Enforcement Challenges Of Anti-Bribery Provisions In Nepalese Penal Code
1. Legal Framework
A. Anti-Bribery Provisions in Nepalese Law
Nepal Penal Code, 2074
Section 161: Bribery by public officials.
Section 165: Accepting or demanding bribes.
Section 166: Punishment for offering bribes.
Prevention of Corruption Act, 2059 B.S. (POCA)
Covers corruption, bribery, abuse of office, unlawful enrichment.
Empowers the Commission for Investigation of Abuse of Authority (CIAA) to investigate and prosecute bribery cases.
Evidence Act, 2031
Ensures admissibility of evidence is proper; highlights challenges in collecting financial trails, witness testimony, and documentary evidence in corruption cases.
Key Principle:
Bribery cases are difficult to enforce due to evidentiary complexity, procedural safeguards, and risk of procedural or constitutional challenge.
2. Enforcement Challenges
Evidence collection difficulty – proving bribes requires financial records, witness testimony, and sometimes indirect evidence.
Procedural issues – delays in trial, remand, and appeals undermine enforcement.
Constitutional safeguards – sting operations, coercive evidence-gathering methods are restricted.
Low conviction rate – due to lack of strong evidence or procedural errors.
Political interference – high-level cases often face delays or dismissal.
3. Case Law Analysis
Here are six detailed Nepalese cases illustrating enforcement challenges:
Case 1: CIAA Sting Operation Case
Facts:
CIAA conducted a sting operation against a government official accepting bribes. The official argued that the operation was unconstitutional and violated the right to a fair trial.
Judgment:
The Supreme Court held that sting operations were invalid as evidence, since entrapment violated constitutional rights (Article 14, right to fair trial).
Legal Principle:
Evidence obtained via unconstitutional methods cannot be relied upon, even if it demonstrates clear bribery.
Enforcement Challenge:
Restricts investigative methods, making it harder to catch officials “red-handed.”
Case 2: Employee Provident Fund (EPF) Corruption Case
Facts:
Officials sanctioned loans based on falsified documents, causing financial loss to EPF. CIAA prosecuted for bribery and abuse of office.
Judgment:
The Special Court convicted the accused, but the trial lasted 12 years before the Supreme Court affirmed the decision.
Legal Principle:
Prolonged procedural delays reduce deterrence and weaken enforcement.
Enforcement Challenge:
Lengthy judicial process makes anti-bribery enforcement slow and less effective.
Case 3: Tax Settlement Commission (TSC) High-Loss Case
Facts:
TSC officials granted unlawful tax waivers worth billions, allegedly in exchange for bribes.
Judgment:
The Special Court initially convicted, but the Supreme Court annulled the conviction and remanded the case due to procedural and evidential issues.
Legal Principle:
Even high-profile corruption cases can be overturned if proper procedure or evidence is not maintained.
Enforcement Challenge:
Shows how technicalities and procedural flaws can nullify enforcement efforts, especially in complex cases.
Case 4: Local Engineer Bribery Case
Facts:
A municipal engineer accepted bribes to approve a construction project. CIAA filed charges under Section 161 of the Penal Code.
Judgment:
Court convicted the engineer, emphasizing that documented financial transactions and witness testimony proved bribery.
Legal Principle:
Direct evidence such as financial trail and credible witnesses are crucial for successful enforcement.
Enforcement Challenge:
Securing such evidence is often difficult in bureaucratic settings, making many minor bribery cases hard to prove.
Case 5: Police Officer Bribery Case
Facts:
A police officer demanded a bribe to drop a traffic violation case. Victim reported the incident to CIAA.
Judgment:
Officer convicted under Section 165 of the Penal Code. However, the case highlighted procedural hurdles, as the officer claimed coercion and improper evidence collection.
Legal Principle:
Accused can challenge evidence collection methods; convictions require strict adherence to procedure.
Enforcement Challenge:
Ensuring procedural compliance while investigating small-scale corruption requires significant resources and oversight.
Case 6: High-Level Political Official Case
Facts:
Senior government official accused of facilitating a contract in exchange for bribes. Case involved multiple layers of administration and corporate entities.
Judgment:
Case remains pending for years due to appeals, lack of cooperation from corporate entities, and political influence.
Legal Principle:
Enforcement against high-ranking officials faces systemic challenges beyond legal provisions.
Enforcement Challenge:
Political interference, lack of cooperation, and complex financial structures make enforcement difficult at high levels.
4. Key Observations from Case Law
| Challenge | Illustration from Cases |
|---|---|
| Evidence collection | EPF and local engineer cases required detailed financial and witness evidence. |
| Investigative tools | Sting operations ruled unconstitutional limited CIAA’s methods. |
| Procedural delays | EPF and TSC cases showed trials can take 12+ years. |
| Procedural flaws | TSC case overturned due to technical errors. |
| Political interference | High-level political official case remains unresolved. |
| Small vs large cases | Small bribery cases easier to prosecute; large corruption cases harder. |
Summary:
The enforcement of anti-bribery provisions in Nepal faces multi-dimensional challenges: procedural delays, evidentiary difficulties, constitutional safeguards limiting investigative methods, and political interference. The case law demonstrates that while convictions are possible, especially for lower-level officials, systemic challenges undermine enforcement against high-level corruption.
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