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Sunday’s Supreme Court order directing the government to bring top decision-makers under the purview of investigation in connection with the Lalita Niwas land-grab is well within the broader constitutional framework.

Yes, the court order came in response to a habeas corpus petition from one of the individuals arrested in connection with the scam. In response to habeas corpus writs, the courts of law in democracies like the United Kingdom examine whether the arrests are in accordance with the law.

If the arrests are in contravention of the law, the courts order the release of the arrestees. It’s true that the petitioner had not demanded that the highest government officials involved in the decision-making process vis-a-vis the land-grab be brought under investigation.

But claims from certain quarters that the apex court, the final interpreter of the Constitution, has overstepped its jurisdiction are far-fetched. The court order is well within constitutional bounds. 

The author is a Constitutional Lawyer

The University of Nepal Infrastructure Development Board, established by the Government of Nepal, is working toward establishing the University of Nepal (UoN) in Gaidakot and nearby municipalities. A government bill to this effect is under discussion in the Committee on Legislative Affairs at the National Assembly, the upper house of the parliament. The aim is to pass a model legislation that will establish a world-class university in Nepal that will stand out from more than a dozen other universities that the government has established over the past 65 years. This is the first time that a new university is being established in Nepal through almost five years of efforts using a consultative and collaborative approach involving a diverse array of stakeholders, including existing academics, non-resident Nepali experts abroad, international professors, Nepali educationists, and the wider civil community. The aim is to ensure that the UoN is developed in a way that reflects the unique needs and priorities of the higher education sector in Nepal in the context of a globalized world. The model being followed is that of a public university, which does not necessarily have to be a governmental institution in terms of its structure and approach. The Board is also prioritizing the development of the UoN as a world-class institution that adheres to the highest standards of quality, research, and innovation. To achieve this goal, they are adopting a liberal arts and sciences approach, emphasizing the development of international faculty, research infrastructure, and innovative teaching methods, among other measures. Furthermore, the establishment of the UoN must comply with a regulatory framework that promotes quality and accountability. The proposed legislation being discussed in the parliament aims to establish clear standards and guidelines for the functioning of the new institution. Nevertheless, this is a challenging task. Many countries around the world have made significant progress in the education sector, but Nepal's universities have struggled to compete. Lack of focus and professionalism is evident across the board. Insufficient public funding is a common issue in Nepal's education sector, which limits resources for research, quality faculty, and infrastructure upgrades. There is also a shortage of qualified and experienced faculty members. Furthermore, these universities have been using outdated curriculum not aligned with industry trends or the needs of the job market. Political instability and unrest in Nepal are some of the reasons why universities are not performing as desired. This instability has negatively impacted funding, enrollment rates, and the overall academic environment. Additionally, poor governance has led to corruption, mismanagement, and nepotism within universities. The lack of research opportunities and funding for research have also contributed to their poor performance. While there are many dedicated and passionate faculty members, Nepali universities have been slow in implementing improvements to the academic environment due to these realities. These common trends are the result of some of the most overlooked issues in higher education in Nepal. With the exception of Kathmandu University, none of the universities in Nepal are functionally autonomous, and instead have political appointees serving as vice-chancellors. Many of these appointees lack renowned academic leadership skills, a visionary outlook, or competitiveness. They also lack fundraising capabilities, which is essential for the growth and development of universities. Furthermore, there is little room for international recruitment, as rectors, registrars, and deans are appointed within the system. The management created by these political appointees is often acceptable to the political elites of the country, primarily the ruling party or coalition, but falls short of meeting the requirements of a thriving academic institution and an aspiring body of modern students. The system that has been created is built on trade unionism and political connections, lacking legal, political, and functional autonomy. Diversity and inclusion in faculty and students have been neglected in institutional management in Nepal. Competitive appointment systems have not been implemented. These universities have remained isolated within the national system, existing mainly due to limited government funding. Reforming these institutional arrangements is a daunting task, as vested interests have developed around them over decades. Establishing a new model university that addresses these challenges is imperative for the country's progress. The main objective of an education system should be to meet the requirements and aspirations of the wider community and contribute to the growth of the country as a whole. If an education system does not prioritize the well-being and progress of the broader national community, it is not fulfilling its purpose effectively and should not be given priority for investment or support. This emphasizes the significance of considering the broader social context and impact of education while formulating policies and allocating resources, rather than only concentrating on narrow measures of academic success or individual achievement. Despite being a developing country, Nepal is located in a geographically advantageous position to excel in higher education internationally. The country has the potential to become a hub for industries that focus on creating, disseminating, and applying knowledge. By creating a favorable environment for education, research and development, software development, media and publishing, consulting, and other knowledge-intensive services, Nepal can foster and make the most of intellectual capital, which includes the knowledge, skills, and expertise of workers, as well as technology and innovation. This industry is often associated with high-skill, high-wage jobs, and is regarded as a crucial driver of economic growth and development. In order to achieve this, it is crucial to establish a liberal environment and links with other high-yielding international academic centers. The political leaders of Nepal must recognize that in the knowledge industry, knowledge is a critical resource that can be utilized to create new products, services, and processes, and improve existing ones. Companies and organizations in this sector invest heavily in research and development, and work continuously to enhance their knowledge and skills. The education industry is a crucial part of the global economy and is likely to grow in importance as technological advancements and globalization continue to reshape the world of work. However, systemic challenges and limited resources can make it difficult for Nepali universities to realize their full potential. The development of a successful model university can be a crucial step toward reforming the higher education sector in Nepal. By learning from the experiences of this university, the government can formulate clear and effective policies and processes for reforming the existing universities. Moreover, the government can use the model as a platform to collaborate with international institutions and experts, and bring in best practices from around the world. Overall, the development of a successful model university can be a catalyst for broader reforms in the higher education sector in Nepal, and can help to ensure that universities are better equipped to serve the needs and interests of the wider national community. The author is associated with Kathmandu University in Dhulikhel

