Nepali Times
Give and take


In the official logbook of Nepal's campaign against corruption, last week will be grafted as one of its defining moments. Not because parliament used fast-track provisions to approve legislation providing sharper teeth to the anti-vice watchdog. Nor because of the intra-parliamentary disunion triggered by the Upper House's addition of riders in violation of the deal members of the lower chamber thought they already had set in concrete. The real anti-sleaze story was in Birganj, where Surya Nath Upadhyaya, chief of the Commission for the Investigation of Abuse of Authority exhorted the business community not to offer bribes to politicians or bureaucrats.

To be fair to our directly elected representatives, the disqualification stipulation introduced by an Upper House MP who has never contested an election-barring that botched bid to become head of the chamber a few years ago-could not have escaped suspicion. Electoral laws already bar individuals convicted of corruption from seeking public office for six years-which normally covers at least two Lower House elections. The prohibition would cover up to a decade, if both parliaments were to live out their full term. By seeking to relax that proviso by a year, however, our editor turned legislator was allowing tainted characters to sneak back into public life while the stench of their decadence still retained its sting.

The effort of another member of the house of elders, a full-time businessman when the legislature is in hibernation, to shield from scrutiny companies in which the government has less than one-third ownership, raised obvious conflict-of-interest issues. What was galling, though, was the proposal to exempt noble-intentioned misdeeds as well. This rider would have created new opportunities for the more resourceful to plot their moves as the authorities made their judgement calls.

Coming back to Upadhyaya, he addressed that part of the depravity debate that has agitated Nepalis the most. How could some people be on the take if there weren't so many others ready to give? Not everyone can match Upadhyaya's candour. But, then, he is not your ordinary ex-bureaucrat. For someone at the forefront of the trade-is-a-convenience-transit-is-a-right brigade during the 1988-89 war of attrition with India that we lost, you wouldn't have expected Upadhyaya to end up playing a leading part in drafting the post-embargo constitution. During last year's turf war between the Attorney General's Office and the CIAA over Indian banknotes that weren't legal tender in Nepal, we couldn't quite figure out on whose side the Supreme Court had ruled. Since the Attorney General recently resigned, it's probably safe to award that victory to the CIAA.

Coming from a man with such staying power, Upadhyaya's suggestion to the business community to draw up a code of conduct to discourage bribery merits solemn contemplation. Admittedly, you can't expect five firms competing for the same contract to play by the rules when none knows what kind of facilitation expenses the others are ready to bear. The global dimensions of this dilemma should prove instructive. After the Paris-based Organisation for Economic Cooperation and Development came up with its Convention on Combating Bribery, major western governments have moved to outlaw acts of bribery by nationals and companies abroad. But all the smiles are on the faces of Russia's defence industry executives, while their western counterparts are up in arms over the double whammy. First, they lost their tax deductions for expenses incurred while promoting business abroad. Now they have to compete with firms that offer cheaper goods and can still grease palms.

The point is, the engines of commerce almost everywhere are lubricated with cash. During the last years of the panchayat regime, there was a clear distinction between a commission and a bribe. The tolerance level for the former was greater. Since our current polity presupposes the existence of political parties that rely heavily on constant cash inflows, we have to accept the virtual impossibility of raising funds without venturing into the realm of shadiness. For a lot of Nepalis, the fund-raising tactics of political parties is not the real problem. It's the profligacy of the political class.

This intrinsic compulsion of organised politics has understandably constricted the CIAA's room for manoeuvre. Nevertheless, the commission has succeeded in setting strict standards. Take the Lauda Air investigations, for instance. By demanding millions in bonds from two accused at the oddest of hours, the CIAA drew scathing criticism for arbitrariness. But look at the subtext here. If either man had managed to raise that sum, wouldn't that have been kind of self-incriminating?

Just by drawing up a duly countersigned covenant, our business community will have made a priceless contribution to encouraging probity in public life. Politicians and administrators would no longer be the prime determinants of how much bad money is in circulation at any given moment. Moreover, the signatories would have something on paper to back up any breach-of-trust complaints they might have to file within the fraternity. This arrangement would have to leave out baksheesh, though. No legislation or regulatory framework should be allowed to outlaw someone's token of appreciation. For one thing, we need something of enduring value to remind ourselves of our humanity. If you really have to make a distinction for legal or accounting purposes, count advance payments as graft and after-service transactions as gifts.

Many people are worried that by granting the CIAA the authority to scrutinise ministerial policy decisions, the new legislation dilutes our grimy democracy. Some have gone to the extent of describing the bills as a negation of the principal gain of the People's Movement of 1990-the supremacy of elected representatives of the people. Will the CIAA commissioners be emboldened to re-write the country's media policy? A lot would probably depend on the personality and peccadilloes of the commissioners. It wouldn't take long, though, for those tempted to slap gag orders on certain stories to discover how censorious the press can become when the news peg is the CIAA's abuse of authority.

(11 JAN 2013 - 17 JAN 2013)