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INTRODUCTION

Background

When man rules over man creates hindrances rather god would have ruled may not have
such treat. In man gets more rights becomes anarchy and if government gets more power
becomes oligarchy. So to cope with such situation institutions are must. But the
institutions only is not enough, service holders of such institutions are also to be qualified
and has of good will.

Good administration requires that complaints should be investigated and that grievances
should be remedied1, prevent or to control for justice. But it is obvious that the final
institution is court to get justice. Then too due to the lengthy procedure delayed justice
will be meaningless. Since court has to view every minute evidences and different
principle of justice sometime it is natural to be late in delivering justice. That is why
separate institution is necessary to hear people basic problem and individual grievances.
So tribunals, ombudsman will minimize the tension of people and as well tension of
court. In Nepal, to listen people and to control abuse of authority CIAA plays role of
ombudsman.

Thus, to prevent the abuse of authority every country has made a provision or establishes
an institution and has been conceptualized independently in constitution of 2047 B.S. and
has been provisioned even in the Interim Constitution 2063 B.S. in part 11 article 119.

Ombudsman and its Development

The term Ombudsman connotes a delegate, agent, officer or commissioner, the grievance
man or a commissioner of the administration. There is no any universal or precise
definition of ombudsman. In general sense, Ombudsman is an official appointed by the
government to investigate and report on complaints made by citizen against authorities.

An official or semi official or person to which people may come with grievances
committed with the government. The ombudsman stands between and represents, the
citizen before the government.2

According to S.P. Sathe, “The Ombudsman is an officer of parliament who investigates

complaints from citizens against govt. departments, that they have been unfairly dealt
with and if he finds that the complaint is justified, help to obtain a remedy. He has
usually a high status that of a judge of the highest court and can investigates acts
involving corruption and maladministration by govt. officials, sometime including
ministers.”3

1
Pandey Keshavraj, Administrative Law (Nirmal Gurung, 2058 B.S.), P.160
2
Black law dictionary
3
S.P Sathe, Admintrative Law/ 5th ed.,1991, p. 492
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Similarly, According to Prof. S.K Agrawal, the term Ombudsman refers only to
institutions which have three basic and unique characteristics:
1. Ombudsman is an independent and non-partisan officer of the legislature who
supervises the administration;
2. He deals with specific complaints from the public against administrative injustice
and maladministration.
He has the power to investigate, criticize and report back to the legislature, but no to
reverse administrative action.4

Tustition ombudsman, commonly called, just ombudsman, is in various form described

as the Parliamentary Supervisory Official for Civil Affairs in Sweden, Inspector- General
of Administration in Finland, the Folkelingets Commissioner in Denmark, Parliamentary
Commissioner in News Zealand5 and the CIAA in Nepal.

First established in 18096, the ombudsman system—ombudsman is Swedish for

representative—originated in Sweden by the Riksdag (parliament) to act as a control on
the way the government conducted its affairs. Today, Sweden has four ombudsmen
whose supervision covers national and local government agencies, civil servants, and
other officials, and whose function is to uphold the rights of the rights of the individual
against maladministration and bureaucratic abuse.7

Ombudsmen carry out their duties in two ways: first, they investigate complaints from
members of the public; secondly, they keep a watching brief on the agencies and
institutions under their supervision (such as government offices, prisons, and courts) and
instigate investigations of their own. At the end of an investigation the ombudsman's
powers are limited to making recommendations, but these are normally implemented.
The Swedish system has served as a model and there are now ombudsmen in many other
countries, including Finland, Denmark, New Zealand, Norway, the United Kingdom,
Germany, and Israel, as well as in various states and cities in the United States, and
Canadian provinces.

In Sweden and elsewhere, the system has been extended so that special areas, such as
consumer affairs and equal opportunities, have their own ombudsmen.

In India, the creation of the office of Lokpal, similar to that of the Ombudsman, was
recommended by the Interim Report of the Administrative Reforms Commission. The
institution of Ombudsman, is, considered by the Commission as easy, quick and
inexpensive machinery for the redress of individual grievances of the citizens, in the light
of the experience of other countries where such office has already been set up. The
4
J.J.R Upadhya; Administrative Law; Central Law Agency; 4th ed.; pg. 366.
5
Kagzi M.C. Jain, The Indian Administrative Law (Universal Law Publishing Co. Pvt. Ltd ., sixth edition
2002) p.203
6
ibid
7
Levene, Simon. "Ombudsman", Microsoft® Encarta® 2007 [CD]. Microsoft Corporation, 2006.
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Lokpal may investigate into any administrative action taken by or with the approval of a
Minister or Secretary of the Union or a state government, either on receipt of a written
complaint made by an aggrieved person (within 12 moths from the date of the action
complained of) or those relating to maladministration, undue favor or corruption.

In the case of R. K. Garg, 1981 Supreme Court of India held that, “corruption has
afflicted practically every sphere of our public life. Elections need a lot of money and
since the companies have been forbidden to give donations to political parties, a lot of
unaccounted money has been used for this purpose. The incident of black money is so
great that the government had too issue bearer bonds for its conversion into white money.
Such a measure was upheld by the supreme court.”8

The first ombudsman to be established for Administration whose office was created by
the parliamentary commissioner Act 1967. The parliamentary commissioner is, as the
name suggests, accountable to parliament.

