Tuesday, 3 August, 2021

Policy level decision needs to be defined clearly


On February 5, the Commission for the Investigation of Abuse of Authority (CIAA), had filed a multi-million-rupee corruption charge sheet against 175 people over an illegal land ownership transfer case of Baluwatar, popular as Lalita Niwas case.
The move was taken by the CIAA based on a report submitted by a committee led by former secretary Sharada Prasad Trital to the government.
The CIAA lodged the cases at the Special Court last Wednesday. The CIAA, in the case, had taken the names of some noted political figures including Nepali Congress leader and lawmaker Bijaya Kumar Gachchhadar, bureaucrats, including the former CIAA chief commissioner Deep Basnyat and some other erstwhile bigwigs.
This was the biggest-ever corruption case filed by the CIAA. Prime Minister KP Sharma Oli- government had instructed the Trital-led Committee to investigate into the case.
Against this backdrop, Surya Nath Upadhyay, former chief commissioner of the CIAA, talked with journalists of the Gorkhapatra Corporation at the weekly roundtable discussion, the Gorkhapatra Sambad, on various aspects of the case. Excerpts: 

How have you taken the latest move of the CIAA on the report of the Trital-led Committee concerning the land transfer case of Baluwatar?

I would like to begin from the Corruption Control Act of the Commission of 2002 (2059 B.S.) after a change was made in the previous Act of 2048 B.S, of the CIAA, which is also called the second amendment made in the CIAA’s present Prevention of Corruption Act, 2002.
What is mentioned or written in the second amendment of the CIAA’s Corruption Control Act of 2002 is that any kind of policy level decision of the government doesn’t fall under the jurisdiction of CIAA probe.
This provision has created a mess and is still creating problems in the drive of the CIAA.
In this particular Lalita Niwas land grab case, the Cabinet made its decision and entrusted the Trital-led Committee to investigate into the case that was about bringing 299 ropanis of the land under the government registration.

There are two things that must be remembered here: what is the intention while taking this proposal to the cabinet and what is the policy level decision in a real sense?

In the charge sheet filed against 175 individuals by the CIAA, there are people from different categories and backgrounds.
There may be different evidences and benefits that they might have had during that time, too.
Our courts have not defined what is and what is not a policy level decision in instances arising out of the work of government through the cabinet. There is no clear definition made ever by the court and government on cabinet decisions. Here lies the confusion in the very term, policy level decision.
The policy level decisions made by the government depend on the intermediary role played by various government employees, leaders, and cabinet ministers.
Courts announce their verdict based on the evidences that will be produced before them during the trial and hearing in each particular and specific case.
The courts, based on evidences, may send someone to jail and order someone else to be released in the absence of enough evidences.
This particular case, involving 175 people, is going to be one of the most detailed and vast cases that the court is going to have to deal with.
The truth of this case lies in a long process after its registration in the Supreme Court, that it will be going to take a long time for the court to make a final verdict.
And until then many people dragged in the case are going to suffer a lot morally and ethically.
The impression given by this decision and registration of the case in the Court is that those who worked in all these decision making processes are not going to be freed easily and in a short period of time. Another thing this investigation has also clearly showed is the loopholes that are there in our laws and that our bureaucrats and the leaders can look up to achieve certain things.

Can any person get an amnesty for vowing to return the unlawfully grabbed or purchased land?

Here are two things that are important in this question. One is that when one particular plot of land got passed or registered in one man’s name, that happened without having a clear verdict from a court.
For registration of land in one particular individual’s name, there will be two options: one is that the court should speak or give verdict and another is that the person who had earned that particular land should come forth willingly to donate or give that land back to the government. Without these two options, nobody can pass or transfer the land in the name of a particular individual.
It is still questionable whether the CIAA enjoys that particular right to make any decision in the name of a particular person, instructing him/her to return the land.

Why is there always confusion in the public and political circles over the definition of policy level decision and bad intention behind it?

Coming to the policy level decision and bad intention that may lie beneath it, this issue (policy level decision) must come under greater discussions as it requires further explanation and description to define what falls under the policy level decision and what does not.
Another amendment in the present Act of the CIAA is going to happen very soon with a provision that even in cases of decisions made by the local and state level governments, the CIAA cannot raise a question if these are policy level decisions.
This will create a big mess, down to grassroots level. In the policy level decision, the government must set a prohibitory sentence or clause to define the criteria of attracting or not attracting the CIAA laws.
The present Act of CIAA, which is going to be amended again, should have these clauses, if we have to make the CIAA stronger and more
active. Otherwise, this confusion will go on in this kind of policy level decision to be taken by the governments.
Corruption Control Act that is going to be amended has to define that policy level decision is not a decision which can be framed to benefit certain groups of people rather than the government. Otherwise, such loopholes will result in larger
scales of corruption within the system.
In this case also there is confusion whether this is a policy level decision or not.

The case is still under consideration in a high court. In such a condition, will the CIAA have the authority to file this sub-judice case?

The CIAA can investigate any case unless any individual or institution comes to file a writ requesting it to stop the investigation over it.
Therefore, in this case also, the CIAA has been investigating because it has not faced any obstruction from anywhere.

Nepali Congress has come to protest in parliament with a blame leveled against the CIAA that its decision on the case was influenced by the government. What is your opinion on this?

CIAA is not working at anyone’s behest because it is a constitutional body. It could not be said that the CIAA filed cases against political personalities in a prejudiced manner. Political personalities may have their hands while executing any decision. So, they may be involved, knowingly or unknowingly, in corruption cases. But, as the public blamed, the government has no right to interfere in the work and decision of the CIAA and the courts.
Therefore, the blame by some political parties at the Prime Minister for the decision of the CIAA is meaningless. I also faced a similar blame and protest while I was the chief commissioner. Now, the case has been filed at the special court. The court will give its final verdict after investigation over it. So, there is no point to blame the government and the Prime Minister.

What lessons can we learn from this particular case?

This is one of the most complicated and vaguest ever case in the history of the CIAA. The decision shows that the CIAA has been trying to investigate into the issues of big corruption cases, which happen in a political nexus. The work and action of the CIAA are appreciable.
The case reflects the mess of our systems and bureaucrats. And, the final verdict from the special court in this case will determine the level of investigation by the CIAA. If the verdict comes in favour of the CIAA, it will make CIAA stronger and powerful.
Lastly, the important message given by the case is that the act relating to the CIAA leaves many legal loopholes that need to be plugged in by the upcoming amendment soon. 

(Prepared by Manjima Dhakal, Purushottam Khatri and Ajita Rijal. Photogrpahs by Kabita Thapa.)