KATHMANDU: The Supreme Court (SC) of Nepal has begun hearing writ petitions challenging the appointments of 52 individuals to various constitutional bodies made on December 15, 2020, and May 9, 2021, during the tenure of CPN-UML chair KP Sharma Oli as Prime Minister.
Among the numerous constitutional bodies, the Commission for the Investigation of Abuse of Authority (CIAA) has garnered the most attention.
Meanwhile, the CIAA, Nepal’s top anti-corruption body, celebrated its 34th establishment day on February 10.
According to its 34th annual report, the CIAA has resolved 27,714 complaints out of 36,186, including 26,918 registered during the fiscal year 2080/81 and 9,268 from the previous year.
As the Supreme Court begins hearing the cases, the future of the CIAA commissioners is being decided. The CIAA is led by one chief commissioner and four commissioners, each serving a six-year term.
What is the general overview of the CIAA?
The Commission for the Investigation of Abuse of Authority (CIAA) is a premier constitutional body in Nepal established to combat corruption and its pervasive influence in the country.
Nepal’s first anti-corruption law, the “Nepal Corruption Eradication Act, 1952,” led to the formation of the “Corruption Eradication Department,” which was established with the goal of reducing corruption in the country.
The Constitution of Nepal (2015), in Part 21, Articles 238 and 239, empowers the CIAA to investigate and probe cases involving individuals holding public office and their associates who engage in the abuse of authority through corruption.
The CIAA stands as one of the most powerful anti-corruption agencies in South Asia, fulfilling the roles of ombudsman, investigator, and prosecutor. Its mission is to tackle corruption at the national level through a system-based approach.
The CIAA’s dual focus includes not only detecting and punishing corrupt acts but also promoting social, cultural, and institutional reforms to address the root causes of corruption.
With one of the most powerful mandates for an independent constitutional body globally, the CIAA is institutionally a formidable organization.
However, its effectiveness is often undermined by political appointments and the tendency of leaders to use the CIAA as a tool to advance their political interests, which itself constitutes a form of corruption.
For years, the CIAA has been seen as a political instrument wielded against rivals rather than as a force dedicated to addressing the deep-rooted corruption in Nepal.
According to reports published by Transparency International (TI), Nepal’s performance in combating corruption has shown gradual improvement.
However, despite three decades since the CIAA’s establishment as an anti-corruption body, significant progress has not been reflected in Nepal’s corruption perception score, which remains well below the global average.
While the performance of the CIAA suggests it is operational, it remains less effective than required to bring about a meaningful reduction in corruption.
This raises critical questions about the institutional capacity of the CIAA and its ability to fulfill its mandate effectively.
The Commission for the Investigation of Abuse of Authority (CIAA) is a constitutional body in Nepal, dedicated to controlling corruption by investigating any abuse of authority committed through corruption by individuals holding public office.
Articles 97 and 98 of the then Constitution of the Kingdom of Nepal (1990) granted the CIAA the status of an independent and autonomous constitutional body.
The Interim Constitution of Nepal (2006) continued the existence of the Commission, and the present Constitution outlines its functions, duties, and authority for combating corruption.
In alignment with the spirit of the Constitution, the CIAA has adopted a comprehensive approach to fight corruption, which includes punitive, preventive, promotional, and institutional capacity development strategies.
The CIAA’s central office is located in Tangal, Kathmandu, and it operates eight outreach offices in key locations: Itahari-Sunsari, Bardibas-Mahottari, Hetauda-Makwanpur, Pokhara-Kaski, Butwal-Rupandehi, Birendranagar-Surkhet, Mahendranagar-Kanchanpur, and Nepalgunj-Banke. The Nepalgunj office also serves as the liaison office for the CIAA’s office in Butwal.
Article 21(a) of the Commission for the Investigation of Abuse of Authority Act, 1991, mandates the Government of Nepal to make arrangements for the operation of the Commission, as per the approved posts.
