Unit 7
Ombudsman
7.1 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
1
Pandey Keshavraj, Administrative Law (Nirmal Gurung, 2058 B.S.), P.160
2
Black law dictionary
of a judge of the highest court and can investigates acts involving corruption and
maladministration by govt. officials, sometime including ministers.”3
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.
3. He has the power to investigate, criticize and report back to the legislature, but no to
reverse administrative action.4
According to Blacks Law Dictionary5 ombudasman means: "An official oppointed to receive,
investigate and report on private citizens'complaints about the government."
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.
3
S.P Sathe, Admintrative Law/ 5th ed.,1991, p. 492
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.
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 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.
7.2 Need for Ombudsman
Reasons for creation of ombudsman10: The main reasons for creation of ombudsman is the
failure of the judiciary, parliament and the executive to control the mistake of administrative
authorities(power) following are the main reasons;
a. court donot review the fact decided by the administrative authorities.
b. The burden of prooflies on the individual challenging the administrative action. It is very
difficult for him to prove, since the government enjoys certain privilleges.
c. The discretionary powers conferred on the ministers enable them to escape from the
judicial review.
8
Devkota Khimlal, Administrative Law (Paravi Prakashan, third edition 2064 B.S.) p. 78
So in order to have an internal administration check, the institution of ombudsman has become a
necessity.
Ombudsman in Nepal
Corruption in Nepal has always been a punishable crime. The Country code (Muluki Ain) was
formulated during the rule of Rana Prime Minister Janga Bahadur Rana, and included provision
against the offence of corruption. It ruled against acceptance of bribes by official, particularly
those concerned with public revenue and established that the violation of this rules will result in
punishment. The code thus, conceptualized bribery as a misuse of public accounts, identified the
public revenue office as a possible area of corruption and prescribed penalties for this crime.
The Rana autocracy was overthrown in 1950 A.D. A separate law, called the “prevention of
corruption act” was enacted in 1956 A.D. to remove the mal administration and corrupt practice.
Rules defining as elaborated procedure to enforce the act were also formulated. In addition, the
prevention of corruption act was modified in 1960 A.D.
When rampant corruption begins to tarnish the image of the panchayat regime, the constitution
was amended to provide for the abuse of the authority investigation and prevention commission.
The commission combined three rules in one (investigation, prosecution and conviction). In the
beginning, it created havoc in the minds of public servant, but gradually it lost its effect. The
lone exceptions were a former prime minister, four cabinet ministers and several top government
officers who were prosecuted while still in office.
This was unprecedented in Nepal’s history. Ultimately, a political settlement was made in the
midst of a turbulent situation. All those accused of corruption were restored to their previous
glory and power except a few low ranking officials and some petty businessman.
In many countries those who has the Scandinavian and common legal system, the institution of
ombudsman is traditionally created by an an ordinary act of parliament 11 and the initiative in
manu cases is taken by the government through the parliamentary process. But in Nepal on the
other hand ombudsman mechanism is established as the constitutional organ confering its power
and authorities named;CIAA(commission for the Investigation of Abuse of Authority).
Before the establishment of CIAA there was masde another body to prevent the abuse of
authority named commission for the prevention of Abuse of Authority. After the amendment in
the constitution of Nepalin 197512.This commission was responsible of investigation along with
prosecution, judgement and departmental action also on a case of curruption committed by
departmental chiefs, their superior and dignitaries of constitutional body. Other subsequent act,
rules were also borrowed, However, the provision of investigation, prosecution and judgement of
a case by the same authority was contradictory to the theory of natural law, this defect was
removed in the constitution of kingdom of Nepal,1990 by making arrangement of commission
for the Investigation of Abuse of Authority(CIAA)13 which is responsible for investigation and
prosecution only of a curruption case and it has to file the lawsuit of curruption case 14 at the
special court. Now Interim constitution of Kingdom of Nepal-2063 provides the space in part-11
art 119-121 as a constitutional body 15. This institution is responsible for inquiries into,and
investigations of improper conduct or corruption by a person holding any public office 16. In this
sense CIAA is three in one type organization; has tripple role: the
investigatior+prosecutor+ombudsman17.In this way CIAA is quite different from British parliame
ntary commissioner for administration or other forms of ombudsman.
