Piece of advice to Head of CIAA which he can pass on piece of paper to Mr. Gagan Thapa

A Piece of advice CIAA Head can pass on to Chairman of A&WR Committee on a piece of paper

We are all aware that the Chief of the Commission for Investigation of Abuse of Authority (Chief/Head of CIAA), Mr. Lokman Singh Karki has refused to appear before the Agriculture and Water Resource Committee of Parliament (A&WR Committee) headed by young parliamentarian Mr. Gagan Thapa. This was a development before SAARC kicked off in Nepal. Thereafter, we read an advice/editorial by Ameet Dhakal in Setopati that Mr. Karki should be summoned again. And, this is exactly what Mr. Thapa has done now. We read that A&WR Committee has again summoned chief of CIAA for clarifications. This is a disturbing development.

If it was just a clash of ego between Mr. Karki and Mr. Thapa, we could turn a deaf ear. They can settle their own scores at their own terms but since it is inviting a constitutional crisis, it needs a closer look. Sanctity must prevail rather than trying hard to impose each other’s supremacy.

In this article, I stress why CIAA chief is right not to appear before A&WR Committee and Mr. Thapa must stop putting constitutional set up in a collapse. Mind it, it is no way a defence of Mr. Lokman Singh Karki but only a pleading of a “common man” why “The Interim Constitution of Nepal, 2063” must be respected.

Genesis of problems and development thereafter:

It all started with a direction of CIAA to the Government to scrap the licence of some of the hydro-electricity projects which have not yet started any work or which have failed to complete the milestone of works as agreed in agreements with the government. In this relation Finance Committee of Parliament has already summoned CIAA head and has received his clarification. On that day, it is understood that CIAA head has “requested” the parliamentary committees (except Good Governance Committee of Parliament) not to summon him. He understands that only Good Governance Committee of Parliament can summon him as has been written in Rule 110 of Rules on the functioning of Constituent Assembly (Parliament), 2070.

Despite such “request” of CIAA head, A&WR Committee summoned Mr. Karki to appear before the committee. Mr. Karki, instead of appearing in person, sent his response letter reminding Mr. Gagan Thapa that he will not appear before A&WR Committee but only before Good Governance Committee. As per Mr. Karki, only Good Governance Committee can summon him as CIAA Chief and he “seems to be” absolutely RIGHT.

Being miffed by head of CIAA’s response, the A&WR Committee had written to Speaker of the House to decide on the matter but we have heard no response or action on it by the Speaker. He might be discussing the matter with experts, analysing the legal and constitutional provisions to come to a conclusion. However, in the race of settling scores with CIAA head, the A&WR Committee has undermined the authority of speaker by not waiting for speaker’s response on the matter. This is undermining of parliamentary democracy. Mr. Thapa must understand that he and his committee cannot be a prosecutor and decider/judge at the same time. The propriety of the office demands that he be “functus officio” once the matter is referred to the Speaker.

Positions taken by A&WR Committee while re-summoning CIAA head:

The A&WR Committee and the supporters of calling/recalling CIAA head to any parliamentary committee have argued that parliament is a supreme sovereign body and it can summon anyone for the sake of making him/her responsible and transparent. They argue that CIAA and any other constitutional bodies must be responsible and accountable to the people of Nepal. As the people of Nepal have elected a parliament to be their representative, they argue that the accountability to the people will be expressed by making constitutional bodies accountable to the Parliament. This is palpable and is a flawless argument and in principle, no fault can be found on it.

However, question remains open what processes and procedures you adopt while demanding accountability from others. Is it that there is no limitation on the power of parliament? Can a parliament do anything and everything under the sweep of “people’s representatives” or on the garb of being a “sovereign body”? Definitely, this is not so. There are limitations on the power of parliament also. The limitations are twofold: whether it can exercise certain powers, and if it can, how the powers are to be exercised. In a democratic constitutional process, ends cannot justify the means. Both the ends and the means must be democratic, constitutional, legal and should be exercised with judicious mind. It alone can help to develop a constitutional jurisprudence which will only strengthen our parliamentary and constitutional democracy.

We must also be absolutely clear that Parliamentary committees are called “mini parliaments”. However, these are the metaphors used in political writings. Obviously, a committee of a parliament is not a synonym with a Parliament itself. A Committee of a Parliament cannot do all those things which a Parliament alone can do. For example, no one will argue that a bill can be passed from a particular committee of a parliament and can be made a law. Hence, it should be absolutely clear to a committee of a parliament that it is no point to make a hue and cry on the pretext that a sovereign parliament’s authority has been eroded by response of chief of CIAA.

Options for A&WR Committee:

It is better for A&WR Committee that it withdraws the summons issued to CIAA head. As it is clear that CIAA head can be summoned only by Good Governance Committee of Parliament, Mr. Thapa can explore the option of sending a request to Good Governance Committee of Parliament to summon CIAA Head. While sending such request letter, it is wise to list down the queries in which A&WR Committee wants to seek clarifications from CIAA Head. All the members of A&WR Committee can be present in Good Governance Committee at the time of hearing as allowed under Rule 112(5) of Rules on the functioning of Constituent Assembly (Parliament), 2070. This will save the present constitutional chaos. This will also ensure that A&WR Committee follows the constitutional provisions in both “letter and spirit” so that the constitutional authorities are not harassed by “mini-parliaments” for vengeance. This will help in future to build a trust between constitutional bodies and parliament and the decorum of both the bodies (Constitutional bodies and parliament) can be maintained.

Before parting, I would also like to add that the Constitutional provision which gives power to parliament to draft its own rules to govern the functioning of the house cannot be used as a hanging sword against constitutional bodies. It must be borne in mind that no particular provision/article of a constitution would have supremacy against another article unless the “non-obstante” clauses are used in such articles which may have overriding powers. Hence, in absence of such provisions in the Constitution where parliament/mini-parliament can control the constitutional bodies at their will, any reference on Rules on the functioning of Constituent Assembly (Parliament), 2070 alone cannot validate the decisions taken by A&WR  Committee when such decisions are taken at “whims and fancies” of the members.

I hope Lokman Singh Karki passes this advice to Gagan Thapa this time too, on a piece of paper.