A
Perspective to Anti-corrution Mechanism
and Efforts in Nepal
-By
Thakur Prasad Bastakoti
1- Background;
Corruption is too much difficult
to define. Every country seems to define it with different contexts, provisions
and exlanations. Every sector of governance system is influenced by
Corruoption. Receiving or donating undue economic or material benefits by misuing
the authority is common characteristics of corruption acts.Such crimes are
deeply associated with organized crime features too in modern trend. Nepalese
legal provisions seem to have connected the corruption terminology with the
provisions of misuse of authority by a person having public position or
authority.
Good governance is measured by
accountability, reponsiblity and transperancy. But it is often criticized that
transpercy and rule of law are limited only on paper if corruption control
attempts might not be meaningful. Morality and impartial service delivery must
not be limited only in moral speech, which finally may lead the society towards
corruption. In such condition, sufficient proper institutional program for
anti- corruption campaign and other reliable activities to control corruption
is required. So implementing effective program is a challenging issue in
present context.
2.
Meaning of corruption
It is said that "corruption
can be reduced but not be eliminated". Every society contempts it as an evil act and every
legal system in the world seems to have criminalized the corruption related
activities as a severe harmful act. In Thailand Corruption is known as
"Jean muog"(Rastra bhachyan) and in China it is pronounced as "Tan
wu" or hate seen (ghrineet kary ) in general. Japanese society calls it as
"Oshek" or heinous work
(jaghanya karya). According toWorld Bank, corruption is defined as "the
abuse of public office for private gain". According to transparency
international "corruption involves behavior on the part of officials in
the public sector, whether politician or civil servants in which they
improperly and unlawfully enrich themselves or their close to them by the
misuse of the public power entrusted them". Ex president of World Bank
James Wolfensohn says "corruption is a like cancer". Thus corruption
is widely accepted as an evil act in terms of social, moral and legal
perspectives. The main objectives of corruption are:
·
How to earn money
faster
·
How to do
everything faster
·
How to cause more
delay
·
How to increase
influence
·
How to channalize
the network
Corruption flows both in private
and public sphere. Not only in public and private sector but also in NGO\INGO
sphere it seems to have been prevalent. Thus, the impact of corruption is dangerous.
Some of such impacts are mentioned as following.
·
It destroys formal
process of government system.
·
It minimizes
accountability of legislative body.
·
It contempt’s rule
of law in judiciary.
·
It increases
hateful environmental of representative.
·
It reduced fairness
in public administrative body.
·
It decreases
capacity of Governmental institution.
·
It derives doubtful
environmental in society.
Transparency International has
surveyed "Global Corruption Barometer". transparency international
report 2020 was published and it mentioned these facts.
·
Nepal in 117
position among 180nations.
·
Cambodia,
Afghanistan, North Korea, are more corrupted countries of them.
·
Less corruption
countries are Newlands,Denmark, Finland.
·
Nepal has get 33
score out of 100.
·
The global
corruption Barometer indicate that 84 percent of people who think government
corruption is a big problem.
·
12 percent of
public service users paid a bribe in the previous 12 month.
·
Survey of Rule of
Law institution the index of 97 countries Nepal get 83th rank and weak rule of law occurred nation
also.
2.1- Patterns of Corruption
Corruption can occur in many
different scales. There is corruption that occurs as small favors between a
small number of people is known as petty
corruption. Corruption that affects the government on a large scale is identified as grand corruption in
corruption jurisprudence . Patterns
of corruption are as further mentioned below.
A. Petty Corruption:
B. Grand Corruption;
§ Corruption within civil service management
§ Corruption on project management
§ Corruption on market management
C .Systematic corruption:
A- Petty corruption:
"Petty"
corruption occurs at a smaller scale and occurs within established social
frameworks and governing norms. Examples of such corruption include the
exchange of small improper gifts or use of personal connections to obtain
favors. This form of corruption is particularly common in developing countries
and where public servants are significantly underpaid.
