Bipin Adhikari
Constitutional Law, Governance & Public Policy Issues
Home   About   Contact Us  Archives




 

 


Nepal Consulting Lawyers Inc

B. P. Koirala Archives & Records

Same old thing

Bipin Adhikari
The Kathmandu Post
August 27, 2009
From: constituentassembly.blogspot.com

"British Prime Minister Gordon Brown, for example, has recently put forward changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of the House of Commons procedures. His plans to introduce legislation that could see a shift from self-regulation of the House of Commons — and subsequently the House of Lords — to independent, statutory regulation has been a subject of rigorous debate in the United Kingdom. A new Parliamentary Standards Authority is supposed to be given the power to regulate legislators' allowances and the Commons would be asked to agree on a code of conduct for legislators in order to increase accountability."

The Constituent Assembly (CA) Committee on the Determination of the Form of Legislative Organ (CDFLO) has finally presented its concept paper and preliminary constitutional draft in the CA for further discussion. It, however, deals only a bare minimum with the form of legislature that a majority of its members want. Why the CDFLO had a very small breathing space is very clear. It was supposed to build on the report of the Committee on the Determination of the Form of Government as to whether this country was picking up a new governmental system or continuing with the parliamentary form with necessary reform.

In the same vein, the report of the Committee on State Restructuring and Allocation of State Powers was necessary for it to plan the form of legislature in Kathmandu and the provinces as well as the ambit of their powers and relationship. The CDFLO concept paper and preliminary constitutional draft have been produced without basic policy support from the two important thematic committees, which had more say on the form of the legislature than the CDFLO itself in some important sense.

Nepal has a long experience of practicing elected legislatures in some form. There have been good days and bad days; but it would not have been out of context to discuss a variety of proposals and changes keeping in view the country's past experience. Alterations to the composition, powers, procedure and structure of the legislature, elected or notional, have continued since 1950-51. The Constitution of 1990 had tried much to push ahead sustainable efforts to ensure a functioning legislature. That process has now been discredited already. But it is very clear that the committee has not been able to show a better regime for the prospective legislature to regain the country's trust.

As one goes through the CDFLO report, one finds few new features in the scheme except for the change in the number of members of the House of Representatives and the National Assembly, the system of mixed representation, which is without rightful prescriptions, and provisions for provincial legislatures. The system of proportional representation as it applies to the House of Representatives at the centre really surprises many.

The committee proposals do not state how the legislatures that they have proposed for the centre and the provinces are more representative and responsive in their legislative and policy making activities. They do not explain how they are going to be more efficient and effective, or more accountable and accessible than their predecessor under the 1990 constitution. It is not clear in what ways they are more legitimate and linked to the people than before. In a great many cases, institutional changes influence legislative behaviour and leads to tangible outcomes in legislative settings. The presence of new institutions leads to new patterns of legislative behaviour, and institutions matter in predictable ways. But those providing prescriptions must know in advance what the problem areas are.

British Prime Minister Gordon Brown, for example, has recently put forward changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of the House of Commons procedures. His plans to introduce legislation that could see a shift from self-regulation of the House of Commons — and subsequently the House of Lords — to independent, statutory regulation has been a subject of rigorous debate in the United Kingdom. A new Parliamentary Standards Authority is supposed to be given the power to regulate legislators' allowances and the Commons would be asked to agree on a code of conduct for legislators in order to increase accountability.

Additionally, they are also thinking of coming forward with new proposals for dealing effectively with inappropriate behaviour, including potentially the options of effective exclusion and recall for gross financial misconduct identified by the new independent regulator and the House itself. These proposals have come forward in addition to those already with cross-party agreement, such as the requirement for all spending to be receipted and incomes from second jobs to be fully accounted for.

Prime Minister Brown also intends to set out proposals for public debate on five major issues in the coming months: Reform of the House of Lords to an elected House, introduction of a written constitution, devolution of power away from Westminster, reform of the electoral system and increased public participation through electoral registration and greater engagement of young people, including a potential lowering of the voting age. There is also a proposal to progressively reduce the time taken to release official documents from 30 to 20 years and to broaden the terms of application of the Freedom of Information Act to include a wider range of organisations.

Some British experts have argued the case for parliament's deliberations to be spread more evenly over the year. They consider that members of parliament are not on holiday for the period of the recess. Committee-level activities in parliament continue even then. But with a more sensible organisation of parliamentary oversight, many critiques believe that parliament might avoid the sense that the entire government is on holiday. A combination of these changes could be considered in Nepal as well, which would enable the new legislature to do its work more efficiently, and to be seen to do so.

A clear code of conduct for all legislators and stringent action against those violating it has certainly become essential in Nepal. A legislator should lose his membership and be expelled from the house if he conducts himself in a manner that results in gross violation of basic democratic norms and/or misuse of office. The constitution needs clear guidelines to ensure strict time limits for assembly sessions and speeches of its members. The new constitution should also expressly prohibit any development towards a constituency development fund for the members. It should also restrict the tendency of the members to exercise executive powers on whatever pretext. Even the oversight functions of the committees in the legislature should understand this limitation.

Not only is a clear delineation between executive and legislative functions necessary, the constitution should also expressly state that members of the legislature will not have any role regarding local governments and administrative institutions. These provisions are necessary to make sure that legislators focus on what they have been elected for instead of intruding into the sphere of activities meant for the government of the day. It is apparent that the CDFLO concept paper and preliminary draft have ignored many aspects of the reforms that should have been discussed and carefully proposed for further discussion. As they exist today, they do not propose anything other than business as usual. This is, no doubt, another point of worry.

[lawyers_inc_nepal@yahoo.com]


Copyright @ Bipin Adhikari,