Ombudsman
Introduction
Nature, Scope and Function
Complaints Handling
Investigation and Decision
Prevention of Corruption and Commission
for Investigation of Abuse of Authority.
Functions, Authorities and Power
Delegation
Ombudsman: Introduction
v The concept of Ombudsman were institutionalized for the first time in
Scandinavian countries such as Sweden, France, Denmark, Norway etc.
Sweden was the first nation that established Justitieombudsman in 1809 and
New Zealand was the first common law country which established it in
1962.
v The need for the establishment of Ombudsman was felt because the
Courts, Legislature and Parliament could not always control over misuse
of administrative power. Although they do, at times, it is very time
consuming and therefore could question the faith of citizens. Peter
Leyland and Terry Woods, Administrative Law: “The basic idea of an
ombudsman (a ‘grievance person’) can be stated simply: a complaint of
maladministration from a relevant source is investigated by an official with
appropriate powers, clearly independent of the administrative authorities.”
v The term maladministration is a combination of two words: ‘mal’ and
‘administration’. According to Black’s Law Dictionary, the term “mal” is a
“prefix meaning bad, wrong fraudulent.” Wade in administrative law
relates ‘maladministration’ with words such as ‘bias, neglect, inattention,
delay, incompetence, ineptitude, arbitrariness and so on.’
Ombudsman: Introduction
v Although it grew gradually, Ombudsman is now established in many
countries to check activities of agencies ranging from banks to travel
agents to prison and health service to public authorities.
v The sole reason for the establishment of Ombudsman is to check the
activities and powers of administrative agencies
v There have been often criticism to the idea of Ombudsman for the
fact that it curtails some of the rights of ministers, law makers or
officials who usually have the right to see complaints filed against
public authorities or individuals. For e.g. ombudsman could restrict
Chief District Officer from overseeing an illegitimate act of a police
official (recall previous chapter)
v Characteristics of Ombudsman could differ from countries to
countries and from practice to practice. Therefore, nature, scope and
function of ombudsman could also differ. Its name could also differ
for e.g Lokpal in India and ‘Commission[er]’ in Nepal, Commission
for Human Rights and Good Governance in Tanzania etc.
Ombudsman: Introduction
v Robert Dayal, “The institution of Ombudsman came into existence in
some countries to register a small man’s battle against red tape and
administrative injustice.” (‘Red tape meaning excessive/unnecessary/
complicated following of legal rules thereby affecting good
administration)
v It is considered as an important part of administrative law as it tries to
solve disputes between citizens and administrative agencies. The
allegation of maladministration must be proved by citizens against
government which enjoy privileges. It does become difficult. Hence, it
becomes essential if there is one agency that just requires individual to
file a complaint and rest is done by itself-ombudsman.
v In most countries, there are separate ombudsman for separate
administrative bodies such as there could also be ombudsman at Land
Revenue Office, CDO, Metropolitan city etc. in Nepal. They are called as
organizational ombudsman. Unfortunately, there is only one in Nepal-
CIAA. Also, there is National Vigilance Centre (NVC) established in
2059 B.S under the direct supervision and control of Prime Minister of
Nepal. (Please search for this)
Definition of Ombudsman
v Garner in Administrative law defines Ombudsman as: “He is an
officer of Parliament, having at 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.”
v Black’s Law Dictionary, Ombudsman is, “an official or semi
official office or person to which people may come with grievance
connected with the government. The Ombudsman stands between
and represents, the citizen before the government.”
v S.P Sathe, “The Ombudsman is an officer of parliament who
investigates complaints from citizens against government
departments that they have been unfairly dealt with and if he
finds that the complaint is justified, help to obtain a remedy. He
has usually a high status that judge of the highest court and can
investigate acts involving corruption and maladministration by
government officials, sometime including ministers.
Definition of Ombudsman
v International Bar Association 1974: “…an office provided for by
the constitution or by action of the legislature or parliament and
headed by an independent high-level public official who is
responsible to the legislature or parliament, who receives complaints
from aggrieved persons against Government agencies, officials, and
employees, or who acts on his own motion, and who has the power to
investigate, recommend corrective action, and issue reports.”
v According to Prof. S.K Agrawal, the term Ombudsman refers
only to institutions which have three basic and unique
characteristics:
1. Ombudsman is an independent and non-partisan officer of the
legislature who supervises the administration;
2. He deals with specific complaints from the public against
administrative injustice and maladministration.