B- Grand corruption:
"Grand" corruption is
defined as corruption occurring at the highest levels of government in a way
that requires significant subversion of the political, legal and economic
systems. Such corruption is commonly found in countries with authoritarian or
dictatorial governments and in those without adequate policing of corruption by
anti-corruption agencies.
C-Systemic corruption:
Systemic corruption (or endemic
corruption) is corruption which is primarily due to the weaknesses of
an organization or process. It can be contrasted with individual officials or
agents who act corruptly within the system.
Good governance is based on
morality.Poor countries are often suffering from this type of corruption.
Political and administrative authorities protect this type of corruption
mutually. Public management influences and uses in this type of corruption.
Market management corruption promotes completion and increases monopoly
tendency.
3.Corruption Control in Nepal
3.1-Control Mechanisms
Corruption is a social evil having
pervasive nature. It is prevalent in various forms of and dimensions. It has
been deeply rooted in the society as convention' 'tradition' psychological need
and necessity with agree as practice not only in public service, but also in
business transaction and other kinds of dealing as well. All the society has
been adversely affected by corruption. It is also the issue of governance and
effective management. Corruption control is the most urgent and imperative task
to be accomplished in Nepal to establish a fair and transparent governance
system.
In Nepal, following institutitons have played the key roles in controlling the
corruption.
·
Special court
·
Public Audit
committee in parliament
·
CIAA
·
Office of the
Auditor General
·
Special govt.
Attorney office
·
National vigilance
centre
·
Office of general
Audit control
·
Nepal Rastra Bank,
financial Unite
·
Money Laundering
Investigation Department
·
Judicial Council
·
Supreme Court
·
Office of Attorney
General
·
Chief District
Officer
·
Civil society
·
Press Midia
·
Local Government
·
Department of
Revenue Investigation
3.1.1 Commission for the
Investigation of Abuse of Authority:
The commission for the
investigation of Abuse of Authority (CIAA), Nepal is an apex constitutional
body to curb corruption and its tentacles in the countries.
Articles 238 and 239 of
Constitution of Nepal has empowered CIAA to investigate and probe cases against
the persons holding the public positions and their associates who are indulged
in the abuse of authority by way of corruption.CIAA
is the distinctive anti-corruption agency in South Asia, which plays the role
of and 'Ombudsman' investigator and prosecutor as well. It aims to crack down
the corruption issues at a national level with system-based approach. It also
focuses on detection and punishment of corruption acts on the one hand and
social cultural and institutional reform on the another part.
A- function and Duties of CIAA
Constitution of Nepal, article
239 have specified functions and duties of CIAA as following.
1.
CIAA may, in
accordance with law, conduct, or cause to be conducted, investigations of any
abuse of authority committed through corruption by any person holding public
office.
However, CIAA shall not have jurisdiction over the following
officials:Any official in
relation to whom the constitution separately provides for such action andto any
official in relation to whom other law provides for a separate special
provision.
2.
In the case of the
person who can be removed from office by passing a motion of impeachment under
Article 101, the Judges who can be removed by the Judicial Council and the
persons who are liable to action under the Army Act, it may conduct, or cause
to be conducted, investigations in accordance with the federal law after they
have been removed from office.
3.
If CIAA finds, upon
on conducted pursuant to clause (1) or (2),that a person holding any public
office has committed an act which is
defined by law as corruption, it may file, or caused to be filed, a case
against that person and other person involvedin that offense in the
competentcourt in accordence with law.
4.
If, on
investigation conducted pursuant to clause (1) or (2), any act or action done
or taken by a person holding public office appears to be of such nature as to
be filing under the jurisdiction of another official or body, the CIAA may
write to the concerned official or body for necessary action.
Commission for the investigation
of Abuse of Authority Act was enacted in 1992(2048), and regulation 2059 was
also promulgated to lay down the procedural details for implementing the
provision of the act.
