Dr Bipin Adhikari
There is an initiative of a massive upheaval in Nepalese bureaucracy through attempts at administrative reform amidst radical political changes and instability. In light of this, there is a need to be more proactive in ushering reform rather that reactive. Further, the role of the Civil Service is to serve the civil society so that ordinary men and women can enjoy the benefits of living in an organised environment.
The services provided by the Civil Service incorporate a large aspect of public goods sphere such as defence and security, law and order, education, healthcare, physical infrastructure, transport, telecommunications, etc. Hence, it is imperative that we identify any shortcomings in our state administrative mechanisms and seek to identify solutions so as to continue providing smooth and efficient service to the local people. In light of this, the concept of Civil Service Amendment 2049 has been promulgated.
Historically, Nepal’s civil service was formalized and brought under the legal framework following the enactment of Civil Service Act 1956. During those days many Indian advisors were engaged in developing Nepalese civil service system. By 1990, the act had gone through 29 revisions. However, the revisions were not meant to institutionalise the civil service, rather to expand the discretionary power of top-level bureaucrats, ministers and the masters of them all, the Palace mandarins. During the Panchayat years frequent changes in the Act helped the Palace decide who was in and who was out among the ministers and, sometimes, among the bureaucrats.
By the time of Jana Andolan II in 2006, the mood at government offices had become politically electric and polarised. In some way, that helped contribute to the protest movement against the king and led to various amendments to the Civil Service Acts. However, due to the partisan politics becoming firmly entrenched in the fabric of the civil service, Nepal’s ‘civil service’ has become neither civil nor service-oriented. Years of political interference by democratically elected politicians who outdid the Panchayat mandarins in weakening all potentially strong and independent institutions have meant that the civil service is now an ‘anything goes’ institution. As such, even if one were to start civil service reforms tomorrow, pushing the reforms through the system to make it independent and strong is not an easy task.
In light of the promulgation of a new amendment, it is imperative that we analyze all the newly proposed aspects of the bill. One such provision, which has become highly contentious, restricts all civil servants from holding or applying for any kind of permanent residence permit (PR) or citizenship of a foreign country. Further, the new bill also forbids government employees from juggling two jobs; i.e, working in private sector as consultants while continuing to function as a government official. It also objects to government officials teaching in private institutions as experts. “If anyone is found to be working as a consultant or teaching in private institutions, either stringent action will be taken against them or they will be sacked from their jobs immediately.,” According to the draft amendment now under consideration at the bills committee, serving government officials holding dual nationality will be given a chance to voluntarily abandon their dual nationality within a month after the new law comes into effect. Officials can continue in their government posts if they relinquish their dual nationality, according to the draft.
In addition, for the first time, the bill has also proposed to set up separate services for foreign and judicial services by considering them as specialized services. The Act forbids government employees in other services such as administrative and technical to be transferred to foreign or judicial services and also ensures that officials from other services cannot be promoted into high-level posts such as secretaries in judicial or foreign services. After being considered as specialized services, the foreign and judicial services will also have their own rules and regulations.
The proposed recommendations to the bill are as follows:
a) Preamble: The preamble in the bill attempts to justify itself by only saying that it is desirable to amend the 1993 Act immediately. But it does not explain what the proposed amendments are for, and what kind of impacts they would have on the civil service as a whole. Therefore, in a way that it would lend it to be included in the main Act, the main goal of the points proposed for amendment should be explained in the preamble, emphasising these ideas: professionalism, discipline, and decency.
b)Section 2: The phrase ‘permanent residential permit’ should be reduced to ‘residential permit’ in section 2 C(1), added in the bill after 2 C from the Act. In the same section, ‘or non-residential’ should be added after the word ‘residential’ in the second and fifth lines. The residential permit mentioned in 2 C(1) should be understood as a diversity immigrant visa (D.V.), green card, or any other document of any name which allows a Nepali citizen to live in a foreign country on a permanent or temporary basis, with or without any terms and conditions.
c)Section 6: Need for clarity from the government towards “Specialization” or “Generalization”. Need to establish a “Ministerial Career Model” if the government is leaning towards a specialization model. If amended according to the proposed bill, the new Act would prohibit the transfer of civil servants from any outside service to the position of secretary (or special class officer) in the Nepal Legal Service, Nepal Audit Service, and Nepal Foreign Service, and, conversely, from one of these three services to any other. The reason cited to justify the provision is that the unique nature of these services requires them to be founded on a higher degree of specialisation and professionalism. But, in applying the provision to only three of the ten services mentioned in the same Act, it is implied that other services do not require the same. The workings of all of the various services mentioned in the Civil Service Act are unique. Thus, all of them should be treated as such and developed as professional and specialised services.
d)Section 18: The proposal to set up separate services for foreign and judicial services by considering them as specialized services should be amended uniformly across all sectors. The bill proposes to forbid government employees in other services such as administrative and technical to be transferred to foreign or judicial services and also ensures that officials from other services cannot be promoted into high-level posts such as secretaries in judicial or foreign services.
