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Constitutional accountability, justice execution & administrative reforms

Seminar jointly organised by the Administrative Court and FES, Nepal Office

17 Nov 2014, Kathmandu

Prepared by Ritu Raj Subedi

Even in the midst of transitional chaos, there is a resolve to live up to the notion of constitutional accountability, quick justice delivery and good governance. It is true that Nepal has been continuously hammered by the transition since it embraced the spirit of modernity in the major areas of life in 1950. The nation's repeated failures to have an inclusive constitution written by the elected Constituent Assembly have only added complexity to the ever tricky statute writing process. This has prolonged transition with its negative tentacles spread to the sphere of politics, administration, judiciary, education and development. But, intellectuals, academics, professionals, honest politicians and bureaucrats hardly sit silence just because there is transition and socio-economic environment is not favourable to revive faith in the nation building campaign. They form a mass of social critics and show their willingness to provide intellectual inputs to complete the overdue task of statute-making, state restructuring, ensuring the transitional justice and broader administrative reforms.

Seeking constitutional and political accountability sounds a bit strange at a time when the key actors are at loggerheads over the contents of constitution writing, and the entire bureaucratic and judicial realms are waiting for an overhaul. But, academic exercises aimed at realizing the constitutional and administrative reforms become propitious as they give a clear direction and guidelines to the politicians and policy-makers to push their statute writing and state restructuring agenda judiciously. Accountability and rule of law must not be undermined when it comes to ensuring good governance and fair justice delivery in time. Our experiences have shown that the symbiotic ties between the bureaucrats and politicians have helped overcome mutual mistrust and enhance the people's access to the vital state's organs and services. Keeping these propositions into account, the Administrative Court and Friedrick Ebert Stiftung, Nepal Office hosted a seminar 'Constitutional Accountability, Justice Execution and Administrative Reforms in the Context of Good Governance,' where the participants from different walks of life, including a minister, judges, heads of constitutional bodies, senior bureaucrats, professionals, experts, politicians and journalists, among others, put forth their views on the said topic candidly. The speeches of speakers and working papers of experts were really thought-provoking.

Divided into inaugural and discussion sessions, the seminar witnessed enthusiastic participation of the various personalities who have carved a niche in their professional field. The following are excerpts of the seminar:

Lal Babu Pandit, Minister for General Administration

I am ready to implement the recommendations of the Administrative Reform Commission to make the bureaucracy dynamic and efficient.

There is a need for coordination and enhancing trust among the administration, political parties, judiciary and legislature. Every problem seen in the bureaucracy can be resolved if all put the nation and the people above any other consideration. There are two wrong notions- the politicians claim the bureaucrats know nothing and in the same manner bureaucrats argue the politicians do not have knowledge on the administration. There has been tendency to not to be accountable to the people.

The leadership should have far-sighted vision. The new statute should be based on the realistic grounds. Anything can change - nothing is written in stone. The constitution written now can be amended later to address the changing dynamics of the society. Sacrifices made on whims are like shedding more bloods on the ground. Selling dreams to the people is not good. The leaders need to develop the habit of being answerable to the people, who want peace and prosperity.

Anup Raj Sharma, Chairman of Nepal Human Rights Commission

The new constitution, written by the Constituent Assembly, should be owned by all the people. The political parties should also reach consensus on adopting a process to settle the contested matters of the new statute. It is difficult to promote good governance in the absence of elected local governments. About 80 per cent of legal cases do not enter the courts and only 20 per cent of them are filed in the formal courts.

Daman Nath Dhungana, former Speaker of parliament

While writing the new statute, the ruling parties should recognize the UCPN-M's rebel status as the peace process had not been completed yet. The new statute must be framed based on the political doctrines expressed in the 12-point agreement, the Interim Constitution, the Comprehensive Peace Agreements and different accords signed with the Madhesis, Janajatis and Tharus.

There is a sense of inertia at the level of thought. The elites have captured power since the time of Rana rule. Restructuring is not only related to federalism but also to the democratization of state and all political agents. It is wrong to try to write the statute on the basis of numerical strength. There are two extremes in regard to federalism. One says that if there is federalism, the nation will split and another says if there is no federalism, the country will split. We must not ignore the sentiments of the agitating forces while writing the statute. In the same manner, those forces outside the CA must be taken into confidence while writing the statute.

