The govt must take policy decisions only in the public interest confined to the existing laws
The five-member constitutional bench of the Supreme Court on Wednesday issued a show cause notice to the government asking why the Commission for the Investigation of Abuse of Authority (CIAA) cannot investigate into decisions taken by the Council of Ministers and its related committees. The bench has given the government seven days to furnish replies on the show cause notice. The constitutional bench issued the notice in response to a public interest litigation filed by eight individuals and organisations, who have demanded that Section 4 (b) of the CIAA be scrapped. This is the section which prevents the anti-graft constitutional body from investigating the decisions taken collectively by the Cabinet or Cabinet committees. The petitioners have argued that Section 4 (b) of the CIAA Act is the root cause of corruption as the Cabinet decisions are out of the CIAA's purview. They have also argued that while it is logical to keep judicial and parliamentary actions out of the purview of the CIAA Act, keeping the Cabinet and its committees' decisions out of its scope is arbitrary and contrary to the concept of the ombudsman. High-profile office bearers, including the prime minister, could indulge in corruption because of the impunity granted by the CIAA, the petitioners have said, adding it is also against the spirit of the constitution.
Instead of amending the existing CIAA Act as per the spirit of the constitution, the CIAA (Third Amendment) Bill was tabled on January 20, 2020, proposing to expand the immunity enjoyed by the Cabinet and its committees even to the provincial cabinets. The UN Convention against Corruption-2003, which Nepal has ratified, does not make any distinction between policy and non-policy to keep any act of any institution or individual out of the purview of an anti-corruption body. Most of the decisions to be made by the council of ministers are termed as policy-level decisions, which aim to provide undue benefits to some individuals or private institutions. Because of the impunity the federal Cabinet enjoys, most of the ministers, who are supposed to take decisions on their own, take certain controversial deals to the Cabinet to avoid any probe by the CIAA.
A case in point is the Lalita Niwas land grab case, in which subsequent governments formed after the restoration of democracy in 1990 took policy level decisions to hand over around 114 ropanis of government land to some influential people. As many as 175 people were charge-sheeted by the CIAA on charges of grabbing the Lalita Niwas land illegally. But the CIAA failed to take legal action against two former prime ministers – Madhav Kumar Nepal and Baburam Bhattarai – citing that the decisions were taken by the Cabinet. A caveat is that if the CIAA is given more legal teeth, it will be more powerful than the government, which, at times, needs to take some policy decisions on certain cases in the greater interest of the nation and public. Therefore, the PM and the Cabinet members must be careful while taking any policy decisions and also must be able to justify their decisions being confined to the existing laws. It is also very difficult to amend the CIAA Act by tying it to the decision-making power of a government.
Therefore, the bench refused to issue an interim order as sought by the petitioners.
COVID testing
Prevention is better than cure, and it's good to learn that testing for CPVID-19 has intensified along the Nepal-India border in Sudurpaschim Province.
In recent days, India has been reporting rising number of cases of the new sub-variant of Omicron, and given the open border with India, the chances of the virus making its way into Nepal are high. However, no case of the new sub-variant has been detected so far in the province. Risks of infection are high as thousands of Nepalis and Indians cross the border every day for work and to do business.
Apart from keeping strict vigilance, there is a need to vaccinate the population with booster doses, which are given every six months. However, there is a shortage of vaccines in the province as in the rest of the country. With life getting normal after two years of the COVID menace, both the government and the people seem to have become lax about the need for taking booster doses and following the health protocols of wearing a mask at all times and avoiding large crowds, among others. The coronavirus apart, the provincial government should also focus on preventing the seasonal flu in the wake of the extreme cold that has gripped the country in recent days.
A version of this article appears in the print on January 6, 2023, of The Himalayan Times.
