Dialogue on Good Governance & Justice

Organised by Administrative Court of Nepal (ACN)

17 December 2010, Lalitpur

Ritu Raj Subedi
Associate Editor
The Rising Nepal

Maintaining good governance and delivering justice during transition is challenging task because the state mechanisms are weak and morale of law enforcing agency has plummeted alarmingly. Since the nation's politics has not yet taken a clear shape, it is difficult for bureaucracy to meet the soaring expectorations of the people. It is only through clean and committed bureaucracy and judiciary that good governance and justice could be delivered. Against this background, the Office of Prime Minister and Administrative Court jointly organised a seminar on 'Good Governance and Justice' in Lalitpur on December 17, 2010 with the participation of top government officials, media people, civil society members and professionals from different domains of life. It was eighth round of dialogue Administrative Court of Nepal has organised in collaboration with FES-Nepal.

Divided into two sessions, the speakers and participants candidly commented on the bureaucracy, judiciary and politics, and sought their harmonious relations to deliver justice in the post-conflict society. The function remained useful and interesting as the top government officials came forth to criticize the politicians and donors for the unmet goals of good governance and bureaucratic reforms, which the country has been pursuing for long time.

In his inaugural speech, Chief Justice Ram Prasad Shrestha said that the performance of judiciary should be prompt, clean, impartial, transparent and effective in order to keep up its esteem and earn public trust.

"Judges should be equally honest and competent to maintain good governance. If we fail to change our working style and mindset, no any system can yield desired outcome," he said. Shrestha calls for building ethical culture to prevent and reduce corruption.

He also expressed his dissatisfaction over the indifference of the government to implement the court's directives relating to the matter of public interests

Administrative Court chairman Kashi Raj Dahal said that the administration had challenge to maintain good governance and deliver justice despite being under pressure and political influence.

Dahal said that the interaction aimed at sharing the views of experts on good governance and justice during transition.

First Session

Supreme Court Justice Khila Raj Regmi chaired the first session.

Another SC Justice Kalyan Shrestha, presenting his working paper, shed light on connection between justice and development, called for investment in judiciary to make it effective and transparent. "Economic development strengthens judiciary but the state has invested only 0.5 per cent of its GDP in the judiciary."

Quoting the findings of World Bank, he said that when the capacity of law-enforcing agencies was enhanced, the GDP grew by 4.5 per cent.

He noted that the dialogue between law and development was very weak. "Therefore, dialogue between them needs to be robust to promote rule of law and good governance."

Stating that there was tendency to bring change by enacting law, he noted that good governance could not be maintained just by enacting beautiful laws. There is the need of building the capacity of law-enforcing agencies," he added.

"Democracy means empowering the people. It is not enough to grant people with many rights. They must have capacity to exercise their rights," he added.

The very tendency with the political parties is that they become vocal for the implementation of court decisions while in opposition but they ignored the judiciary as they return to power, he added

Shrestha suggested for adopting partnership concept during transition to ensure rule of diversity.

Calling for review of judiciary, he pointed out the need to abolish unconstitutional laws and bring uniformity in legal system.

"Law is a service document. The people in the helm of judiciary must bear social responsibility. Their decision-making capacity should not be influenced from outside," he added.

Discussion Session

Journalist Bimal Gautam asked that why the judiciary mulling 'force' to implement verdicts of the courts.

"Is the judiciary not independent? Is there political interference?" he questioned.

Finance secretary Krishna Hari Baskota said the court often issued rulings against the government, sending negative message about it to the people.

"Has the government not played effective role? Is there not positive works of the government? Why is there tendency to present the government in negative light?" Baskota volleyed many questions.

Stating that there was the need of setting parameters as to what make the people happy and satisfied but it was not wise to often spread pessimistic feelings.

He claimed some positive developments had also taken place in economic sector. For example, the Finance Ministry raised revenue almost more than target.

Former chief secretary Bimal Koirala said that corruption rose, as there was not dialogue between the state and the people.

"The people have little faith in the government. They do not feel that the government belongs to them. There is missing a 'glue' to connect between the people and the government. The bureaucracy is not accountable to the people. No one can work for the public within the 'unaccountable framework' of the governance system," blasted the former bureaucrat.

