139TH INTERNATIONAL TRAINING COURSE
VISITING
EXPERTS’SERIESPAPERSRESOURCEMATERIAL
No.79

THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION(IN THE CONTEXT OF NEPAL)
Rajan Prasad Bhattarai*

I. HISTORICAL BACKGROUND
After the unification of Nepal, the great King Prithvinarayan Shah declared that the bribe takers andbribe givers were the greatest enemies of the nation and deserved the death penalty. This proves thatcorruption prevailed in the 18th century and corruption was considered to be a serious crime. Many rulers
after that took various measures to control corruption. After the political change in 1951, The Prevention ofCorruption Act, 1960 was implemented to maintain good governance. Similarly, the State Cases Act, 1960
and the Evidence Act, 1974 were implemented, adopting the principles of criminal justice. These two Acts
are considered milestones in the field of criminal justice. These legal provisions were further strengthenedby establishing the Commission for the Prevention of Abuse of Authority as a Constitutional body in 1975.
Investigation, accusation and adjudication of corruption cases were the responsibilities of the Commission
for the Prevention of Abuse of Authority. After the people’s movement in 1990, the constitution of theKingdom of Nepal, 1990 provided for the establishment of a Commission for the Investigation of Abuse ofAuthority (CIAA). However, the CIAA was vested only with the power of investigation and accusation.

II. THE EXISTING CORRUPTION CONTROL SYSTEM IN NEPALThe Interim Constitution of Nepal, 2007 was promulgated after the second people’s movement in 2006.
The Constitution provides for the Commission for the Investigation of Abuse of Authority. The president ofNepal, with the recommendation of the Constitutional Council, appoints the Chief Commissioner and otherCommissioners. The term of the office of the Chief Commissioner and other Commissioners is six years
from the date of appointment. They can do their work freely and fairly since they shall only be removed by
an impeachment resolution passed by the parliament.1

A. Functions, Duties and Powers of the CIAA2
The following are the functions, duties and powers of the CIAA as mentioned in the Interim
Constitutional of Nepal, 2007.
•••••

To conduct inquires and investigations of improper conduct or corruption by a person holding anypublic office (subject to the exception of certain public officials);
To write to the concerned authority for warning or departmental action or other actions, if it findsthat any person holding public office has misused his or her authority by improper conduct;
To prosecute the person holding public office and other involved in the crime, if it finds that theperson holding public office has committed an act defined by the law as corruption;
To submit an annual report to the president and president will submit the report to the parliament;
To investigate and inquire into cases of any official of a constitutional body removed from their officefollowing an Impeachment Resolution on the ground of misbehaviour, any Judge removed by theJudicial Council on similar charges, or any person proceeded against under the Army Act after they
are removed from office.

The above mentioned Constitutional provisions show that CIAA can only investigate and file the cases* Deputy Attorney, Commission for the Investigation of Abuse of Authority, Kathmandu, Nepal.
1 Article 119 of the Interim Constitution of Nepal, 2007.
2 Article 120 of the Interim Constitution of Nepal, 2007.

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THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERSagainst corrupt officials in ‘public institutions’. The CIAA Act defines ‘public institutions’ as follows:3
••
•
•
•
•

A company, bank or committee wholly or partly owned or controlled by the Government of Nepal;
Universities, campuses, schools, research centres and any other academic or educational institutions
run by the Government of Nepal;
Local bodies;
Institutions run with loans, grants or guarantees of the Government of Nepal;
Institutions with full or partial ownership of the institutions run by the government;
Any other institution designated as a public institution in the Nepal Gazette.

Similarly, “Improper Conduct” denotes any of the following acts committed deliberately or throughnegligence by the person holding a public post as defined in the Commission for the Investigation of Abuseof Authority (CIAA) Act, 1991:4
••
•
•
•
•
•
•
•

Refusal to undertake any work under one’s authority or undertaking any work outside one’sauthority;
Not following mandatory procedure while making any decision or giving instruction;
Use of authority vested in oneself for purposes contrary to the relevant law, decision or instruction;
Use of discretionary power with a mala fide intention or selfish desire;
Unauthorized obstruction of the work of other office, officer or employee or getting any unauthorized
work done from such office, officer or employee under pressure;
Shifting one’s responsibility by sending the work to be done by oneself to another officer;
Not fulfilling the responsibility demanded by the nature of one’s position;
Getting work done to one’s own benefit under improper influence or enticement to the employee
under one’s influence or control; orAbuse of immunity, facility or concessions associated with the post.