Nepal as a self-confident, educated, skilled and prosperous democracy

Three ways to realize the vision:

1)  Massive investment in agriculture
2)  Strengthening and diversification of tourism
3)  Quality education up to graduation

I want to see Nepal as a self-confident, educated, skilled and prosperous democracy that guarantees diversity, social justice, and inclusion. My vision is thus simple, comfortably achievable, and grassroots oriented. This vision will enable common Nepalis to associate with the state, participate in governance, realize their potential and contribute and benefit from nation-building.

No country is made without sincere efforts, the efforts of all its citizens. We have been talking about big things to develop Nepal: heavy infrastructures, hydropower, railways, highways, airplanes, big industries and so on. They are important for us no doubt. But they demand huge investment, strong discipline, implementation capacity and capable manpower, which we have not had despite decades of effort. Even if we make some progress in these areas, and we should continue working on them, our people will remain uneducated, deprived, marginalized and poor.

Our fundamental problems are related to food and nutrition, basic health, education, employment and sustainable lifestyle. Capital-intensive investments will not improve our quality of life unless our basic survival issues are first solved. Our basic problems are poverty, backwardness, maladministration and discrimination at all levels. We must sort out these basic issues first to build a self-confident, educated, skilled and prosperous democracy that guarantees the right to life, diversity, social justice, and inclusion. This is what generates love towards the country and its public institutions, and speeds up nation building. Once we accept this, the next issue is how to do it.   

There are many ways, but nothing is new. If I am to narrow down the ways to realize my vision, I would emphasize three areas which we must focus on: massive investment in agriculture, strengthening and diversification of tourism, and quality education up to graduation. We have been an agricultural country, where a significant majority relies on subsistence agriculture for their livelihood, yet it has never received revolutionary emphasis. If there is a sector in the country which can immediately create jobs for most of the unemployed rural people, which can cut economic migration to cities and abroad, build the confidence of local people to emerge from poverty-trap with their own capacity, skills and yields, it is agriculture.

A self-reliant, sustainable, competitive, and inclusive agricultural sector can speed up economic growth and contribute to improved livelihoods, food and nutrition, and social security. Agriculture is inclusive of livestock development, agro-industries, forest management, national parks, soil conservation, rural energy, environment protection, and traditional way of life and cultures. We already have basic skills, traditional knowledge, sustainability options and family and social security. The challenge is to maximize their potential, develop linkages, provide technology, and agro-finance. Yet this sector has never been the number one priority of our policymakers.  

Nepal is a unique tourist destination because of its beautiful hills and mountains, ethnic groups and other natural wonders. Tourism needs to be promoted keeping in view our capacity to realize its potential and use it in developing the agriculture sector. The country is already making progress in all components of tourism including tourist boards, travel services, accommodation, homestays, conferences and events, attractions and other tourism services. Wise promotion of agro-products and services that are used by tourists at different stages of travel and tourism will give further impetus to tourism. There is no limit to the growth of tourism as a vibrant, dynamic and growth oriented industry. The broad value chain of tourism including services like booking and reservation, transport, accommodation, hospitality, food and beverage, tourism products and destinations and related products and services can involve the whole country including farmers and peasants. Agriculture and tourism are intertwined, and help each other. This combination will empower every district and community in Nepal.