In line with this provision, a special-class secretary from the Government of Nepal, along with personnel from the civil service, Nepal Police, and other government services, are seconded to the Commission.
The Commission’s operations are governed by the Commission for the Investigation of Abuse of Authority Act, 1991, The Prevention of Corruption Act, 2002, The Commission for the Investigation of Abuse of Authority Rules, 2002, and other relevant prevailing laws.
These legal frameworks are complemented by the CIAA’s own procedures, directives, and guidelines, which are based on the principles of integrity, fairness, and fearlessness.
The Commission for the Investigation of Abuse of Authority Act (1991) restricts the CIAA from investigating policy decisions made by the Cabinet.
This legal limitation has led to a growing tendency among policymakers to refer matters to the Cabinet for decision-making, even for tasks that could be handled at the ministerial or secretary level, effectively circumventing the CIAA’s investigative powers.
What is the Background of the CIAA?
The original anti-corruption law was later replaced by new legislation in 1956 and 1961, which led to the establishment of the “Special Police Department,” responsible for addressing corrupt practices in the country.
Following the second amendment to the Constitution of Nepal in 1962, the Commission for the Prevention of Abuse of Authority (CPAA) was established in 1975.
After the democratic changes of 1991, the Constitution of the Kingdom of Nepal (1990) replaced the CPAA with the CIAA (Commission for the Investigation of Abuse of Authority).
However, a Commissioner may be appointed as the Chief Commissioner, and when a Commissioner is appointed as the Chief Commissioner, his or her term of office shall be computed to include his or her term as the Commissioner.
Thus, the current anti-corruption agency was officially established on February 11, 1991, with the introduction of the CIAA Act of 1991.
Since its inception, the CIAA has implemented various strategies and approaches to identify and address corrupt practices within the public sector.
Nepal’s first anti-corruption law, the “Nepal Corruption Eradication Act, 1952,” led to the formation of the “Corruption Eradication Department,” which was established with the goal of reducing corruption in the country.
What is the Mandate of the CIAA in Nepal’s Constitution?
Part 21 of the Nepal Constitution (2015) mentions the Commission for the Investigation of Abuse of Authority (CIAA) in Article 238, outlining its mandate and responsibilities.
Article 238 — Commission for the Investigation of Abuse of Authority:
There shall be a Commission for the Investigation of Abuse of Authority of Nepal, consisting of the Chief Commissioner and four other Commissioners. The Chief Commissioner shall act as the Chairperson of the Commission for the Investigation of Abuse of Authority.
The President shall, on the recommendation of the Constitutional Council, appoint the Chief Commissioner and Commissioners.
The term of office of the Chief Commissioner and Commissioners shall be six years from the date of appointment.
Notwithstanding anything contained in clause (3), the office of the Chief Commissioner or a Commissioner shall be vacant in any of the following circumstances:
(a) If he or she tenders resignation in writing to the President,
(b) If he or she attains the age of sixty-five years,
(c) If a motion of impeachment is passed against him or her under Article 101,
(d) If he or she is removed from office by the President on the recommendation of the Constitutional Council on grounds of physical or mental incapacity to hold office and discharge the functions,
(e) If he or she dies.
The Chief Commissioner and Commissioners appointed under clause (2) shall not be eligible for reappointment.
However, a Commissioner may be appointed as the Chief Commissioner, and when a Commissioner is appointed as the Chief Commissioner, his or her term of office shall be computed to include his or her term as the Commissioner.
The Commission for the Investigation of Abuse of Authority may delegate any of its functions, duties, and powers regarding investigations or filing cases to the Chief Commissioner, a Commissioner, or an officer employee of the Government of Nepal, to be exercised subject to specified conditions.
A person shall be eligible to be appointed as the Chief Commissioner or a Commissioner of the Commission for the Investigation of Abuse of Authority if he or she possesses the following qualifications:
(a) Holds a bachelor’s degree from a recognized university,
(b) Is not a member of any political party at the time of appointment,
(c) Has at least twenty years of experience in the field of accounting, revenue, engineering, law, development, or research, and is a distinguished person,
(d) Has attained the age of forty-five years, and
(e) Possesses high moral character.
