After the parliamentary sub-committee prepared a report with the provision that the decision of the Council of Ministers can be reviewed by the Commission for Investigation of Abuse of Authority, now a 'cold war' has started between the Prime Minister and the State System and Good Governance Committee of the House of Representatives.

  A sub-committee was formed under the chairmanship of Congress MP Hridayram Thani to advance the Commission for Investigation of Abuse of Authority (Third Amendment) Bill pending in the

committee. The said sub-committee has prepared a report and submitted it to the chairman Ramhari Khatiwada, which can also enter the decisions of the Council of Ministers for investigation by the authorities. Prime Minister KP Sharma Oli has become dissatisfied after the report went ahead without consulting him. Due to his displeasure, the committee did not proceed with the discussion of this matter. The main reason for Prime Minister KP Sharma Oli's displeasure is - 'If authority is allowed to enter into the decision of the Council of Ministers, it will reduce the executive authority of the country.' Now, the issue has come to the surface again after the Prime Minister himself objected to the report prepared by the parliamentary sub-committee.

Good governance studies, research and experts have pointed out that one of the main sources of corruption in Nepal is the policy decisions made by the Council of Ministers. Good governance experts have suggested that it should be legally clarified which policy decision is and is not. The parliamentary sub-committee made a report based on similar suggestions from the public. The sub-committee made a report after discussing the provisions proposed by the National Assembly in the past. It is uncertain how the bill, which has been under consideration in the parliament since 2076, will proceed after the Prime Minister did not like the report. 

Why did the parliamentary sub-committee consider the need to make a report so that the authority can see the policy decisions of the cabinet? What are the examples of corruption in Nepal in the name of policy decisions? After the authority raises questions on the decision of the Council of Ministers, will the authority of the executive be delegated? Talking about good governance and trying to keep a more progressive system for transparency, what is the meaning of the style of disputing it? The latest episode highlights the need for discussion on these questions. 

Parliamentary sub-committee's explanation of 'policy decision' 

According to the current legal provisions, the Abuse of Authority Investigation Commission cannot investigate any decisions made by the Council of Ministers. That's why there is a fast practice of taking the decisions made at the staff level to the Council of Ministers. Employees also send some proposals to the Cabinet to take a safe route as they will not be trapped if the decision is taken by the Cabinet. After the debate that the law should be provided to prevent it, now the parliamentary sub-committee has defined which decision is policy and which is not.  The subcommittee has three interpretations of

policy decisions: 

First:

is a decision made to benefit only a specific person or private organization in a way that does not apply equally to the general public and is contrary to the publicly announced policy, except in accordance with the prevailing law. 2nd:

Public procurement decision that goes beyond the provisions of the existing law on public procurement. 3rd:

A decision in which jurisdiction has been exceeded in matters that should be decided by other agencies or authorities according to the prevailing law. If this proposal decided by the sub-committee is passed as a bill, the authority can investigate the decisions made by the federal and state governments. During the investigation, if it is determined that the said decision is not a policy, it is proposed that the authority can prosecute the decision. The prime minister did not consider this provision appropriate.

'Policy decision' the path of immunity for the political leadership

Behind the opinion that the decisions of the Council of Ministers should also come under the scope of investigation by the authority, in the past, only the employees were found guilty of major corruptions and the political leadership got immunity.

During the Panchayat period, the royal court and powerful panchas were involved in the decisions of major economic transactions. Therefore, in that period, the issue of 'political corruption' did not come up in the debate. After 2047, the governing power came to the hands of the parliament and the executive formed through it. It also created an atmosphere to discuss corruption issues. The issue of transparency started to arise. But in the Abuse of Authority Investigation Commission Act of 2048, the authority to investigate 'policy decisions' was not given to the commission.

Therefore, the political leadership has been getting immunity from corruption cases based on the big decisions made by the Cabinet.

The latest moving example of how the political leadership gets immunity in the name of policy decision can be taken the government land embezzlement case of Lalita Niwas located in Baluwatar, Kathmandu. 

After four years of trial in the case of embezzlement of the land of Lalita Niwas, the special court decided last February. According to the verdict, while 131 people were found guilty, no politician was convicted. The then ministers Vijay Kumar Gachchdar, Dumbar Shrestha and Chandradev Joshi were acquitted for being involved in the decision making process of the Council of Ministers.

Around 2066/2067, when Madhav Kumar was the Prime Minister of Nepal, Gachchdar was the Minister of Physical Planning and Construction and Shrestha was the Minister of Land Reforms along with the Deputy Prime Minister. Joshi was the land reform minister in 2069 when Baburam Bhattarai was the prime minister. When Gachchdar and Shrestha were ministers, in the name of expanding the official residence of the Prime Minister, Chief Justice and Speaker, it was decided to erect a fake mohi on the land of Lalita Niwas and to give the fake mohi as a mortgage.

The then Minister Gachchdar proposed in the Council of Ministers to give government land to land mafia. Shrestha, who is the Minister of Land Reforms, submitted a written opinion to the Council of Ministers that it would be appropriate to give Sattabharan. Based on that, the Cabinet meeting led by Nepal decided and implemented it according to the proposal. But the authority did not investigate the then Prime Ministers of Nepal and Bhattarai on this matter. They were not prosecuted. The rest of the political leaders who were under investigation, three were acquitted by the court explaining that no one person is guilty because there is a collective responsibility for the decision made by the Council of Ministers. 

