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Nepal's constitution & constitutional accountability

National seminar jointly ortganised by the high-level Administration Reform Implementation and Monitoring Committee/Administrative Court and FES Nepal

25 December 2015, Kathmandu

By Ritu Raj Subedi


K C Wheare says that a constitution is a sort of manifesto, a confession of faith, a statement of ideals, and a charter of land. No doubt, it is a dynamic document of social contract that reflects general will and guides the nation towards the shared happiness and prosperity. It defines the relations among the various state organs and agencies, and obliges them to be accountable to the people. Following the 8-year long arduous efforts, Nepal has got a historic constitution. It is the 7th national charter written by the elected Constituent Assembly (CA). It has envisaged Nepal as the welfare and socialist-oriented state guaranteeing the inclusive and proportional representation of all social and marginalized ethnic groups, communities and classes. It embodies the spirit of social democracy and sets out ambitious goals to make Nepal socially, politically, culturally and economically an advanced and well-off nation. It has clearly spelt out rule of law, constitutional supremacy, independent judiciary and responsive government. Ensuring good governance, efficient public administration and effective service delivery are some of its salient features.

Even if the constitution is a dynamic document, it does not itself speak and act. In that sense, it is an inanimate dossier until a competent, visionary and ethical political leadership put its best foot forward to implement it in letter and spirit. The government, parliament and judiciary should embrace a sense of constitutionalism. They must be accountable to the people in whom sovereignty is rested. In addition to that, the political parties, which bridge between the government and people, have also crucial role to translate the constitutional provisions into practice.

Against this backdrop, the High-Level Administration Reform Implementation and Monitoring Committee, the Administrative Court and the FES Nepal Office brought the heads of executive and judiciary and representatives from major political parties together at a national seminar entitled 'Nepal's Constitution and Constitutional Accountability' to solicit their views on how accountability, transparency and good governance can be ensured in the post-statute promulgation phase. The Prime Minister, Chief Justice, ministers, judges, lawmakers, incumbent and former chief secretaries, top government officials and experts were in attendance. The one day seminar saw inaugural and technical sessions. In the first session, the PM and other top dignitaries shared their opinions while in the technical session the chief secretary and Supreme Court judge presented their working papers in which the participants commented and added their inputs to them. The excerpts of the seminar:

Prime Minister KP Sharma Oli

The new constitution has created conducive climate to usher in the nation the era of peace and prosperity. It was promulgated with a resolve to ensure good governance and prosperity. It moves one, come hell or high water. The nation adopted new federal system to enhance the people's access to services, facilities and development opportunities. I am open to the demarcation of the new provinces. There will be no room for prejudices and adamancy when a study team presents objective and fact-based report for its redrawing. The new statute, which was issued by fulfilling all due procedures in the CA, has special provisions to mainstream the marginalized communities. We have framed the new national charter by taking cognizance of geographical, ethnic, economic and social diversities. It seeks to strengthen national unity. It is a big feat. It has not curtailed the rights of any one. Like the statutes of yesteryears, no one is allowed to desecrate it. Let's experiment it. We can amend it if it hits a roadblock. The people would have been sunk into the abyss of despair if the statute had not been promulgated. We have averted this danger. The nation had entered a new stage of economic progress and development. No one should violate the people's rights to survive, move freely and go schools and hospitals on the pretext of agitation and disagreement. Although I had thought to form a small and efficient cabinet, and work for the welfare of people at a fair lick, the situation was not favourable for it. I promise to curb the smuggling and black-marketing that are thriving in the garb of agitation and blockade.

