“Outraged by the allegations!!! How can nation’s prominent academic institution do this?” was my initial reaction to the allegation of financial irregularities by Social Science Baha and Alliance for Social Dialogue. However, considering the issues in broader context, I realized that we should be offended by the act of Commission for the Investigation of Abuse of Authority (CIAA).
It is an irrefutable fact that corruption/financial irregularities are zero-tolerance offenses. Anyone culpable in such offense shall bear the legal liability as per applicable laws. However, the investigation, prosecution, and adjudication of the charges against corruption must be carried in accordance with existing legal provisions. The notion of ‘rule of law’, ‘procedural fairness’, and ‘jurisdictional competence’ cannot be undermined while pursuing charges of abuse of authority, corruption or financial misappropriation.
The concept of rule of law is well recognized universal value which requires that the government, its officials, and agents, as well as individuals and private entities, are accountable under the laws applied evenly by competent, ethical, and independent representatives. The adherence to rule of law requires conformity with the prescribed laws and its scope. Thus, any act by the government and its officials not in conformity with the legal prescription defeats the foundation of ‘rule of law’.
The notion of procedural fairness concerns with the procedures used by a those in authority rather than the actual outcome reached. The fair and proper procedure while making a decision is a prerequisite irrespective of the expected outcome. Any action undertaken without complying with a fair procedure is unjust and does not yield fair and correct outcome. Further, the procedural fairness requirement is basic in case of an investigation. The investigation undermining the procedural fairness fails the legality test. The government and any institutions exercising authority must follow the procedural fairness while doing so.
In a democratic country, all State apparatus are provided with authority and responsibility which are clearly defined by applicable laws. The authority to exercise such power is limited to the mandate of the state apparatus. The exercise of authority beyond the provided scope is considered as a violation of jurisdictional competence. All state organ must limit the exercise of authority within the substantive scope envisioned in the legislative arrangement. The State apparatus are bound to limit themselves with the sphere of activity over which the legal authority is entitled. The exercise of jurisdiction over issue or subject beyond entitled by law amounts to the violation of jurisdictional competence. The overriding of jurisdictional competence not only merely illegal, it also undermines the notion of division of power and authority in a democratic system.
The CIAA is an apex constitutional body established to curb corruption in the country. The constitution of Nepal has empowered CIAA to investigate and probe cases against the persons holding any public office and their associates who are indulged in the abuse of authority by way of corruption. The CIAA has a clear constitutional mandate with a well-defined scope and jurisdictional competence. The overstepping of jurisdiction by CIAA defeats the constitutional provision and challenges the sanctity of rule of law. The constitutional body performing its duties and responsibilities must abide by the governing laws. The above-discussed concepts of ‘rule of law’, ‘procedural fairness’ and ‘jurisdictional competence’ is applicable to CIAA. The institution with the constitutional mandate is expected to abide by the founding values of justice.
The recent instance of CIAA alleging Social Science Baha and Alliance for Social dialogue (ASD) for financial irregularities upon its investigation has raised some serious questions. This instance has stirred the jurisdictional competence of CIAA, followed by the requirement of procedural fairness, and adherence to rule of law. So has CIAA violated these norms in the matter concerning the investigation of Social Science Baha and ASD?
The CIAA is empowered to investigate and probe cases against persons holding any public office and their associates who are indulged in the abuse of authority. As per the constitutional arrangement, CIAA is not authorized to investigate private or non-government institutions. It is clear that attempt by CIAA to investigate private or non-governmental institutions is beyond its mandate and amounts to overstepping its jurisdictional competence. Both Social Science Baha and ASD being a non-governmental institution does not fall within its jurisdictional scope.
Furthermore, it has been alleged that CIAA selectively used details contained in documents furnished by the Social Science Baha and ASD and has released the charges through a well versed public statement with the aim to defame the institutions. The nature of CIAA probe is inconsistent with the norm of procedural fairness. The investigation subject for CIAA must have been those abusing power in Social Welfare Council (SWC). Under the social welfare council Act, SWC is responsible for the promotion, facilitation, co-ordination, monitoring and evaluation of the activities of the non-governmental social organizations in Nepal.
The CIAA hold jurisdiction and mandate to investigate those exercising authority in SWC if required. Such investigation would have ultimately disclosed the issue of irregularities in NGOs if any. This approach would have been procedurally fair and would have covered the issue of irregularities in a generic manner. However, the press statement of CIAA reflects Social Science Baha and ASD as a primary culprit in the allegation rather than the SWC officials. This approach obviously raises eyebrows on the ulterior motive of CIAA in the investigation.
The approach of investigation and overstepping of the jurisdiction of CIAA in large defeats the notion of rule of law. If the constitutional organ responsible for the investigation of abuse of authority itself undermines the jurisdictional competence and procedural fairness requirement, this is outrageous in a democratic society.
The issue of accountability of NGOs is an important concern and legislative measure has envisioned to ensure the accountability. In this context, it is uncalled for any State institution to overstep its jurisdiction and play ‘Robin-hood’. The least we expect from the State institution is adherence to rule of law, procedural fairness, respect to its jurisdiction, and mandate. It is important that State does ensure accountability from different actors and it is equally important that such is attained by proper means.
The leadership of CIAA and its activities have been subjected to widespread public scrutiny in recent times. There have been instances of ‘fast-till-hunger protest’ with demand for the impeachment of the head of the CIAA with allegations of abuse of authority (ongoing presently as well). There also has been raising allegations that the activities of the CIAA are being directed by personal bias and ulterior motives. The controversy involving the constitutional body entrusted to mitigate abuse of authority is very unfortunate and ultimately weakens the public's trust over the institution.
In this pretext, CIAA’s newborn interest in investigating institution beyond its jurisdiction certainly raises questions beyond the legality of the action. Any personal bias and ulterior motive should not cloud the judgment of those in the position to exercise power as it tends to undermine the basic norms of legality, rule of law, institutional mandate, natural justice and good governance. The institution like CIAA with constitutional mandate among all must reflect the values entrusted upon it.
In closing, the CIAA’s investigation of alleged irregularities by Social Science Baha and ASD is beyond its jurisdictional competence and mandate. This also violates the norm of procedural fairness and undermines the notion of rule of law. The CIAA shall apologize for overstepping its jurisdiction and guarantee non-repetition such actions in future.
We must understand what ‘Aldous Huxley’ understood long before — 'The end cannot justify the means, for the simple and obvious reason that the means employed determine the nature of the ends produced.'
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P.S. Initially published on barunghimire.com.np which no longer exisits due to technical reasons.
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