The remuneration and other conditions of service of the Chief Commissioner and the Commissioners shall be as provided for in Federal law.
The remuneration and conditions of service shall not be altered to their disadvantage while they hold office.
However, this provision shall not apply in cases where a state of emergency is declared due to extreme economic disarray.
A person once appointed as the Chief Commissioner or Commissioner shall not be eligible for appointment to other government services.
However, this clause does not bar appointments to political positions or positions involving investigations, inquiries, or recommendations after conducting studies or research on any subject.
What Are the Constitutional Functions, Duties, and Powers of the CIAA?
The Commission for the Investigation of Abuse of Authority may, in accordance with the law, conduct or cause to be conducted investigations into any abuse of authority committed through corruption by any person holding public office.
However, this clause shall not apply to any official for whom the Constitution or other law provides separate provisions for such action.
In the case of persons who can be removed from office by a motion of impeachment under Article 101, Judges who can be removed by the Judicial Council, and persons liable to action under the Army Act, the Commission may conduct investigations in accordance with Federal law after they have been removed from office.
If the Commission for the Investigation of Abuse of Authority finds, upon investigation conducted pursuant to clauses (1) or (2), that a person holding public office has committed an act defined by law as corruption, it may file, or cause to be filed, a case against that person and others involved in the offense in the competent court in accordance with the law.
If, on investigation conducted pursuant to clauses (1) or (2), any act or action done or taken by a person holding public office appears to fall under the jurisdiction of another official or body, the Commission may write to the concerned official or body for necessary action.
Notwithstanding anything contained in clause (3), the office of the Chief Commissioner or a Commissioner shall become vacant under any of the following circumstances:
The Commission for the Investigation of Abuse of Authority may delegate any of its functions, duties, and powers regarding investigations or filing cases to the Chief Commissioner, a Commissioner, or an officer employee of the Government of Nepal, to be exercised subject to specified conditions.
Other functions, duties, powers, and rules of procedure of the Commission for the Investigation of Abuse of Authority shall be as provided in Federal law.
What Are the Functions of the CIAA?
The Commission for the Investigation of Abuse of Authority may, in accordance with law, conduct or cause to be conducted investigations into any abuse of authority committed through corruption by any person holding public office.
This clause does not apply to any official for whom the Constitution or other laws provide separate provisions.
In the case of persons who can be removed from office by impeachment under Article 101, Judges removable by the Judicial Council, and persons subject to action under the Army Act, the Commission may conduct investigations in accordance with Federal law after their removal from office.
If the Commission finds that a person holding public office has committed an act of corruption as defined by law, it may file, or cause to be filed, a case against that person and others involved in the offense in the competent court in accordance with the law.
If, on investigation, the action of a public official falls under the jurisdiction of another body, the Commission may write to the concerned official or body for necessary action.
The Commission for the Investigation of Abuse of Authority may delegate any of its functions, duties, and powers regarding investigations or filing cases to the Chief Commissioner, a Commissioner, or an officer employee of the Government of Nepal, subject to specified conditions.
Other functions, duties, powers, and rules of procedure shall be as provided in Federal law.
When and how was the CIAA formed?
There shall be a Commission for the Investigation of Abuse of Authority of Nepal, consisting of the Chief Commissioner and four other Commissioners.
The amendment to the Prevention of Corruption Act, passed by the State Affairs and Good Governance Committee, grants the CIAA new powers to enhance its investigative capabilities.
The Chief Commissioner shall act as the Chairperson of the Commission for the Investigation of Abuse of Authority.
The President shall, on the recommendation of the Constitutional Council, appoint the Chief Commissioner and the Commissioners.
The term of office of the Chief Commissioner and the Commissioners shall be six years from the date of appointment.