Only on the 21st of last November, the special court acquitted the then tourism minister Jeevan Bahadur Shahi in the widebody ship purchase scam. But 4 Nepalis and 7 foreigners, including the then president and general manager, who were involved in the case, were imprisoned and fined. 21 people including ex-minister Shahi were acquitted. On 30 June 2073, the board of directors of the corporation revised the criteria and made a decision to buy the ship from the council of ministers. On May 7, 2007, the Council of Ministers decided to guarantee the government to provide a loan of 25 billion from the Provident Fund and Citizen Investment Fund for the purchase of ships. But politicians were not included in this case. 

Such examples of the political leadership getting immunity in the name of policy decisions also remind us of the 'carpet scandal' of the Panchayat era. In 2035, the Council of Ministers and the Minister were involved in the policy decision regarding the export of carpets, which was investigated by the Commission for the Prevention of Abuse of Authority. The then Prime Minister Dr. Tulsi Giri and three ministers, high level officials and businessmen were arrested. In that scandal, the businessmen were fined and the political and administrative officials were acquitted.

Whether it is Panchayat or the period of democracy and republic, in the name of policy decisions, sometimes tax exemption commissions have been formed and concessions have been made through it, sometimes even general contracts have been taken to the council of ministers and decisions have been made. It reflects a scene of unregulated activities flourishing in the name of policy decisions. 

In 2075, the Abuse of Authority Investigation Commission conducted a comprehensive survey on the state of corruption and good governance in Nepal. The report of the survey showed that there is more corruption mainly from the political level.

According to the study, 30.4 percent said that political corruption occurs, while 27.2 percent believed that corruption occurs due to procedural decisions. 10 percent pointed out petty corruption and 6.9 percent pointed to institutional corruption.

The gist of the study was that policy makers in Nepal are the ones who benefit by making policies and decisions in their favor. The political leadership level, the system of making the high-ranking high-ranking employees to act for the benefit of policy has become dominant. "All the decisions are made by the officials at the highest level and corruption is mainly from there, and the corruption is done centrally rather than the district," the report said. 

Regarding who is responsible for corruption, 23.1 percent considered political parties to be responsible. 13.2 percent mentioned that the Prime Minister and the Council of Ministers are also responsible for political corruption. 

According to Transparency International, if we look at the data of the last decade, Nepal is in the list of corrupt countries. In the Corruption Perception Index (CPI) of 2023, Nepal has been given a score of 35 out of 100. Among 180 countries, Nepal is ranked 108th. In this perspective, transparency also drew attention to the fact that the government needs to be very serious as soon as possible to address the people's demand against corruption in view of Nepal's odd position in the 'CPI-2023' index. 

Similarly, to stop efforts to water down the anti-corruption laws pending in the parliament, to conduct fair investigations and actions on corruption cases against political figures, to implement the government's commitment to examine the assets of public officials and to end the system of immunity from corruption investigations by political officials in the name of 'policy decision' by the Council of Ministers. The suggestion to be made was also given by the Nepal chapter of Transparency.

Due to all these reasons, the voice of legal arrangements to prevent the arbitrariness of the Council of Ministers in the name of policy decisions has been raised even within the Parliament. Therefore, the Parliamentary Subcommittee has proposed to open the way for the Abuse of Authority Investigation Commission to investigate policy decisions legally. But after the Prime Minister raised a question about it, the issue of political corruption has again taken the form of a political issue. 

The question of reining in the executive 

Before coming to the conclusion that the authority can investigate the decision of the cabinet, it needs to be churned from two angles. 

First: Investigation of authority can also ensure accountability and transparency in cabinet decisions. Nepal has been going through a long series of corruption. According to the index from 2012 to 2023, after 10 years of transparency, Nepal's score has increased from 27 to 35 out of 100 points. A country with a score of less than 50 is known as a country with high levels of corruption. If Nepal is to be removed from the list of corrupt countries, it is not enough to talk about corruption. It should be reformed as a policy. For this, the legal system should be strengthened to control political corruption. From this point of view, we should go on the path of legal reform by enriching the debates and conclusions that have come out in the parliament.

2nd: The authority started looking at the decision of the Council of Ministers, the authority of the executive will be reined in, what will be the effect on the balance of power of the Council of Ministers and constitutional bodies. If the authority repeatedly intervenes in policy decisions, it can also hamper the executive's independence and decision-making ability. It can also cause the executive to 'self-censor'. Because of this, a situation of indecisiveness can arise even in essential tasks. 

If the effects of the lack of decision of the executive are added to our government agencies, which have such a slow working style, what condition will it reach?

Authority is a constitutional body. It is made for the protection of democratic values. If, even in authority, a character like Lokmansingh Karki comes to the leadership one day, then he himself may emerge in another form of executive. The possibility of such a situation should also be remembered while making laws. Now the officers of our constitutional bodies are also appointed in the political sector. If an official tries to gain political bias by abusing his position, what is the position of the executive at that time?