Should the constitutional body itself get involved in offering bribes to public position holders and arrest them in a planned way? Here is an inside story about how the Commission for Investigation of Abuse of Authority has been conducting ‘sting operations’.
Tufan Neupane, Center for Investigative Journalism-Nepal
In September, 2018 Sujan Poudel, a crusher industry owner from Gokarneshwor, Kathmandu filed a complaint at CIAA, against DSP Shyam Kumar Rai, chief of Metropolitan Police Circle, Boudha accusing him of seeking bribe. The CIAA, the anti-corruption agency, readied its plan at its headquarters to nab him red-handed.
As planned, the anti-graft body arranged Rs 140,000 as bribe money. Before arresting Rai the same money was handed over to Poudel on October 6, 2018.
Since Poudel, who was already familiar with DSP Rai, requested the latter to either come to Chuchhepati or send any staffer from his office for some work. Poudel had a plan to trap Rai. After DSP Rai refused to go where the plaintiff had proposed, Poudel himself went to Rai’s office carrying money.
When Rai was at his office he saw some unknown people. Poudel followed them shortly. In a quick move, Poudel put a bundle of cash inside Rai’s drawer. Before Rai was able to turn his head around the unusual activity, the unknown persons entered the room, introducing themselves as ‘Akhtiyar ko manchhe’ (officials from CIAA) and arrested Rai. Further, Poudel secretly captured the desired video footage of DSP Rai. Based on those visuals a police report was produced. Afterward, the media ran news: ‘DSP Rai arrested with Rs 140,000 bribe money’.
The anti-corruption agency took the bribe accused Rai to custody and later filed a corruption case against him at the Special Court. While recording statements at the court DSP Rai had stated that ‘I had taken a hard approach against those involved in exploiting natural resources, illegally extracting sand, trafficking, use of dozer and haphazard land plotting’. Further, Rai said Poudel had tried to trap him after his illegal sand extraction business came under scrutiny. Along with the charge sheet CIAA had submitted a video footage captured while conducting a sting operation in which investigators deployed from CIAA present themselves as if they know everything about where money was. “Take out money from the drawer,” the team was heard as saying.
The special court analyzed the visuals to conclude whether the money was forcibly put into the drawer or as per Rai’s wish. “Bribe money was not taken willingly,” the court ruled on December 15 2019 acquitting DSP Rai’s involvement in the bribe case.
The full text of its decision released by Justices Krishna Giri, Shanti Singh Thapa and Chandra Bahadur Saru exposes anti-graft body’s ‘arbitrariness’ in conducting sting operations.
“In this case it seems CIAA has worked at the behest of some interest groups unhappy with a strict ban on illegal extraction and supply of sand,” said one of the judges of the fast-track court established to deal with corruption cases.
In its decision the court has stated that ‘heinous crime like corruption cannot be justified just after confiscating money from the desks of government employees.’ As per decision some acts such as whether the employee intended to receive a bribe, claimed it or willingly received should be justified before convicting those accused in corruption cases.
Before taking charge of Boudha police DSP Rai himself had conducted several sting operations during his two years stay in CIAA. After several ‘successful sting operations’ he was successful to take charge of police of Boudha area, which is considered as one of the most lucrative workstations in Kathmandu among police officials.
A CIAA official says ‘sting operation’ has become a stepping stone for many police officers deployed. By conducting sting operations during their stay at CIAA police officials appease the chief commissioner or commissioners to get rewards such as transfer to lucrative workstation, promotion, awards or foreign junkets.Pralhad Prasad Dhital, an assistant forest officer at the Kavrepalanchok District Forest Office (DFO), was attending a training organized at the Department of Forest, Kathmandu. Jagatlal Tamang, an entrepreneur of Kavre, on June 25 repeatedly telephoned Dhital requesting to meet him. Desperate, Tamang came to the department and offered to drink Coca-Cola when they came out of the office. Dhital ordered Sprite instead of Coca-Cola. No sooner they started to sip cold drinks Tamang placed over Rs 20000 in Dhital’s hand.
Then CIAA officials who were watching them as planned earlier arrested Dhital. They prepared a report: A forest official was caught red-handed while receiving a bribe.
There is an interesting story behind this bribe case. Tamang had obtained permission to cut down 57 Gobre Sallas (Abies Wabbiana) trees grown in Krishna Prasad Dahal’s farmland. The DFO is legally obliged to issue such license before mid-May so Dhital had issued license to Dahal just a day before the expiry of deadline. But mistakenly it was not officially mentioned in the register and an official stamp wasn’t put on it. Citing aforementioned reasons forest officials refused to give a go ahead for forest clearance. Dhital also rejected Tamang’s plea saying he can’t go against formal process.