One journalist raised the question about the appointment of politically aligned person in the post of the temporary justice of the Supreme Court.

Another participant said that the courts should consider their capacity to implement their decisions. "The courts must give due attention to their managing resources and building capacity to enforce their verdicts," he added.

Secretary Tana Gautam said the bureaucracy needed to demonstrate will power to work for the broader interest of the people and the nation.

Advisor to Constituent Assembly Tek Prasad Dhungana said that the SC unnecessarily made the Parliament Secretariat as defendant while issuing a show cause to the writ relating to lawmakers and CA.

In his reply, Shrestha said that the court needed resources and said that political elements were involved in the judicial review. "Politics and judiciary often come in conflict so there is the need of interaction and compromise between them."

In responding to the concern of Baskota, he admitted that negative mindset remained high. He said that the SC sometimes became handicapped in issuing the verdicts because there were not needed regulations and laws.

"For example, the interim statute has mentioned right to employment but the related laws have not yet been enacted," he added.

Chief Justice Shrestha acknowledged that it was wrong on the part of SC to oversize the defendants while issuing a show cause in a response to the writs of public concerns.

He noted that the SC was also the organ of the government and, therefore, both should move shoulder to shoulder.

In his concluding remarks, Regmi said that independent judiciary had important role to ensure just rule and good governance.

"However, the judiciary is facing the crunch of human resources in executing justice effectively," he said and pointed out the need to locate the problems seen in the implementation of the directive orders of the courts.

Regmi stressed that the government agencies must be accountable to the public and win the trust of the people. The government should be serious enough to implement the court decisions.

Second Session

Former secretary Damodar Gautam chaired the second session wherein former member of Public Service Commission and administration expert Dr. Bhim Dev Bhatta and Secretary at the Office of Prime Minister Lila Mani Poudel presented their working papers.

As a key speaker, Chief Secretary Madhav Ghimire said that transparency, regulation and accountability were prerequisite to good governance and justice.

Ghimire said that the government should develop performance-based system in the bureaucracy.

"There has been tendency of making tall promises by the politicians but they can be hardly fulfilled. This trend must be over."

Stating that the history has now entrusted bigger responsibility to the Nepalese bureaucracy, Ghimire asked his colleagues to win the public's faith and exercise their rights within the bound of laws.

In his paper 'The Role of Nepal's Administration in the Context of Good Governance: Challenges and Reforms,' Dr. Bhatta said that the idea of good governance imported to Asian and African nations where poverty, corruption, scarcity of food, internal strife and instability were pervasive.

Quoting 'Re-inventing Government' by David Osborne and Ted Gaebler, he said, "Since the government alone can't provide all services to the people, the idea of public-private partnership should be initiated for the purpose. There should be neither less governance nor more governance but the good governance."

Dr. Bhatta draws 11 elements of good governance - political stability, people's friendly bureaucracy, independent judiciary, people's participation, transparency, sustainable development, decentralization, rule of law, meeting of basic needs, adoption of new technology, predictability and fair play.

According to him, the Nepalese administration has at least five challenges to cope with. They are unmanaged settlement, rising corruption, political interference, announcement of federalism and globalization. In order to reform the administration, it must be free from political interference, he said and added that the government should identify the competent, honest and capable employees and create the group of experts to appoint them.

He suggested for suspending trade unions during transition; increasing the size of gazetted officers, abrogating the provision of automatic promotion in civil service, checking the growing brain drain, attracting new talents in administration, making evaluation system scientific and bureaucracy accountable to the service recipients.

"Public administration is a great establishing force in society. This organ of state continues to operates even if other constituents remain slow," he noted.

Lilamani Poudel's 'A Synopsis of Efforts for Good Governance,' makes critical assessment of the activities aimed at obtaining good governance in the country.

Poudel argued that political element had been left out in the past programmes aimed at maintaining good governance.

"Until and unless the economic activities of political parties in power are transparent and their elections remain expensive; until the hypocrisy and extravaganza of property amassed through hidden sources continue to receive social recognition, no any attempt of good governance becomes effective and long-lasting," he said.