3. He has the power to investigate, criticize and report back to the
legislature, but no to reverse administrative action
Nature
v Ombudsman is a law created agency. In some case, it could be created
by Constitution and in some by Acts. For e.g. CIAA is established
under Constitution and is governed by CIAA Act
v It is a state official to see over complaints filed by any person
regarding any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. Therefore, it is often called as complaint
hearing body.
v Basic nature of Ombudsman requires it to be independent i.e.
independent from any other agency including government or
parliament itself. In Badri Bdr. Karki v. CIAA and others 2058, it has
been held that constitutional status of CIAA has established itself as
an independent body.
v Ombudsman are impartial and fair. In absence of impartiality and
fairness, people are less likely to file complaints at Ombudsman for
e.g. CIAA. In Adv. BalKrishna Neupane v. Nepal Government Council of
Ministers and others 2053, the court held that CIAA is constitutionally
established as an independent, impartial and competent commission.
Nature
v Ombudsman consists of credible review and investigation process
so that citizens can get their complaint heard
v Their activities are confidential; however, they are supposed to
prepare a report and present it. Mostly they present it to
Parliament and also publish their report annually for public
purpose.
v At times they exercise pure judicial functions such as hearing of a
complaint and summoning by CIAA.
v It acts as a guardian of the people and watch dog of the public
officials.
v Its actions are speedy and often not influenced by government.
v Overall, its functioning implies that it has administrative, quasi-
legal as well as quasi-judicial nature.
Nature
v Generally it is the practice that the ombudsman cannot make
order or decision. Therefore, “…restriction as to not to order or
decide has been described the Ombudsman as ‘a watch dog,
which barks but cannot bite’.”- Dr. Rega Surya Rao, Lectures on
Administrative Law
v Wade in Administrative Law, 9th edition argues that the
ombudsman, especially in the context of UK, cannot question
over the merits of a administrative decision, but only can see the
manner in which the decision is reached and implemented. If
ombudsman will question the merits of a decision or an action,
then ombudsman will have to face the court. For e.g. Supreme
Court has the power to declare the action/decision of CIAA as
void or ultra-vires. In the case of Nepal Government v. Keshav Nath
Paudel and others 2053, it has been held that the investigation or
any other action taken by CIAA over a merit of a decision made
by a court in its judicial proceeding falls outside the jurisdiction of
Scope
v The scope of Ombudsman is always defined in law. For e.g. the
Interim Constitution as well as CIAA Act has defined the scope
of CIAA in Nepal being an important ombudsman in Nepal
v Laws extends as well as limits the scope of Ombudsman. For e.g.
Sec. 4(b) of CIAA Act has limited the power of CIAA where it
cannot take any action in matters relating to any business or
decisions taken in Parliament or of any committee or anything
said or done by any member at such meetings, or any policy
decisions taken by the Council of Ministers or any committee
thereof or judicial actions of a court of law. However, has
authorized CIAA to conduct investigations, file cases or take any
action against any person holding a public post found guilty of
abusing powers.
v Mostly, the scope of ombudsman extends to public function of
public officials. However, if established at organizational level, it’s
scope could extend to actions of organizational staff.
v
Scope
The scope of ombudsman has been widened with the extension of
administrative role and rise of administrative agencies.
v In order to protect the political interest of State and government,
some governmental areas such as: foreign affairs, security of state,
criminal investigation, executive immunities etc. does not fall within
jurisdiction of ombudsman.
v Generally, ombudsman does not have jurisdiction to see over cases
where an individual have a legal remedy in a court of law. (This
principle has also been identified by the decision in Badri Bdr. Karki v.
CIAA and others 2058). However in some situations where cases could
not be filed in a court of law, ombudsman could see over such case.
v In the case of Adv. BalKrishna Neupane v. Nepal Government Council
of Ministers and others 2053, the Supreme Court itself has taken a
reference of other countries where they have established
Ombudsman for the handling of human rights issues. However, the
scope of Ombudsman is limited to CIAA in Nepal that should be
extended to other agencies including National Human Rights
Commission.
