The constitutional deadline for promulgating laws loom ever closer, but the government is yet to table all the bills in the parliament. Neither is lawmaking transparent, nor do parties seems focused on the contents of these bills. There are already indications that several provisions are against the spirit of the constitution. And there are concerns about the role of the National Assembly (NA), the upper house of federal parliament: Is it more than a rubberstamp for the lower house? Biswas Baral and Kamal Dev Bhattarai talked to Radheshyam Adhikari, a senior advocate and an assembly member from the Nepali Congress, on a wide range of issues related to law-making and the assembly’s role therein.

 

How do you characterize the current law-making process?

The government has expressed its commitment to meet the statutory deadline—first week of March—for formulating or amending laws in line with the new constitution. But the way the federal parliament is functioning indicates that the commitment will not be fulfilled. The National Assembly meets just once a week, which means it does not have enough business.

 

Can you update us on the progress so far on formulating new laws and amending old ones?

There are some problems. The government has introduced dozens of laws under a single basket. For example, it has brought a proposal seeking to amend 57 laws simultaneously. Such a working style does not allow a broad cross-section study of laws and the monitoring of the provisions that could affect each other. We had a bitter experience while formulating laws concerning the implementation of the fundamental rights of citizens. We were compelled to endorse 11 laws forwarded by the House of Representatives (HoR) without examining even a single word therein. Five laws forwarded by the NA were endorsed by the HoR in a similar manner. Such a scenario shows there’s no point in having a bi-cameral house. Passing laws in this way will create problems. 

 

Why, unlike in the past, have lawmakers not been consulted on the law-making process?

There are two aspects to it. One, we have an in-built system that ensures checks and balances, but the system is weak. Two, we can consult various stakeholders when we have time, but now we are running out of time because of our tendency to table bills in the House at the eleventh hour seeking their early passage. There has been some consultation on some issues of public concern, such as the citizenship bill. However, we are going to formulate around 300 laws, each with several stakeholders. On some laws, there hasn’t even been a minimum level of consultation.  

 

It is ill intent or sheer negligence on the government’s part?

One reason is the looming constitutional deadline. Another is the incapacity of our state mechanisms. I refer not only to the performance of this government, but to our weak state mechanisms that have been in place for long. We have a dearth of human resources in state mechanisms. The manpower shortage is acute in the Ministry of Law, the Parliament Secretariat and the Nepal Law Commission, which are key bodies in the lawmaking process. We have also been unable to use the existing manpower. 

But it’s also true that laws have been formulated in a careless manner. For example, there was very little discussion in the preliminary stage among the concerned agencies, such as the cabinet’s bill committee and the relevant ministry. As I said, our in-built system is so flawed that it cannot handle these issues efficiently. Now, there are fears that only about 20 to 30 percent of the legislation will be made by the parliament and the rest of the lawmaking authority will gradually be transferred to the government. Lack of vigilance will further weaken the parliament.

 

Could you give us an example of the declining role of the parliament in the law-making process?

For example, when a bill with, say, 17-18 sections is tabled in the parliament, the bill will be formed in a way that allows the government the final say over 11-12 sections, which means granting more legislative powers to the government.

This means many legal provisions would be further elaborated by regulations and directives, which are issued by various government ministries and departments. By endorsing incomplete laws, the parliament is gradually transferring authority to the government or the bureaucracy. The parliament can monitor these processes, but it cannot perform all oversight tasks.

That is why we are pushing for having a substantive part of the bills endorsed by the parliament. However, very few are floating this idea, as the ruling party has a majority and we are not in a position to challenge it.

 

Why is the opposition not paying enough attention to the content of the bills?

It is partially true that the opposition has not paid sufficient attention to overall lawmaking.  This is because we are focused on other issues. Through our policies, we have to present ourselves in a different light than the government. But we are centered on personal issues and agenda. Our main task is law-making, and we should get involved in this process in a thorough manner. But this is not happening. We have told our party leadership to form departments or a shadow cabinet and entrust them with the responsibility to scrutinize the lawmaking process in both the chambers.

 

Could you talk a bit about what is happening with the Passport Bill?

The bill on passports contains some flawed provisions. After the political change in 1990, getting a passport became easy. People get a passport primarily to visit other countries. Issuing passports easily led to more foreign trips in the past three decades. Although this has some drawbacks, the benefits outweigh the costs. The bill tabled in the parliament has many ‘if and buts’ in several sections, which can curb access to a passport.

For example, the proposed bill says that people involved in money laundering would be denied passports. The government itself files cases related to money laundering. People’s passports cannot be seized on the basis of cases filed by the government. It is up to the court to control the movement of people facing money laundering charges, but the government cannot seize passports. If someone is convicted of money laundering, we would not object to such provisions. But we cannot deny passports on the basis of cases filed in the court. Such problematic provisions need to be amended. 

 

What about the bill on the management and regulation of advertisements?

There are a couples of reasons behind our opposition to the bill on the regulation of advertisements. Our first logic is that the provisions of criminal offence are not applicable to the issues related to publishing and broadcasting advertisements. It is very simple; it should be a civil offence. 

Our second concern is about the provision of freedom of speech and expression, which is a fundamental right. Also objectionable is a non-bailable provision with a five-year sentence. So the bill in its current form is hostile to freedom of expression and it intends to criminalize offenders. You can regulate, but not control, advertisements. And you certainly cannot make people infringing advertisement regulations criminals.  

 

There are confusions about the functions and duties of the National Assembly. Could you please help us understand it better?

We are going to squander an opportunity to exploit the assembly’s potential. We haven’t had a serious discussion on how to make good use of the NA. If we continue with the current process of endorsing the bills, there is no need for two chambers. Because it has mayors from the local level and those elected from provincial assemblies as members, the NA could have played a vital role in making the federal system more effective and result-oriented. It could be a mediator between the government and various federal structures.

The NA’s leadership should take up these issues. We have raised them in the parliament, but our voice is not strong enough to take a concrete shape. There is growing dissatisfaction that the provincial governments are being denied the powers granted by the constitution. This is where the assembly could play a vital role. It can question the government about this, and disseminate the response to the provincial and local levels. It is a political process.

 

Are there conflicts between constitutional provisions and the role that the assembly is playing?

There is a set of procedures for passing bills from parliament. The money bills directly go to the HoR, and it is its exclusive right. The feedback we provide on this bill could be accepted or rejected by the house. Irrespective of our position, the house can forward this bill to the President for authentication. Other bills could be registered in both the houses and there are certain procedures mentioned in the law. If we do not get an additional role from a legislative perspective, the NA loses its relevance.

The assembly can play an important role in the lawmaking process, as it can study the laws, find loopholes and ways to plug them. For example, within a year, the Ministry of Agriculture has introduced 20 directives that are being implemented as law. Of the 20, as many as 11 directives have not mentioned the law on which they are based. These are serious issues that require a strong leadership to address. We have three levels of government, all of which are making laws. But we do not have a place where the laws of all three levels can be deposited so that they can be later studied. The federal upper house could be such a place.

There are record-keeping tasks as well, but we still lack sufficient infrastructure to carry them out. Our parliament doesn’t have a record of the laws it has passed. We don’t have all the documents in one place. We can push the assembly to perform these tasks. Lawmaking is only a small part of the NA’s responsibilities. If efficiently run, it can play a huge role in assisting the ongoing process of state restructuring.  

 

You see unsatisfied with the current role of the National Assembly?

Yes, I am not satisfied with its performance so far. If the NA continues functioning this way, it is better to dissolve it. Because we are not in a position to interfere in the law-making process, there is currently a wasteful duplication of effort. If we need this institution, we have to prove its utility.