The government has formed a probe commission to investigate procurement of two wide-body planes by the Nepal Airlines Corporation (NAC) calling the report submitted by the subcommittee under the Public Accounts Committee (PAC) of the parliament erroneous.
The Cabinet meeting a day after the subcommittee's report was made public on Wednesday formed a high level probe commission under former justice Govinda Prasad Parajuli, and including former deputy attorney general Nanda Prasad Pathak and chartered accountant Madan Sharma giving it 45 days to submit its report.
The haste in formation of the probe commission shows the government has been rattled by the subcommittee's report. And the rattled government has committed serious mistakes.
It has challenged the sovereignty of the parliamentary committee by forming the probe commission a day after the subcommittee's report was made public. The parliament is sovereign and the government's reaction is also against the principle of separation of powers between the executive and the legislature.
The rattled government has showed such haste that it did not even wait for the PAC to take a decision on the subcommittee's report. The PAC on Friday decided to amend the report and endorse the amended report on Monday. But the Cabinet formed the probe commission on Thursday itself with utter disregard to the ongoing process in the PAC.
Constitutional expert Bhimarjun Acharya says the government's step has raised three main questions. "The first, the government by giving an executive order about the ongoing works of a parliamentary committee has rejected the sovereignty of parliament," Acharya says. "This has trampled on the basic tenets of the separation of powers."
Corruption cases have moved forward in the past based on the investigations by parliamentary committees. The then State Affairs Committee in 2010 had formed a subcommittee under the then CPN-UML lawmaker Pradeep Gyawali, the current foreign minister, to probe the Sudan scam.
The Commission for Investigation of Abuse of Authority (CIAA) initiated the corruption case referring to the report prepared by the Gyawali-led subcommittee that concluded there were extreme irregularities in procurement of equipment for the Nepal Police personnel deployed in the UN mission in Sudan.
Nobody has to go to prison merely on the basis of investigations by a parliamentary committee. Prime Minister (PM) KP Sharma Oli himself and the government spokesperson and Minister for Communication and Information Technology Gokul Baskota have stated that a parliamentary subcommittee is not the final authority for investigations and its report is not final.
It is well-known that court cases are not lodged against anyone on the basis of reports by parliamentary committees.
Investigations by the constitutional anti-graft body CIAA in the coming days may find former minister Jeevan Bahadur Shahi guilty. Rabindra Adhikari may even get a clean chit or the subcommittee's report may partially or wholly come out to be true.
But the government calling the report erroneous, and ministers publicly refuting the report have challenged the parliamentary process, and tried to influence the investigations by CIAA in the coming days.
Minister Gyawali, however, argues that questions have been raised as the subcommittee has not investigated completing due procedures. "We had studied the Sudan scam for six months, and sent the subcommittee's report to the CIAA after getting it endorsed by the State Affairs Committee. We did not leak anything until the State Affairs Committee took decision," Gyawali told Setopati. "But this subcommittee's report has been made public as if it is final even before the PAC has taken decision on it. They are talking as if the accused have to be immediately handcuffed."
Constitutional expert Acharya says the second questions is whether the government has tried to bypass the only constitutional body to investigate corruption cases by forming the probe commission. He adds that the government can form probe committees if it has to reach conclusion immediately in some cases, but corruption cases are different and the government cannot form a commission to probe them. "No other bodies can encroach on the scope of anti-graft body CIAA," he points.
He also questions what will be the legal status of the probe commission's report if it reaches different conclusion than that of the subcommittee. "Those accused of irregularities may even be innocent but one must charter a legal course for that. CIAA is the official body to do that investigation."
Minister Gyawali, on the other hand, argues that all the state organs are free to investigate."All the state organs are free to do their respective works. The government does not know what the CIAA is doing about the issue of procurement of wide-body planes," he states. "If we say the government cannot investigate when there is CIAA, one may also argue even the parliament cannot investigate."
He claims that the government has not formed the probe commission to divert public attention after the subcommittee's report was made public. "The subcommittee submitted the report on Wednesday. But PM has been repeatedly saying since four-five days earlier that the government will conduct a thorough investigation reaching to the depths of the process. The argument that the executive cannot investigate is not right in any manner," he argues.
Acharya points that formation of the probe commission has also raised questions as to whether the government is trying to influence the PAC's decision. He questions how the lawmakers of ruling CPN with majority in the PAC will take the subcommittee's report when the government has already formed the probe commission calling the report erroneous.
There was majority of ruling parties even in the subcommittee. The seven-member subcommittee led by NC lawmaker Rajan KC only had another NC lawmaker in Meena Subba while there were Krishna Lal Maharjan, Dharmasheela Chapagain and Prem Bahadur Ale from the ruling CPN, Pradeep Yadav from coalition partner Federal Socialist Forum Nepal, and Chanda Chaudhary of Rastriya Janata Party Nepal that has supported the government.
Minister Gyawali refutes the allegations and points that the government does not have to form the probe commission to influence the PAC members. "This is mere speculation. Does the government need to form a probe commission to influence PAC members? The party can issue a whip."
