Submit your Article

The new government formed three months ago had announced that it wanted to conduct a review of the Constitution promulgated almost a decade ago (in 2015) by exploring areas for amendments. The two largest political parties in the Parliament—the Nepali Congress (NC) and the Communist Party of Nepal-Unified Marxist Leninist (CPN-UML)—joined hands to form the government that enjoyed the support of almost two-third members of the parliament—ostensibly to push constitutional reforms.

As per the constitution, any amendment can pass only with a two-third majority. Therefore, the public pledge made by the two largest parties during the formation of the latest coalition was viewed seriously by everyone. The parties had promised to first conduct objective analysis of the constitutional performance and suggest amendments.

Almost a decade has passed since the promulgation of the constitution, so it is an opportune time to take stock of its performance, examine its contributions and failings, and prescribe reforms for its improvement.

The constitution has embraced some fundamental changes like federalism, republic and inclusion, which cannot be compromised. But their workings can be refined to better address the aspirations of the general public.

The major parties have been suggesting that one reason why the constitution needs reforms is the current setup, which, according to them, prevents a single party from forming a majority government, leading to perennial instability in governance.

While that may be the case, it is utterly important to also pay attention to other aspects of the new constitution such as strengthening local governance.

The constitution had intended to empower the local government and recognize them as the primary vehicles for the delivery of public service and governance to the people.

As per the constitution, there are currently 753 local governments, including six metropolitan cities, 11 sub-metropolitan cities, 276 municipalities and 460 rural municipalities. Part 17 of the constitution provides for the formation of Local Executive, Part 18 provides for the Local Legislative, Part 19 provides for the Local Financial Procedure and Part 20 provides for relations between federal, province and local levels. Article 217 of the constitution has also provided for the judicial powers of the local government.

In the past, there were around 4,000 local bodies, which were reduced to 753 local governments. In the last one decade, the local governments have been strengthened with adequate powers to prove their worth by becoming immediate centers of power to the local people and the deliverer of most basic of public services. The chiefs and deputy chiefs of the local governments have become powerful in terms of their influence in budget allocations, resource mobilization and service delivery issues.

The local governments also have the power of formulating local laws. They also have separate judicial committees to provide local level justice in specified areas. Many local disputes are now being submitted for settlements at local levels.

In terms of development resources, too, the local levels have been able to use a huge chunk of the national budget. The annual budgets of local levels are in the range of Rs 400m to Rs 28bn (Kathmandu Metropolitan City). They are also found active in providing basic recommendations such as for citizenship, passport, national identity, etc. They are also becoming the first point of responders in times of disasters such as during earthquakes, disease outbreaks like Covid-19 and natural disasters like floods and landslides.

However, they still face a number of challenges to prove their worth—many of which have the root in laws and the constitution.

Legal reforms: The number of local levels needs to be reduced to less than 500 in order to make them agile and effective. The wards should be made more powerful. For example, presently, the wards are responsible for only providing recommendations for citizenship whereas it is issued by the district administration office. Laws and constitution can be changed to ensure that the people get the citizenship issued from district administrative offices delivered at the wards themselves. Processes can be interlinked between wards and district offices for this purpose.

Currently, local governments also have authority to formulate laws but in the last one decade, there has been concern that they lack skills to formulate quality laws. Therefore, this authority probably could be given to the provinces, where such skills can be available. Besides, it is also better for provinces to have uniform laws for all their local governments.

Budgetary reforms: Presently, the federal government bears almost 80 percent of the budget of the local government. There is a need to conduct reforms enabling local governments to generate more budgets for themselves, and there is also a need to change the sequence of budget-making. Ideally, local governments should be allowed to first pass their annual budgets, followed by the province and the federal government, respectively instead of the current sequence, which is just the opposite.

HR reforms: Although one decade has passed, the proper staff management has not been achieved. Local government staff should be recruited by local governments themselves within the mandate prescribed by the concerned province. Such staff should be able to transfer within the province and they should have ample opportunities for career growth.

Election reforms: Many have questioned the appropriateness of holding local government elections on a party basis. Since they are designed for service delivery to citizens, it is thought that their elections should not be guided by partisan politics. Rather, they should have independent candidates. This can facilitate smooth functioning of the local government without petty politics and political disruptions.

These reforms should be kept in mind when the government and the major political parties conduct a study for constitutional reforms.

