Constitution expert Bhimarju Acharya has claimed that the Commission for Investigation of Abuse of Authority (CIAA) has forgotten its constitutional and legal responsibility in the Baluwatar land grab scam.
He has accused the constitutional anti-graft body of using different yardstick on those involved in making decisions to transfer government land to individuals considering whether they are in power or not.
"Government and the state are different entities in constitutional laws. The CIAA is a state organ responsible for holding the government accountable toward the constitution, laws and the people, and regulating it," he opined. "The CIAA with such huge responsibility perhaps was never and is not so weak that it should bow down to the government, obey government instruction or consider whether an individual is in power or not."
He argued that the CIAA has lost its credibility by exempting those taking decisions and charging those taking proposals.
He has called the CIAA decision to exempt prime minister duo Madhav Kumar Nepal and Baburam Bhattarai who took decisions to facilitate transfer of government land to individuals citing they took policy decisions laughable.
"I completely disagree with the CIAA's reason that a case cannot be lodged due to lack of laws as the Cabinet took policy decisions. I currently have the CIAA Act in my hands. The CIAA has cited clause 4 of the Act for inability to charge them. This says the CIAA will not have jurisdiction on policy issues which is right. But the CIAA has wrongly interpreted policy decisions. The CIAA's contention that all Cabinet decisions are policy decisions is laughable," he elaborated.
He argued that decisions about political issues and decisions are different in law. "For example, a policy decision generally has an impact on the whole country. It is also simple. But decision is a decision taken on some definite issue. The CIAA's argument that transferring the government land to individuals can be policy decision is very laughable, wrong and groundless."
He pointed that the Constitution in Part IV sheds light on directive principles, policies and responsibilities of the state in 96 points, and argued that any decision by the Cabinet or anyone in public position apart from there 96 points cannot be considered policy decision.
He also disagreed with the argument that the people punish the government in the next election if the Cabinet decisions are wrong, and hence cases should not be lodged against its decisions.
"The works done by the Cabinet are of different nature. If they are political in nature, the people punish them in the election. That is a system we all have accepted. But we cannot say the election will correct even the legal mistakes. That should be brought to to book," he stressed.
The CIAA did not lodge corruption case against former prime ministers Madhav Kumar Nepal and Baburam Bhattarai, and CPN General Secretary Bishnu Paudel in the Baluwatar land grab scam.
The constitutional anti-graft body has said it does not have powers to prosecute former government heads for policy decisions.
"The Cabinet decisions made on proposal of the ministries concerned on April 11, 2010, May 14, 2010, August 13, 2010, and October 4, 2012 to give legality to illegal activities carried out by different ministries and offices about the government land inside Lalita Niwas camp and to illegally establish ownership and rights of individuals on the government land are not in the jurisdiction of the CIAA being policy decisions taken collectively by the council of ministers," the CIAA charge sheet states. "We, therefore, do not need to do anything about prime minister duo Madhav Kumar Nepal and Baburam Bhattarai."
Nepal was prime minister in 2010 and Bhattarai in 2012.
The CIAA has decided to advise the Cabinet to take initiative to make legal arrangements allowing it to investigate if there is corruption in policy decision of the Cabinet. It has further advised the Cabinet to review, analyze and evaluate or do whatever is necessary on the issue of government land of Lalita Niwas.
But questions have been asked about why corruption case has not been filed against CPN leader Paudel.
Land Revenue Office records show that Paudel's son Navin purchased eight annas of land from Uma Kumari Dhakal and Madhavi Subedi, spouses of Shobha Kanta Dhakal and Ram Kumar Subedi identified as the land mafia by the Sharada Prasad Trital committee.
Dhakal and Subedi seem to have purchased the land from tenants. Many argue that Navin cannot be held legally guilty as he did not directly purchase the land and bought it after sale at different levels.
Bishnu Paudel also cannot be deemed guilty as he does not own the land or was involved in the government decision making process. The CIAA, however, could have made his son Navin a defendant. It could have made Navin defendant only for return of the land.
But Navin during his statement to the CIAA agreed to return the land. The CIAA says it, therefore, did not lodge case against Paudel.
Supreme Court (SC) Justice Kumar Regmi has also not been charged as he also similarly purchased the land after sale at different levels.
The CIAA has used the clause about government witness while giving amnesty to Paudel and Regmi.
Clause 55 of the Prevention of Corruption Act 2002 states that such witnesses who assist in investigation can be fully or partially let off. It is yet not clear how Navin and Regmi helped the CIAA in investigation but the CIAA has decided to consider them witness as they have agreed to return the land.
The constitutional anti-graft body on Wednesday lodged corruption case against 175 individuals including Nepali Congress (NC) Vice-president and former deputy prime minister Bijay Kumar Gachchhadar, two other former ministers and its former chief Deep Basnet in Baluwatar land grab.
The government had formed a probe committee under former secretary Sharada Prasad Trital following complaints that government land at Baluwatar has been transferred to some individuals. The committee had submitted the report to the government in December 2018 concluding that the land transferred to individuals belonged to the government.
The committee stated that the then king Mahendra after the coup in 1951 had confiscated 14 ropanis land of Nepali Congress leader Suvarna Shumsher Rana and his son Kanchan Shumsher in Baluwatar.
The government four years later acquired 285 ropanis of Rana's land in Baluwatar by paying compensation. The PM's residence, chief justice's residence, speaker's residence and the central office of Nepal Rastra Bank are currently situated in 172 ropanis out of that 285 ropanis.
Land mafia in connivance with staffers at the Land Revenue Office has transferred ownership of the remaining 113 ropanis of land to different individuals, the committee has concluded.
CPN General Secretary and former finance minister Bishnu Paudel was dragged into the controversy as eight annas out of the 113 ropanis has been transferred in the name of his son Navin.