Kalyan Shrestha, Supreme Court Justice

The new constitution cannot be implemented properly if there is no constitutional accountability and the culture of abiding by the rule of law. We need a master plan to enforce the rule of law and good governance. The protracted transition is getting more painful. All should follow the rule of law. No matter how severe the rule is, it must be abided by all. The SC has to collect Rs 8 billion in penalties and implement 100,000- year punishment to different offenders. The court tried to play its role to facilitate the peace process but its role had not been effective. The culture of ad hocism is high and there is not trend to take decisions by taking a risk. We have to empower people, not the parties. We need the statute to promote peace and unity.

Kashiraj Dahal, Chairman of the Administrative Court

Nepal could be a role model in conflict resolution and that the international community was keenly watching it. The cases of impunity and violation of laws are on the rise. Good governance has not been realized. Currently, the bureaucracy is facing three problems- 1. Structural problem and lack of proper infrastructure, 2. Management crisis and 3. Declining public morality. The constitutional behavior is needed to restore public morality. I urge the politicians to demonstrate collective wisdom in order to rid the nation of the painful and tedious transition. They need to be far-sighted and competent to manage the state affairs.

Dev Raj Dahal, FES Nepal Office

Nepal's politics is marked by perpetual transition. The unresolved causes of conflict propel this transition. Inability of top leaders to adapt to new concepts, new mandate of people and satisfy requirements of Nepali electorates for democratic and peace dividends resonated through the fractured political landscape. Proliferation of parties, fractious nature of party politics and client-oriented vocation of top leaders continue to emasculate their political will for decisive rational action. Unless they attain the unity of purpose and political wisdom, they will in no way be able to break the deadlock and achieve national tasks- writing the new constitution from the CA, address the conflict residues for durable peace and harness sustainable development.

Nepal is a small nation but there is inordinate number of political parties. This shows there is the monopoly of the parties. The state is not in a position to fulfill the radical demands of the all parties. Nepal does not have its own model of state since 1950. If the state fails to maintain its own values and norms, it cannot be strong. Many of the political agreements are signed to fulfill the immediate interests and the leaders have to show their mettle to choose between the genuine and fake demands. The people's mandate expressed through the election must be the parameter to settle the critical disputes. We have to follow the middle-of-the-road course as adopted by our ancestors. There is a tendency to demand and exercise power but not to be accountable to the public. There is a lack of inner party democracy in many parties. We have all catch-all parties and many of them lack clear ideological orientation.

The plurality of the parties in Nepal did not mean a problem in collective action if they elevated their goals and strategies above partisan politics; worked single-mindedly to draft the constitution and strengthen the connectors of society for a legitimate political order that deals with the issues of human needs and shifts the paradigm of polity from supremacy of top leaders to the jurisprudence of constitutionalism that seeks to balance between 'the sovereignty of people' and 'sovereignty of state.'

Paper presentation and discussions

SC Justice Sushila Karki, chief secretary Leela Mani Poudel and former minister Biddhyadhar Mallik had presented their working papers at the one-day seminar. Karki's paper entitled 'Responsiveness and Justice Execution in Context of Good Governance' offers conceptual framework to the good governance and puts emphasis on 'judicial mind' to deliver justice independently and without delay. In his paper 'Politics and Administration in the Context of Good Governance' chief secretary Poudel called for symbiotic relationship between the politicians and the bureaucrats. He insists that the bureaucrats must admit that in positions they are subordinate to the politicians, who have come to the government through the popular mandate. Meanwhile, Mallik in his paper 'New Constitution and the Management of Transition Period' analysed the negative impacts of transition on the vital organs of the state and suggests ways to address them.

The gist of Sushila Karki's paper

There are five basic elements of good governance - rule of law, responsiveness, transparency, inclusiveness, and fiscal discipline and corruption control. Karki's paper goes into details about the justice delivery and good governance. The judges have to follow following principles to give correct verdicts-

  1. Adopting the principle of natural justice/law: This involves giving a chance of hearing to the guilty. This principle has been well explained in a case filed against Bisheshwor Prasad Koirala in 2016 BS.
  2. Using judiciary mind: Justice cannot be delivered on the basis of legal interpretation of the disputed cases alone. The verdicts should be based on law, discretion and intuition.
  3. Being bold in giving verdict: Justices must be bold enough. S/he must not come under pressure or threat while issuing the verdicts.
  4. Impartiality: A justice should decide on the disputes without being bias. S/he should not give verdict in a way that benefits his/her kith and kin and hurt the defendants or opponents.
  5. Jurisdiction: Judges should give verdicts by remaining within his/her jurisdiction.
  6. Prompt justice delivery: Justice delayed is justice denied, goes an English proverb. There are deadlines for submitting replies and giving verdicts and these conditions should not be sidestepped.