Likewise, “Corruption” implies the guilt punishable under the prevalent law pertaining to the preventionof corruption.
The Corruption Prevention Act, 2002 has defined corruption as:5
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Taking or giving a bribe or agreeing to take a bribe;
Procuring goods or services free of cost or at lower cost;
Accepting contributions, charity, gifts and subscriptions;
Taking commissions;Public servants leaking revenue;
Working with the mala fide intention to incur illegal benefit or loss;
Public servants preparing wrong documents;
Wrong translation;
Tampering with Government documents;
Destroying Government or public agencies’ documents;
Breach of confidentially of the question paper or changing the results of an examination;
Public servants indulging in illegal commerce and business;
Claiming positions not versed upon;
Giving false descriptions;
Damage to public property;
Exerting illegal pressure;
Giving wrong reports;
Illegal acquisition of property;
Committing attempts;
Accomplice.

False certificate related cases are the most common among the above mentioned crimes filed by CIAA
in the Special Court. For appointment and promotion, the public servants need higher level academic
3 Section 2 of the CIAA Act, 2002.
4 Section 3 of the CIAA Act, 2002.

5 Chapter 2 of the Prevention of Corruption Act, 2002.

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RESOURCE MATERIAL SERIES No.79

certificates. Some of them submit fake certificates from Indian schools and universities.
Fake certificates for appointment and promotion create two types of problem in public administration. On
the one hand, work can’t be done effectively by fake certificate holders who are not qualified for the post. On
the other hand, the capable candidates do not get the chance for employment and promotion. This will affectthe overall development of the country.
The CIAA files the cases in the Special Court if it finds the certificates fake. According to the Preventingof Corruption Act, 2002, the fake certificates holders are sentenced to six months to one year’s imprisonment
and also fined depending on the degree of the offence committed. CIAA has won about 95% of cases against
fake certificates holders. They are removed from their jobs after the decision according to the law.
The following are the statistics related to fake certificates cases filed in the Special Court by the CIAA in
the last three years.6
Fiscal Year2007-2008
2006-2007
2005-2006

Total registered
cases
70115
114

Cases related to fakecertificates5493
69Percentage
77.14
80.86
60.52

B. Investigation Methods of the CIAAThe CIAA uses diverse methods of investigation for improper conduct or corruption committed bya person holding any public post. It receives written complaints from various sources and starts theinvestigation.
1. Sources of Complaint for the CIAA
• News published in news papers;• Official publications and reports;• Telephone, e-mail, fax, online complaints and other information through media;• News and information published in electronic media;• Information collected from other sources.
The complaints collected through the above mentioned sources are handed to the two Commissioners
with the opinion of the Chief of the Investigation Department. Then these complaints are investigated in
two stages, preliminary and detailed investigation.
During the preliminary inquiry, complaints are analysed on the basis of their merit and available
evidence. At this stage the division concerned collects records and evidence. If it appears to be a prima faciecase, the CIAA appoints an investigation officer for detailed investigation. The investigation officer makes
all necessary inquiries, records, statements of the accused, analyses the findings and submits a report to themeeting of the CIAA. Such report is reviewed by the meeting and decisions are made either to frame thecase or admonition or departmental action recovery of the loss or any other action on the basis of gravity ofthe crime committed. In cases where the investigation leads to insufficient evidence, the case is disposed ofby the CIAA. The CIAA usually makes decisions through consensus.
In the beginning, corruption-related cases used to be filed in the general courts. The governmentof Nepal established a Special Court in 2002 for effective and fair trial of corruption related cases. The
government of Nepal, on the recommendation of the Judicial Council, appoints one chairman and twomember judges from the Appellate Court. The Special Court initiates proceedings and finalizes thecorruption cases. However, appeals can be filed in the Supreme Court.

6 18th Annual Report of the CIAA, 2007-2008.

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THE ELEVENTH INTERNATIONAL TRAINING COURSE ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTIONPARTICIPANTS’ PAPERS

Here are the comparative statistics of the disposed complaints by CIAA for the last three years:7Fiscal Year2007-2008
2006-2007
2005-2006

Registered
Complaints
2732
3564
4324

Complaints
decided
2135
2976
3353

Complaints
remaining
547
588
971Decided
percentage
78.14%
83.50%
77.54%

The comparative statistics of the cases registered in the Special Court and cases decided for the last
three years.8
Fiscal Year2007-2008
2006-2007
2005-2006

Cases
registered
70
115
114

Cases
decided
127
171
109

Cases wonCases lost95
140
89

32
31
20

Won
percentage
74.80%
81.87%
82.00%In addition to above mentioned works, CIAA can also perform as an Ombudsman mentioned in theInterim Constitution of Nepal, 2007 and CIAA Act, 1991. The CIAA can also give suggestions to theGovernment of Nepal for good governance.

