Anti-corruption bill allows legal immunity to continue for Army, judges

The Nepal government on Monday tabled in parliament an amendment bill to the Commission for Investigation of Abuse of Authority Bill 2019 . The move comes almost a decade after the parliament ratified the United Nations Convention against Corruption (UNCAC), which commits countries to bringing the army, judiciary, political parties, I/NGOs, and private businesses under the ambit of an anti-corruption agency. However, the bill excludes the state bodies considered highly corruption-prone institutions--the judiciary, the army, and political parties. 

The bill, tabled at the Upper House on behalf of the Office of the Prime Minister, has categorized private businesses, corporate houses, banks, medical colleges, and any group or organization as public institutions, and mandates more stringent oversight of irregularities in these sectors. Previously, for government officials, only those holding public positions were held accountable by the CIAA and could be punished if they were found to have engaged in corruption scams.

The bill will allow private companies, who pay taxes to the government and are already under the scanner of regulatory bodies, to come under the CIAA’s purview. But both the army and judiciary, institutions that run on taxpayer money, will remain beyond the CIAA’s reach.

If the anti-corruption bill gets parliamentary endorsement, as has been proposed, political parties, the judiciary, and the army will continue to get legal immunity in corruption cases. The Parliamentary Bill Committee has already endorsed the bill, which is now under consideration at the National Assembly.

According to the Parliamentary Bill Committee’s president Parshu Meghi Gurung, the new gazette will categorize only those institutions as public institutions in which people have a larger share. 

The existing anti-corruption law does provide the CIAA with the mandate to investigate corruption cases involving judicial officials, but it cannot take up corruption cases involving judges. Thus judges are still above the law when it comes to corruption. The Judicial Council, an entity within the judiciary, is responsible for dealing with judiciary-related corruption cases. 

“The then chief justice gave sweeping power to the courts after the restoration of democracy in 1990,” says Former Acting Auditor General Sukdev Khatri Bhattarai. “The judiciary has turned into the most corrupt institution today. For example, parliament wanted action taken against those judges who were involved in waiving Rs 18 billion in taxes. The Nepal Bar Association also booked those judges. But nothing happened. How many judges have been booked on corruption charges? Not a single one.” 

It’s the same with the army.  The Nepal Army has established its own internal mechanism to deal with corruption cases involving its staffers. But both the modus operandi of corruption cases in the army and details about the people involved in them are rarely revealed to the public. Recently, retired army chief Rajendra Chhetri was himself accused of promoting corruption within the institution. So far, no action has been taken against him, even though a parliamentary body recommended that the anti-graft body probe into the matter and book him if accusations against him were established. 

Read also: Why is the Nepal Army above corruption law?

Chhetri was also accused of doctoring his date of birth details  to prolong his stay in power . A similar accusation was brought against former Chief Justice Gopal Parajuli. Under pressure,  Parajuli was forced to resign from his position. But Chhetri continued to stay in power, despite media reports, as there was no state body to investigate his personal records. 

The Nepal Army, mandated to safeguard the nation’s sovereignty, has been increasingly involved in development work and profit-making businesses. But financial irregularities within the army are never investigated by the constitutional anti-graft body. And army officials are seldom booked for corruption. 

“The army continues to enjoy constitutional immunity,” says Bhattarai. “But they should not be spared. Corrupt judges and army officials should also be booked.”

When asked why the anti-graft body had drafted the bill with the corruption-prone bodies excluded, CIAA spokesperson Pradip Koirala declined to explain. “Since the bill is under consideration in parliament, it would be better for you to ask independent lawyers,” said Koirala. 

As a signatory of the UNCAC, Nepal was required to expand the jurisdiction of its national anti-graft body. However, Nepal never made good on its commitment. Now, almost a decade after the signing of the UNCAC, the anti-graft body has proposed to expand its mandate, but it is happening at a time when the institution itself is facing widespread criticism for failing to tackle the corruption committed by officials holding public positions.

Experts on corruption affairs say the public sector accounts for just 40 percent of the total corruption cases, with the rest of the cases being linked to the private sector. Only a few countries, like Hong Kong, have mandated an independent corruption agency to tackle private-sector corruption. 

The Nepal Government’s double standard is plainly evident in its expansion of the anti-graft body’s jurisdiction. For one, the bill allows state institutions to escape the CIAA scanner;  and two, it targets the private sector, even though there already exist regulatory bodies to deal with the private sector.

The CIAA, a constitutional body, has long been facing criticism for not investigating high-profile cases, particularly those involving powerful politicians. Some fear that the bill, if endorsed in parliament, may also empower the anti-graft body to target anyone it wishes.

Businesspeople are already worried about the government’s coming up with new legal provisions. They fear that the new developments could discourage foreign investment and affect the entire private sector. And experts say that it will send a negative message to the world community if the business sector is targeted but other corruption-prone sectors are excluded.

“The bill’s provisions are very discouraging for the business community. There are already regulatory bodies mandated to deal with corruption in their sector. So, it definitely should not be the CIAA’s job,” says former CIAA Chief Suryanath Upadhyay. 

Bhattarai too sees problems with the bill’s selective focus. “I think expanding the anti-graft body’s jurisdiction is good. Because the law itself can control corruption by 50 percent,” says Bhattarai. “But the law itself is not everything. Political leadership is key to combating corruption. It doesn’t make sense at all if corrupt politicians aren’t booked. The political class must be punished first, for a change.” 

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