Civil Servant: December 2022

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.[1]

· 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.[2] 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.[3]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[4].

A- function and Duties of CIAA

Constitution of Nepal, article 239 have specified functions and duties of CIAA as following.[5]

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.[6]

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.[7]

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.[8]

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.[9]

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.[10] 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.[11]

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.[12]

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:[13]

· 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.[14]

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"[15]

· 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