Kalyan Shrestha, Chief Justice

The political leaders should jump through hoops to disseminate correct information to the people about the new statute to justify its relevance, and ensure the ownership of the people. No constitution is perfect in the world; it attains perfection only through continued amendments. It is just like a new-born baby that requires proper rearing and nourishing to be healthy and strong. There is no dearth of constitution in Nepal. The new statute is 7th one and has incorporated the people's aspirations and ambitions. It has spelt out 13 rights. To write about 31 rights, it does not need many drops of ink but it demands at least one billion rupees to implement one right. The people are impatient to feel the heat of the statute that has given Nepal a distinct identity. We need real guts to apply them. It has envisions restructuring the court in line with the federal set-up. There are technical problems as thousands of cases are pending. The statute has pledged setting up High Court within a year, replacing the Appellate Court. Besides, hundreds of laws should be devised to implement the constitutional provisions. The task of parliament is to enact laws but its performance is not up to the scratch. It should frame supporting Acts in order to implement the new statute and revamps the judiciary. The statute has provisioned the Constitutional Bench but we lack space and we running the bench from a tent set up in the premises of the Supreme Court. The Court's building suffered cracks in the quake. The state is not committed to the rule of law. There is tendency to flout the rule of game and sometime the players change it when it does not suit their interests. Let's follow rule of law. It is not the state of talkers. It is the state of dignified people. The bureaucracy should show confidence and not drag its feet when it requires taking even unpopular decisions.

Rekha Sharma, Minister for General Administration

Despite some limitations, the new statute is the best one in the South Asia. We succeeded to achieve it only after the political leadership demonstrated their unity, stance, will and self-confidence. It is quite challenging to implement the statute. The administration and judiciary have their vital role to carry out the main law of land. We need to implement it to change our old mindset and solve the people's livelihood problem. The government is grappling with the situation triggered by the blockade. There are public complaints that the bureaucracy failed to transform itself with the change in the system. It is an effective instrument to translate the commitment of parties and government into action.

Sushila Karki, Supreme Court senior Justice

The new statute was promulgated based on the nation's need and specific condition. Despite some linguistic errors, it reflects the aspirations of all Nepalese. It is not uncommon when the promulgation of statute is followed by protest. Even the US statute was remonstrated in the streets. The political leadership should prove their mettle to address the demands of the protesting groups. It is amended as per the need of time. The political commitment is necessary to implement the new statute. The parties should be concerned about the national interests. The judiciary is committed to implementing the national charter despite human resources and budget crunch. Let's do not turn the nation into a talks shop. Let's act to ensure good governance and national prosperity.

Kashi Raj Dahal, Chairman of Administrative Court

There are basically five models for statute writing in the world. The first is the US/South African model in which statute was framed through the constitutional assembly. Second is based on the concept of welfare state as adopted by Germany, France and Sweden. The third model is guided by the Marxist-Leninist ideology. The statutes of China, North Korea and Cuba fall into this category. Under the fourth model comes the statute adopted by those nations that became independent from the yoke of colonial rule. The right to self determination was their theoretical thrust. The fourth model is the one in which the nations had followed their tradition. Under this come the constitutions of the UK, Israel and Iran. Promulgated by the elected Constituent Assembly, Nepal's new constitution was based on the ideals of welfare state. It has envisaged a string of new fundamental rights, durable peace and prosperity. In order to make it dynamic and workable, it requires fulfilling other political, administrative, social and economic prerequisites. The first and foremost requirement is that the state should be politically functional. Collective decision/wisdom and strong political commitment are necessary to implement the new statute that has the elements of ample flexibility. Except for the national self-dependence and sovereignty, everything can be amended in line with the people's mandate. The people want security, order, justice and prompt service delivery. The state requires cohesive power, capital and charisma to meet them. The nation should develop needed economic structure to fulfill 31 rights enshrined in the statute and address the challenges posed by the April earthquake. The state has to build its capacity. Its organs need to be restructured. The state-people bond should be strong and vibrant.

The gist of working paper of Chief Secretary Dr Som Lal Subedi

Dr Subedi's paper is entitled 'New constitution: the structure of public administration and civil administration in context of good governance and service delivery'.

The following are elements of good governance:

a. Rule of law b. Participation c. Transparency d. Decentralization e. Accountability f. Predictability g. Responsiveness/proactiveness

Constitutional provisions in regard to the public administration

The new statute has embraced autonomy and self-rule with a resolution to build an equitable society based on the proportional, inclusive and participatory principles aimed at ensuring economic equality, prosperity and social justice. It has envisaged a three-tier state structure - federation, province and local unit. In accordance with the federal law, special, protected and autonomous regions can be established.

Existing structure

There are 27 ministries, five development regions, 14 zones, 75 districts, 217 municipalities, 3157 village development committees and 8,000 government agencies 8,000. Of total 500,000 employees on the payroll, 80,000 are civil servants and 30,000 are working at local bodies. There are five constitutional bodies and three-tier court.