The judiciary has an important role in maintaining good governance. If the victims get justice and the perpetrators the punishment in time, this will keep the social environment balance. For this, the judiciary, a custodian of good governance, needs to be strong. Whether they be- judicial or semi-judicial bodies - they should give verdicts independently by using their judicial mind. Our courts have given a good deal of correct verdicts in this regard. Based on the judicial review, the courts have issued verdicts and orders in the name of government. The judicial activism of the Supreme Court has its impacts on the promotion of human and fundamental rights and judicial governance. The people sitting in the executives and political parties have failed to understand the spirit of judiciary- independence of courts and impartiality of judges. We have been unable to achieve desired outcomes in the field of judicial governance because the government has showed its apathy towards implementing the verdicts of the courts. The government allocates the budget to the judiciary perfunctorily. It must enjoy economic autonomy. Corruption is the key problem of the country, and there should be a responsive and transparent government to ensure good governance. There is a tendency of liking and disliking the verdicts of the courts on the basis of one's personal biases, and this mindset does not help promote the independence of the judiciary and constitutional accountability.

The gist of Leela Mani Poudel, chief secretary

In the multiparty governance system, there should be balanced and symbiotic relationships between the bureaucracy and politics. But, to achieve this is very difficult. This requires mutual trust, understanding, goodwill, maturity, open communication and liberality. A question may arise: Where can we find a bureaucrat or politician having such many a virtue? If we put a robust system in place, it will take no time to transform a person of average capacity into one with above virtues. The public administration will see its better performance and effectiveness should the bureaucrats and politician endowed with such qualities have cordial relations. We need the bureaucrats, who are competent and eager to work with new political parties following the change of the government. A competent administrator should be free from political bias and flexible to work with the new leaders. The politicians should be also liberal and able to take all into confidence, listen to the views of all. S/he must be patient, far-sighted and responsive. The politicians may not have the expert knowledge but the bureaucrats should never forget that s/he has to always work under the politicians. Bureaucrats should never be an agent of change but are just the supporting figures for the politicians in the changes. Some time the bureaucrats have fallacy that they are messenger of changes because of their bookish knowledge and experiences. Thus, they must be able to rid of such false notion. In a similar manner, the politicians should stop showing arrogance of electoral victory and rise above the partisan line. If the politicians meddle in the managerial works, s/he may risk deviating from his/her vision.

In the time of political instability, the politicians want to get many works done quickly and this put him under pressure for abusing the state power. The administrators should prove their mettle and try to stop such activities in a way that would not invite conflict between them.

The politicians should develop a system; create an environment conducive for the bureaucrats by formulating acts, policies and regulations; set the goals, evaluate the administrators on the basis of outcomes of the performance, free from partisan line and pay due attention to their own vision and broader management. On the other hand, the administrators should grow their competence, be honest and strictly follow duty and discipline. They must have knowledge on technology, laws and process, better communication skills, impartiality and professionalism which can remove mistrust with the politicians. They must make resolve to run the bureaucracy based on the values, norms and neutrality. The desired outcomes can be made through the optimal use and coordination between their ability and capacity.

The gist of Mallik's paper

The people become disillusioned with the continued process of construction and deconstruction of the institutions. This also creates new conflicts and obstructs the people from getting access to the state's mechanisms. The transition hampers the physical and economic development and this provides a pretext to the people in power and the institutions to avoid accountability, putting blame on the transition for their failure. There has been a tradition for the state to show that it is always busy managing the transition. The people fail to realize the socio-economic transformation when the institutions that represent Loktantrik society do not become strong. Challenges pile up with rising despairs and disregards.

The fault lines of conflict and transition

1. Exclusion and marginalization,
2. The elites continue to capture the state,
3. Loktantra failed to be an inclusive system to ensure the people's access and facilitates and a means of meaningful dialogue among the people,
4. Multidimensional economic and social disparities,
5. The increasing grudges that people's identity has not been well reflected in the state organs and structures,
6. Lack of partnership in power and autonomy in the local bodies,
7. The political parties lack integrity, morality, internal democracy and inclusiveness, thereby distancing themselves from the people,
8. The state organs remain devoid of inclusiveness and failed to be a system of result-oriented work execution and thus gave rise to aberration and frustrations.

