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The sixth episode of the Rule of Law, Dialect Series was organized by the Centre for Rule of Law (CROL), Nepal dated September 3, 2020. The program was in the periphery of “Division of State Power; Implementation of Legislative and Administrative Power and Federal Governance”. Advocates, Constitutional experts, Members of Parliament, Speakers of various provinces were invited as the guest speakers and shared their opinion in regards to Constitution, Federalism, Law Making, Governance, and Public Participation.
Moderator facilitated the program by welcome speech. Further, informed the detail, purpose/ objectives behind organizing the program. The program focused on the division of power after implementation of federalism, the major role played by government in federalism, federal laws prepared in each level
We had a few minutes of introductory speech by Dr. Narayan Ghimire, Founder of CROL, Nepal. Dr. Ghimire introduced CROL as a forum conducting research and investigation in the field of law. A training session has been conducted targeting students of grades 11 and 12 regarding the rule of law. Consultation and draft review in the sector of access to justice and e-commerce. The intention of conducting the program was for discussion of scope, limitation of power-sharing, and circumstances faced by provinces.
The objective of the program was briefly shared by Mr. Sanjeev which are as follows;
Mr. Sanjeev further added that the program is providing a platform for an effective outcome through discussion for legislative power-sharing amongst various levels of governance and overcome foreseeable problems since a specific mandate is absent.
Dr. Surya Prasad Dhungel:
Dr. Surya Prasad Dhungel briefly shared his insights on the Nepal Federal Constitution (Legislative Division of Power) in which he quoted that the Federal Level of Government guaranteed by our Constitution is regarded as the youngest federal system in the world. Nepal has witnessed the various transformation from monarchy to the republic; unitary to the federal system and so on. Federal System consists of a unique character. The sovereignty right exists under the Constitution and three levels of government exercise sovereign power which are Central, Federal, and Local Level respectively.
Nepal faced a long insurgency period followed by over a month-long conflict. The Post-conflict led to the introduction of the Interim Constitution of Nepal, 2063. The Constitution of 2063 is a form of negotiation or compromise. The legislature, Executive, and Judiciary are three organs of the state. They have exclusive and independent power but it is balanced through check and balance mechanism to avoid arbitrariness. The constitution is passed by the legislature, implemented by the executive, and interpreted by the judiciary in the form of precedent or case law. The hierarchy of law delegated legislation, and the principle of ultra vires, judicial review, and final interpretation is important to run three levels of governance.
Dr. Dhungel further stated overlapped words, and provisions in the schedule need to be guided by legal remedy for the smooth functioning of the system and systematic distribution of the power. Example: Overlapping of power distribution between local and federal government needs to be interpreted and guided by the legal interpretation. The overlapping and vague law leads to affect the national interest.
In countries such as the USA and Canada, the state appears to be powerful since the distribution of residual power of the state is equal to the center. The center is prioritized but the state consists of similar power and functions. Any sort of vagueness in law leading to arbitrariness political party can play a role of facilitator if a political party exist as a problem resolver. But in our country, the political party acts as a problem creator rather than a problem solver.
Dr. Dhungel concluded his presentation by depicting the importance of federalism in lawmaking. Co-operation, coordination, collaboration, and the role of the political party in the federal governance system acts as a catalyst to inter-government relations and assists to resolve problems of seven provinces.
Dr. Somlal Subedi:
Dr. Subedi described federalism as a division of national power upon two or more than two levels and its practice. It requires proper human resource and institutional management. There must be a proper mechanism for power and interests. The balance can be maintained by the concept of self-rule and shared rule. Dr. Subedi mentioned our system is holding together the mechanism of federalism. Further, pointed the powerful State Governments in the USA for many years. Whereas, in our context, the Central Government has an important role to play. In regards to administrative federalism, he pointed out the importance of administrative interrelationship.
Nevertheless, he mentioned that all three tiers have powers but must be used as per the Constitution and Federal laws. He mentioned various provisions of employment in government institutions. He brought in the forefront the assumptions of the existing system in Nepal. The assumptions were all three tiers of government being very effective, proper balance in the budget, effective management of public employees, governments will be coordinating and there will be the interrelationship between them. Another assumption was that all the problems would be solved being based upon democratic values and rules put forward by the Constitution. However, everyone will jointly work for development, and coordination, since it would be based upon intergovernmental relations, which was the other assumption.