The condition of service delivery

There are enough laws, policies and working methods, and network of service providers. The people's consciousness has increased to new level but problems lie in the real delivery as there is deficit in design. There is no satisfaction in the service delivery under the centralized system. We have been unable to provide service in the frontline as required and monitoring is not sufficient. It requires improving the government, mixed and private sector.

Some major challenges include political commitment, leadership and outcome; demarcation, local polls, service delivery and improvement, social harmony, goodwill and tolerance; transitional management; administrative capacity and commitment; building organization, operation and outcome and management, integration and operation of provinces.

Future direction

1. Political- The leadership needs to show will, consensus, commitment and fairness. There should be clear roadmap to implement the constitution. Promoting political culture, ensuring representation and overcoming democratic deficit are necessary. Plus local elections should be held.

2. Technical- There should be expenditure and revenue assignment, and territorial arrangement.

3. Administrative- Creating action-oriented organization and their operation accordingly. To build working culture, ensure accountability, administrative competence and commitment. To rationalize political and administrative costs, and pursue balanced and sustainable development followed by resource blending. To localize capacity and resources.

4. Service delivery- Focusing on public service at large by putting people first. Paying attention to the municipal management, accountability, fiscal balance, decentralization and people's participation, quality service, consistency and accessibility, people's satisfaction and cooperation.

Initiative of reforms- The management of employees, and formulation and update of laws have started. Likewise, 2-year immediate reform programme is underway.

Accountable and responsive politics; capable, accountable and active civil servants; harmonious, equitable and coordinative society and responsible civil society are a must. For the desired results, citizen should be empowered through a right-based approach.

The gist of working paper of SC Justice Baidhyanath Upadhyaya

His paper is entitled 'Accountability and challenges of judiciary in the context of good governance."

In the history of Nepal, there are examples wherein the rulers had maintained 'good governance' without referring to it. For instance, there is a famous saying 'Go Gorkha if justice is denied,' which suggests that the reign of Ram Shah was characterized by rule of law and fairness. The concept of good governance was frequently used after 1990, especially by the World Bank. The condition of poor and developing nations saw no sign of significant improvement despite the surfeit of economic assistance. Corruption and lack of transparency and rule of law were attributed to the lackluster economic performance. The notion of good governance came to remove these deficiencies. It is a process of the use of power to manage political and social resources. It consists of four pillars- accountability, transparency, participation and predictability- which enhance the efficiency and impact of government. However, good governance also requires other elements, mechanisms and infrastructures such as independent and competent judiciary, legal provision to punish those involved in the abuse of state authority and fair and independent election of parliament.

In its preamble, Nepal's new statute has spelt out ensuring good governance that demands human rights, freedom and rule of law in place. In democracy, the people are sovereign. They exercise their sovereignty as per the constitution and prevalent laws and the regulations. The statute has recognized the independence of judiciary so that it will play a role of custodian to protect the life and property of the people. Nonetheless, this should not be seen as the right of court but its responsibility. Corruption, anomalies and deviation have posed as the big stumbling block to good governance. There is exaggeration that these discrepancies are rife in the court. But, they exist in the judiciary in lesser degree. One cannot deny opaque activities taking place in a lengthy process that starts from the filing of lawsuit to its final verdict. The Supreme Court is working with inadequate human resources. It should have 21 judges, including the Chief Justice but it has now only 10 judges, which has hampered in settling the cases that have piled up over the years. Likewise, the Judicial Council that appoints the judges is short of two members. The constitution is the roadmap of the nation. In order to consolidate constitutional democracy, the state must ensure supremacy of statute, rule of law, independent judiciary and protection of citizens' rights.

Comments by Leela Mani Poudel

The first challenge is to maintain law and order. Strong legislation is necessary to control anarchy. There should be a mechanism for the resolution to conflict arising from the implementation of the statute. The appointment of cronies of political parties has posed a challenge to the distribution of wealth and service delivery. There is problem in the allocation of civil servants. A stringent law should be devised to punish the employees, who refuse to go to the place of their posting. Saruwa (transfer) is not rights of employees. There should be also law against those, who file lawsuit seeking the annulment of transfer. Law pertaining to the accountability of all ranging from ministers to secretary to junior staff must be in place. Foreign consultants must not be hired while enacting the Acts. There are competent experts in the country. The bureaucracy should have guts for risk-taking. The decision to split the ministries has given a message that the government is weak.

