139TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS

THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION
Shreelal Poudel*

I. THE NEPALESE CRIMINAL JUSTICE SYSTEMThe Nepalese criminal justice system is more or less influenced by the common law system, andoperates as follows:
A. Investigation and prosecution;
B. Court hearing and adjudication.

A. Investigation of Crime
The Nepal Police are responsible for investigation of all criminal cases. The police function under thegeneral supervision and control of the Ministry of Home Affairs of the Government of Nepal.
The crime investigation begins with the filing of the First Information Report (FIR) to a police post by
the victims or his or her near relatives. The police investigate crime subject to the District Government
Attorney’s instruction. On completion of investigation, the police prepare a case file and submit it to theDistrict Government Attorney who decides to institute or not to institute a suit.

B. Prosecution
All criminal offences to which Government is a plaintiff are defended by Government Attorneys.
Government Attorneys are under the Attorney General of Nepal, who is the principal legal adviser togovernment of Nepal.
The Attorney General and his Subordinates are responsible for representing the Government for theprotection of the rights and interest of the state. Similarly, the Attorney General is the final authority to
decide whether or not to prosecute a person in a criminal offence, and for providing legal opinions to thecentral government agencies.
Sixteen Appellate Government Advocate Offices and 75 District Government Advocate Offices function
under the Attorney General and are responsible for defending and prosecuting criminal cases.

C. Court
Under the Interim Constitution of Nepal, 2007, there are three categories of court:(i) Supreme Court
This is the supreme court of the land. This court has both ordinary and extra-ordinary jurisdiction.
Powers include hearing appeals against judgments delivered by the Courts of Appeal. The extraordinary power of the court includes the power of issuing the writ petitions. It also has power of judicial
administration over the whole country.
(ii) Appellate Court
The Court of Appeal is the second tier in the hierarchy of the courts in Nepal. Sixteen Courts of Appeal,in various locations, are established under the Supreme Court.
The Courts of Appeal are empowered to hear appeals from the district courts under their jurisdiction,issue writ petitions and try certain cases under their respective jurisdictions.
* Section Officer, Ministry of Law, Justice & Constituent Assembly Affairs, Government of Nepal, Kathmandu.

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The District Court is located in a district, administrative unit. The District Courts are the court of firstinstance. The courts are responsible for trying all the civil and criminal cases.

II. CORRUPTION CONTROL LAWS IN NEPAL
A. Understanding Corruption
Corruption is a complex and multi-faceted phenomenon with multiple causes and effects, as it takes on
various forms and functions in different contexts. The phenomenon of corruption ranges from a single actof activity contradicted by law to a way of life of an individual or group. It is the misuse of public goods bypublic officials, for private gain. This private gain is achieved by ignoring prohibitions against certain acts.
This is the abuse or misuse of public offices and professional rights and duties for personal gain.
Corruption not only undermines ethical values and justice, it damages democratic institutions, thenational economy and the rule of law. Corruption facilitates other forms of serious crimes, in particulartransnational organized crime, human trafficking and fiscal crime such as money laundering. Corruption isalso the cause of poverty and underdevelopment and diverts funds intended for development. It makes it
difficult for the government to provide basic services, eliminate inequality, provide justice, and to utilize theavailable resources, including foreign investment and aid.

B. Corruption in Nepal
For at least 15 years, and more in recent years, the problem of corruption has been at the centre of thepolitical agenda in Nepal. It is recognized as one of the chief causes of Nepal’s under development. It is very
widespread, has different manifestations. This is really a great challenge to modern Nepal. Businesspersons,politicians, government officials, academics, and even consumers, are responsible for this.
C. Corruption Control Laws in Nepal
Nepal has long made efforts to control corruption. Legislation on the control of corruption started in
1957. Recent legislation was enacted in 2002.
The main laws relating to corruption control are as follows:
1. Prevention of Corruption Control Act, 2059 (2002)
This Act has defined corruption as the following activities and penalizes:
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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 subscription;
Taking commissions;Public servants preparing wrong documents;
Making wrong translations;Tampering with government documents;
Destroying government or public agencies’ documents;
Breach of confidentiality of the question paper or changing the result of the examination;
Public servants indulging in illegal trade and business;
Claiming positions which one does not hold;
Giving false descriptions;
Damage to public property;
Exerting illegal pressure;
Giving wrong reports;
Illegal acquisition of property;
Accomplice/inciting corruption offences.

