The Commission for the Investigation of Abuse of Authority (CIAA) has filed a corruption case against former prime minister and Chairman of the CPN (Unified Socialist) Madhav Kumar Nepal, citing corruption in the decision related to the land of Patanjali Yog Peeth.
This case is different in nature from other cases previously filed by the CIAA.
The anti-corruption body had earlier shelved the matter, saying it did not require action. However, after 12 years, it has now reopened the case. This is also the first time the CIAA has filed a case against a former prime minister.
It also raises an important question as to whether this falls within the jurisdiction of the CIAA or not.
After investigating allegations that Patanjali Yog Peeth and Ayurveda Company had purchased land in Sanga, Kavrepalanchowk, beyond the prescribed ceiling at a lower price and later sold it at a higher price, the CIAA filed the case, holding Nepal responsible.
The charge sheet filed by the CIAA cites Nepal’s involvement in two instances.
First, the charge sheet alleges his involvement in the decision to allow the possession of land beyond the prescribed ceiling.
The CIAA has concluded that Nepal played a role in sending a matter under the jurisdiction of the Social Committee to the Bill Committee through a Cabinet meeting on January 13, 2010, and ensuring that the decision of the Bill Committee would be accepted.
Second, the charge sheet states that he was involved in the Cabinet decision on March 19, 2010, to grant approval for the sale and exchange of land that Patanjali had purchased beyond the prescribed limit in the former Chalal Ganeshthan, Sanga, and Mahendrajyoti village development committees of Kavre before February 1, 2010.
Although both decisions were made by the Cabinet, the CIAA has for the first time filed a case in the Special Court, holding the prime minister solely responsible.
Previously, the CIAA had interpreted decisions made by the Cabinet as policy decisions and refrained from pursuing cases. This time, however, the CIAA has set a new precedent by filing a case against a former prime minister.
In the scam related to the land of Lalita Niwas at Baluwatar, decisions made by the Cabinet under Nepal and former prime minister Baburam Bhattarai were interpreted as policy decisions and no cases were filed against them. However, ministers and other officials involved in the scam were prosecuted.
At the time, the CIAA exonerated former prime ministers Nepal and Bhattarai in its charge sheet. In that case, the CIAA’s charge sheet stated that Cabinet decisions made on April 11, 2010, May 14, 2010, August 13, 2010, and October 4, 2012, as proposed by the ministry concerned to legitimize illegal actions taken by different ministries and offices regarding the government land of Lalita Niwas and transfer ownership of the land to unauthorized individuals were policy decisions taken collectively and therefore fell outside the CIAA’s jurisdiction. Consequently, no action was deemed necessary against the then prime ministers Nepal and Bhattarai, it said.
This time, however, the CIAA has refused to accept the Cabinet’s collective decisions as policy decisions. It has held Nepal responsible for directly proposing the sale of land beyond the prescribed limit.
Generally, matters reach the Cabinet in two ways.
Some matters originate in a ministry are discussed in committees under the Cabinet, and then sent to the Cabinet for a decision.
In some cases, the prime minister directly proposes a decision on a matter, which is then discussed in the Cabinet. This is called a direct proposal.
The CIAA has cited this direct proposal as the reason for filing the case against Nepal this time.
CIAA spokesperson Rajendra Kumar Paudel told Setopati that Nepal was made a defendant in the case because he had presented a direct proposal.
"A direct proposal means it was a guided matter. That is the basis for saying it was not a collective decision," Paudel said. "Moreover, there are also documents from the then ministers and statements from employees."
Paudel further said that the proposal was rushed without proper preparation, even though there was no urgent need, on the direct orders of the then prime minister Nepal.
Direct proposals are presented in the Cabinet on the prime minister’s instruction.
In a parliamentary democracy, the prime minister is the leader of the Cabinet, and all ministers are accountable to him as his aides. Therefore, many decisions have been made based on the prime minister’s direct proposals. Such decisions are common and are considered Cabinet decisions. Legally or politically, they are not interpreted as separate decisions.
