their willingness to neutralize the growing clout of Chief Commissioner Karki.
At the same time, lawmakers’ lackadaisical interest in the commission is clear from the recommendations advanced by the current constitutional drafting committee. The committee has proposed that the anticorruption commission consist of five members. Yet, as just noted, there are now six members. Unless one of the commissioners plans to retire soon, one would have to go home when the new constitution takes effect. But Article 237(6) of the draft constitution guarantees the terms of all six current members of the commission!
The curtailment of one or two members, here and there, now and then, may not make much difference in the anticorruption commission’s performance. The bigger challenge will be what roles and responsibilities the new constitutions assigns it. As per the existing Interim Constitution, the commission is responsible for acts of (a) corruption and (b) improper conduct by the public officials. While the commission will continue to be responsible for acts of corruption under the current draft of the constitution, the drafters initially tried to sharply curtail its power to investigate improper conduct, relenting only after a public outcry.
Even then, the current draft provides that if the CIAA determines the employee acted improperly it can only recommend the employee’s department take action . To understand why this is so critical, consider that the CIAA is empowered to investigate corruption cases by the judges, members of other constitutional bodies, and the army officials — but only after they are relieved of their positions for misconduct, again a decision that remains in the hands of their employer — not the CIAA.
Moreover, it is not clear from the draft constitution whether the commission will retain responsibility for corruption prevention and anticorruption education and awareness.
Whether commission should or should not be made responsible for taking actions against improper conduct is a matter for debate and discussion, but the proposal has come at a time when the commission has just expanded its area of operation by establishing five regional and equal number of sub-regional offices. There has also been a tremendous expansion in staff strengths from around 300 in 2013 to over 1000 recently. Moreover, this new proposal from law makers has come at a time when the commission is looking forward to amending the anticorruption laws to bring them into line with UNCAC – primarily, to expand its mandate to cover corruption crimes in the non-public sectors like the private sector and the non-governmental organizations.
Given the fact that the country has seen mushrooming growth of anticorruption agencies with overlapping jurisdictions, there is a need to rationalize the anticorruption sector. There are more than 16 state-level anticorruption agencies currently working in Nepal. However, the present move seems to have come without adequate study, consultation and preparation. It will be a different matter if the drafters of the constitution have sought to treat “improper conduct” as an ombudsman function. This writer is of view that anticorruption functions should be concentrated into a single agency. It is not sure how the law makers are going to treat money laundering, public procurement, revenue leakages as corruption related crimes. Currently, these crimes are separately dealt by different agencies within the executive.
Infuriated by the earlier proposal to curtail prosecution power of the anticorruption commission, former chief commissioner Mr Surya Nath Upadhaya wrote an article saying it is better to do away with the constitutional anticorruption agency rather than pretending to have one. Literally, the politicians in Nepal are in a fix: They don’t like to have this constitutional anticorruption agency but, at the same time, they cannot go against it. The solution seems to be to corrupt the agency.