Rule of law is a basic tenet of democracy. If a nation has a robust rule of law, it will essentially have a strong and durable democracy. But what is the rule of law and how can it be meaningful? The first element of rule of law deals with the process of lawmaking—which ought to be transparent and participatory. According to the Constitution of Nepal 2015, all three tiers of the state—the federal, province and the local level—are entitled to make their own laws within their constitutionally and legally-defined limits. 

Presently, there are 334 members in the two Houses of the Federal Parliament; 550 members in assemblies of seven provinces; and over 20,000 elected representatives in legislative bodies of 753 local levels in the country. All of them are called lawmakers. 

With the promulgation of a new constitution in 2015 that transformed the country from unitary Hindu monarchy into a federal secular republic, there is a huge need to frame hundreds of laws to replace the old system. Despite the completion of two rounds of general, provincial and local elections, the task of lawmaking is yet to complete. Numerous essential laws on federal governance, police system in provinces, civil service system in provinces, education, health have not been formulated yet. 

From federal to province to local level, each tier has faced unique challenges in lawmaking. Take for instance the recently concluded session of the federal parliament—the MPs themselves have lamented that only one single law was passed during the entire session spanning months. 

In practice, Nepal also faces a unique problem of lawmaking being dominated by a handful of senior leaders of major parties. The MPs or even committees always look up to them to pass any law. They also block any legislation that is against their vested interests. Prime Minister, the leader of the opposition and president of the Nepali Congress rarely take part in committee discussions or House meetings. They do not even attend the House for more than 10 days in the entire session. 

Provincial assemblies have always complained that they lack facilitating federal laws that can allow them to frame their provincial laws in areas like provincial civil service, which are of urgent necessity. Local levels have been found to engage in lawmaking that is either outright copying of model laws distributed by the federal government—without incorporation of local context and circumstances—or haphazard drafting without concerns for due process and content. Many laws originating in provincial assemblies and local level have also been challenged for violating the limits and jurisdictions as laid down by the Schedules of the Constitution. 

That apart, the prevalent practice is to enact laws without peoples’ participation. Government bodies draft a law to their liking and push it through the parliament with minimal involvement of stakeholders. As such, they are not structured in a way that people can comprehend them. They usually fail to reflect the peoples’ aspirations and expectations. 

The second element of the robust rule of law is concerned with the state of implementation of laws. People must know about the laws of the land and abide by them, but there is no systematic procedure to sensitize the people about the laws and provisions introduced. This is the first barrier to the implementation of the laws. 

In fact, even the lawmakers do not know what they have enacted into laws, though they expect everyone to abide by the laws. Clearly, the laws do not get implemented automatically. Processes, programs, resources, management and a favorable environment are required for their implementation. 

Capacities, willingness, monitoring and enforcement are all necessary to make that happen. Most importantly, there has to be a realization of how much ownership is felt by the stakeholders, including those who are supposed to abide by them. 

Some of the critical issues in any rule of law system are to find out whether the people feel benefits of abiding by laws, or whether they feel the burden of abiding by the laws and consider it as imposition of exploitative measures. 

The third and final element of the robust rule of law deals with the institutions that are responsible for upholding laws, and ensuring a system of checks and balances. This involves the geographic distributions of the legal institutions that will have to, first and foremost, ensure the access to law and justice for the ordinary people. 

The people must have easy, economical and intimidation-free access to the institutions of law, including the administration and courts. They must be able to get justice on a predictable timeline. They must also be able to feel that justice is being delivered equally—irrespective of caste, gender, region, economic status or political clout. 

Rule of law institutions must be strong enough to serve their purpose. Matters like trustworthiness in terms of their competence, impartiality, independence, accountability and legitimacy are of utmost importance. This will also determine whether their 

decisions are easily accepted and implemented.  

This will demand a change in all three elements mentioned above. In lawmaking, there is a need to expeditiously formulate essential laws, particularly in areas listed under the concurrent list of the constitutional schedule such as policing, civil service, education and health. 

The Rule of Procedure of the parliament should explicitly state that all MPs must attend at least 50 percent of the House meetings or face disciplinary action. The bills tabled in the parliament must be settled—passed or rejected—within a certain timeline within the session. 

There is a need to ensure participation in lawmaking for public ownership before implementing laws. Town hall meetings or mobile meetings of parliamentary committees at province and local levels can be held with help from civil society organizations to pre-inform the people about the laws. The authorities also need to be accountable to ensure proper implementation of laws. 