7.3 Power, Functions, Independence and Integrity of the CIAA
Part-21, Article 238 (CoN)
Qualification of Commissioners
A person shall be eligible to be appointed as the Chief Commissioner or a Commissioner of the
Commission for the Investigation of Abuse of Authority if he or she possesses the following
qualification:
a. holding a bachelor's degree from a recognized university,
b. not being a member of any political party at the time of appointment,
c. having gained at least twenty years of experiences in the field of either accounting,
revenue, engineering, law, development or research and being a distinguished person,
d. having attained the age of forty five years, and
e. being of high moral character.
A person once appointed as the Chief Commissioner or Commissioner shall not be eligible for
appointment in other government service.
अख्तियार दुरूपयोग अनुसन्धान आयोगको ऐतिहाँसिक पृष्ठभूमी
भ्रष्टाचार नियन्त्रण विश्व समुदायकै लागि एक चूनौतीको रुपमा रहेको छ ।
सीमाविहिन अपराधको रुपमा विस्तार हुँदै गएको भ्रष्टाचारको स्वरुप र आयाम
पनि दिनानुदिन परिवर्तन हुँदै एको छ । सामाजिक, आर्थिक एवं मानवीय विकासको
प्रमुख वाधकको रुपमा रहेको यस विकृतिको नियन्त्रण गरी सुशासन कायम गर्ने
दिशामा संसारका प्रायः सबै मुलुकहरुले विभिन्न रणनीतिहरु अवलम्वन गर्दै
आएका छन् । भ्रष्टाचार नियन्त्रणका लागि विश्वमा बिभिन्न किसिमका
संयन्त्रहरुको गठन भएको पाइन्छ ।
नेपालमा भ्रष्टाचार नियन्त्रणका लागि संवैधानिक निकायका रुपमा वि०सं०
२०४७ साल माघ २८ गते अख्तियार दुरुपयोग अनुसन्धान आयोगको गठन भएको हो ।
नेपालको संविधानको भाग २१ अन्तर्गत धारा २३८ मा आयोगको गठन सम्वन्धि
व्यवस्था गरिएको छ भने धारा २३९ मा आयोगको कामा कर्तब्य र अधिकार बारेको
ब्यवस्था छ ।
संविधानमा व्यवस्था भएबमोजिम अख्तियार दुरुपयोग अनुसन्धानले कुनै पनि
सार्वजनिक पद धारण गरेको व्यक्तिले भ्रष्टाचार गरी अख्तियार दुरुपयोग
गरेको सम्वन्धमा कानुन बमोजिम अनुसन्धान गर्ने वा गराउन सक्ने व्यवस्था छ
। यसरी भएको अनुसन्धानबाट सार्वजनिक पद धारण गरेको कुनै व्यक्तिले कानून
बमोजिम भ्रष्टाचार मानिने कुनै काम गरेको देखिएमा आयोगले त्यस्तो व्यक्ति
र सो अवराधमा संलग्न अन्य व्यक्तिउपर कानुन वमोजिम अधिकार प्राप्त
अदालतमा मुद्दा दायर गर्न वा गराउन सक्नेछ।
संवैधानिक निकायको रुपमा सुम्पिएको काम कर्तव्य र अधिकार आयोगले मूलभूत
रुपमा नेपालको संविधान, अख्तियार दुरुपयोग अनुसन्धान आयोग ऐन, २०४८ र
नियमावली, २०५९ तथा भ्रष्टाचार निवारण ऐन २०५९ र अन्य सम्बद्ध कानुनको
परिधिभित्र रही गर्दै आएको छ । भ्रष्टाचार नियन्त्रण गरी सुशासनको
अभिवृद्धि गराउने उद्देश्यका साथ आयोगले निरोधात्मक, दण्डात्मक र
प्रवर्दनात्मक रणनीतिहरु अवलम्वन गर्दै आएको छ ।
अख्तियार दुरुपयोग अनुसन्धान आयोग परिचय
नेपालको संविधान, २०१९ को दोश्रो संशोधन २०३२ ले अख्तियार दुरुपयोग निवारण
आयोगको गठन सम्बन्धि व्यवस्था अनुरुप आयोग स्थापना भएको र उक्त आयोगले
सार्वजनिक पदधारण गरेको व्यक्तिले अख्तियारको दुरुपयोग गरेमा कानुन
