Role of CIAA as an Ombudsman in Nepal

Introduction to the Ombudsmen

The origin of the word is found in Old Norse umbuðsmann (accusative) and the word umbuds man, meaning representative (with the word umbud/ombud meaning proxy, that is someone who is authorized to act for someone else, a meaning it still has in the Scandinavian languages).[1]

The modern use of the term began in Sweden, with the Swedish Parliamentary Ombudsman instituted by the Instrument of Government of 1809, to safeguard the rights of citizens by establishing a supervisory agency independent of the executive branch.[2]It is a unique institution which leads to an ‘open government’ by providing a democratic control mechanism over the powers of the State.[3]Ombudsman acts as an external agency, outside the administrative hierarchy, to probe into administrative faults. [4]

The Commonwealth Ombudsman in Australia was established in 1976. The Ombudsman can investigate complaints about the actions and decisions of Australian Government departments and agencies, the services delivered by most private contractors for the Australian Government, and oversee complaint investigations conducted by the Australian Federal Police.[5] In Brazil the office of Ombudsman is called the Ouvidor, usually heading a service called Ouvidoria, and each government agency defines its own service. These organizations usually lack full independence.[6] The Ombudsman’s Office of Colombia (Spanish: Defensoría del Pueblo, or People’s Defender) is the national agency in charge of overseeing the protection of civil and human rights within the legal framework of the state.[7] The European Ombudsman was established by the Maastricht treaty.[8] The European Union Ombudsman investigates claims by companies which reside or have their interests within the European Union against incidents of bad administration by bodies or institutions of the European Union.[9] In India, Ombudsman is called as Lokpal or Lokayukta.[10] The Russian ombudsman position is called Commissioner for Human Rights.[11] From a survey of the working of the Ombudsman systems in New Zealand, England and Australia, one thing stands out, viz., the purpose of the Ombudsman is to control the administration and thus give protection to the citizen against injustice brought about by faulty administration.[12]

• Ombudsman also helps in gradually improving administrative procedures by making recommendations for modifying these procedures.[13]
• Ombudsman provides a valuable method of investigating complaints against government departments.[14]
• Ombudsman assists an individual to secure an appropriate remedy by the department. The remedy make take several forms, e.g, apology, fresh decision, payment of ex gratia compensation; any other financial benefit (as for e.g, waiver of arrears of tax, payment of interest or refunding of expenses), departmental review of his case and similar other cases, review of relevant departmental policy, or review of delegated legislation contributing to injustice to the citizen.[15]
• On the whole, Ombudsman seeks to hold the balance between the citizen and the state and thus he contributes to the greater efficiency and humanity of the administrative process.[16]

Garner rightly states that he is ‘an officer of the Parliament, having his primary function, the duty of acting as an agent for Parliament, for the purpose of safeguarding citizens against abuse or misuse of administrative power by the executive.[17]

According to Prof.S.K.Agrawal, the term ‘Ombudsman’ refers only to institutions which have three basic and unique characteristics[18]:

• Ombudsman is an independent and non-partisan officer of the legislature who supervises the administration.
• He deals with the specific complaints from the public against administrative and mal-administration.
• He has the power to investigate, criticize and report back to the legislature, but not to reverse administrative action.

He is appointed by the Parliament and thus, he is not an officer in the administrative hierarchy. He is above the party politics and is in a position to think and decide objectively.[19]

The basic idea of an ombudsman (a ‘grievance person’) can be stated simply: a complaint of administration from a relevant source is investigated by an official with appropriate powers, clearly independent of the administrative authorities.[20]

The ombudsman follows an administrative, inquisitorial and private process of investigation, with full access to departmental files, full power to question civil servants and the right to expect the co-operation of the department being investigated.[21]

Introduction to CIAA

The Commission for the Investigation of Abuse of Authority (CIAA), Nepal is an apex constitutional body to curb corruption and its tentacles in the country.[22] Commission for the Investigation of Abuse of Authority Act was enacted in 1991. A regulation thereof was also promulgated to lay down the procedural details for implementing the provisions of act. The above Act and Regulation define in detail the scope, functions and procedures of investigation and prosecution.[23]

CIAA is the distinctive anti-corruption agency in South Asia, which plays the role of an ombudsman, investigator and prosecutor as well.[24] It aims to crack down the corruption issues at a national level with system-based approach.[25] It also focuses on detection and punishment of corrupt acts on the one hand and social, cultural and institutional reform on the other.[26]

There shall be a commission for the investigation of abuse of authority in Nepal consisting of a chief commissioner and as many other commissioners as required. If additional commissioner is appointed apart from the chief commissioner, the chief commissioner shall act as chairperson of the Commission for the Investigation of Abuse of Authority.[27] The president shall on the recommendation of the constitutional council, appoint the chief commission and other commissioners.[28] The tenure of chief commissioner and other commissioners is six years from the date of appointment.

Thus, CIAA is a Constitutional body made for the prevention of Corruption.