Apart from agriculture and tourism, the third important sector is education. This encompasses elementary school, middle school, high school and then college and university. For this we need full commitment on public funding, school facilities, staffing, compensation, employee benefits, and teaching resources. Access to quality education from liberal arts to science and technology is a major issue here. If we know the key to our success is agriculture and tourism, there should be no confusion about where the priority of our education sector should be.

There has never been enough investment in Nepal focusing on developing a balanced set of capabilities to make citizens economically productive, develop sustainable livelihoods, and meet the needs of the emerging nation. More than that, given our locational advantages, climatic conditions, beauty, security situation and tourism potential, Nepal can also offer itself as an international center for knowledge industries like universities, think tanks, research facilities, and allow intensive use of technology and human capital. Many sectors like education, consulting, science, finance, insurance, information technology, health service, and communications will then boom. We should allow foreign institutions and academic leaders to work in Nepal with all luxuries they are entitled to in their home countries.

Though development is multi-pronged, I am convinced more than ever that there is no other way of developing our country other than by promoting agriculture, tourism and quality education. Other sectors should come behind them. Even among them, agriculture, which is the most promising for common folks, and a national security issue, is the most deprived. Farmers and peasants face competition from the open border and unrestricted imports. The sector is on the verge of extinction. Tourism has not been a priority. As far as education is concerned, it does not give any hope to the people.

Our national security depends on these three important sectors. The open border Nepal has been forced to keep open after 1950-51 must be closed, and work permit laws must be started for all Indians. Nepalis should not have to compete against foreigners in their own country. A strict adherence to rule of law and anti-graft is equally important if Nepal is to develop faster, and the fruits of developments are to trickle down to rural masses.

Quick Questions:

What are your favorite books on Nepal?
There are many but the one I have consulted many times and referred to in my writings is Bhuwan Lal Joshi & Leo Rose's Democratic Innovations in Nepal: A Case Study of Political Acculturation (1966). I have also often advised my students of law and political economy to read John Whelpton’s A History of Nepal (2005). However, the books and thoughts that inspire me the most and help my understanding of Nepal and its global vision are those by BP Koirala.

A quote you live by?
Janani Jan­mab­hu­mishcha Swar­gadapi Gariyasi (“Mother and motherland are superior even to Heaven.”) 

What would you have been if not a lawyer?
Not sure. As a youngster I wanted to be an infrastructure engineer. Law was my second choice and remains my profession and passion. The third was agriculture. I had applied for all these subjects at my intermediate level, but ended up in law. The rest is history. 

 The Government of Nepal and the concerned provincial gov­ernments need to address the growing concerns of the members of the District Assemblies (DA) and their executive arms, the District Coordination Committees (DCCs), regarding their functions, duties and powers.The sooner it is done, the better it is for the country, especially for the functioning of the three- tier sys­tem—federal, provincial and local. The delay is causing disillusionment not only at the DCC level, but also in village bodies, municipalities and the provincial governments, which have no clue about how to work with the DCCs under the existing constitutional regime.

The DCC is a district-level polit­ical authority in every district of Nepal. They were formed in March 2017 to replace the district develop­ment committees. At present, there are 77 DCCs. The framers of the new constitution had a choice as to whether to continue with the exist­ing administrative districts within the unitary system of government, or to allow them to be assimilated into the framework of the three tier federal system. They continued with it for a number of political reasons. Obviously, the decision reflected the opinion of the major political parties of the day, and the issue of their utility and viability under the federal system, especially with regard to the agenda of empow­erment and change, was not ade­quately discussed. But it is never too late to think about it and plan for the future.

Since the Panchayat era, Nepal had remained divided into 75 dis­tricts, 14 zones and five develop­ment regions. The new constitu­tion gave continuity to the districts, but split the districts of Rukum and Nawalparasi into two, thus increas­ing the number of districts to 77, while restructuring the country into a seven-province federal model. Thus, the constitution created 77 DAs to coordinate between the village bodies and municipalities within each district. As these assem­blies were crafted out as deliberative bodies, the constitution also gave them a leadership role. That role comes with the power of coordi­nation given to the DCCs by Article 220(7).

Article 220(7) enables the DAs to coordinate between the village bodies and municipalities (called palikas in Nepali) within the respec­tive districts, monitor development and construction works, coordinate between the federal and the provin­cial government offices and village bodies and municipalities, and per­form other functions as provided for by provincial laws. It is clear that the provinces were empowered to pass such laws, so that they could work out the details of the coordination roles of the DCCs and respond to the provincial requirements that may vary between provinces. But what has been done so far poses far more challenges than the framers of the constitution ever contemplated.