In the course of recording statements at the special court, Tamang confessed that Tamang himself had approached the anti-corruption agency after he sensed a loss despite almost obtaining forest clearance permission. When he approached, anti-corruption agency officials stationed in powerful offices assisted him in many ways: helped to write applications, arranged Rs 20,000 bribe money and advised him about how to provide bribe money.
Against the reality the charge sheet filed by the anti-graft body mentions that a forest clearance permit was issued on June 25 2014. The clearance license, however, lacks both registration number and official stamp, which means Tamang wasn’t officially authorized to clear forest as stated. Had Dhital received money he might have issued a permit. No such permit was issued. Yet, a letter was issued in the name of forest owner Dahal. Based on unauthorized people pushing for forest clearance, not issued in name of designated person and backdated issuance both Special Court and Supreme Court acquitted Dhital. Due to an unwanted legal case he was suspended from his job for two and half years.
Sting operation for petty corruption
The CIAA has prioritized very sensitive investigation tools like sting operations to fry small fishes in recent days. There are several petty cases where he has been involved in conducting sting operations to arrest officials seeking Nrs 1000 or so.
On November 27, 2019 CIAA arrested Nabin Kumar Jha, traffic police of Mahendranagar, Dhanusha, while receiving Rs 1000. Acting on tips provided by driver CIAA’s Bardibas chapter itself provided bribe money.Jha was arrested shortly after receiving a bribe from the driver. Following the investigating CIAA on December 22 CIAA filed a corruption case against Jha at special court seeking Rs. 1000 fine and three months imprisonment. The case is still under consideration.
Similar instance is in Kaski. CIAA’s Pokhara Regional Office designed a sting operation plan after getting some clues about Dipak Subedi, a non-gazetted officer of Lekhnath Land Revenue Office, seeking bribe from service seekers. To arrest Subedi red-handed the anti-graft body mobilized a service seeker. As the planned service seeker approached the officer, he provided money and he was caught while receiving Rs 3000 bribe. In June 2020, the CIAA filed a case against Subedi claiming a fine of three thousand and three-month imprisonment.
Yet, one sting operation was conducted to arrest peon. Acting on a tip CIAA’s Itahari branch arranged Nrs 2000 to caught Arjun Kumar Mandal, a peon of Land Reform and Revenue Office, Rajbiraj. As planned Mandal was arrested and case was filed against him at the Special Court on October 24 last year seeking NRs 2000 from the accused and three months imprisonment.
Sting operation: CIAA’s success story
An analysis of CIAA’s annual report shows most cases were filed against junior ranking officials based on sting operations. In its annual report of the fiscal year 2018-2019 the anti-graft body mentions it filed a record number of corruption cases. At a press conference organized on 13 January 2019 to publicize details of the annual report CIAA spokesperson Pradeep Kumar Koirala said registration of a record number of cases as the “great achievement”.
Out of 351 corruption cases filed in the fiscal year 147 were bribe cases. Of them, nearly 40% cases or 132 cases were registered following ‘sting operation’.In the fiscal year 2019-20 CIAA filed 440 corruption. Of them, 206 cases are bribe cases. Among bribe cases 181 cases were filed after sting operations. The amount of half of the total cases filed under ‘sting operation’ or 99 cases is less than Rs 25000.
Amount of 43 cases is between Rs 25000 to Rs 100000 whereas the amount of 39 cases filed based on sting operation is above Rs 100000. In fiscal year CIAA had filed 440 corruption, a record in its history.
During this fiscal year CIAA remained open in 296. If active days are to be counted CIAA files 1.5 cases daily. Of the total 277 arrested 69 were non-gazetted officers or juniors. Apart from this CIAA had conducted sting operations to arrest 16 office peons. Of the total 194 cases registered by the CIAA in the fiscal year 2017-2018, 97 cases were related to bribery. Among bribe cases 36 were filed after sting operations.
“Previously, cases of fake academic credential used to top other corruption cases,” said Gauri Bahadur Karki, Special Court’s former chairman, adding, ‘These days, sting operations have replaced fake certificate cases.”
Out of total corruption cases, on an average only 4 percent cases are related to revenue evasion and illicit properties, according to the anti-graft body’s annual reports published in three fiscal years. Details show a powerful constitutional body entrusted to control grand corruption and ensure governance is now busy in frying small fishes in the name of sting operations.