Scope
v Section 15(1) of the Australian Ombudsman Act 1976 sets out
the occasions that may give rise to the Ombudsman reporting
and they include as:
1. Decision appears to be contrary to law
2. Decision was unreasonable, unjust, oppressive or improperly
discriminatory;
3. Decision was in accordance with a rule of law but the rule is
unreasonable, unjust, oppressive or improperly discriminatory;
4. Decision was based either wholly or partly on a mistake of law
or of fact;
5. Decision was otherwise, in all the circumstances, wrong; or
6. In the course of decision, a discretionary power had been
exercised for an improper purpose or on irrelevant grounds
Function
v Broadly, function of Ombudsman could be categorized as (a)
Investigation where the task of Ombudsman is to investigate
whether or not an administrative agency is functioning as
mandated on the basis of complaints lodged by individuals and,
(b) Watch-Dog where its task is to investigate on its own
proceedings i.e. where it initiates investigation on its own.
For e.g. Art. 120 of the Interim Constitution of Nepal 2007
provisions that, “The Commission for the Investigation of Abuse
of Authority may, in accordance with law, conduct, or cause to be
conducted, inquiries into, and investigations of, any abuse of
authority committed, through improper conduct or corruption by
a person holding any public office.”
v The important function of ombudsman is to ensure that good
governance practices are guaranteed.
v Ombudsman act as a supervisory body over the actions and
powers of administrative agencies.
Function
v Ombudsman also recommends concerned administrative agency to take
departmental action over its employee, when needed. For e.g. CIAA
recommends, as per its findings, for departmental action or any
other necessary action against the person who has been found to
have abused the authority by committing improper act.
v It also seeks remedies when maladministration has taken place.
Mostly, such remedies are filed by individuals.
v It presents annual report to the government or concerned agency about
the problems to curb future problems. For e.g. CIAA prepares an
annual report on activities performed and submit the same to the
Prime Minister and the Prime Minister is supposed to present the
report before the Parliament.
v Ombudsman offer easy, cheap, less technical as well as less time
consuming access to people to resolve their disputes or complaints
against public officials.
Function
v As there has been debate whether or not ombudsman could only
hear complaints or could also make a decision over such
complaints, it is widely accepted that such body should only be
empowered to hear complaints and it should refer/register such
complaint in the court. In the case of Adv. BalKrishna Neupane v.
Nepal Government Council of Ministers and others 2053, the Special
Bench of the Supreme Court comparing 2019’s constitutional
provision empowering CIAA both (a) to hear complaint and, (b)
decide such complaint on its own with the 2047’s constitutional
provision empowering CIAA just to hear a complaint and to
make its referral gave a reasoning that empowering one agency
with both power could be debatable.
Ombudsman and new developments
v Prominent author, Linda C. Reif, argues that in modern day world, there
are not only classical ombudsman such as CIAA rather there are also
some other ombudsman such as Human Rights ombudsman, Public
Sector Legislative Ombudsman, Single Sector Ombudsman etc.
v In many countries, in recent days, classical ombudsman have been
entrusted with the task of human rights jurisdiction.
v Linda C. Reif, in her book ‘The Ombudsman, Good Governance, and
the International Human Rights System’ argues that ombudsman ensures
"public participation in governance, transparency of public
administration, the accountability of public authorities to the people and
fairness in administration.”
v In recent decades international bodies such as the International
Ombudsman Institute are established that aims to create international
development regarding ombudsman. For e.g. in 2012, it came up with a
declaration which, among different issues, held that ombudsman
institutions constitutes an essential and necessary element in the
development and maintenance of a transparent and accountable
democracy.
Complaints Handling
v Complaints are considered as an integral part of the study of
ombudsman. Without an authority of hearing complaints, the
effectiveness of ombudsman could be questionable.
v Imagine if there is an ombudsman but without the authority to
handle complaints.
v In fact, complaints handling power of the ombudsman can be
said to be the sole reason for the development of ombudsman.
v Most ombudsman have the authority to handle complaints
registered either by (a) private individuals or, the (b) ombudsman
itself.
v Complaints are filed mostly against public officials i.e. who
caused grievance[s] to individuals.
v Complaints handling procedures are stipulated under certain
laws. For e.g. CIAA Act and Regulation has the provision
regarding complaint handling.