Depicting the present condition he mentioned that the system is in a transitional phase. There is a lack of balance in work, budget, and human resources. Whilst, the blanket approach is being implemented. He pointed out how the administrative expenditure is increasing but the services provided are not satisfactory. In comparison to the previous year, an increase in administrative expenditure is visible. The expenditure increased by 6.51 % since it raised from 16.48% to 22.99%. The technical human resources that should be sent to provinces are still placed at the Central level. Nevertheless, there has not been the formation of united human power development.
He mentioned that in the present situation there has not been a change in the mode of working but instead division of old form of working mechanisms is going on. Strengthening of democracy was the solution proposed. He proposed adequate legal knowledge and human resource, qualitative sectorial priority, fiscal and proper administrative federalism at all levels. Additionally, he proposed that even the high ranking authorities at local levels’ must be appointed on a merit basis.
Speakers from three different provinces comprehensively shared their perception accordingly:
Bagmati Province: Mr. Sanu Kumar Shrestha
Mr. Sanu Kumar Shrestha mentioned 59 bills have been past and amongst them, 11 has been amended. Similarly, Rules have been prepared and amended accordingly. Most of the bill has been executed. However, 50% of laws are undergoing drafting procedures. The process halted because the federal laws contradict one another which shows the possibility of being against the federal system.
In regards to people’s participation, he mentioned discussions are carried out between stakeholders. Stakeholders have been included in the law-making process by the approval of the Federal Committee. Similarly, stakeholders have been showing keen interest in participating in the law-making process which falls under their profession or ambit of interest. Example: Journalists seeking interest in media law drafting, investors' conscious in-laws related to the industrial sector, etc.
He added though there is a majority of the ruling party except for budget matters both the ruling and opposition present required amended so that proper discussions are carried out. He stated despite completion of various works execution is still lacking due to the inexistence of strong institutions. In regards to the Public Service Commission and Civil Service Commission, Mr. Shrestha explained institutions have been established but have not been able to work properly due to the absence of systematic regulation or lack of specific. He also mentioned that local levels have been given various powers but there is no proper capacity which is one of the things to be worked upon. Thus, he concluded his statements by expressing the need for comprehensive legislation and to rectify the inappropriate or controversial ones since such a loophole in legislation is likely to invite contradiction in the system shortly.
Gandaki Province: Netra Nath Adhikari
Mr. Netra Nath Adhikari stated various Bills have been passed, one is pending or under consideration, Police Act has been recently registered as provincial law. He explained Nepal’s federalism is unique and the main objective of this federalism is to maintain equality. There are altogether 761 governments but differences and indirect disputes among them do exist instead of co-operation. He further mentioned while making laws for province it is essential to examine that it is not against federal laws due to which the law-making process is still lagging. Made laws are required to be implemented in the province as a whole which includes local levels as well but this is lacking. One of the reasons may be lack of punishment.
He pointed out that budget division has not been allocated systematically due to which various questions are being raised by the people. The mistake exists in the division of powers upon 3 tiers of government and the hierarchy of governments has not been maintained. Therefore, to eliminate all these problems discussions are necessary. Similarly, the newly promulgated laws are hard to be executed. Therefore, proper discussions for law-making and execution are essential.
Far Western Province : Arjun Bahadur Thapa
Mr. Arjun Bahadur Thapa mentioned that Articles 175, 57, 60 being acted as a legal ground for making laws of the province. He mentioned 44 Bills have been prepared, 22 have been successfully passed by the Parliament and 2 are under consideration. He expressed the necessity of laws related to police, land, and employees’ in the province but due to the lack of proper promulgation of such laws from the federal level, it has remained under halt. This has invited difficulties in running administration.
Mr. Thapa pointed out that article 20, 232 have not been properly implemented and coordination between three tiers of government is not seen. He mentioned various laws have been made from the federal level but the prepared laws are unknown to the local level which reflects the absence of coordination between different levels of government. Lack of discussions is acting as a major problem that has been pointed out by Mr. Thapa. He stated various monetary benefits have been provided but transparency in the expenditure does not exist since a heavy sum of money can be seen as an expenditure for small projects.
He pointed out that regarding public participation in law-making stakeholders, experts, NGOs are kept for discussion. He mentioned in districts falling under hilly areas the representative has been sent for discussion. Regarding execution, he expressed the absence of proper Rules/ Regulation for an act due to which the situation seems problematic. Further, another problem emerges since non-governmental bills are not taken as a consideration. Local-level have been are authorized to prepare laws but preparation has not been done systematically. Constitutional Orders are prepared not as per the necessity rather it has been prepared as per the comfort of the government. He clarified his statement by providing an example of the Village Committee who had prepared the draft bill within two days. The question arises whether the bill has been prepared by the suggestion of an expert; whether it has been copied by some other existing laws; whether all procedures have been fulfilled or not; whether reference taken is applicable not might or might not have been analyzed. Therefore, these problems as such are seen in local remote areas that need to be traced and rectified.
