Rule of law, transparency and participation in Nepal
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
Dec. 11, 2023, 12:50 p.m.
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