2. Commission for Investigation of Abuse of Authority Act, 2048 (1991)
Commission for Investigation of Abuse of Authority Act, 1991 defines the abuse of authority as improper
conduct. Improper conduct denotes any of the following acts committed deliberately or through negligenceby the person holding a public post:

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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 any 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 offices, officers, or employees or getting any
unauthorized work done from such offices, officers or employees 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 own benefit under improper influence or enticement to the employee under
one’s influence or control; orAbuse of immunity, facility or concession associated with the post.

3. Anti- Money Laundering Act, 2008
The Act aims to prevent conversion of proceeds of crime into legal money. It establishes a department toadminister the Act.
4. Good Governance Act, 2008
This Act aims to have good governance in the country.
5. Public Procurement Act 2007
This Act aims to maintain competition and transparency in procurements by public bodies including
government bodies, Government controlled and funded bodies.

III. CORRUPTION CONTROLLING BODIES
A. Commission for the Investigation of Abuse of Authority (CIAA)The Commission for the Investigation of Abuse of Authority, publicly known as CIAA, is a constitutional
body, which serves as the investigating and prosecuting authority in corruption cases and the watchdog
authority against the abuse of authority. The Interim Constitution of Nepal, 2007 provides for it in explicit
terms in part 11, Article 120. Various actions, including prosecuting the concerned public official in a court oflaw, may be taken by the CIAA.
Pursuant to the constitution, functions, duties and powers of the commission are as follows:•••

Inquiry and investigation of improper acts or corruption by a person holding public office;Recommending departmental action or any other necessary action against the person who hasabused authority by committing an improper act;
Filing cases against persons alleged to have committed corruption.

The CIAA, the main investigating and prosecuting body in corruption cases, filed 70 cases to the Special
Court in the last fiscal year and in 28 cases the commission recommended departmental action to theconcerned body. The commission called for attention in 19 cases too.

B. National Vigilance Center
National Vigilance Center (NVC), established by the Nepal Government, is a body of the government
intending to control corruption and bring about good governance in the country. It is established as per chapter 4of the Corruption Control Act, 2002. It functions under the direct control and supervision of the Prime Minister.
The main objective of the Center is to play a preventive and vigilant role to ensure good governanceby controlling work delays, administrative and financial irregularities, mis-collection of public revenue andother misdeeds that exist in the various steps of the government and public sector organizations.

C. Special Court
This court hears the corruption cases filed by CIAA. This is the court of first instance in respect ofcorruption. Judges are deputed from the ordinary Appellate Court. It can have more than two benches.

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As of 2007, the Special Court tried 142 cases related to corruption. There are four categories ofcorruption, according to court data: 35 cases relate to illegal property; 30 relate to decision making (at policylevel); 73 are of fake certificates; and four concern bribery.

IV. ANTI-CORRUPTION NATIONAL POLICYTo prevent corruption, the following measures need to be incorporated into the draft anti-corruption
national policy and strategy:
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Co-ordinating preventive anti-corruption policies and best practices;
Collaborating with each other in the prevention of corruption;
Disseminating knowledge on prevention of corruption;
Ensuring anti-corruption bodies are independent and free from undue influence;
Ensuring transparency, accountability, integrity and rule of law in the public sector, conduct of public
officials, public procurement and management of public finance, including objective and transparent
systems for recruitment, promotion, retirement of civil servants; legislative and administrative
measures to establish criteria for candidature and election to public office; transparency in fundingof candidates for elected public office and funding of political parties; standards of conduct for publicofficials; transparency, completion and objective criteria in decision making in public procurement
and public finances;Strengthening integrity and independence of the judiciary and prosecution services and preventing
opportunities for corruption within these institutions;
Preventing corruption in the private sector, including provision of proportionate and dissuasive civil,
administrative or criminal penalties for failure to comply with such measures;
Public reporting and participation of society by facilitating access of the general public to informationon the organization, functioning and decision making of public administration and promoting theactive participation of civil society, NGOs and community-based organizations in the fight against
corruption.

V. ROLE OF NON-GOVERNMENT ORGANIZATIONS IN THE PREVENTION OF
CORRUPTION
NGOs have a significant role in preventing corruption by raising public awareness against corruption.
There are number of NGOs in Nepal working in such a role.

