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
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
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
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.
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
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.
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
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.
- 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.
- 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.
- 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.
- 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.
- An effective monitoring system and responsive civil society
are necessary to make the state organs and agencies oblige
to accountability and rule of law.
- The political parties have to forge a minimum consensus
to build structures and laws to implement federalism.
- 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.