KATHMANDU, JANUARY 4

The Supreme Court has issued a show cause notice to the government, giving it seven days to explain why it doesn't want the Commission for the Investigation of Abuse of Authority to investigate Cabinet decisions.

The show cause notice was issued by the five-member constitutional bench led by Acting Chief Justice Hari Krishna Karki in response to a public interest litigation filed by eight individuals and organisations, including Advocate Raju Prasad Chapagai on behalf of the Justice and Rights Institute of Nepal (JuRI-Nepal) and Ghanshyam Khadka on behalf of the Human Rights Journalists Association.

Petitioners have demanded to scrap Section 4 (b) of the Commission for the Investigation of Abuse of Authority Act, arguing that the provision curtails the CIAA's authority to investigate decisions made collectively by the Cabinet and Cabinet committees.

Petitioners have said that while it was logical to keep judicial and parliamentary actions out of the purview of the anti-graft body, keeping the Cabinet and its committees' decisions out of the ambit of CIAA investigation was arbitrary and contrary to the concept of ombudsman.

They argued that Section 4 (b) of the CIAA Act promoted corruption, as high-level office bearers could indulge in corruption with impunity on the basis of immunity provided by this provision of the CIAA Act.

They said Section 4 (b) was incorporated in the CIAA Act by violating legislative boundaries and was against the spirit of the constitution.

Petitioners said that instead of trying to remove Section 4 (b) which was a major hurdle in the effort to maintain good governance, the government registered the CIAA (Third Amendment) Bill on 20 January 2020, proposing to expand immunity enjoyed by the Cabinet and its committees to provincial cabinets and their committees as well.

They stated in their writ petition that the UN Convention against Corruption-2003, which Nepal has ratified, doesn't allow distinction between policy and non-policy to keep any act of any institution or individual out of the ambit of the anti-corruption body.

'It is necessary to repeal Section 4 (b) of the CIAA Act to fulfil Nepal's obligation under the UN Convention against Corruption, which proposes zero tolerance against corruption.

Writ petitioners argued that all institutions, and not only the Cabinet, took policy decisions and if such decisions were kept out of the ambit of CIAA, that would not be in consonance with the rule of law.

'In Democracy, laws apply equally and no person or institution is above the law.'

Chapagai told THT that Section 4 (b) of the CIAA Act was at the root of corruption and needed to be removed.

Some political parties and civil society members have also raised their voice against this provision, saying that they knew of instances where Cabinet ministers, who were supposed to take decisions on their own, took certain controversial deals to the Cabinet so as to avoid any probe by the CIAA.

The other members of the constitutional bench that issued the show cause notice to the government are Justice Ishwar Prasad Khatiwada, Ananada Mohan Bhattarai, Prakash Man Singh Raut, and Sapana Pradhan Malla.

The bench, however, refused to issue interim order as sought by petitioners.

A version of this article appears in the print on January 5, 2023, of The Himalayan Times.