CIAA's 'Wholesale' Prosecution Strategy Faces Judicial Scrutiny

Kathmandu. The Commission for the Investigation of Abuse of Authority (CIAA) has frequently faced questions regarding its tendency to file cases in a 'wholesale' manner. Despite this, the commission has yet to reform its approach.

On Chaitra 26, the CIAA filed a charge sheet in the Special Court against former Chief Customs Administrator Arun Pokharel for corruption related to gold smuggling via vape. According to the charge sheet filed on Chaitra 26, former Chief Customs Officers at the airport customs office, Mukti Prasad Shrestha and Ambika Prasad Khwanal, were also named as defendants.

A probe committee led by Deputy Secretary Ambika Khwanal had conducted an internal investigation and submitted a report regarding the suspected exchange of vapes in suitcases.

The investigation by Pokharel and Ambika Prasad Khwanal, who were named as defendants, had uncovered the gold smuggling via vape. However, the CIAA has prosecuted them as well in a wholesale manner.

This gold smuggling case dates back three years. The individuals against whom the CIAA has filed corruption charges are the same people who are set to testify as witnesses in the District Court regarding the information and reports on the same gold smuggling case.

The CIAA did not investigate the vape gold smuggling case for two years. It was only after the formation of a new government that the commission filed cases in a wholesale manner, even against employees who provided information about the smuggling and those acting as government witnesses.

This is not the first instance where the CIAA has filed cases in such a wholesale manner.

• Cases against those providing evidence of bribery

On Ashoj 22, 2082, the CIAA filed a case against Sujan Lama from Pokhara, who recorded audio in the Lichibari land bribery case. A corruption case was filed against Lama, claiming a recovery of 7.8 million rupees.

Lama had given a statement to the CIAA claiming that he had paid approximately 50 million rupees to ministers and secretaries.

After three tiers of courts ruled that the 60 ropanis of land currently held by the Gauchan family should be transferred to Suraj Shah Thakuri, the Thakuri family repeatedly approached various bodies to implement the verdict. Seeing no possibility of implementation from anywhere, the Thakuri family chose the path of implementing the court's verdict through CPN-UML leader Sujan Lama.

After the court's verdict was not implemented despite repeatedly bribing officials from ministers to land revenue chiefs, Lama released the audio recording. The CIAA took a statement from Lama, who released the audio, and filed a corruption case against him. The CIAA has filed the corruption case based solely on the audio and photos made public by Sujan Lama. No evidence has been presented to the Special Court that the minister had accepted a bribe.

A corruption case has also been filed against Khem Bahadur Pun, known as Khem Pun, who was attempting to become the head of the Land Commission in Kaski. Cases have also been filed against Yamkumari Gurung and Tulsi Budha Magar, who were not in public office but were involved in land transaction attempts and had provided money to Sujan Lama.

• 'Wholesale' prosecution shifted by Special Court's remarks on Wide-Body

Previously, the CIAA used to identify individuals through investigation before filing corruption cases. While the Special Court convicted some in such cases, it raised questions about the prosecution in others.

The Special Court questioned the CIAA for 'selective prosecution' in the Wide-Body corruption case. The bench of Special Court Chairman Tek Narayan Kunwar and members Tej Narayan Singh Rai and Ritendra Thapa made judicial remarks regarding selective prosecution in the Wide-Body scandal.

In its verdict, the Special Court questioned why those involved in the decision-making process that led to the aircraft purchase were not brought under the scope of the law, while those involved in the purchase process were prosecuted.

The Special Court questioned why the charge sheet did not dispute the decision to form a subcommittee, yet the purchase work carried out based on that decision was claimed as a corruption offense.

'It appears that a selective approach has been adopted, where some involved in the same act are not prosecuted at all, while others are. Selective prosecution is against the principle of equal justice. Such actions undermine the sentiment that the law is equal for all and weaken trust in justice,' the Special Court's verdict stated.

Since CIAA Chief Prem Kumar Rai was the secretary at the Ministry of Culture, Tourism and Civil Aviation and a key decision-maker in the Wide-Body purchase, the Special Court questioned why the investigation was selective. When Chief Rai was the secretary of the Ministry of Culture, Tourism and Civil Aviation and chairman of the Nepal Airlines Corporation board, the proposal to purchase two wide-body aircraft was moved forward, and a subcommittee was formed for it.