Complaints handling by CIAA
v CIAA Act 2048 basically has authorized CIAA to hear two types
of complaints. Sec. 8 authorizes about complaints regarding to
improper conduct and Sec. 13 about complaints regarding
corruption.
v Anyone is authorized to file a complaint if he/she is affected by
improper conduct of public officials.
v Sec. 9 has the provision regarding verification of complaints. For
e.g. in case if someone filed a complaint by post, he/she is
summoned by the commission within seven days after receiving
such complaint for its verification. It also has the provision that if
the complaint is found baseless, unclear or confusing, the
Commission may decide not to take any action in respect thereto.
v Preliminary probe is carried out by CIAA if there exists
reasonable ground to believe that corruption took place on the
basis of the complaint filed. Sec. 15 empowers CIAA to seek
clarification if the complaint is correct.
Elements of effective Complaints Handling
v International practices shows that the following are elements of
effective complaint handling (For e.g. see ‘Better Practice Guide to
Complaint Handling’ published by commonwealth of Australia for
further details) :
1. There should be a culture of complaint handling that establishes
both (a) faith of individuals over ombudsman and, (b) improvement
and fulfillment of ombudsman’s objectives of good administration.
2. Complaint handling process should follow principles such as
fairness, accessibility, responsiveness and efficiency.
3. People who take participation in complaint handling should be well
trained and experienced.
4. Complaints should be handled in such a manner so that it results
upon acknowledgment of complaint, prompt response to complaint,
investigation of factual information, response to the complainant
etc.
5. Finally, there has to be analysis of complaint and further
investigation should be pursued.
Investigation and Decision
v Investigation and decision is an essential as well as universal
characteristics of any type of ombudsman-not matter if it is a
classical or contemporary ombudsman such as Human Rights
ombudsman. (Human Rights Commission of Nepal is also
empowered such)
v This is, in fact, next step after complaint handling.
v Ombudsman are also authorized to take quasi-legal as well as
quasi-judicial decisions.
v Investigative and decision making power of ombudsman are
almost similar to that of any court of law.
v Investigative and decision making power of ombudsman also
helps for speedy as well as easy access to individuals to file
their grievances.
Investigation by CIAA
v Sec. 19 of the CIAA Act has empowered CIAA to investigate
upon the complaints lodged for improper conduct and corruption.
While doing so, CIAA can do following acts:
1. Ask to or present within a specific time limit, relevant files or
documents of evidence, or other materials, in the possession of
any office or individual
2. (b) Summon a person against whom charges of abuse of
authority have been made or any person who, in the opinion of
the Commission, possesses knowledge of the relevant facts,
inquire such persons, and record their statements and issue
questionnaires (Band sawal) in their name as requires.
3. Issue an order to the police to arrest a person who does not
appear before the commission within the prescribed period
v Sec. 20 also has authorized CIAA to appoint investigating officer.
Investigation by CIAA
v Badri Bdr. Karki v. CIAA and others 2058: The CIAA may
itself or may delegate its power of investigating acts of improper
conduct or corruption.
v In the same case the court said that the investigation done by the
CIAA are of confidential nature. Therefore, taking such action
publicly is not appropriate and is against the law and the CIAA
should take this into account.
v Dilip Kumar Yadav v. CIAA and others 2067: When the
Constitution itself has made a special provision regarding the
investigation and prosecution of question relating to abuse of
power, final decision regarding such shall be taken to whom
such power is given.
Decision by CIAA
v CIAA has been authorized to make different sorts of decision
while exercising/taking action/investigating complaint. Some of
them include:
1. CIAA can make a decision for the confiscation of property. (Sec.
29b)
2. CIAA can also take a decision to fine 5 thousand rupees to a
person who makes/files false complaint.
3. CIAA has the power to file, appeal and review a case against
those person who have done corruption.
4. CIAA also has the power to ask concerned individual for
departmental actions if any improper conduct has been done by
public officials working in that department.
v CIAA could also take other decisions, as needed, for carrying out
it functions.
Decision by CIAA
v The CIAA cannot make a decision on any of the complaints;
however, it can only make decision regarding the
investigation of such complaints. For e.g. it can make
decision to appoint any of its employee as investigative
authority to look after the complaint.
v Kamal Jung Kunwar v. Forest and Soil Conservation and
others 2067: In this case it has been held that Nepal follows
adversarial legal system. Therefore, CIAA cannot investigate
as well as made a decision in the complaint.