He claimed that the current agenda of good governance was based on the donor-guided strategy that only supports the neo-liberalism.

"The key challenge at the moment is to implement the idea of good governance as per the social, political and economic contexts of the nation by utilizing the indigenous knowledge and skill. It should not be applied under the pressure of donors, who impose many conditions in the garb of good governance," said Poudel.

He pointed out the need of collaboration among the government, civil society and private sector to root out corruption.

"However, during the transition anarchy and impunity have increased at alarming scale. The confidence of law-enforcing agencies has dropped but moral of criminals has gone up," he said.

The senior bureaucrat claimed that there was nexus among the businesspersons, politicians, and criminals.

"Ending the state of impunity, corruption in judiciary and police, and ensuring rule of law, transparency and accountability in the selection, construction, accountancy and quality of projects can be beginning points to maintain good governance," he noted.

Discussion Session

The participants enthusiastically engaged in the discussion session. Many of them said that politics was the focal point and the politicians needed to be clean and accountable to the people. There was unanimous voice that political parties and politicians should be pressed to create a corruption free society. They put emphasis that the administration, security agencies and judiciary should get rid of all sorts of anomalies.

One lawyer asked politicians to maintain accountability. Political scientist Lal Babu Yadav said that existing political and legal system was biased against the poor.

"A rich person is freed from police custody on bail but a poor man must serve the prison for being unable to pay the bail amount," Yadav said.

Yadav drew the attention of the experts to the need of carving out the appropriate modality of the federalism.

"Our agenda of good governance should not be guided by the donors' interests. The government should also make its clear commitment to it," he said and added that the tendency of passing the buck each other within among the civil service agencies must be brought to an end.

Another participant questioned as to why the bureaucracy was reluctant to implement the right to information, which he said, was vital, to ensure transparency and accountability.

Finance secretary Baskota challenged Dr. Bhatta's opinion that the politicians had interfered with the administration.

"We, bureaucrats, have been unable to exercise our rights granted by the laws. We often ask the ministers to use them. In many cases, it is wrong to blame the ministers who rarely hamper the day to day activities of administration," said Baskota.

He went on to claim that while making the budget of fiscal year, no minister imposed his or her views and demands.

"I worked with many finance ministers including Dr. Ram Sharan Mahat, Dr. Babu Ram Bhattarai and Surendra Pandey but they never interfered with me in course of budget preparation and formulation," he said.

He proposed formulating code of conduct and a core group of senior employees comprising secretary, CDO, LDO, DFO and DEO, which should be assigned to implement the code of conduct and take action on the employees involved in corruption in the district.

In his response, Dr. Bhatta said that Nepal should adopt federalism that suits it. Decentralization should be the mantra of federalism, he added.

He said that transparency should be maintained within the legal parameters. "When it comes to security of the country, its sanative information should not be made public."

Dr. Bhatta suggested granting special rights to chief secretary to do away with the aberrations in the administration.

Meanwhile, Lila Mani Poudel said that bureaucracy must not shy away from implementing the regulations relating to the Right to Information although the task is quite tough.

"We, bureaucrats, fail to execute many works that we could do," he added.

In his concluding remarks, Damodar Gautam said that good governance and justice were the two facets of the same coin.

"Judiciary and administration have mutual responsibility. Both should realize that they are organs of the same state."

Recalling his meeting with late US diplomat Richard Holbrook in an international seminar some years ago, he said, "Holbrook whispered in my ear that Nepal is soon going to be a failed state. This shocked me. But, as I returned to Nepal, I did not see such a situation. I hold a conviction that a country can be a failed state only if its central bank prints two types of currency - real and fake or if the state recruits phony police to make income or when the administration and courts stop discharging their responsibility."

Gautam also blasted the leaders of trade unions, who take the salary and perk of the government but spend their times in party politics.

He is of the views that the state can never be weak by giving rights to the citizens.

"The current situation emerged because the rulers in the past denied the rights to the people," he noted.

The writer can be reached at riturajsubedi@yahoo.com