The Supreme Court verdict against sting operations must have come as a blow to the CIAA which has remained dormant for a pretty long time.
On April 21, in a landmark verdict, the Supreme Court of Nepal declared sting operations hitherto undertaken by the Commission for Investigation of the Abuse of Authority (CIAA) as unconstitutional. The verdict was in response to the writ petition filed by advocate Bishnu Prasad Ghimire on December 24, 2017. It came after more than three years of deliberations.
Since the days of Lok Man Singh Karki, sting operations have been extensively used by the CIAA to nab corrupt public officials. A weekly news magazine reported that out of 206 graft cases registered in the Special Court in the last fiscal year, 181 had sting operations—this involved 99 cases with less than Rs 25,000. There were 277 arrests, among which 69 were non-gazetted officers and 16 were office peons. Clearly, the CIAA is focused on low level or petty corruptions.
Under the sting operations, as empowered by its internal regulations, the CIAA can supply pre-determined currency notes to the bribe soliciting public officials, through service seekers or through its own undercover staff members, who will later be caught red-handed and prosecuted for corruption charges. The supplier of the bribe money is excluded from prosecution. The manner in which the agency executes sting operations resembles entrapment which is taken as illegal in many countries.
The court banning sting operations has sent ripples among the anti-corruption communities. It is reported that the verdict may affect around 400 bribery cases implicated by sting operations, currently pending at the court or under investigation at the CIAA. The verdict has also spelled that the accused public officials no longer need to stand trial. Literally, they are exonerated from their corruption crimes.
Some sections of the society have welcomed the verdict while others lamented by saying that it gives public officials “freedom to corruption” and could put a setback on the anti-corruption drive in the country. In 2020, Berlin based international anti-corruption NGO, the Transparency International, ranked Nepal, with a score of 33 on Corruption Perception Index (CPI), at 117th position among the list of 179 countries of the world.
The court is yet to issue a full verdict. However, the summary has outlined three grounds for banning sting operations. First, it is against the principle of fair hearings. Second, it is against the criminal justice and evidence gathering system. And third, it gives discretionary power to the investigating officials. Basically, the court has assumed sting operations as entrapments which are illegal in nature.
Definitely, there are several pitfalls with the use of sting operations.
First, sting operations are used extensively for supplying bribe money to entrap public officials. And many read this as entrapping small fishes or busting petty corruptions in the bureaucracy. There is rare reporting on successful undercover operations to bust criminal gangs, drug dealers or mafia networks. The agency seems to be preoccupied with narrow, visible, short-term publicity gained through undertaking sting operations.
Second, public officials are dreadful of CIAA sting operations. As mentioned in the court verdict, it provides discretionary or near monopoly power to the CIAA officials. The tool may be used for vengeance rather than fighting corruption in the bureaucracy.
Third, the entrapment of the innocent junior staff members has drawn public criticism with the indiscriminate, arbitrary use of sting operations. There was a case of a junior officer who after being accused of receiving bribe money committed suicide but who was later declared innocent by the court. To implicate any officials of corruption charges, the money can be implanted easily.
Fourth, there is a total lack of research on the effectiveness of sting operations. This could have avoided public criticism and put the tool in proper perspective. The outright banning of sting operations must have cornered an already battered anti-corruption agency. First, the wings of the CIAA were clipped after its power to investigate improper conducts was taken away in the new constitution. Second, the agency itself was dragged into corruption controversy after a commissioner was implicated in a bribery case. The banning of sting operations must have come as a blow to the CIAA which has remained dormant for a pretty long time.