III. EXISTING CRIMINAL JUSTICE SYSTEM IN NEPAL
With the promulgation of the Interim Constitution of Nepal, 2007, the concept of an independent andcompetent system of justice, the concept of the rule of law, and human rights and universal principles of thejustice system have been introduced.
In order to uphold and implement the concept of an efficient and impartial criminal justice system, a new
State Cases Act, 1992 further elaborated the procedures of investigation and prosecution. According to theInterim Constitution of Nepal, 2007 and the State Cases Act, 1992, the institutions involved in the criminaljustice system are as follows:

A. Police
Under the Home Ministry, a police organization has been established, which is regulated by thePolice Act, 1956. The Police Headquarters is the top organ of the police organization. Under the Police
Headquarters 75 District, one Police Office has been set up in every district. This is the grassroots law
enforcement unit entrusted with the responsibility to investigate crime within its territorial jurisdiction.
District Police Officers are directly involved in the investigation of the crimes under the territorial
jurisdiction.
B. Public Prosecutors
The Attorney General of Nepal is constitutionally responsible for prosecuting in criminal cases. TheAttorney General has the power to delegate the responsibility for prosecution of criminal cases to his or
her subordinates. There are 75 district level offices and 16 Appellate offices under the office of the Attorney
General of Nepal.
C. Courts
The District Court is the court of first instance. It has the power to entertain all the criminal cases
except otherwise provided by any law. There are 75 District Courts in Nepal. All cases in the District Courts
are tried by a single Judge Bench. The Supreme Court of Nepal is the apex court. Constitutionally it is aCourt of Record. The Constitution of Nepal has conferred on the Supreme Court vast and extraordinary
7 18th Annual Report of the CIAA, 2007-2008.
8 18th Annual Report of the CIAA, 2007-2008.

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jurisdiction in order to reinforce the fundamental rights of citizens. The Supreme Court has the power todeclare any legislation void for being inconsistent with any provision of the Constitution. Immediately below
the Supreme Court there are 16 Appellate courts. District Courts within the territorial limitation are subject
to review by the Appellate Courts on appeal.
In this way, the institutions involved in criminal justice system are the police, public prosecutors andcourts. The police have the responsibility of investigation, public prosecutors have the power of prosecution
and the courts give verdicts in criminal cases. However, for corruption related cases investigation andaccusation are the remit of the CIAA and adjudication is the remit of the Special Court as per the Special
Court Act, 2002.

IV. PROBLEMS IN CORRUPTION CONTROLIn Nepal, corruption has been considered a serious crime for a long period of time and various
measures have been taken to control it. The Commission for the Investigation of Abuse of Authority has
been established as the supreme institution to control corruption and it has been working continuously
throughout the nation. However, the country is not able to control corruption. The number of complaints andcourt cases against corruption shows that corruption is deeply rooted in Nepal. The following are the major
hindrances to controlling it:(i) Corruption in the private sector is beyond the jurisdiction of the CIAA;(ii) Lack of skilled personnel;(iii) Lack of modern equipment;(iv) No regional offices of its own;(v) Low pay scale;(vi) Lack of public awareness;(vii) United Nations Conventions against Corruption not ratified.

V. CONCLUSION
Nepal has given special priority to controlling corruption. The CIAA has been adopting punitive,
preventive and promotional activities to control corruption. Because of the political instability in thecountry the United Nations Convention against Corruption (UNCAC), which was signed by former Chief
Commissioner on 10 December 2003, has not been ratified by the parliament yet. In the present context,Nepal has been declared a Federal Democratic Republic Country. A general election for the Constitutional
Assembly has been conducted. The nation is in the process of writing a new constitution. In this context,
on the one hand, voices have been raised from the CIAA and various organizations to ratify the UNCAC.
On the other hand, the Government of Nepal has implemented the following Acts to work according to theprovisions of the UNCAC for corruption control.
The Acts are as follows:(i) Prevention of Money Laundering Act, 2008(ii) Right to Information Act, 2007(iii) Public Procurement Act, 2007(iv) Good Governance Act, 2008(v) Electronic Transaction Act, 2006.
In addition to these, voices have been raised to include corruption in the private sector within thejurisdiction of CIAA.
In conclusion, it is hoped that if the United Nations Convention against Corruption is ratified by theparliament, international co-operation will be gained to control corruption. Similarly, if corruption in theprivate sector falls within the jurisdiction of CIAA in the new Constitution of Nepal, we will be able tocontrol corruption.

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