Anti-Corruption Jurisprudence In Nepal: Role Of Criminal Law In Controlling Abuse Of Authority
1. Introduction
Corruption has been one of the most pressing governance challenges in Nepal. The country’s legal response to corruption is primarily rooted in criminal law, particularly through the:
Constitution of Nepal 2015, which guarantees good governance, transparency, and accountability;
Prevention of Corruption Act, 2059 (2002) (PCA);
Commission for the Investigation of Abuse of Authority Act, 2048 (1991); and
Commission for the Investigation of Abuse of Authority (CIAA), a constitutional body empowered to investigate and prosecute corruption and abuse of authority by public officials.
The Special Court and Supreme Court of Nepal have developed a substantial body of jurisprudence clarifying what constitutes abuse of authority, the evidentiary standards, and the limits of CIAA jurisdiction.
2. Role of Criminal Law in Controlling Abuse of Authority
Criminal law plays a deterrent and corrective role through:
Defining offenses such as bribery, illegal enrichment, misuse of public office, and procurement-related fraud;
Imposing sanctions, including imprisonment, fines, and confiscation of property;
Empowering the CIAA to investigate and prosecute offenders;
Creating special procedural mechanisms, like the Special Court for corruption cases;
Encouraging whistleblowing and protecting informants.
Thus, criminal law transforms moral or administrative misconduct into legally punishable wrongdoing.
3. Landmark Case Laws
Let’s examine five landmark cases that have guided Nepal’s anti-corruption jurisprudence.
Case 1: Girija Prasad Koirala v. Commission for the Investigation of Abuse of Authority (1994)
Citation: NKP 2051 (1994) Vol. 7
Facts:
Then–Prime Minister Girija Prasad Koirala was accused of abusing his authority by irregularly leasing government property (the Lauda Air Hotel issue). The CIAA began an investigation into the alleged misuse of public office. Koirala challenged the CIAA’s jurisdiction, arguing that as a sitting Prime Minister, his political decisions were outside the CIAA’s purview.
Legal Issue:
Could the CIAA investigate the Prime Minister or Cabinet decisions as “abuse of authority”?
Judgment:
The Supreme Court held that the CIAA could not question the political decisions of the Cabinet, but it could investigate any corrupt or mala fide acts disguised as policy decisions. The Court drew a distinction between political discretion and criminal misconduct.
Significance:
Established limits of CIAA’s jurisdiction over political decisions.
Clarified that public office does not provide immunity from corruption investigation if mala fide intent is proven.
Case 2: CIAA v. Jaya Prakash Prasad Gupta (2012)
Citation: NKP 2068 (2012)
Facts:
Jaya Prakash Prasad Gupta, a former Minister of Information and Communication, was accused of possessing property disproportionate to his lawful income.
Legal Issue:
Whether unexplained wealth of a public official could amount to corruption under Section 20 of the Prevention of Corruption Act 2002.
Judgment:
The Supreme Court convicted Gupta, holding that unexplained wealth and lifestyle beyond legitimate income constituted corruption. The Court emphasized that the burden of proof shifts to the accused once disproportionate assets are established by the prosecution.
Significance:
Strengthened the doctrine of illicit enrichment.
Set precedent for property confiscation in corruption cases.
Reaffirmed accountability of ministers as ordinary citizens under the law.
Case 3: CIAA v. Khum Bahadur Khadka (2011)
Citation: NKP 2068 (2011)
Facts:
Khum Bahadur Khadka, a former Minister of Home Affairs, was accused of accumulating property through abuse of public office during his tenure.
Legal Issue:
Whether the accumulation of wealth beyond known sources of income constituted sufficient grounds for conviction under the PCA.
Judgment:
The Special Court convicted Khadka, and the Supreme Court upheld the conviction, emphasizing that public officials have a fiduciary duty to act transparently. The Court ruled that corruption corrodes the foundation of democracy and must be addressed with strict penal measures.
Significance:
Reaffirmed the principle of accountability of public officials.
Highlighted public trust as a central element in determining abuse of authority.
Marked one of the first high-profile convictions of a major political leader.
Case 4: CIAA v. Govinda Raj Joshi (2016)
Citation: Supreme Court Decision, 2073 (2016)
Facts:
Former Minister Govinda Raj Joshi faced charges for accumulating assets disproportionate to his known income.
Legal Issue:
Could the CIAA prosecute a former minister for actions taken during his tenure if the assets were found later?
Judgment:
The Supreme Court held that former officials remain liable for corruption committed during office, and the statute of limitations does not bar prosecution if the offense is discovered later.
Significance:
Strengthened continuing liability principle.
Closed loopholes allowing former officials to evade prosecution.
Reinforced CIAA’s retrospective investigative powers.
Case 5: CIAA v. Sita Ram Prasai (1999)
Citation: NKP 2056 (1999)
Facts:
Businessman Sita Ram Prasai was accused of colluding with government officials to obtain financial benefits and influence decision-making in the banking sector.
Legal Issue:
Whether private individuals aiding or abetting abuse of authority by public officials could be prosecuted under the corruption law.
Judgment:
The Supreme Court ruled that private persons who collude with public officials to commit corruption are equally liable under the PCA.
Significance:
Extended corruption liability to non-public actors.
Recognized the concept of collusive corruption.
Marked a major step in treating corruption as a networked criminal offense.
4. Broader Jurisprudential Themes
Across these cases, several principles have emerged:
No immunity for high officials – even Prime Ministers and Ministers are accountable.
Shifting burden of proof – in cases of unexplained wealth, the accused must justify the source.
Fiduciary nature of public office – holding office creates a duty of honesty and fairness.
Expansion of liability – to private actors, aides, and associates.
Separation of political and criminal accountability – political discretion is protected, but corruption disguised as policy is punishable.
5. Conclusion
Anti-corruption jurisprudence in Nepal demonstrates the centrality of criminal law in maintaining public integrity. The CIAA, Special Court, and Supreme Court together have built a body of case law emphasizing transparency, accountability, and punishment for abuse of authority.
While enforcement challenges remain, the judicial activism in cases like Gupta, Khadka, and Joshi shows Nepal’s judiciary’s strong stance that “public office is a public trust, not a private opportunity.”
RELATED Blog
comments