In the institutional development aspect, there is a need to first ensure timely and full appointment of judges and court officials. They need to be held accountable to ensure economical, easy, timely and equal access to law and justice for the people. 

The judiciary also must settle cases on stipulated time and if any case is made to linger, there has to be accountability on the part of the courts. For example, a case against appointments in constitutional bodies has been lingering for three years without any justification. 

On the part of the people, they need to be empowered so that they can also rise and demand a robust rule of law in all spheres of their lives. Combined efforts of the executive, the legislature, the judiciary and the people will ensure a robust rule of law that is transparent and participatory.

The author is Executive Director of Nepal Law Society

Access to justice is one of the key challenges facing Nepal’s judicial system. 

Factors like a low level of awareness, lack of legal literacy and inherent social and structural systems have made justice inaccessible for a large section of the society, women and members of disadvantaged communities in particular.

For decades, the formal justice system of Nepal included the Supreme Court at the top, and appellate and district courts at the middle and lower rungs. A bureaucratic, formal and costly justice system meant that a large section of the public felt intimidated and scared to approach it, compelling them to suffer injustice in silence.

In order to overcome these impediments, the state did introduce the system of community mediation and justice administration through quasi-judicial bodies. But these bodies have neither been formally institutionalized nor has the public been sensitized about the kinds of services they are supposed to provide. Perhaps to address this gap, the Constitution of Nepal 2015 envisaged separate judicial committees under the local level to work as primary vehicles for a community-based justice-dispensation system. 

Legal provisions

Article 217 (1) of the Constitution of Nepal 2015 provides for a three-member judicial committee in each of the 753 local levels with the mandate to adjudicate, arbitrate and refer cases for mediation at the local level. Article 217 (2) stipulates election of other two members of the committee at village and municipal assemblies. The judicial committees are under deputy mayors in municipalities and vice-chairpersons in rural municipalities.

The Constitution has also provided for mandatory election of male and female as either mayor/chairperson or deputy mayor/vice-chairperson, resulting in the election of women deputy mayors and vice-chairpersons in over 90 percent of 753 local levels. Apparently, these committees are overwhelmingly led by elected representatives, who are women.

Clause 47 (1) of the Local Government Operation Act (LGOA) 2017 elaborates on functional and procedural aspects of the judicial committees, “empowering them to settle disputes related to 13 specific matters.”

Per Clause 47 (2) of LGOA, judicial committees have the right to settle disputes through mediation in 11 other matters. The disputants can directly register cases at the court under Clause 47 (2); they can also move the district court in case of dissatisfaction with the committee’s decisions.

In case of adjudication and arbitration, the committee regards the opinion of the majority as its decision. In the case of mediation, it keeps a roster of mediators and refers the parties to mediation centers at the ward level. 

Challenges aplenty

Since the promulgation of the Constitution of Nepal 2015, local level elections have taken place twice. Elected representatives have come and gone, but the judicial committees’ challenges remain as they are. Some of the problems facing these bodies include lack of institutional mechanisms, insufficient clarity on jurisdictions, lack of procedural clarity, expertise and human resources, administrative capacity and institutional capacity to implement decisions.

Nepal Law Society (NLS) and Rural Development Foundation (RDF) have been conducting different activities like organizing programs to support the functioning of judicial committees. They provided support to the Ministry of Federal Affairs and General Administration in drafting LGOA, apart from conducting a pilot study on the performance of the committees and conducting training sessions for the committees’ functionaries on due process, facilitation between committees and concerned district courts, capacity building through orientations and compiling suggestions from all local level leaders regarding necessary policy/legal reforms. 

NLS has identified a number of challenges facing these committees. They include lack of understanding on distinctive provisions in Clauses 46-53 of the Local Governance Operation Act; lack of awareness on gender, inclusion and legal education; failure on the part of judicial committees to fulfill due processes leading to overturning of their decisions by district courts and lack of mediation skills and insufficient human and physical/financial resources. 

Other challenges include the lack of coordination between judicial committees and the local level in the execution of decisions; domination of judicial committees by mayors/chairpersons; lack of awareness among target groups about the significance of these committees; lack of easy access to the committees among target groups due to lack of awareness or feeling of intimidation; lack of local civil society organizations that can facilitate the target groups’ access to justice and absence of a network connecting these committees for their collective strengthening and dearth of friendly laws.

The author is Executive Director of Nepal Law Society

This article is part 1 of a two-part series