When asked why the CIAA did not consider the Cabinet’s collective decision made more than 15 years ago on a direct proposal from the then PM Nepal as a policy decision, Paudel could not provide a concrete answer.
"It is a charge sheet prepared by legal experts. I have to accept what is written in the charge sheet as official," Paudel said. "The facts show that it was not a Cabinet decision. Hence, the charge alleges that it caused losses. Now, whether the charge stands or not will be interpreted by the court."
Setopati also questioned Paudel about the precedent in the Lalita Niwas land case, where Cabinet decisions were interpreted as policy decisions and no case was filed against the two former prime ministers.
In response, Paudel said that it would need to be checked whether the matter had entered the Cabinet as a direct proposal or not at the time.
"If the matter was a direct proposal at that time too, and if the CIAA had ignored it, it could be a subject of debate in court," Paudel said. "But since I was not associated with the case, I don’t have much information. You can assess it yourself."
Section 4 of the CIAA Act clearly defines the commission’s jurisdiction. “The Commission, pursuant to the Act, shall not take any action in matters relating to any business or decisions taken at meetings of any House of Parliament or of any committee or anything said or done by any member at such meetings, or any policy decisions taken by the Council of Ministers or any committee thereof or judicial actions of a court of law,” states Section 4 (b) of the Act.
Similarly, Article 82 of the Constitution says that the business of the government of Nepal shall be allocated and transacted in accordance with the rules approved by the government of Nepal, and that no question may be raised in any court as to whether or not the rules have been observed.
This provision raises the question of whether cases can be filed against works done according to the regulations related to the functioning of the Cabinet.
The CIAA has long been urging for the interpretation of policy decisions, arguing that it has been unable to file cases against many wrong decisions made by the Cabinet. In its annual reports submitted to Parliament through the president, it has repeatedly urged for a clear definition of policy decisions.
There is still no legal clarity on what constitutes a policy decision. This had restricted the CIAA’s from scrutinizing Cabinet decisions.
There have been demands in the media and political circles for a clear definition of policy decisions, arguing that immunity should not be granted on all decisions made by the Cabinet in the guise of "policy".
The National Assembly has defined policy decisions in the Bill to Amend the CIAA Act, stating that three types of decisions cannot be considered policy decisions.
According to the definition, a decision cannot be deemed to be a policy decision if it does not apply equally to the public and instead applies only to certain individuals or private institutions contrary to publicly declared policies.
Similarly, decisions made by the Cabinet by overstepping the jurisdiction of another body or official mandated by law, and decisions related to public procurement that bypass existing public procurement laws are not defined as policy decisions.
The bill is yet to be passed by the House of Representatives.
In filing the case against Nepal, the CIAA appears to have reversed its own previous decision.
Rajendra Pandey, deputy leader of the CPN (Unified Socialist), has publicly stated that the CIAA itself had previously decided to shelve the Patanjali Yog Peeth land issue.
A CIAA meeting on December 10, 2012, had noted that "since the Nepal government itself had allowed the sale and purchase of land acquired under land ceiling exemption, no further action was necessary," and thus shelved the matter.
When Setopati asked CIAA spokesperson Paudel whether new evidence had led the CIAA to conduct further investigation reversing the decision to shelve the case, he replied, "Even if the previous leadership of the commission had decided to shelve the matter, the current leadership found sufficient evidence to file the case."
Now that the case has been filed in the Special Court against Nepal, the CIAA must publicly and clearly answer two questions.
First, why is the decision of Madhav Nepal’s Cabinet not considered a policy decision under a system where the prime minister is the executive head?
Second, why was no case filed against leader Nepal earlier, and why now?
This is because the Unified Socialist has interpreted the CIAA’s filing the case against Nepal as "political vendetta."
Therefore, this case has posed questions to the constitutional commission. It remains to be seen how the CIAA’s leadership publicly responds to these questions or defends its actions.
