Federalism, rule of law and the judiciary

The 2015 Constitution and arrival of fresh political leaders through nationwide elections in 2017 promised a more equal and inclusive New Nepal. Political power would be devolved from elite-captured Kathmandu,  and development balanced across all regions of the country, with greater appreciation for religious and ethnic diversity and increased participation of the marginalised in governance.

There is broad acceptance that this ongoing transformation will have durable effects on the quality of the country’s governance. Yet there remains widespread anxiety that those now in decision-making positions in government will shirk their responsibility and opt for cosmetic adjustments rather than fundamental change.

Part 2: Constitutional guardianship in Nepal, George Varughese and Iain Payne

The Constitution promises to bring government closer to citizens through a new federal structure wherein federal, provincial and local governments are coequal.  With 753 local governments, seven new provinces, and local and provincial assemblies with more than 35,000 elected representatives, the executive and legislative levels of government are now functional and more visible to citizens.

However, minimal attention has been given to the judiciary’s key role in impelling constitutional values in government — starting with the rule of law and access to justice — and contributing to the success of the ongoing transformation.

This is neither mysterious nor casual: neglect of the judiciary is quite usual in Nepal. The undermining and sidelining of the judiciary over many years is part of a sordid story of collusion by political parties across the spectrum to weaken, co-opt and subordinate state institutions that deter impunity and constrain opportunism.

A quick measure of this neglect is the steady decline in the already-meagre annual allocation of state resources for the judiciary, today at its lowest levels of funding in years — a mere 0.34% of the government’s budget, down from 0.57% in 2015-16. Continued failure to invest in this co-equal branch of government — the one meant to constrain unlawful action — undermines the transformational project of the 2015 Constitution.

Three years after the adoption of a new Constitution it is also necessary for the judicial branch to consider its role in ensuring that rule of law and access to justice is better under federalism.

While much hope has been placed in the 2015 Constitution, it cannot in and of itself transform the country’s constitutional and political culture, which has been shaped over decades of perverse governance praxis that accepts collusion and impunity, crises and destabilisation, and backroom deals and horse-trading as normal.

New norms of politics must be embraced. The rule of law, and buttressing it the judicial branch of government, is at the heart of this reshaping of politics.

The rule of law is concerned with the principled exercise and accountability of governmental power. It requires adherence to the laws of the land, beginning with the Constitution, by all.

Elected representatives and appointed officials alike must abide by the same rules as everyone else, there is no special pass for those in power. Sadly, the main threat to federalism in Nepal is the absence of the rule of law, exemplified by ongoing abuse of the Constitution by those charged with protecting it.

It has been persuasively argued elsewhere that the rule of law demands public justification for the exercise of public power. This process must be championed by the judicial branch as the expression of its own authority, one to which public actors and citizens must learn to conform.

 In the setting of the courthouse, the branches of government must justify the legitimate exercise of power and be able to defend their actions. The judicial process thus contributes to a constitutional culture in which the arbitrary exercise of power is discouraged.

It is in this sense that the rule of law may be talked about as a value. It is a critical, missing feature of Nepal’s constitutional culture, one which the judicial branch of government must salvage, nurture and return to public service.

This is the first of a three-part series by George Varughese and Iain Payne who are associated with Niti Foundation.