Why has the Jurisdiction of the Commission for the Investigation of Abuse of Authority been stripped off by the draft Constitution?

 The Commission for the Investigation of Abuse of Authority (CIAA), which is one of the important formulations of the Interim Constitution 2007, has been given continuity by the draft Constitution, which has recently been approved by the Constituent Assembly for public discussion. However, the draft Constitution, for no apparent reasons, has stripped off the power of the Commission to deal with cases of “improper conduct.”

Article 120(1) of the Interim Constitution enabled the CIAA to conduct inquiries into, and investigations of, “improper conduct” or “corruption” in accordance with law by a person holding any public office. The only public servants who were not subjected to this jurisdiction were the people who the Constitution itself separately provided for such action and to other officials with regard to whom other law had separately made special provision. The Constitution allowed inquiry and investigation against any official of a constitutional body removed from his/her office following an impeachment resolution on the ground of misbehaviour, the judge removed by the Judicial Council on similar charges, or a person proceeded against under the Army Act after they are removed from office, in accordance with law.

It is clear that the draft constitution gave continuity to the CIAA jurisdiction on corruption by Article 238 but not “improper conduct” of public officials. As such, once this constitution is promulgated, this independent constitutional body will not be able to conduct inquiry or investigation on the cases defined as improper conduct. The CIAA that exists today will be unable to warn such a public servant, or forward a recommendation to the authority concerned to take departmental action or any other necessary action under the law.

It is not clear why the CIAA jurisdiction on “improper conduct” has been stripped off like this. This was never an issue in the legal constitutional sector. There has never been a debate in the parliament about stripping off this power for any known or unknown reasons. It is also clear that this was never an issue during the last seven years of constitution building debate. Under this new approach, if the Commission finds, upon inquiry or investigation that a person holding any public office has committed an act which is defined by law as corrupt, it may lodge a case itself or require the relevant authority to do it against such person or any other person involved therein in a court with legitimate jurisdiction. But it will not be able to work on the cases of misuse of his/her authority by committing an act which is defined by law as improper conduct. Roughly speaking, this means that the CIAA will be deprived of almost 70 to 80 percent of its regular work.

It needs to be mentioned here that the Commission was conceived in Nepal to serve as constitutional ombudsman (“Parliamentary Commissioner” in British sense) and anti-graft body. There is a sea change now. The change is certainly not convincing.