Comments from the floor

Former secretary Achyut Rajbhandari - An accountability law should be devised to clarify the function and responsibility of oversight agencies and the people's participation for the good governance. Focus should be also given to the supply side, not only the demand side. Civil society needs to be empowered.

Public Service Commission chair Umesh Mainali- Good governance is an ancient concept. The Harare Conference has focused on the democratization of government that means less government and more governance. There should be collaboration between the bureaucracy, citizens and private sector. Federal government is a new concept and different laws should be formulated to balance the centre and local government. The government should rule by serving the people, not by undermining them.

Lawmaker Surendra Chaudhary- Nepal suffers from bankruptcy of leadership, character and ideology. There was never serious discussion where the deficit of democracy lies. Politicians are always concerned about reinforcing their domination. As many politicians are unemployed, Nepal lacks democracy. Party-cracy and group-based politics rules the roost. Democracy is headed for tribalisation, not modernization.

FES, Nepal head Dev Raj Dahal - Sovereignty resides only with the people and nation. Except these elements, all organs need legitimacy. All forces necessary for the state should be revitalized. The state's sovereignty has been weakened with the sweep of globalization since 1990, and now the vital state organs should be active to broaden state legitimacy and enhance its delivery capacity. The world view regarding the state is that it should have monopoly on the use of violence but our eastern philosophy stresses on the peaceful means to attain the state's goals. There is the need for law-based solidarity in order to buttress the state and its economy. The state also possesses extractive or coercive power. Since the political parties represent 'part,' they are not themselves free of problems. Private sphere is getting strong but the public sector is becoming weak. It has become necessary to decide whether our civil society is organic or transplanted one. Is it transforming the people into citizens or tribesmen?

Former chief secretary Damodar Gautam - The administration is becoming weak. The statute is itself not perfect but it has given opportunity to work. Let's go on working.

Daman Nath Dhungana- I have a hunch that the nation is heading for a failed state. If the nation becomes too centralized or extractive, it is bound to fail. We could not hear the voice of disgruntled groups here. It is necessary to take the disgruntled parties into confidence to save the political gains. Whether we are becoming status quoist or transformists?

Pushpa Shakya- In order to ensure good governance, there should be good political governance. This means the political parties follow clear legal and constitutional framework in their structures. Leaving the task of naming new provinces to the future provincial assembly is tantamount to putting the vexing issue on the backburner. How can the would-be provincial assemblies name their provinces if they become hung parliament? The federal dispute is likely to rage again when the new provincial capitals are declared. The trade union leaders should not be allowed to be affiliated with the political parties.

Tika Ram Bhattarai- The impeachment bid against the SC Justice will undermine the independence of judiciary. To address the challenge of transition phase, the government should bring a Transitional Act through a shortcut method.

Lalbabu Pandit- All should honestly work from his/her side. We should move ahead by determinedly dealing with the anomalies besetting the country. Nothing is perfect. Let's learn and implement the good things by trial and error. The problems will not be resolved by passing the buck. Nepal will move on. This is a nation bequeathed to us by our great ancestors. We no longer need to hire the foreign consultants. We have a pool of competent people.

Conclusion

  1. The promulgation of the new constitution does not alone ensure good governance and rule of law. Its effective implementation requires a committed, responsive and accountable political leadership. For the state to be strong, all citizens should take up ownership of the statute.
  2. Laws and mechanisms, envisioned by the constitution, should be built immediately to implement it. The parliament and the government have to play their effective role to this end.
  3. The constitution has in principle embraced independent judiciary. To translate it into practice, the state must have laws, human resources, environment and physical infrastructure accordingly.
  4. To earn the people's trust, the state has to deliver the goods to the people effectively. It requires a competent, active and accountable public administration.
  5. An effective monitoring system and responsive civil society are necessary to make the state organs and agencies oblige to accountability and rule of law.
  6. The political parties have to forge a minimum consensus to build structures and laws to implement federalism.
  7. Civic education, active state and conscious society are necessary to check slide in the public morality. Building the capacity of state is a must to realize the grand goals envisioned by the main law of land.
 
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