VI. ARRANGEMENTS FOR IMPLEMENTATION OF THE UNITED NATIONS CONVENTIONAGAINST CORRUPTION IN NEPAL
Nepal signed the Convention on 10 December 2003 in Merida, Mexico. Preparation of the administrativeand legislative measures required upon becoming party to the convention are in progress.
By a Cabinet decision, the Ministry of Law, Justice and Parliamentary Affairs (the Ministry) has been
given responsibility to work as a focal point and co-ordinating agency of the Convention at a national level.
The Ministry is also assigned the work of the central depository of all types of treaties and conventions.
The Government of Nepal constituted a Working Committee under the chairpersonship of the Joint
Secretary of the Ministry of Law, Justice and Parliamentary Affairs with the representatives of the Officeof the Prime Minister and Council of Ministers, Ministry of Home Affairs, Ministry of Finance, Ministryof Foreign Affairs, the Commission of the Investigation of Abuse of Authority as members and theUnder Secretary of the Ministry of Law, Justice and Parliamentary Affairs as the member-secretary. TheCommittee has identified an extensive list of legislative, administrative, institutional and policy reform
measures required for the implementation the Convention at the national level.
Considering the Report of the above mentioned Working Committee, the Government has also
constituted a high level Taskforce under the chairpersonship of the Secretary to the Ministry of Law, Justiceand Parliamentary Affairs with the Joint Secretary level representatives of the Ministry of Home Affairs,
Ministry of Finance, the Commission for the Investigation of Abuse of Authority, and the National Vigilance

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Centre as members and the Joint Secretary to the Ministry of Law, Justice and Parliamentary Affairs as themember-secretary. The reinstated House of Representation by its resolution dated 2063. 06.25 (11 October2006) has also directed the Government to ratify the Convention.

VII. MEASURES TO BE TAKEN
Nepal is under a moral obligation to create a conducive environment to become a party to the Convention
and to refrain from such acts which would defeat the object and purpose of the Convention. To fulfill theseobligations, the following tasks are necessary.

A. Policy and Strategy Reforms
An anti-corruption policy and strategy in line with the Convention needs to be developed reflecting
the principles of the rule of law, transparency and accountability. It should consist of awareness-raising of
the importance of the participation of civil society, non-governmental organizations and community-basedorganizations, promotion of education against corruption through the development of school and university
curricula, and collaboration with regional and international organizations.
B. Legislative Reforms
1. New Legislation
The Anti-money Laundering Act, Public Procurement Act, Good Governance Act, and Right toInformation Act have recently been passed. The legislature must enact laws on Mutual Legal Assistance;
Extradition; Protection of Witnesses, Victims or Experts; Recovery of Assets acquired through corruption/transfer of proceeds of crime; Transfer of Prisoners; Conflict of Interest; Whistle Blower Protection;
Transparency; Corruption in the Private Sector; Corruption in Foreign Public Officials and Public Officialsof Public International Organizations. The government must formulate policies on anti-monopoly practices;integrity in public life; public interest disclosure; other economic offences; transfer of criminal proceedings;
trading in influence; execution of decisions of foreign courts; disclosure of the income and expenditure ofpolitical parties; regulation of nongovernmental organizations; and trade fraud. Some of these measures arein the process of formulation and drafting.
2. Review and Amendment of Existing Legislation
The existing Prevention of Corruption Act; Bank and Financial Institutions Act; Political Parties
Act; Financial Procedures Act; Judicial Council Act; Military Act; Companies Act; Nepal Rastra Bank
Act; Insurance Act; Civil Service Act; laws relating to the service and condition of the employees ofpublic corporations/agencies; Partnership Act; Evidence Act; Private Firm Registration Act; AssociationRegistration Act; Commission for Investigation of Abuse of Authority Act; and the Prison Act, need to bereviewed and amended.

VIII. INSTITUTIONAL REFORMS AND STRENGTHENING
The following institutions need be reformed and strengthened in light with the Convention:
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The Commission for Investigation of Abuse of Authority;
National Vigilance Centre;
Special Court;
Related branch dealing with the cases of corruption within the Judicial Council;
Related branch dealing with the cases of corruption within the Nepalese Army.

IX. NEW INSTITUTIONSThe Anti-Money Laundering Act stipulates an Anti-Money Laundering Department. The Department will
be formed soon. Similarly, Nepal Rastra Bank is entrusted to work as a financial intelligence unit under theAct.

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X. CONCLUSIONNepal’s drive to prevent corruption has a long history. Despite efforts going back a long time, corruption
has been not reduced but has increased furthermore. A strong legal regime against corruption, strong
enforcement of general laws, development of a law-abiding culture, an end to impunity for corruption, andimprovement of the socio-economic condition of government officials and also of the general public are-prerequisites for corruption control.
Legal provisions alone may not be sufficient to control corruption. Public awareness and collaborationand co-operation with the international community are also important.
With the enactment of the Prevention of Corruption Act 2003, investigation of corruption cases wasspeeded up. However, the speed did not remain constant. With the formation of the new government, a newopportunity has arisen to start afresh in controlling corruption.

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