Interview with Surya Nath Upadhyay

suryanath_updDEC 08 – On Wednesday, the Parliamentary Public Accounts Committee presented a report in Parliament, which revealed that Rs 550 million had been embezzled under a single heading of the Chameliya Hydropower Project. This coincided with Transparency International’s release of the 2014 Corruption Perception Index report, which showed that had Nepal retained its position among the world’s most corrupt nations.Bhadra Sharma and Darshan Karki spoke to Surya Nath Upadhyay , former chief commissioner of the Commission for the Investigation of Abuse of Authority (CIAA) and water resources secretary, about alleged corruption in hydropower projects, the CIAA’s jurisdiction, and plans to bring the private sector under the CIAA’s ambit.

A recent report by the Transparency International has again shown that corruption in Nepal remains pervasive.

When the political situation of a country is volatile, the institutions of the government cannot function well or be made to function well. Then, corruption rises. For instance, our local bodies do not have elected representatives, but a lot more money flows to these bodies in comparison to the past, which is aiding corruption. Monitoring institutions too are not strong.

There are around 16 institutions that are mandated to control corruption. Does this mean they have all failed?

Rather than saying they have all failed, the situation does not allow them to function. For instance, the fact that our major national pride projects are in ‘distress’ reveals our lack of institutional capacity. They have not been able to complete works on time. Our budget does not get spent on time. We still do not have an institution to monitor the distribution of social welfare allowances, like the old age fund. In recent times, problems in educational institutions have come to the fore. Universities have opened up but they lack institutional capacity; officials are appointed on the basis of political bargaining and people join those institutions for the post—not to reform it.  Rules and regulations do not make a difference when institutions supposed to ensure its implementation are weak.

In recent times, the hydropower sector, in particular, seems to be plagued with corruption.

The biggest problem in the hydropower sector is that its institutional and regulatory mechanisms are extremely weak. For instance, more than 500 licences have been issued on the basis of ‘first come, first serve’. Licences are distributed without considering whether the license holder will make optimal use of resources or not; or from where the transmission lines will pass and whether the licence holder can carry out a power purchase agreement either.

The other problem is, we have no agency to tell us about the best possible use of Nepal’s water resources. We have a ministry for irrigation and another for energy. But we do not have a ministry for water resources. There is no clarity on which institution is the authority on water resources. For example, in case of Upper Karnali, some people say that instead of building a 4,100 megawatt project, we agreed for a 900 megawatt project, which is wrong. We do not have an agency to come forth and say, these are the reasons why only a 900 megawatt project is technically feasible. We have the Nepal Electricity Authority which is into production, distribution, and purchasing electricity. But its roles conflict.

Third is the problem of selection. For instance, even before the projects began, preliminary studies showed that Chameliya Hydropower and Kulekhani would be very expensive. Yet, we do not have an authoritative institution to provide reasons as to why certain projects should be undertaken and why others shouldn’t.

Then, during implementation, personnel keep changing frequently. The specifications are prepared by a foreigner and no one then bothers with them. Who controls those designs? Once you take in an executive consultant, everything becomes that person’s responsibility. We need an organisation to monitor and evaluate the consultant’s activities. We also do not have laws for rehabilitation. For instance, local people halted building transmission lines for the Bhotekoshi Hydropower Project, demanding money. But under what law do you give money to the locals? As a result, there will be delays and projects will be costly.

In recent times, the CIAA has cancelled the survey and electricity generation licences of 14 projects. How do you see this?

Licences are given on the basis of auction, followed by issuing a tender. On obtaining the license, companies agree to complete their commitments on time. In this case, they did not complete work as per their commitment so their licences  were cancelled.

The CIAA has been accused of going beyond its mandate in cancelling licences of those projects. Did the CIAA go beyond its jurisdiction?

The CIAA works in two ways. First, it carries out investigations on individuals. If the person has been involved in corruption, it asks institutions to take departmental action against the person or else, it can also take steps to correct it. The accused can appeal the CIAA’s decision in the special court or a file a writ petition at the Supreme Court.

Second, the CIAA provides suggestions to the government to amend laws or directs institutions to do certain things based on Article 28 of the CIAA Act 1991. In case anyone thinks the CIAA has gone beyond its jurisdiction, they can go to the courts. But who is to tell the anti-graft body to do this or that, apart from the courts? If you start ordering the CIAA then it is no longer independent.

The parliamentary committee has said that the CIAA overstepped its jurisdiction and it needs to correct its actions.

What the committee said is not important. What’s important is, under which law is the Parliament authorised to give directions to the CIAA.

So the parliamentary committee cannot overturn the CIAA’s decisions?

It should have the authority to do so first. If the CIAA issues an order, there is already a provision in place which says that concerned stakeholders can appeal against it. If the court says that the CIAA’s decision is wrong, the latter must obey it. That is what the constitution says. The CIAA only has to follow one order, ie, the decision of the court. If it starts listening to others, then its anchor will lie elsewhere.

The current CIAA head has become controversial on many accounts. How do you evaluate his work?

I will not talk about an individual. Let us talk about the institution; who heads the CIAA is immaterial. It is more important to look at what the institution can do, what it has done, and its jurisdiction.

There are accusations that the CIAA is only looking at minor cases even as large corruption cases are pending.

How do you define small and big cases? People seem to have the perception that the CIAA is only investigang minor cases. I have nothing to say about that. But the anti-graft body looks into both minor and major cases. For instance, it is looking into the case of establishing fake schools and the use of date-expired medicines. We should evaluate the CIAA’s work by looking into the conviction rate of its cases. If it only keeps filing cases without winning any of them then it’s a failure. But if there is a change in the education and health sector then that is a good thing.

Perhaps the complaint against the CIAA is that it is not indicting political figures. But the CIAA says it is investigating those cases and maybe we will get to see its results soon. Perception is one thing, but we need to look into the facts.

Talking of facts, billions of rupees were embezzled in the ‘People’s Liberation Army’ (PLA) cantonment case, which is still pending at the CIAA.

It is not only low-level staff; the CIAA has charged university vice-chacellors, who are powerful people.  If you look at the issue sector-wise and the volume of corruption in the education and health sectors, the CIAA is doing important work.

Lastly, the CIAA currently only looks into corruption in the government sector. There are now talks of bringing the private sector into its fold by amending laws. 

Corruption control should not be perceived as the sole responsibility of the CIAA alone. There are so many actors that have a role to play in controling corruption. As Nepal is party to the UN Convention against Corruption, it needs to amend its laws to look at cases of corruption in the private sector as well. To do so, we need to strengthen the CIAA, along with other regulatory frameworks of the government. Then, the CIAA can ask other regulatory bodies to look into various sectors. For instance, the Nepal Rastra Bank has become very strong in recent times, taking action against many banks and financial institutions. Similarly, other regulatory bodies need to be strengthened. Simply adding responsibilities to the CIAA without strengthening it will only create a mess and generate frustration.

If I were to choose, I would start by strengthening regulatory institutions and then, think of bringing down irregularities in the private sector.

Source : eKantipur