Neither the Constitution nor law has curtailed the anti-graft body’s jurisdiction to limit its investigation to junior ranking officials. But CIAA has been doing an easy job instead of taking up grand corruption cases of tax evasion, illicit properties—which are relatively tough and require maximum time.
“CIAA has not done even doable works nor it has abided instructions of parliamentary committees. Several corruption scams such as widebody procurement cases, Ncell tax scam and Yeti scam have been reported in the media. But none of the scams are investigated,” said Karki, adding, “Constitutionally empowered bodies wait for the signal of the chief executive when it has to perform. Sting operations are conducted just to mislead the people to show up its performance.”
Constitutional body bribes
The sting operation has raised some serious questions: is it ethical to provide money to trap public position holder? Should constitutional bodies like CIAA be involved in bribery? Is such act in line with existing Constitution and other laws?
As per Article 239 of the Constitution the CIAA can investigate wrongdoings of any public position holders and file corruption cases against them if charges are established. To implement the CIAA Act. Section 37 of the Act empowers the anti-graft body even to formulate the regulation.
Section 30 of the regulation states CIAA can provide money to informers if any public position holder seeks bribe. But there is no provision of legal action against bribe receivers and providers. Based on the same provision of the regulation CIAA has been conducting sting operations whereas Section 3 of Corruption Prevention Act-2002 clearly states both bribe receivers and providers should be punished for bribery. This shows CIAA’s sting operation is questionable from a legal and practical perspective.
“CIAA can file corruption cases if someone is indulged in bribe,” said constitutional expert Bhimarjun Acharya adding, “But constitutionally empowered body’s involvement in arranging resources to trap someone is not really acceptable matter in any civilized society.”Another advocate Bishnu Prasad Ghimire argues CIAA’s sting operation is guided with the intent of trapping citizens. “State agencies shouldn’t execute any plan introduced aimed at trapping any citizen,” said Ghimire adding, “Use of state coffer for trapping any citizen is not acceptable.” Ghimire believes introducing provision of sting operations going against the Constitution and other laws is an illegal and objectionable move. As per criminal law formulation process only parliament can determine which act is criminal or not, he says.
Acharya terms CIAA’s sting operation as an act against rule of law. “Similar practice was in the USA and India in the past. But the court annulled provision of providing money for criminal activities. And the same should be done in Nepal too. Conducting sting operations with the intention of trapping someone is an illegal act,” said Acharya.
In a criminal case American Supreme Court had barred the police from using and provoking innocent citizens to commit a crime in the name of gathering evidence. An order issued on April 1992 states, “In their zeal to enforce the law, Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute.”
Responding to a case related to sting operation India’s apex court has also raised some moral questions about sting operation even as its motive is to arrest criminals. “Being essentially a deceptive operation, though designed to nab a criminal, a sting operation raises certain moral and ethical questions. The victim, who is otherwise innocent, is lured into committing a crime on the assurance of absolute secrecy and confidentiality of the circumstances raising the potential question as to how such a victim can be held responsible for the crime which he would not have committed but for the enticement,” states the order
Legal discourses have begun in Nepal as well regarding CIAA’s sting operations with a case filed at the apex court challenging the move.
CIAA Spokesperson Pradeep Koirala, however, defends the anti-corruption agency’s move saying the organization provides money when frustrated service seekers seek monetary help to break the chain of bribery. “We facilitate only when service seekers are out of money and approach us with an application,” said Koirala.
Whatever Koirala said, the court statement of those involved in the sting operation shows otherwise.
CIAA’s sting operation is facing criticism as some police investigators believe it’s against the basic principle of ‘secret action’. Former DIG Hemanta Malla, who also worked as chief of Police Division under CIAA, says even as sting operation is essential to gather evidences to expose grand crimes such as match fixing, human trafficking and drug trafficking among others but recent CIAA sting operations haven’t addressed real need.
“Target of secret action should be breaking organized criminal networks such as breaking network of key players behind match fixing to players,” said Malla adding, But CIAA’s operation seems just focused to arrest junior ranking officials. This should be stopped as sting operation tools could be misused while applying this to deal with petty corruption cases.”
But how corruption could be controlled if CIAA is to be barred from arresting bribe-accused people. “Responsible agencies can deal with bribery. For example, if some government employee seeks bribe issues can be raised before the department chief, ministry and National Vigilance Center,” said Acharya, “There are so many other ways to tackle the bribe case. But trapping someone and investigating into the same is not suitable in a civilized society. That’s against the rule of law.”