Anti-corruption efforts in Nepal
v Many anti-corruption efforts were made in Nepal.
v The first effort was made in 2009 with the enactment of Anti-
corruption Act 2009 and Anti-corruption Rules 2009.
v Anti-corruption for civil servant Act 2013 was also enacted.
v Likewise, enactment of Anti-corruption Act 2017 and
Establishment of Anti-corruption Court Act 2018 was also a
considerable effort.
v Anti-corruption Act 2017 was amended for four times before it was
replaced by Anti-corruption Act 2059.
v Constitution development since 2017 establishing CIAA and some
other laws such as Special Court Act 2012 which was later
replaced by Special Court Act 2059 were also major legal
development aimed at combatting corruption.
History of CIAA in Nepal
v The concept of ombudsman was first introduced in Nepal by the
2019 Constitution.
v CIAA, as an institution, was established by the notice given by the
then His Majesty Government in 2034 to fulfill the 2019’s
constitutional commitment.
v CIAA regulation, for the first time, was enacted in 2034. This was
the first comprehensive law that dealt about power, function, duties
and procedures of CIAA.
v In 2035, CIAA issued a notice regarding the format for filing
complaints at CIAA.
v In 2036, the then office of the His Majesty Government issued a
notice forming a three member court to hear appeal before the
decision of CIAA.
v The Constitution of the Kingdom of Nepal 2047 had also provision
regarding CIAA. After this, CIAA Act and Regulation was enacted
in 2048 which was later amended by CIAA Act and Regulation
2059.
CIAA
v CIAA is a constitutional body that has been acting as an
ombudsman in Nepal.
v The Interim Constitution of Nepal 2007 in its Part 11 has made a
provision regarding the establishment of CIAA for the
investigation of abuse of authority.
v Constitution requires that there shall be a Chief commissioner
and other commissioners, as may be required, for the purpose of
investigation of abuse of authority. [Art. 119(1)]
v President is required to appoint the Chief commissioner on the
recommendation of the Constitutional Council. [Art. 119(2)]
v CIAA is established so as to see if an individual occupying public
position has either done improper conduct or corruption. Art.
120(1) mentions that CIAA may conduct inquiries and
investigations of abuse of authority committed through (a)
improper conduct or, (b) corruption by a person holding any public
office.
CIAA and new constitution
v 2072 constitution provisions on CIAA in Part 21 in Art. 238 and
239.
v Art. 238 says that there shall be CIAA consisting of a chief
commissioner and four other commissioners.
v The appointment of chief commissioner and other
commissioners shall be done on the recommendation of the
constitutional council by the President.
v Art. 239 has the provision on functions, duties and powers of the
CIAA. It says that CIAA can conduct or cause to be conducted
investigations of corruption by a person holding any public office
[Art. 239(1)]
v Note that although previous constitution said that CIAA can look
into improper conducts, this jurisdiction has not been continued
in the new constitution. However, its present in the CIAA Act and
rules. It would be interesting to see how the amendment of CIAA
Act will address this issue.
v See further provisions in the new constitution.
v
CIAA
Sec. 4(b) of CIAA Act limits the jurisdiction of CIAA where it
cannot take any action in matters relating to:
1. Any business or decisions taken in Parliament or of any
committee or anything said or done by any member at such
meetings,
2. Any policy decisions taken by the Council of Ministers or,
3. Any committee thereof or judicial actions of a court of law.
In the case of Adv. BalKrishna Neupane v. Nepal Government Council
of Ministers and others 2053, it has been highlighted that why such
limitation over the jurisdiction of CIAA is reasonable.
Also the commission cannot look after officials in relation to whom
the constitution and existing laws separately provides for action.
However, Art. 120(2) mandates the CIAA to make inquiry or
investigate even against the officials of Constitutional body if they
are removed from impeachment, judges removed from decision of
judicial council and person who are liable under Army Act.
Functions of CIAA
v CIAA has the major function of combatting abuse of power in
case improper conduct or corruption has been done by public
officials. It is guaranteed both in constitutional as well as CIAA
Act. (See: Art. 120 of the Constitution and Sec. 4 of the CIAA
Act)
v In the case of Dilip Kumar Yadav v. CIAA and others 2067 court
reasoned that the establishment of constitutional organs such as
CIAA is to make sure that it acts independent from Executive,
Legislature and Parliament to the constitutional objectives of
governing a Nation.
v CIAA can recommend the government for improving or
revisiting the existing policies, legal provisions so that corruption
could be controlled and good governance is ensured.
v CIAA prepares an annual report on activities performed and
submit the same to Prime Minister and Prime Minister is
supposed present it before the Parliament.