The parliamentary commissioner envisaged under the Act is a permanent appointee with
the security of the service of a High Court judge. He is appointed by the crown and holds
office till the age of 65 years. He can be dismissed by a motion of parliament. The
commissioner has the power to appoint his own staff subject to the Treasury support. He
does not receive complaints directly from the citizens but through the members of
parliament.

Ombudsman Mechanism in Nepal: CIAA

Provision regarding the Commission for the investigation of abuse of authority (CIAA)
was enshrined in Part 12 of the Constitution of Kingdom of Nepal, 2047 and is enshrined
in Part 11 in the Interim Constitution of Nepal, 2063. The idea that there should be some
kind of ombudsman to receive & investigate complaints from citizens against
maladministration, unfair administrative action, undue interference, negligence & errors
by government or public officials was first mooted in Nepal in 1975 as an important new
addition to the armory of Panchayat government.

In many countries, both Scandinavian and those with a legal system based on English
Common Law, the institution of the ombudsman is traditionally created by Act of
Parliament, & the initiative in many cases is taken by government through parliamentary
process. In Nepal, on the other hand, provision is made for the establishment of an
investigating agency in the constitution itself, and it is invested with powers to pursue
wrong doing on its own initiative. In this way, CIAA is very different from its
counterparts around the world.

Although the CIAA is given a constitutional status in Nepal which is beyond the
influence of the executive in many respects, it is still very much at the mercy of the
8
Devkota Khimlal, Administrative Law (Paravi Prakashan, third edition 2064 B.S.) p. 78
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executive in terms of its financial structures & staffing. The increasing involvement of
influential politicians and members of the executive in the growing numbers of cases of
abuse of authority in Nepal, make it essential that the financial management of the CIAA
is undertaken by a parliamentary committee and not by the finance Minister or his
Ministry if the CIAA is to be expected to carry out its duties effectively.

Functions of CIAA

In order to make the CIAA a functional entity, various ways have been charted through a
proper legal measure - the CIAA Act, 1991. The functional scope of this body covers a
wide area under it and series of operational regulations and procedural mechanisms have
been worked out to make the CIAA an effective anti-abuse -of- authority -institution.

The CIAA performs highly important job in anti-corruption area. Some of its basic
functions are:

 CIAA conducts inquiries and investigation on improper act or corruption

alleged to have been committed by a person holding public office.
 CIAA may admonish or recommend, as per its findings, departmental
action or any other necessary action against the person who has been
found to have abused the authority by committing improper act.
 CIAA may file, if its findings suggest that a person has committed an act
of corruption, a case against such person in the court of law.
 CIAA prepares an annual report on activities performed and submit the
same to Prime Minister. (Prime Minister shall cause such report to be laid
before Parliament.)
 CIAA may delegate any of its powers, functions and duties relating to the
inquiry, investigation or bringing actions, to the Chief Commissioner, a
Commissioner or any employee of Nepal Government to be exercised and
complied with subject to the specified conditions.

The Commission, according to the Proviso of Article 120(1), CIAA shall not have
jurisdiction over any official to whom this constitution itself separately provides such
action & any official to whom special action has been provided by any other law.

The CIAA also performs recommendatory services for the government. It may make
suggestions or recommendations for amending a law or making certain improvements in
the functions of the government or any policy or procedure with a view to enhancing and
improving good governance in the country.

Some Cases relating to effectiveness of CIAA

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a) Badri Bahadur Karki V. CIAA9 stated that any authority is

not excluded from the jurisdiction of CIAA. In case of corruption, it can file the case
against the attorney general in law court. The reason is corruption being a criminal act or
violation of criminal law expect highly privileged person (Head of the State &
Diplomats), none of the other public authority can enjoy, on the other side, the
constitution does not exclude from public authorities to them who are constitutionally
established & rule of law does not establish them above criminal law, treat them specially
making discrimination with other.

b) Bal Krishna Neupane V. HMG10 In this case, however,

judges & constitutional authorities were excluded from the jurisdiction of CIAA by virtue
of constitutional provision accordingly. (Constitution of Kingdom of Nepal, 2047)

c) Siddhiraj Paneru V. CIAA & others 11 The Supreme Court

ruled that CIAA’s jurisdiction was limited only to the investigation of the improper act or
corruption & issue the order like certiorari or mandamus. This case has completely
frustrated the efforts of anti- corruption agency like CIAA.

CONCLUSION

The problem of corruption in Nepal is not new. This problem has infected the entire
political & administrative machinery of the nation. Lack of strong political commitment
to control corruption has impeded all reform initiatives. Proper implementation &
strengthening anti- corruption agencies are the need of the time. The civil societies,
media & other institution can play a vital role for creating awareness to people &
educating them. Political parties should work in more transparent ways, particularly in
financial matters. Similarly, CIAA should be more independent & autonomous in
functioning and should work in co- operation with the media, civil societies, judiciary &
other organizations involved in the field of anti- corruption.

Lack of accountability in governmental organizations, competent legal framework &

independent anti- corruption agencies are among the key factors in the rise of corruption.
The predominant anti- corruption, institution, the CIAA is inadequate to stem the
problems of corruption in Nepal.

9
Badri Bahadur Karki V. CIAA, 3530 (2058/2/28)
10
Dhungel: Commerntary of Nepalese Constitution, 1998, pg- 539- 547
11
Annual Survey on Nepalese Law, Nepal Bar Council, 2001, pg- 220-227