Those who are saying that Pathak cannot be investigated as he was not impeached are wrong — Bhimarjun Acharya, Constitutional expert
There is a reason why constitutional post holders cannot be investigated for corruption easily — Om Prakash Aryal, Advocate
Kathmandu, February 18
Attorney General Agni Prasad Kharel today wrote to the Commission for the Investigation of Abuse of Authority that the anti-graft body would be within its right to investigate allegation of corruption against former CIAA commissioner Raj Narayan Pathak.
According to a source in the Office of Attorney General, Kharel wrote to the CIAA after the latter sought his legal opinion on the matter. Kharel, however, refused to reveal what advice he offered to the CIAA, which sought legal opinion of the government’s chief legal adviser after media reports said the anti-graft body was dragging its feet on investigation against Pathak. CIAA Spokesperson Rameshwar Dangal said he was not aware of the opinion offered by the AG to CIAA.
Pathak, who was accused of receiving a bribe of Rs 7.8 million for settling corruption cases that were being investigated by the CIAA, resigned from his post on February 15 after ruling Nepal Communist Party (NCP) threatened to impeach him if he did not resign from his post.
Nepalkhabar.com had posted a video shot in a sting operation in which Pathak admitted that he made a blunder by accepting bribe.
Constitutional expert Bhimarjun Acharya said there was no legal hurdle in starting an investigation against Pathak. “Those who are saying that Pathak cannot be investigated as he was not impeached are wrong because passage of impeachment motion only results in sacking of a constitutional post holder from his/her post. Once an impeachment motion is passed against somebody, the anti-graft body is free to investigate him/her if s/he has been involved in corruption,” he argued.
A senior advocate told THT on condition of anonymity that the argument that CIAA could not investigate Pathak was wrong because nobody was above the law.
Advocate Om Prakash Aryal, however, offered different opinion, saying constitution and the law did not allow the CIAA to initiate investigation against constitutional post holder without the Parliament passing an impeachment motion against the constitutional post holder.
“The president, who acts on the advice of the prime minister, should not have immediately accepted Pathak’s resignation and lawmakers should have initiated impeachment proceedings against Pathak,” he added. Aryal said the constitution and other prevailing laws had treated constitutional post holders differently because if the CIAA was allowed to investigate constitutional post holders so easily, then they, including justices, would not be able to discharge their duties impartially and fearlessly. “If constitutional post holders are investigated for corruption easily, they can become victims of revenge attacks and will not work impartially while serving a constitutional body,” he added.
He said constitutional bodies, such as CIAA, were oversight bodies and, therefore, the constitutional provisions required officers of high moral character to be appointed to the offices of such constitutional bodies.
A version of this article appears in print on February 19, 2019 of The Himalayan Times.