Functions of CIAA
v Sec. 28 of the Act also deals about some of the important functions
of CIAA and they include:
1. It can offer suggestions to appropriate office, office holder or
institution if it feels that any law, decision, order or action is
impractical, undesirable, or inconsistent, and so must be amended
during its investigation.
2. It can also offer suggestion to the government or any institution, or
any office or office holder of government or any institution to
remain vigilant.
3. It can offer suggestions along with the reasons and bases to rectify
defects and to solve problems regarding the practice or procedure of
government of Nepal or any institution if there is defect.
v CIAA can not only investigate against current public officials, but is
also authorized to do so even against retired officials. (Sec. 29)
v CIAA also maintains necessary coordination with the national or
international institutions established with the objective of controlling
or preventing corruption. (Sec. 35b.1)
Functions of CIAA
v By exercising its jurisdiction, CIAA aims at ensuring rule of
law, good governance and administration on the whole.
v The function of CIAA is of considerable importance as it tries
to ensure that public officials act within their jurisdiction not
affecting right of ordinary citizens.
v Although there are less, in fact, may be, only one ombudsman
in Nepal, it’s function have tried to help in maintaining
trustworthy relationship between public and government being
the only one grievance handling mechanism.
Authorities and Power
v On the whole, it could be argued that the CIAA has the
authority and power to check over abuse of power in two ways:
(1) Investigation over improper conduct and, (2) Investigation
over acts of corruption.
v The CIAA not only has the power to investigate over such, but
also to recommend or direct for departmental action over
improper conduct and, to file a case in Special Court over cases
of corruption.
v Dilip Kumar Yadav v. CIAA and others 2067: The authorities
and power of CIAA is not absolute. Though it is an
independent body, it cannot act arbitrarily or beyond a law. If
done so, there is judicial scrutiny to check over such acts.
Authorities and Powers: Improper Conduct
v Sec. 3 of the CIAA Act has defined what actually is improper
conduct. Some of the examples could include:
1. Refusing to do anything that is within the jurisdiction or doing
anything that is beyond jurisdiction.
2. Exercising powers for any objective or purpose in contravention
of the appropriate law, decision or order.
3. Exercising discretionary powers in a mala fide or arbitrary manner.
4. Creating unauthorized obstruction in the work of any other
office, authority or employee, or compelling them to perform any
unauthorized action by exerting pressure on such office, authority
or employee.
5. Failing to do anything which one should have done, or send to
another office or authority, evading responsibility etc.
Now relate these examples with what we have studied previously and
then think why CIAA is needed?
Authorities and Powers: Improper Conduct
v Art. 120(3) of the Interim Constitution provisions that CIAA has
the authority to conduct investigation over improper conduct and
direct for departmental action to a concerned agency.
v CIA has the authority to refer any complaint regarding improper
conduct to concerned institution or superior body for action.
CIAA is also empowered to conduct fresh scrutiny or initiate an
action regarding such complaint. (Sec. 6)
v CIAA is not allowed to exercise its power in terms of the exercise
of discretionary power; however if an discretionary power is
exercised in arbitrary manner, it may do so.
v Investigation over improper conduct can be taken in two ways (a):
If someone has filed a complaint and, (b) If CIAA is informed
that improper conduct is being committed even without a
complaint being lodged [See. Sec. 8(2)]
Authorities and Powers: Improper Conduct
v Sec. 9 of the Act has a provision regarding the verification of
complaint.
v CIAA has the power to procure the relevant files or documents of
evidence from the appropriate office, office-holder, or person if
the commission has a reasonable ground to believe that improper
conduct took place. (Sec. 10)
v CIAA can write to the appropriate authority to caution or to take
departmental action against public official stating the reasons and
grounds based on the degree of offence. (Sec. 12)
v CIAA can itself take an action against the authority considering it
as an improper conduct under this Act in case the concerned
authority did not take departmental action. [Sec. 12(3)]
Authorities and Powers: Corruption
v Art. 120(4) of the Interim Constitution authorizes the CIAA to
file a case against a person in a court who has done corruption
holding a public office.
v Sec. 13 (1) of the Act allows CIAA to investigate issues relating to
corruption filed on the basis by any person, or of information
obtained by the Commission from any source.
v Sec. 14 (1) of the Act mentions that if there is reasonable grounds
to believe on the basis of any complaint or from information
received from any other source that a person holding a public post
has committed an offence of corruption, CIAA may conduct a
preliminary investigation secretly.
