Nepali Times
Battle of the Titans


A battle royal is brewing between two top statutory officials out to prove who has more muscle. On one side, is Attorney General Badri Bahadur Karki, formerly a well-known lawyer and law teacher. On the other is the chief of the Commission for the Investigation of Abuse of Authority (CIAA), Surya Nath Upadhyaya, a straight-talking former bureaucrat who was secretary to the committee which drafted the country's Constitution back in 1990.

At stake are credibility and authority of two critically important constitutional bodies-one responsible for ensuring the rule of law in a democracy and the other entrusted with weeding out corruption from the public sphere. Both are repositories of hope in a country fast running out of respectable institutions, and unfortunately today they are at each other's throats.

The fight has reached a point of no return for the two institutions because of a clash of righteous egos-that of Karki and Upadhyaya. However, in terms of principle, the battle is over: a) the constitutionally defined authority of the Auditor General to make the "final" decision to prosecute or not, and implied immunity for decisions made; and, b) the right of the CIAA to investigate any and all public officials if it suspects corruption.

A five-judge Supreme Court bench is hearing arguments on a petition filed by Attorney General Karki asking it to block a CIAA investigation of a decision he had taken back in September 1998. This came after an earlier CIAA notice asking Karki to clarify his position on the decision in question.

Here's what had happened. On 4 September 1998, the Attorney General decided not to prosecute one Sunil Maskey, held for trying to take IRs12.1 million in 500-rupee denominations out of the country and also ordered that the money be returned to the accused. The CIAA wants to know why the money was returned and not confiscated.

The Reserve Bank of India (RBI) has banned export of 500-rupees notes to Nepal, even though it is still legal tender in India. The ban was aimed at checking the flow of "black money" and counterfeiting, among others. Normally, such Indian currency held for investigation is sent to the Nepal Rastra Bank (NRB) for safekeeping. After investigation, the NRB sends the confiscated bills to RBI and obtains its equivalent in Nepali rupees. NRB still holds some confiscated 500s, even though Nepal's banks stopped dealing with it after the central bank issued a notice to that effect in August 1994. Even the transfer/possession of IRs500 bills has been deemed illegal as of July 2000.

Before the Supreme Court, the petitioner Attorney General's lawyers are arguing that IRs500 bills did not come under the definition of foreign currency in the Nepal Rajpatra (Gazette) of 1985 and 1990.

They also say that Nepali law does not ban the export of IRs500 bills, which was why he saw no reason to prosecute Maskey. That is the substantive argument. The Attorney General also has a legalistic argument: the CIAA over-stepped its limits and violated the immunity granted to his position by Article 110 (2) of the constitution. The clause gives the Attorney General authority to take the "final decision" on prosecution, as is the case in Westminster-styled democracies.

The CIAA apparently suspects something is amiss. Its investigation is directed straight at Karki's legal opinion on the case. For his part, Upadhyaya maintains that his agency's investigation is sanctioned by Article 98 (1), which gives CIAA the right to probe anyone holding "public office" for "improper conduct or corruption".

Karki charges the CIAA's questioning of his decision is illegal and insulting, and that it questions his legal expertise, intentions and capability. Upadhyaya, who has already raised some eyebrows for failing to file formal charges (to date) on the celebrated Lauda Air case even as parliament remains deadlocked over the issue, now has some additional explaining to do.

Bad blood between the two apex-level officials-both acknowledged as outstanding workers in an otherwise much-maligned bureaucracy-seem to have originated after the CIAA pressed charges against a public prosecutor in the Butwal appellate court. The CIAA questioned the government lawyer's judgement in using the appropriate law on a particular case. Attorney General Karki and a team of government lawyers paid a visit to Upadhyaya at his office to find out what was going on. In the exchange that followed, the Karki's team is said to have told Upadhyaya to read the law and function "within its boundaries".

Balaram KC, one of CIAA's volunteer (private) lawyers, argues that his client has the right to question any public official, except those otherwise specified by the constitution.

Critics say there's more to the battle than what has surfaced thus far. Karki, whose next career stop could well have been the bench of the Supreme Court, now is burdened with a controversy that may be difficult to shed completely. In a country where implications of corruption alone can destroy careers, this may be something he cannot afford.

Meanwhile, in trying to build the CIAA some credibility by pursuing high-profile cases, the questions remains whether Upadhyaya chose the right target in a country rife with financial skulduggery in the public sphere. And, is there a case here of trying to be both investigator and prosecutor-the latter job, ironically, resting more properly with the Attorney General under the present dispensation?

(11 JAN 2013 - 17 JAN 2013)