A stable, acceptable and inclusive statute can bring an end to conflict and violent tendencies; ensure the people's access to the state organs and solve socio-economic inequalities and exclusions at individual or community level, thereby ending the prolonged transition and fault lines of long term conflict. The promulgation of the new constitution is the first step towards finding an outlet to transition that has hit constitutional, administrative, political and socio-economic developments. Transition has also negatively affected the stability, social goodwill and peace and security.

Some suggestions

1. Building trust between the ruling and opposition parties for creating atmosphere conducive to talks and consensus.
2. Forging a compromise for consensus involving the maximum number of stakeholders in the statute writing,
3. Carving out path for a durable peace through dialogue and negotiation, guaranteeing the constitutional and pragmatic provisions for creating a non-discriminatory society,
4. Unveiling a blue print on the mechanisms related to the state and administrative restructurings and economic development,
5. Managing the people's expectations and aspirations and putting a check on the swelling expectations of the people, which are beyond the capacity of the state,
6. Creating transitional mechanisms such as the Truth and Reconciliation Commission and the Commission on the Enforced Disappearances and building environment for them to work independently so that the wounds of conflict are healed and a lasting peace is restored.

From the Floor

Bhoj Raj Pokharel said: "We are all in responsible position but we have also missed the mark. We want the kind of constitution that gives justice to all. It must be able to address all sorts of diversities and discriminations." Yuba Raj Sangraula noted that the statute could not be written largely owing to the inertia of thinking. The CA lacks the experts and undermined their role too. He asked the parties to call the experts virtually from all fields and solicit their views on the statute writing. Nava Raj Subedi said that there exists deep trust deficit among the parties. There is the need for bringing the negotiation happening in the CA outside it. He said that by sidelining the opposition, the statute cannot be framed. Kamala Panta said that the new statute should reflect the basic attributes of democracy. There are two lines of argument regarding the bases of statute writing- one is the principles of constitutionalism and another is false assurances that the rebel party gave to its people during the insurgency. "Cordial ties between the politicians and bureaucrats are essential for better service delivery." Chuda Shrestha said that the parties needed to ponder over whether or not it is feasible that the past agreements could be implemented now. Eleven lawmakers from the Karnali region represent it but their voice is not heard. Yogendra GC posed a question: Why is it difficult and costly to get justice from the courts? It is wrong to argue that judiciary should also be restructured along with the restructuring of the state. Govinda Shrestha said that until the bureaucrats changed their mindset, it will be difficult to ensure accountability towards public. There is need for bridging the gap between the people and the administration, and adopting preventive and corrective steps to root out corruption. Justice Gopal Parajuli called for changing the values of judiciary. It should also realize the impacts of social transformations. People's access to justice is a must in order to ensure independence of judiciary. Birendra Mishra said that civil servants should develop a sense of accountability to maintain good governance. Deepak Raj Joshi said that some of the decisions of the court are politically guided but its verdicts must be based on legal provisions. Sometimes the court has to abide by the constitution and sometime not. Khem Raj Regmi said that many of aberrations had stemmed from the prolonged transition. "I do not agree with the argument that UCPN-M should be given a status of rebel. The Comprehensive Peace Agreement has already announced there will not be rebel party. It took on the mantle of government twice and participated in the CA poll twice. The people should not be betrayed in the name of consensus. Many rounds of talks have been held but in vain. It is time to return to action, not fritter away precious time in the name of mustering consensus." Suresh Acharya said that the role of chief secretary in ensuring good governance needed to be defined. The government should implement the right to information act to ensure transparency in the bureaucracy. Krishna Prasad Bhandari said that legal eagles should ponder as to how the poor's access to justice should be enhanced. Madhu Raman Acharya said: "If we get a better constitution by waiting for some more months, why should we not wait for this? Leela Mani Poudel said that coordination, cooperation, cordial ties and co-existence between the bureaucrats and politicians are necessary for better service delivery. Damodar Gautam said Minister for General Administration Lal Babu Pandit is his hero. All organs of the state must be accountable to the people. The people want a balance constitution. "Let's frame the statute that balances and regulates. Such a constitution will prevent us from being the citizens of failed state."

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