By Prithivi Man Shrestha in The Kathmandu Post, May 15, 2023
The public outrage sparked by the news of creation of fake Bhutanese refugees to send them to the United States is growing. There are daily protests on the streets. The Parliament is in uproar. Top political leaders seem to be scrambling to try to contain the scam’s fallout. The Post’s Prithvi Man Shrestha talked to Surya Nath Upadhyay, former chief commissioner of the Commission for Investigation of Abuse of Authority (CIAA), the constitutional anti-graft watchdog, for some insights in these developments.
How do you see Bhutanese refugee scam from the perspective of abuse of authority and policy-level corruption of senior political leaders?
In this case, foreigners negotiated to take genuine Bhutanese refugees to their country. But fraud was committed while selecting the refugees. The government and the United Nations High Commissioner for Refugees (UNHCR) should have been involved in determining the Bhutanese refugees, which didn’t happen. Even though a report was prepared by incorporating the refugees, it was later tampered with by adding the names of fake Bhutanese refugees. It is corruption committed by individuals instead of policy corruption. We can call it a gross abuse of authority by senior politicians and bureaucrats and an organised crime. As attempts were made to convert one’s own citizens into the citizens of another country, it was also a heinous crime. Plus, the involvement of those holding public posts also makes it a case of corruption.
Will the alleged involvement of former ministers and top bureaucrats affect Nepal’s relations with the US?
The episode has marred Nepal’s dignity and credibility on the international stage. I am hearing that the Federal Bureau of Investigation (FBI), the American intelligence agency, is involved in investigating the case, which is natural.
Do you see the possibility of top leaders from different parties colluding to dismiss the case?
It is a general perception that the major parties could try to dismiss the case. They have lost credibility when it comes to maintaining honesty. On the other hand, it is difficult for them to brush the case under the carpet as people have already come out on the street. As the interest of the world’s most powerful country, the United States, is also connected to the case, it may not be so easy for leaders to dismiss it. The US may demand an investigation, which should also be a natural response to the allegation.
What should the stakeholders do to prevent the case from being dismissed?
The civil society and the press should be stronger and bolder. So should the investigating agencies and the court. Unfortunately, political leaders can use their people in these institutions to affect the case’s outcome. I read a report that the Commission for Investigation of Abuse of Authority had earlier suspended the investigation into complaints on this issue. Reports have emerged linking the current CIAA chief with the scam when he was home secretary. The CIAA refusing to investigate the case is itself an abuse of authority.
But what the police are doing is appreciable. It shows that if state agencies want to act, nobody can stop them. Police showed guts and the current home minister has also been promising a full investigation. If he keeps his words, that will help the investigation as well as his own political career. Let’s hope the case will not be dismissed, unlike many other criminal cases before it.
With questions raised about the CIAA chief’s alleged involvement, what should he do? Should he step down?
At least he should speak on the matter and clarify what he did when he was home secretary. If the report of the CIAA’s suspension of investigation is true, there has been inaction from the anti-graft body. Even if the CIAA chief has not benefited from the Bhutanese refugee scam, there has been inaction. There is still time for him to clarify the allegation.
If he is in any way involved, he cannot continue on his job because it will create a conflict of interest. A person with conflict of interest cannot continue in the CIAA which has the power to influence the investigation. The report about CIAA suspending investigation makes us question its credibility that was already dented by a string of corruption cases involving CIAA office bearers in the past.
The CIAA was established by keeping it even above the influence of the Cabinet. Such an agency was envisioned during the Panchayat regime too. But that institution’s credibility was in question because of its leadership. The current CIAA leadership was appointed by introducing an ordinance instead of through the prevailing law. The appointment itself raised a question about the CIAA’s credibility.
A new bill to amend Corruption Prevention Act-2002 has a provision that corruption cases should be registered at the court within five years of the incident. How do you see this provision?
It is a wrong proposal. It will affect efforts to control corruption. It will give rise to a tendency not to investigate or not to complete the investigation for five years when powerful people are involved. When the deadline expires, the case is not registered. Commissioners in the CIAA are also appointed based on political power-sharing and such a commission may not take action against powerful people. But I hope the provision of a five-year deadline will be removed when the bill is endorsed.
The bill to amend the CIAA Act says it cannot investigate policy decisions of provincial Cabinets besides federal cabinet. How do you see this development?
The proposed provision gives discretionary power to politicians. Existing legal provisions questionably bar the CIAA from investigating policy decisions of the federal government. The new bill broadens the ground where the CIAA cannot investigate. The provision was made with the ill intent of saving politicians from CIAA action.
How do you see the provision of the new bill to amend the CIAA Act, authorising the anti-graft body to investigate the private sector?
At a time when the CIAA has lost credibility, its investigation into the private sector will further harass and discourage the sector. There will be a growing tendency among the CIAA officials to take advantage from the private sector. The CIAA can, for instance, seize a file of a company, affecting its entire investment plan.
Nepal is a party to international conventions against corruption which call for criminalising corruption in the private sector. How can Nepal fulfil this international obligation?
The scope of the convention is too broad. All of them cannot be implemented everywhere. Therefore, no country has fully implemented all its provisions. We have to analyse the situation of our country and examine the capacity and credibility of our institutions. Instead of handing over the task of overseeing corruption involving the private sector to the CIAA, it is better to strengthen the regulatory agencies of particular businesses.
For example, strengthening the central bank will help it to better police the bad practices in the banking sector. The private sector takes its own risk on its decisions. The government does not cover its risk. So, we should not harass but better regulate the sector.
https://kathmandupost.com/interviews/2023/05/14/as-the-us-is-also-involved-it-is-difficult-to-dismiss-refugee-scam