अनुसार अनुसन्धान तहकिकात र अभियोजन गर्ने र सो विषयमा निर्णय समेत गर्न
सक्ने व्यवस्था थियो ।
नेपाल अधिराज्यको संविधान, २०४७ ले साविकको अख्तियार दुरुपयोग निवारण
आयोगलाई अख्तियार दुरुपयोग अनुसन्धान आयोगमा रुपान्तरण गरे पश्चात्
आयोगलाई अनुसन्धान तहकिकात र अभियोजन गर्ने अभिभारा मात्र दिईयो । उक्त
संविधानको भाग १२ मा आयोग व्यवस्था तथा काम, कर्तव्य र अधिकार उल्लेख भई
धारा ९७ अनुसार सार्वजनिक पद धारण गरेको कुनै व्यक्तिले अनुचित कार्य अथवा
भ्रष्टाचार गरी अख्तियारको दुरूपयोग गरेको सम्बन्धमा कानून बमोजिम
अनुसन्धान र तहकिकात गर्न जिम्मेवारी दिईएको थियो । सोही वमोजिम आयोगले
अनुसन्धान तहकिकात गरी विशेष अदालतमा मुद्दा दायर गर्ने व्यवस्था रहेको
थियो ।
त्यसैगरी, नेपालको अन्तरिम संविधान २०६३ को भाग ११, धारा ११९ मा अख्तियार
दुरुपयोग अनुसन्धान आयोगको गठन सम्वन्धी व्यवस्था, धारा १२० मा काम,
कर्तव्य र अधिकारको व्यवस्था तथा धारा १२१ मा वार्षिक प्रतिवेदन
प्रस्तुतीको व्यवस्था गरिएको थियो ।
नेपालको संविधानको भाग २१ अन्तर्गत धारा २३८ मा आयोगको गठन सम्वन्धी
व्यवस्था गरिएको छ भने धारा २३९ मा आयोगको काम, कर्तव्य र अधिकार बारेको
व्यवस्था छ । संविधानमा भएको व्यवस्था बमोजिम कुनै सार्वजनिक पद धारण
गरेको व्यक्तिले भ्रष्टाचार गरी अख्तियारको दुरुपयोग गरेको सम्बन्धमा
अख्तियार दुरुपयोग अनुसन्धान आयोगले कानून बमोजिम अनुसन्धान गर्न वा
गराउन सक्नेछ ।
Formation
(1) There shall be a Commission for the Investigation of Abuse of Authority of Nepal, consisting
of the Chief Commissioner and four other Commissioners. The Chief Commissioner shall act as
the Chairperson of the Commission for the Investigation of Abuse of Authority.
(2) The President shall, on recommendation of the Constitutional Council, appoint the Chief
Commissioner and Commissioners.
(3) The term of office of the Chief Commissioner and Commissioners shall be six years from the
date of appointment.
(4) Notwithstanding anything contained in clause (3), the office of the Chief Commissioner or a
Commissioner shall be vacant in any of the following circumstances: (a) if he or she tenders
resignation in writing to the President, (b) if he or she attains the age of sixty-five years, (c) if a
motion of impeachment is passed against him or her under Article 101, (d) if he or she is
removed from office by the President on recommendation of the Constitutional Council on
grounds of his or her inability to hold office and discharge the functions due to physical or
mental illness, (e) if he or she dies.
(5) The Chief Commissioner and Commissioners appointed under clause (2) shall not be eligible
for reappointment. Provided that a Commissioner may be appointed to the office of Chief
Commissioner, and when a Commissioner is so appointed as the Chief Commissioner, his or her
term of office shall be so computed as to include his or her term as the Commissioner.