The above Act and Regulation define in detail the scope, functions and
procedures of investigation and prosecution. The Act and Regulation explicitly
explain "improper conduct and 'corruption' with regard to improper
conduct, departmental action shall be taken, while in the case of corruption
the case is to be filed in the "Special Court". Another very
important function entrusted by the act to the commission is the authority to
suggest the government for improving or revisiting the existing policies, legal
provisions and procedures which will help to curb corruption and contribute
toward good governance. Although, after promulgation the Constitution of Nepal,
(2072) CIAA stopped the action of improper conduct which has existing provision
in Act.
B-Major Role of CIAA:
Investigation and Prosecution
CIAA embodies the characters of
an Ombudsman investigator and prosecutor. It carries out inquires and
investigations into corruption and improper conduct committed by persons
holding public office. It has authority to investigate all officials from the
prime minister to low-ranked public servants. Based on the findings, the
commission may fill a case against the persons alleged to have committed
corruption, in the court of law.
I- Preventive Role:Besides curative role CIAA
carries out preventive role by sharing and disseminating information,
pubublishingposters, pamphlet, booklets, and newsletter and so on. CIAA also
organizes interaction programs with the governmental as well as nongovernmental
organization and civil society to discuss and find out ways and means of
controlling corruption. There are a number of other activities which CIAA
carries out to promote good governance in the country. Moreover, CIAA has collaborated
with international stakeholders to accelerate anti- corruption activities by
sharing experience and exchanging view in various national and international
forums. According act CIAA inform departmental chief to take action against
unreasonable work of civil servants.
3.1.2
National
Vigilance Centre (NVC):
National Vigilance
centre is Under the Prime Minister’s Office. It is established by the provision
of the Corruption control Act, 2059 B.S. Main objectives of this Office is awareness
raising and corruption prevention. which can be given below:
·
To collect the
complain related to misconduct, delay and corruption in public authorities
·
To
recommendation about the effective service in public sector
·
Poperty
supervision of public officials
·
Technical
auditing of development projects about the Quality, cost, time and quantity
·
To operate the
anti corruption and preventive activities in local level
To supervision the timing, dresscode and regularities in public
office
3.1.3 Judiciary:
Article 126(1) of The Constitution of Nepal provides that the
judicial power of Nepal shall be exercised by the courts and the judicial
authorities pursuant to the Constitution and other laws and recognized
principles of justice. Article 127 of the Constitution has incorporated the
provision of Supreme Court, High court and District Court along with the
provision for establishing judicial bodies in the Local level or other bodies
as required may be formed to pursue alternative dispute settlement mechanism. Similarly,
Article 137 of the Constitution establishes the Constitutional Bench in the
Supreme Court to hear the disputes related
to jurisdiction of Federal, State and Local level as well as the disputes on
qualification of elected member of federal or state Parliament.
Supreme Court as the highest court of Nepal is recognized as
a court of record. At present, there are 7 High Courts along with nine
permanent Benches and two temporary Benches of the High Court. 77 District
Courts and other judicial institutions like Debt Recovery Tribunal, Revenue
Tribunal, Administrative Court, Foreign Employment Tribunal and Special Court are also discharging the duties of justice
dispensation in Nepal. Local level judicial committee has also been working in
the local level.
The administration of justice of the country has been
regulated by the various statutes and regulations related to judiciary, such as
the Constitution of Nepal, Administration of Justice Act, 2016, Supreme Court
Act, 2016, Supreme Court Regulations, 2017, High Court Regulations, 2016 and
District Court Regulations, 2016.
The Special court hearing the corruption case which filing by
the CIAA and Department of Money
Loundering. The apeal hearing in Supreme Court over the discision of Special
Court.
4.
Challenges to control Corruption:
Every area of society seems to
have affected by corruption. One desires getting money by whatever means for
the purpose of becoming rich.Therefore, this tendency plays role to increase
corruption in every field. Following facts
resemnbles the groud of corruption:
·
Corruption is
developed with poor system rule of law.
·
Social reputation
gain by the property
·
Poor condition of
social security
·
Less respect to
labor than that of property.
·
Lack of proper
mechanism and procedure to control corruption.