Last year, the Government of Nepal (the federal government), which has been supporting the local as well as provincial governments in developing their legal regimes, provided to the provinces a model law called the District Assembly and District Coordination Commit­tee Act 2075. The model covers the basic rules of internal operations of the DAs, their functions, duties and powers, restrictions on discussions and reporting procedures. It has three additional provisions that are significant. It creates the position of the District Coordination Officer as an executive under the Act. It is clearly mentioned that the budget­ary and personnel matters regard­ing the DAs will be handled by the federal laws. Additionally, the power to devise and enforce necessary pro­cedures, directives and standards in matters that fall under the DA’s jurisdiction has been given to the concerned DA. All seven provinces have passed the model law with little to no changes, but these provisions have fallen short of the anticipated legal requirements, although they have been able to help the DAs and the DCCs move on with these basic prerequisites.

Article 220 of the constitution and the DAs and DCCs it creates must be explained in the light of Nepal’s three-tier federal system. This Arti­cle does not create a fourth tier, and it should never be perceived that way. All powers have been divided between these three levels, and whatever the power of coordination may entail, it must not affect the con­stitutional balance in the division of powers. The framers of the con­stitution placed the DAs and DCCs under part 17, which eliminates any confusion that they also fall under the Local Executive, although they are not entitled to exercise the pow­ers provided under Schedules 8 and 9. They exercise only those powers that are conferred to them by Article 220(7) and the laws created by con­cerned provinces under its Clause (d). It need not be emphasized here that the federal government enjoys certain law or policy-mak­ing power under explicit consti­tutional provisions with regard to provincial and local governments. It also enjoys the power to issue necessary directions.

The model law that has been enacted into provincial legislation does not give any clue as to how the federal government or the provinces are connected with the concerned DAs and DCCs. As provided for by Article 220, each district’s DA con­sists of chairpersons and vice-chair­persons of the village executives and mayors and deputy mayors of the municipal executives within the district. The DA elects the DCC, consisting of a maximum of nine members, including one chief, one deputy chief, at least three women and at least one dalit or another member of a minority group. The DCC discharges all functions required to be carried out by the DA. A member of a village assembly or municipal assembly within the concerned district shall be eligible to be a candidate for the office of the chief, deputy chief or member of the DCC for a five-year term, and if elected to these positions, his or her office of the member of village assembly or of municipal assembly shall ipso facto lapse. As a politi­cal body, they have been created through a different electoral system and are supposed to have a clear link with the federal government. Given the nature of their coordination responsibility, such linkages need to be formal as well as substantive. The success of provincial govern­ments will also depend on how far they will be able to use the good offices of the DAs and the DCCs and coordinate with them in the overall interest of the province. The same is required in the case of the federal government as well. It is clear that the legal regime needs to be created, developed and consolidated.

In any case, such a law would be subjected to two apparent limita­tions. First, it cannot exceed the parameters of Article 227(7). The power of coordination needs to be carefully handled. Second, this law-making power cannot affect the scheme of the constitutional division of powers between the three levels of governments. By giving continu­ity to the districts, the dominant political parties were able to avoid the challenging task of restructuring the state all over again based only on identity, ethnopolitics and regional­ism. But the challenge of optimizing the role of the DAs and the DCCs remains to be handled. Under a suitable legal framework, they could support even the issues of identity, ethnopolitics and regionalism.

It is really difficult for the DCCs to work in the absence of procedures, directives and standards that enable them to work with all the village bodies and municipalities within the district. There is disillusion­ment regarding how to coordinate in the absence of such clear guide­lines. Under the model law, the DAs have the power to develop these procedures, directives and stan­dards themselves. But the support of the provincial government is very important in the given situation. The monitoring work of the DCCs has not begun in any meaningful sense, because they don’t know how to achieve efficient results, or do it with some sense of authority. They also expect recognition of their power by the local governments. Some DA members think the local govern­ments hardly have any respect for them, because their capacity has not been clear. Even a ward member has a clear role in the local government. No such role has been identified for the members of the DCC. Many think that had they still been in their con­stituency as ward members, they would have had busier schedules serving their people rather than being left out as members of the DA. On the top of that, they do not have enough budget and human resources to perform their jobs.

Recently, the DCCs in the country have formed a national federation to create a united front and have started lobbying for its rightful place in the system. But even the DCC Federation has no programmes, because their role will depend on the role of the DCCs and the legal regime created for them. It was possible for the framers of the constitution to avoid creating district-level political structures and, instead, allow the concerned provincial government to self-coordinate as far as their plans and programmes were concerned. The present provisions, even at the level of coordination, overlap with the palikas’ exercise of executive power as enabled by Schedules 8 and 9 of the constitution.

It is thus important to review the situation and adopt an effective, yet a cautious, approach to the roles of the DAs and the DCCs in order to expedite the process of their devel­opment and institutionalization