(6) A person shall be eligible to be appointed as the Chief Commissioner or a Commissioner of
the Commission for the Investigation of Abuse of Authority if he or she possesses the following
qualification: (a) holding a bachelor’s degree from a recognized university, (b) not being a
member of any political party at the time of appointment, (c) having gained at least twenty years
of experiences in the field of either accounting, revenue, engineering, law, development or
research and being a distinguished person, (d) having attained the age of forty five years, and (e)
being of high moral character.
(7) The remuneration and other conditions of service of the Chief Commissioner and the
Commissioners shall be as provided for inthe Federal law. The remuneration and conditions of
service of the Chief Commissioner and the Commissioners shall not, so long as they hold office,
be altered to their disadvantage.Provided that this provision shall not apply in cases where a state
of emergency is declared because of extreme economic disarrays.
(8) A person once appointed as the Chief Commissioner or Commissioner shall not be eligible
for appointment in other government service. Provided that nothing in this clause shall be
deemed to be a bar to the appointment to any political position or to any position which has the
responsibility of making investigations, inquiries or findings on any subject, or to any position
which has the responsibility of submitting advice, opinion or recommendation after carrying out
a study or research on any subject.
Functions:
Article 239 (CoN): Functions, duties and powers of the Commission for the Investigation
of Abuse of Authority:
(1)The Commission for the Investigation of Abuse of Authority may, in accordance with law,
conduct, or cause to be conducted, investigations of any abuse of authority committed through
corruption by any person holding public office. Provided that this clause shall not apply to any
official in relation to whom this Constitution itself separately provides for such action and to any
official in relation to whom other law provides for a separate special provision.
(2) In the case of the persons who can be removed from office by passing a motion of
impeachment under Article 101, the Judges who can be removed by the Judicial Council and the
persons who are liable to action under the Army Act, it may conduct, or cause to be conducted,
investigations in accordance with the Federal law after they have been removed from office.
(3) If the Commission for the Investigation of Abuse of Authority finds, on investigation
conducted pursuant to clause (1) or (2), that a person holding public office has committed an act
which is defined by law as corruption, it may file, or cause to be filed, a case against that person
and other person involved in that offense in the competent court in accordance with law.
(4) If, on investigation conducted pursuant to clause (1) or (2), any act or action done or taken by
a person holding public office appears to be of such nature as to be falling under the jurisdiction
of another official or body, the Commission for the Investigation of Abuse of Authority may
write to the concerned official or body for necessary action.
(5) The Commission for the Investigation of Abuse of Authority may delegate any of its
functions, duties and powers on the conducting of investigations or filing cases, to the Chief
Commissioner, a Commissioner or an officer employee of the Government of Nepal to be
exercised and complied with subject to the specified conditions.
(6) Other functions, duties and powers and rules of procedure of the Commission for the
Investigation of Abuse of Authority shall be as provided for in the Federal law.
Basic Preventive Measures of Corruption in Nepal
Commission for the Investigation of Abuse of Authority Act, 1991
Prevention of Corruption Act, 2002
National Vigilance Center(NVC) has been established as an governmental anti-corruption
agency(ACA)
Special Court Act, 2002
Money Laundering(Prevention) Act, 2008
Judicial Council Act, 2017
Army Act, 2006
The Commission for the Investigation of Abuse of Authority(CIAA)
Introduction:
The Commission for the Investigation of Abuse of Authority Act, 2048(1991)
Part-21, Article 238 and 239 of The Constitution of Nepal 2072
CIAA is an apex constitutional body for corruption control
CIAA carries out 3Ps(Preventive, Promotional and Punitive) measures to control corruption
while performing its duties and responsibilities
The organizational structure of CIAA consists of one chief-commissioner at the topmost
level and four commissioners appointment as per constitutional provision.
Altogether it has 12 divisions to carry out its day to day function and 8 regional offices which
are at Itahari, Bardibas, Hetauda, Pokhara, Butwal(2), Surkhet, Kanchanpur.