·
Social sector
(health, education, transportation) are more expensive
·
Luxurious life
style increasing every day.
·
Lack of effectivity
of anti corruption campaign and activities.
Proper implementation of
statutory legal provision, ethical awareness, moral base education and
schooling are major techniques while addressing the corruption control in any
society. According to Dr. Gopal Sivakoti, controlling corruption may be visible
in follwoing condition as he mentions in "Kanun Patrika"
·
Political stand.
·
Political
activities and policies should be based on transparency.
·
Moral base public
administration.
·
Equipped National
institution.
·
Legal provision is
amendment with contemporary basis.
·
Avoid
utilitarianism.
·
Social awareness.
·
Moral education.
·
Respect honesty and
labor.
Nepalese
Administration, is charactered by different kind of pathological traits such
as: the pathology of persistent, pathology of conservatism, pathology of
growth, pathology of status, pathology of self service, pathology of
buck-passing, pathology of delay, pathology of nepotism and favouritism and
pathology of corruption. The existence of these bureau-pathologies have been
recognized the major reasons that hamper public bureaucracy on its
developmental role. The multi sectoral organs like governmental and non
governmental organizations should play concurrent role for the control of
corruption. The whole system of Governance must impart awareness-building
programms pertaining to corruption control.
In
Nepal major amount of corruption is predicted to have happend in private
sector. Arround 2/3 (67%) corruption is claimed to have happened in private
sector. To fight corruption, we must embrace transparency in all sectors
including private and public sector. Transparency is all about knowing who,
why, what, how and how much in very fact and circumstance of governance. It
means shedding light on formal and informal rules, plans, processes and actions
etc. in the governcance syste.Corruption can only be kept in check if representatives
from government, business and civil society work together for the common good..
Here are some recommendations to
promote good governance and control corruption in upcoming days in Nepal
·
Moral base politics
should be promoted..
·
Zero tolerance to
corruption should be implemented.
·
Amendment in anti- corruption act 2059 is
essential to make it more effective and corruption of all sectors should be
criminalized with proper sanctions.
·
To keep the CIAA
far from any kind of interference.
·
Private sector and
NGO/INGo sectors should be included within the jurisdiction of investigation
and prosecution with proper insitutional and legal provisions.
·
Implementation of
UNCAC is required to promote good governance in daily life of people.
5.
Conclusion:
If we preserve social harmony,
co-existence and try to have the abolishment of conflict in the society, at
first we need to control corruption and achieve prosperity.Consolidation and
benefits of democracy are strenghened when rule of law, transperacy and social
dignity are experienced in daily behaviour of state. Without effective
corruption control campaigns, no society become prosperous. Corruption has no
physical boundry to damage social nad economic bases of any country. Nepal is
committing to achieve the sustainable goal within 2030 and to achieve medium
level income holder position by 2025. In this condition, controlling corruption
is such a significant strategy which surely helps to promote our democratic
values as well as our ethical commitments in good governance. Effectivity of
corruption control mechanism should be experienced in daily phenomenon. For the
purpose of implementing United Nations Convention against Corruption, corrupton
control of private sector and NGO sector is also required. Inclusion of the
jurisdiction of corruption control of these sectors will truly helps to control
the corruption in the country. Making all the mechanisms more effective, all
stakeholders should respect the autonomy of constitutional bodies and also
should empower the anti-corruption mechanism in upcoming days.
Bibliography
1. Constitution of Nepal, (2072)
2. Corruption control Act, 2059.
3. Commission for the investigation of Abuse of Authority
act 2048 and Regulation 2063.
4. Judicial Council Act, 2073
5. Administration of Justice Act, 2016
6. CIAA Annual Memorandum 2073.
7. Transparency International Report 2020
8. Annual Report of CIAA, 2076/2077.
9. NKP differential issue.
10. Kanun Patrika difference issue
11. web page www.transparency.org
12. web page www.oag.gov.np
13. wep page www.dri.gov.np
14. web page www.ciaa.gov.np
15. web page www.nvc.gov.np