Role of CIAA as an Ombudsman in Nepal

There is no equivalent of an ombudsman in Nepal. However, the Commission for the Investigation of Abuse of Authority (CIAA) serves as a forum for complaints by the citizens against government employees and entities.[29] Nepal does not have an ombudsman per se, but the Commission for the Investigation of Abuse of Authority (CIAA) covers the same functions as an ombudsman as it mediates citizens’ complaints against government employees and entities.[30] No existing laws or regulations in Nepal clearly define the role of the CIAA or the NVC as an ombudsman.[31]

The Commission for the Investigation of Abuse of Authority (CIAA) is a top Constitutional Body, which serves as the watchdog against vice, such as the abuse of authority and the resultant chain of corruption which exists in the country.[32]

The CIAA is considered as the Ombudsman in Nepal because of the following reasons as referred to from the definitions dealt above:

Investigative and Prosecutive Role

It conducts inquiries and investigations into corruption and improper conduct as defined by the law, allegedly committed by persons holding public positions. It has authority to investigate all officials holding public positions, from the Prime Minister to low-ranked public servants. However, it has no jurisdiction over any official in relation to whom the constitution itself separately provides for such action and any official to be prosecuted under the Army Act. Based on the findings, the Commission may file a case against the persons, alleged to have committed corruption, in the court of law. A special court has now been established to look into such cases.[33]

Corrective and Recommendatory Role

If investigation leads to a finding of an “improper act”, the Commission may admonish, recommend departmental actions (in the case of Judges and chiefs and members of constitutional bodies) or ask for recovery of the loss inflicted by such an act. The Commission may make suggestions or recommendations to the government for amending laws or making certain improvements in the functions and procedures of the government, or part thereof, with a view to enhancing and improving good governance practices in the country.[34]

Preventive Role

The law provides for the CIAA to undertake appropriate awareness, information dissemination and sensitization programmes to prevent officials of the government and the public at large from indulging in corrupt practices.[35]

The commission received 4,149 complaints in the fiscal year 2008-2009. Out of these complaints, it settled 3,303 cases and filed 47 cases in the Special Court after it conducted the necessary investigations.[36]

Some cases relating to effectiveness of CIAA:

Mr. Badri Bahadur Karki v CIAA[37]

Sunil maske has been trying to export the Indian money. And he was under the prosecute and he was acquitted by the court with return that money. CIAA initiates to appointed a investigator officer. He asked clarification with setting some legal question to attorney general about the acquittal of Sunil Maske.

Petitioner contention: as being an attorney General, decision made on the basis of Article 110(2) is valid. CIAA does not have authority to inquiry and find out right or wrong upon the decision. The action of CIAA is out of jurisdiction and illegal.

Defendant submission: On the basis of the article 98 of the constitution kingdom of Nepal, Attorney general does not have the immunity to be inquiry from CIAA. Article 98(3) provides to prosecute or not prosecute in regard of abuse of authority or corruption to CIAA. Article 98(3) is not narrowed by Article 110(2), they have equal status. There is no clear constitutional provision to be out of the jurisdiction to attorney general. CIAA has authority to ask clarification to Attorney General. Sunil Maske has been arrest with illegal money and he was acquitted with return that money. In this regard to ask for clarification is the due process of CIAA. In this situation the writ was not necessary to file by Attorney General.

Verdict of the court: Abuse of authority doing by unreasonable act or corruption by Attorney General, in this regard CIAA have right to investigate upon it. CIAA does not have right to do investigate upon the decision given by the Attorney General is not acceptable statement. Petition should be given the answer of the question set out by CIAA. No existing situation to file writ so it is declared void.

Laya Prashad Khatri v CIAA[38]

In this case the person who is second class officer made the forged and fabricated certificate of M.A. passed in political science from C.N. Mithila University for the purpose of promotion. CIAA after the investigation found that the certificate presented to Public Service Commission is forged. Then CIAA filed the case being base on the provision of ‘Corruption Prevention Act 2017’ sec.7 (1) and sec (12).

The Supreme Court held that the document shows that certificate is forged. So the demand of CIAA and punishment (decision) of special court is (seems) lawful and reasonable.

[1] Available at http://en.wikipedia.org/wiki/Ombudsman, accessed on 3rd April, 2011

[2] Ibid

[3] Supranote 1

[4] M.P. Jain and S. N. Jain, Principles of Administrative Law, 4th Ed, Wadhwa and Company Law Publishers, Agra, India, p 917

[5] Supranote 3

[6] Supranote 3

[7] Supranote 3

[8] Supranote 3

[9] Supranote 3

[10] Supranote 3

[11] Supranote 3

[12] Supranote 6, p 918

[13] Supranote 6, p 918

[14] Supranote 6, p 918

[15] Supranote 6, p 918

[16] Supranote 6, 918

[17] J.J.R.Upadhaya, Administrative Law, Central Law Agency, Allahbad, 2001, p 366

[18] Ibid, p 366

[19] Id, p 366

[20] Peter Leyland and Terry Woods, Textbook on Administrative Law, Oxford University Press, 4th Ed, p 141

[21] Beatson, Matthews and Elliot’s, Administrative Law Text and Materials, Oxford University Press, 3rd Ed, p 719

[22] Commission for the Investigation of Abuse of Authority (CIAA), Nepal, An INTRODUCTION available at http://www.ciaa.gov.np/nepali/jhola/CIAA_Brochure_Final.pdf, accessed on 2nd April, 2011

[23] Available at http://www.ciaa.gov.np/funcfeat.htm, accessed on 5th April, 2011

[24] Commission for the Investigation of Abuse of Authority (CIAA), Nepal, An INTRODUCTION available at http://www.ciaa.gov.np/nepali/jhola/CIAA_Brochure_Final.pdf, accessed on 6th April, 2011

[25] Ibid

[26] id

[27] The Interim Constitution of Nepal, 2063, Article 119(1)

[28] The Interim Constitution of Nepal, 2063, Article 119(2)

[29] Available at http://baseswiki.org/en/Nepal, accessed on 8th April, 2011

[30] Global Integrity Report, 2009, available at http://report.globalintegrity.org/Nepal/2009/scorecard/69/56h, accessed on 9th April, 2011

[31] ibid

[32] Available at http://www.icac.org.hk/newsl/issue19eng/button4.htm, accessed on 1st April, 2011

[33] ibid

[34] id

[35] id

[36] Supranote 32

[37] NKP 2058, 239