Independence and Integrity of CIAA
CIAA has been taken as a symbolic of the Administrative Law because it controls the
activities of the executive authorities and bodies
Established as a separate constitutional body
Its independency and integrity is also based on the appointment and removal of the
Commissioners as provisioned in The Constitution of Nepal 2015: being of high moral
character; not being a member of any political party at the time of appointment; shall not be
eligible for appointment in other government services;
No questions shall be raised against any act performed by CIAA
CIAA have enough legal power to carry out its functions and duties
Working as a major institution for the prevention and control of corruption
Independent investigation and detection process
Independent organizational structure
Some cases relating to effectiveness of CIAA
a. Mr. Badri Bahadur Karki v CIAA31:
Fact of the case: Sunil Maskey was arrested by the Tribhuwan Internationl Airport.
Security guards with some Indian currency of Rs.500 denomination, which he had tried
to export illegally to Singapore. After completion of the investigation carried out under
the 'Foreign Exchage Regulation Act 2019', his case was submitted to the district
Government Attornney and Attorney General acc to art 110(2) of the constitution
whether he could be prosecuted or not. Attorney General (Badri Bahadur Karki) decided
not to prosecute him on the ground that Indian Currency of Rs. 500 denomination was not
been accepted in transaction in Nepal. This case is concerned to the functions, duties and
power of the attorney General (A.G) and the CIAA provided in the constitution of
kingdom of Nepal2047 especially in art 110(2) and Art 98(3) of the constitution whether
there is any functional independence on them? Whether CIAA can reopen the
proceedings of the case which has already been finalized as a result of the A.G's decision
of non-prosecution?
The court held that: Both the provision of art 98(3) and 110(2) of the constitution are
independent of their own. Both the A.G and CIAA have their own functional
independence. The commission has power to conduct an inquiry and investigate a case of
improper conduct or corruption even the A.G as no one can get immunity from an office.
The letter served to the A.G can't be treated as the letter issued under sec (15) of the
CIAA Act 2048.
b. Chetnath Lamichhane and others v CIAA32:
Acc to the part-4, sec. (18) of CIAA act, if a person holding to the public post has done
corruption and that is proved by the evidence, CIAA has the power to file the case against
him/her. And in case of improper action other than corruption departmental actions can
be taken33.
In this case the CIAA has made the decision in2058-05-27 saying all the results is
cancelled (no valid) due to irregularity in the examination. But the Supreme Court said
that irregularity was there not in question paper but only in some answer sheet caused by
them. So the decision of CIAA negatively affect to those who are not influenced by the
irregular activity. Finally the Supreme Court quashed the decision of the CIAA and also
have the mandamus to the CIAA to find out the person and take the action, who involved
in the irregular action.
c. Girija Prashad Koirala, Govinda Raj Josho and others v. CIAA34:
In this case CIAA has send the litter (notice) to Girija Prashad Koirala (G.P. Koirala) for
the purpose of inquiry and investigation regarding details of his property which they own
while being in public post. Commission for the enquiry of property has published its
report, beint based on that report investigation process is done. Then G.P. Koirala file the
writ petition by saying that the notice send by CIAA violates the Fundamental Rights i.e;
art 11, 12, 14, 16, 17, and 22 demanding the notice to be quashed. And other petitioner
were gone in CIAA and gave theie statement. The CIAA filed the case in Spicial Court,
they were also demanding the same as G.P. did.
The supreme court held that the writ petition is quashed. The reasoning behind was in the
case of G.P. is, the case is in the phase of premature. The CIAA has constitutional power
to investigate. So it will not appropriate to quash the notice provided by CIAA. On the
other hand rest of all petitioners cases are in the process of hearing in the Special Court.
So supreme court cannot give the decision on this regard because the hearing has not
completed yet.
d. Laya Prashad Khatri v CIAA35:
In this case the person who is second class officer made the forged and fabricated
certificate of M.A. passed in political science from C.N. Mithila University for the
purpose of promotion. CIAA after the investigation found that the certificate presented to
public service commission is forged. Then CIAA filed the case being base on the
provision of 'Corruption Prevention Act 2017' sec.7 (1) and sec (12).
The Supreme Court held that the document shows that certificate is forged. So the
demand of CIAA and punishment (decision) of special court seems lawful and
reasonable.