v Sec. 15 authorizes CIAA to seek clarifications from the person
who has committed offence on the basis of the Sec. 14(1)
v CIAA can keep a person, against whom the charge is made, in
detention by providing a detention order if that person conceals
or destroys evidence or obstructs in CIAA’s proceedings. (Sec. 16)
Authorities and Powers: Corruption
v CIAA could also keep such person in detention for a longer
period than twenty four hours to complete the process; however,
CIAA is required to obtain permission from the court. [Sec. 16(2)]
v Sec. 18 of the Act has the provision regarding filing of a case if
there exist reasonable grounds to believe, on the basis of action
initiated under this Act, and inquiries and investigations
conducted in respect thereto, regarding a charge of corruption
against any person holding a public post, that he/she has
committed such offence. The CIAA may order the investigation
officer or any office of the Government of Nepal to file a case
pursuant to the prevailing law.
v CIAA can freezing the transaction or account of alleged person
while investigating the corruption charge. (Sec. 23a)
v Sec. 19 of the Act mentions about the powers of the CIAA
regarding inquiries and investigation such as issuing orders,
summoning person. (Please see this section that has the detailed
provision regarding inquiries and investigation)
Functions, Authorities and Power
v Badri Bdr. Karki v. CIAA and others 2058: The major function of
CIAA is to legally investigate if any public official did improper
conduct or corruption abuse the power given by the law.
v In many cases including Badri Bdr. Karki v. CIAA and others 2058,
Adv. BalKrishna Neupane v. Nepal Government Council of Ministers
and others 2053 etc. it has been accepted that the CIAA has the
power to (a) direct concerned agencies for departmental action or
to warn an individual who is found to have done improper act
belonging to that agencies and, to (b) file a case against an
individual who is occupying a public post in a court if found to
have done any act amounting to corruption.
v In the case of Badri Bdr. Karki v. CIAA and others 2058, it has
been held that the CIAA has the power even to look after
improper conduct or corruption done by the head of
constitutional body i.e. Attorney General.
Functions, Authorities and Power
v Adv. Balkrishna Dhungel v. Council of Ministers and others 2051:
It has been institutionalized that the CIAA has the excess to
exercise its jurisdiction over any public officials expect the
those public officials identified by the 1990 constitution.
v Kamal Jung Kunwar v. Forest and Social Conservation Ministry
and others 2067: The CIAA can direct concerned department
to take departmental action and prescribing the law relating to
punishment and punishment to its employee if found that the
employee abused his/her power.
v Sabina Shrestha v. CIAA and others 2064: Among so many
cases, this case also has recognized the right of CIAA to
conduct investigation over charge of corruption.
It also held that although CIAA has the right to detain a person, it
should be done on the basis of the constitutional provision i.e. on
the basis of right to criminal justice.
Functions, Authorities and Power
v Gole Magar and others v. CIAA and others 2069: This case has
held that each and every organs of the state shall exercise their
power on the basis of law. Nobody could do so going against
the law. Existing law empowered District Forest Office to
exercise jurisdiction over the matter and decision made by the
CIAA by not providing a right to hearing cannot be recognized
by law.
v Shovitlal Yadav v. CIAA and others 2069: The CIAA cannot use
excessive power and if done so, it cannot be recognized under a
law. The decision made by CIAA cancelling the order of
transfer, instead of declaring it as a improper conduct, it
against the power of CIAA.
In the same case, the court held that if the given clarification is not
reasonable, while the clarification was sought within the law, it
would amount to improper act.
Delegation by CIAA
v Art. 120(7) provisions that, “The Commission for the
Investigation of Abuse of Authority may delegate any of its
functions, duties and powers relating to the inquiry and
investigation or filing of cases, to the Chief Commissioner, a
Commissioner or any employee of the Government of Nepal to
be exercised and complied with subject to the specified
conditions.”
v CIAA is authorized to appoint or designate any commissioner or
any employee of the commission or any employee of
government of Nepal or any institution, as an Investigation
Officer to conduct Preliminary inquiries and investigations into
improper conduct or offense involving corruption. [Sec. 20(1)]
v Badri Bdr. Karki v. CIAA and others 2058: The CIAA may
delegate its power based on certain grounds to investigate acts of
improper conduct or corruption to chief commissioner,
commissioner or an employee of Nepal government