Before the floor was open for the queries session Dr. Surya Dhungel added a few suggestions for systematic regulation of all three levels of governance. He expressed the necessity of approval mechanism. He insisted drafting comprehensive legislation does not suffice the implementation or execution of the legislation is equally important. The problem cannot be resolved until and unless Secretariat remains strong enough in our country. He further added the role of a political party can play an active role in the implementation of laws since it can act as a pressurizing group to regulate a system if the system loses its way.
After hearing Dr. Dhungel’s insights the floor was open for queries in which various questions were raised in the existing system to our guest speakers. Some questions that were presented were;
Mr. Bishnu Luitel from the audience quoted our country experienced federal system from a unitary system in which country is supposed to be developed and systematic by now but the glimpse of development has not been experienced so far. Similarly, work competition cannot be seen at the federal and local levels. Corruption can be seen from the local level; are all these problems created due to the absence of balance of power or absence of systematic legislation?
Additionally, a few more questions were entertained by the moderator. They were as follows;
How provincial governments are cooperating with local government in terms of law-making? Because our constitution gives law-making authority to the local level and the idea of law-making is technical and should fulfill different processes. The local representative might not aware of all the technical procedures. Has the provincial government provided any technical assistance except prescribing the procedure for local lawmaking?
Federal Government is having difficulties to work with the Central Government has the confusion been arising due to insufficient laws or administrative disputes?
Mr. Arjun Bahadur Thapa additionally presented a question to the Central Government. Mr. Thapa mentioned that a bill was registered concerning the Provincial Public Service Commission. As per Article 244 (3) of the Constitution of Nepal, the Central Government would make laws and decide the ground and standard for the same. The Central Government mentioned that the Provincial Public Service Commission would consist of three members including one female. He further mentioned that while recommending the names it should be on an inclusive and proportional basis. The inclusive system was right but the question arises if it could be proportional since it would be against Article 283 of the Constitution itself. Adding the term proportional made it difficult for eligible experts due to which the bill was prepared without including the term proportional but the Central Government requested to add the term proportional after which the bill was passed. Mr. Thapa gave an example of Far Western itself where 59% population is from Khas Arya community so how would the people even if they are eligible experts be recommended for the positions as the percentage is not 29. So the main question of Mr. Thapa was the addition of the term and inconsideration of Article 283 before adding such provision.
Dr. Surya Dhungel and Dr.Somlal Subedi summed up their views in total. Dr.Somlal Subedi mentioned in regards to the inclusion, he stated as per the data it does not seem that suitable arrangements have been much made. He gave examples of Belgium, Germany concerning suitable arrangements or adjustments. So, now appointing eligible people from Public Sevice Commission would give the proper and desired result. Horizontal cooperation is necessary amongst provinces, a forum needs to be made consisting of speakers of the province, and even including Chief Ministers. Difficulty can arise on later days where minority-majority conflict might occur. It must set a proper example and systematic regulation for which research and study are essential and must be promoted.
Dr. Surya Dhungel pointed out that province speakers mentioned drafting bills, promulgating law is difficult but the tough part begins from the stage of implementation. The problem is faced during the phase of interpretation as well due to ambiguity and contradiction in various provisions which is resolved by the Supreme Court. Currently, the Supreme Court acts as a last resort for interpretation of law due which it adds workload to the Supreme Court and outcome comes at a slow speed. Therefore, the capacity- building of the Supreme Court must be increased since the Supreme Court which is our last resort for explaination and interpretation is not well equipped for federalism. Further, interpretation can go to the Supreme Court from all three local, provincial, and central levels. And for that, he suggested to move forward after Secretariat from each province are equipped, a resource full and mobilized. Dr. Dhungel also suggested experts’ debate discussions to be organized by the Center for Rule of Law so that not only from formal but informal ways can also be used to enhance federalism. These kinds of programs grasp attention on discussions between provinces and other levels as per the feasibility. Both levels of formal and informal discussion must be promoted. Lastly, he pointed out that laws must be made as per expert and stakeholders’ discussion and most importantly secretariat must be made strong and equipped accordingly.
The summary of the episode and vote of thanks was delivered by Ms. Roshani Paudyal after which the program officially ended.
- Abhigya Pant, Dikshya Adhikari