Notwithstanding anything contained in clause (3), the office of the Chief Commissioner or a Commissioner shall become vacant under any of the following circumstances:
(a) If he or she tenders resignation in writing to the President,
(b) If he or she attains the age of sixty-five years,
(c) If a motion of impeachment is passed against him or her under Article 101,
(d) If he or she is removed from office by the President on the recommendation of the Constitutional Council on grounds of inability to hold office and discharge duties due to physical or mental illness,
(e) If he or she dies.
The Chief Commissioner and Commissioners appointed under clause (2) shall not be eligible for reappointment.
However, a Commissioner may be appointed as the Chief Commissioner, and when a Commissioner is appointed as the Chief Commissioner, his or her term of office shall include the period of service as Commissioner.
A person shall be eligible to be appointed as the Chief Commissioner or a Commissioner of the Commission for the Investigation of Abuse of Authority if he or she meets the following qualifications:
(a) Holds a bachelor’s degree from a recognized university,
(b) Is not a member of any political party at the time of appointment,
(c) Has gained at least twenty years of experience in the field of accounting, revenue, engineering, law, development, or research and is a distinguished individual,
(d) Has attained the age of forty-five years, and
(e) Possesses high moral character.
The remuneration and other conditions of service of the Chief Commissioner and the Commissioners shall be as provided for in Federal law.
The remuneration and conditions of service shall not be altered to their disadvantage during their term of office. However, this provision shall not apply in cases where a state of emergency is declared due to extreme economic disarray.
A person once appointed as the Chief Commissioner or Commissioner shall not be eligible for appointment in other government services.
The Commission for the Investigation of Abuse of Authority (CIAA) has long been barred from investigating the Cabinet’s “policy decisions” under the Commission for the Investigation of Abuse of Authority Act, 1991.
However, nothing in this clause shall be deemed to prevent appointment to any political position or to any position with the responsibility of conducting investigations, inquiries, or providing recommendations after conducting studies or research on any subject.
What New Powers Are Granted to the CIAA under the Amended Prevention of Corruption Act?
The amendment to the Prevention of Corruption Act, passed by the State Affairs and Good Governance Committee, grants the CIAA new powers to enhance its investigative capabilities.
These powers include the authority to access telephone records with court permission, conduct controlled deliveries, carry out undercover operations, intercept media or telephone communications with court approval, access electronic device structures or systems, and continuously monitor individuals under investigation.
How Will the CIAA’s New Powers Help Combat Corruption?
These new powers will significantly strengthen the CIAA’s ability to investigate and combat corruption.
By gaining access to advanced investigative tools such as telephone interception, controlled deliveries, and undercover operations, the CIAA will be better equipped to gather evidence and track corrupt practices more effectively, which could lead to more successful prosecutions.
What is the Next Step for the Amendment to the Prevention of Corruption Act?
The amendment to the Prevention of Corruption Act has been approved by the State Affairs and Good Governance Committee.
It now awaits approval by the full Parliament. If passed, the CIAA will be granted the additional powers outlined in the amendment, enhancing its role in addressing corruption.
What is the Current Issue Regarding the CIAA’s Ability to Investigate Cabinet Decisions?
The Commission for the Investigation of Abuse of Authority (CIAA) has long been barred from investigating the Cabinet’s “policy decisions” under the Commission for the Investigation of Abuse of Authority Act, 1991.
This restriction has created a loophole, allowing Cabinet decisions to avoid CIAA scrutiny. However, a new bill is being considered to amend the CIAA Act, aiming to define which Cabinet decisions are considered “policy decisions” and which can be investigated by the CIAA.
How Could the New Bill Impact the CIAA’s Role in Investigating Cabinet Decisions?
If passed by Parliament, the new bill would narrow the loophole by clearly distinguishing between “policy” and “non-policy” decisions.
It would allow the CIAA to investigate Cabinet decisions that do not qualify as policy decisions, such as those made to benefit specific individuals or private organizations, contrary to publicly announced policies.
This amendment aims to close a significant gap in the CIAA’s ability to address corruption at the Cabinet level.
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