The court's verdict stated that the initial point of bad faith in the aircraft purchase process is evident in the decision to buy aircraft that had flown 1,000 hours and were built after 2014. When Rai was the chairman of the Citizen Investment Trust, a loan of 12 billion rupees was approved for the aircraft purchase. After the Special Court made such remarks about selective prosecution, the CIAA has recently been filing cases in 'wholesale'.

The Special Court has been making judicial remarks repeatedly regarding the CIAA's investigation matters. In a case where the commission filed a wholesale case, the Special Court acquitted seven people, including former Kathmandu Metropolitan City Administrative Officer Pradip Pariyar, on Poush 22, 2082.

While acquitting them, the Special Court pointed out the lack of basis to prove bad faith on the part of Pariyar and the others. The CIAA had alleged that the contract was awarded to Kalpabriksha-Kohinoor JV, which bid a higher amount, instead of the parallel bidder who bid a lower amount. However, the court stated in its verdict that the bid of Kalpabriksha-Kohinoor JV was also approved at 7.3 percent below the cost estimate, and there was no evidence that the defendants had taken any personal benefit in this process.

Similarly, regarding the confidentiality of the electronic bidding system, the Special Court's verdict stated: 'In the e-bidding system, the evaluation committee does not know in advance what the financial proposal of a company that fails the technical proposal was.'

The court concluded that since the parallel bidder's financial proposal was only opened by the CIAA later by logging in, it is not logical to say that a higher amount was approved by ignoring a lower amount that was unknown. The verdict mentioned that since a committee was formed for contract evaluation as per Rule 42 of the Public Procurement Regulations, 2079, and the evaluation was done according to the set criteria, it cannot be considered 'malicious'.

Following such a verdict from the Special Court, the CIAA filed a case against 8 people on Jestha 2, 2082, in the Telecommunications Traffic Monitoring and Fraud Control System (TERAMOCS) procurement case. In this corruption case, 8 people, including former minister Mohan Bahadur Basnet and former chairman of the authority Digambar Jha, were made defendants. This case is currently in the final hearing stage at the Special Court.

• Only 3 convicted in MDMS system corruption case, claims against others not proven

The CIAA had filed a case against 19 people at the authority and the contractor company on charges of corruption in the procurement of equipment and consulting services to install the Mobile Device Management System (MDMS). The Special Court convicted the two former chairmen of the authority and the contractor company, and acquitted everyone else.

When the commission filed the case in bulk, everyone except three people was acquitted. The Special Court has interpreted that no claims could be proven in the case of those acquitted. Those acquitted include Anandaraj Khanal, Dipesh Acharya, Surendralal Hada, Min Prasad Aryal, Achyutananda Mishra, Revatiram Pant, Sandeep Adhikari, Binod Chandra Shrestha, Surya Prasad Lamichhane, Pratiksha Poudel, Vijay Kumar Ray Yadav, and Nirajan Koirala.

The Supreme Court has established a precedent that it is not enough to just level charges in a corruption case; it must also be confirmed by evidence. In the corruption case of Devrishi Sapkota vs. Government of Nepal, the Supreme Court established a precedent that when leveling charges and establishing guilt in a serious offense like corruption, it must be clearly confirmed by evidence, and such evidence must be direct and visible.

'If someone levels a charge or accusation against an individual, it is not enough to just level such a charge or accusation; it must also be confirmed based on evidence. In a criminal case, the burden of proving the defendant's guilt lies with the plaintiff or the party making the accusation,' it is written in paragraph 22 of the verdict.

Similarly, in paragraph 28, it is stated that convicting and punishing an accused based on an accusation claim made solely on the basis of speculation, suspicion, and guesswork in the absence of direct and independent evidence is contrary to the accepted principles of criminal justice, and the accused should get the benefit of the doubt.

• What does the law say?

Section 25 of the Prevention of Corruption Act contains provisions regarding investigation and inquiry. That section provides that 'if an investigation officer learns from information, source, or complaint that a person has committed or is about to commit corruption, they shall conduct necessary inquiry and other actions'.

Section 30 gives the 'investigation officer the right to exercise other powers'. Section 31 provides that the investigation officer can keep a person in custody by issuing a detention warrant as per prevailing law. If permission to keep in custody is requested, the official hearing the case can examine the relevant documents and, if the inquiry is found to be proceeding satisfactorily, grant permission to keep in custody for a maximum of 6 months, not exceeding 30 days at a time or in installments.