e) Section 49: Prohibition on outside jobs. Problems predicted as regards to the implementation of such provisions. In 49 A(2)E(1), a provision has been kept to allow civil servant to engage with training or research at government training centres or facilities even during office hours as long as it does not interfere with work. On the other hand, civil servants have been asked to seek prior approval from the appropriate authority before engaging their time at non-governmental institutions for the purpose of education, technical training, or research, even outside of office hours. It seems unfair to have to ask for approval for activities done outside of office hours. At the same time, a provision allowing for training, albeit at a government centre, during office hours seems absurd from the standpoint of efficiency. Furthermore, since it is impossible to evaluate whether such engagements hamper work, they should only be allowed outside of office hours or during a leave of absence. To elaborate on the above-mentioned provision, section 49 A has been divided into subsection (2) which has further been divided into E, and finally, into the restrictive clauses 1 and 2. This makes little sense from the point of view of drafting legislation. It is not wise to devise a restrictive sub-division to a sub-section that already contains a restrictive clause. It would be appropriate to create separate sub-sections for 49 A(2)E (1) and (2).
f)Another provision proposed in the bill goes against the Supreme Court decision of 6 December, 2012, which allows for first class officers in the Nepal Legal Service to be promoted to the position of secretary, as per section 19 of the Civil Service Act 1993. The basis of the Court’s decision seems to be hinged on the existing Act, which, with the exception of the Nepal Legal Service and Audit Service, establishes the gazetted first class as specialist positions, and special class positions and the equivalent as generalist positions.
g)Section 61 (1): The provision and restrictive clause in 61 (1) F about the number of days one can be absent from one’s office is disproportionate. According to the provision, a civil servant can retain his/her job after taking a leave of up to 89 days, just as long it is approved within the 90th day. But the added restrictive clause states that a civil servant who attends an educational course, training, etc. and fails to record attendance at his/her office within thirty days of finishing the program risks losing his/her job in a way that would not hamper his/her future prospects of employment with the government. The provisions seem contradictory. It would be better to consolidate the two provisions with in 61 (1)F by simply stating that a civil servant who remains absent from his/her office for thirty days in a row without prior approval can be removed from his/her position without being declared ineligible for government work in the future. The proposed bill makes it clear that it is not preferred that a civil servant live in a foreign country with any purpose other than furthering his/her education, attending trainings, seminars, and/or furthering the interests of the state, while he/she is tenured to the service.
h) Section 61(3): Finally, there is a need to categorize, in detail, the classification of instances whereby a civil servant would be terminated from his/her post as per Section 10 of the bill. In addition, offence of moral turpitude through criminal convictions should be classified in further detail to avoid abuse of the provisions due to lack of clarity. Experts have advocated for assertions of provisions that clearly classify the amount of sentence as being the measuring tool for ascertaining offence of moral turpitude. For e.g. there could be provisions of a one year ceiling for criminal convictions to mandate termination of the civil servant staff.
Initially it had been mandatory for even retired civil servants to declare whether they hold any residency permit (like Green Cards) or citizenship of a foreign county. However, it has not prevented certain section of the civil servants to misuse the loophole in the system.
Similarly, the new Civil Service Act also stays mum over whether the family members of civil servants can hold any kind of PR, DV or foreign citizenship. Further, these two issues, which were initially incorporated in the draft proposal of the Civil Service Act, courted much controversy during Cabinet meetings. It is now the parliament’s job to take up these issues and make a final decision. However, the nation is upbeat about the swift passage of the act which has generated a lot of debate and attention across national public spheres.
Also, there is a need to find the logical reasoning on which these provisions were proposed. The prohibition on civil servants acquiring Diversity Visas must be based on the interest of the nation rather than a feeling of jealousy towards the appointed individuals. Also, whilst it is understandable to create such provisions for civil servants in a decision making high ranking capacity in the interest of the nation, it is equally difficult to ignore the aspirations of the servants lower in the bureaucracy hierarchy to seek a more prosperous life abroad. In essence, these provisions need to address all the different levels of civil servants equally.
Further, judging from the lenient approach regarding work and nationality prevalent in Europe, the need for Nepal to identify the balance between national interest and individual rights is ever more pressing. Also, experts have advocated against the provisions for barring civil servants from venturing out of the service, i.e. juggling two jobs. According to them, if the civil servants have an opportunity to showcase their particular skills in any given sector, provided they oblige with the necessary procedure and get the prior consent from the administrative division, then they should be allowed to demonstrate their abilities and assist the development of the state.
Moreover, there is a need for a systematized reporting system within the civil service departments to allow for the civil servants to venture out of bureaucracy provided they get the required approval and consent to providing meaningful reports of their endeavors. This will be mutually beneficial to the growth of the civil employee as well as the state as a whole.
Furthermore, it is beneficial for the specialists to hold specialized positions within the civil service departments to enhance the efficiency of the sector. Meritocracy is compromised in Nepal due to the high politicization of the civil service sector. Experts have been highly critical of the lack of transparency prevalent in the sector. When it comes to a decisive position within the civil service structure, there should be specialized manpower, as proposed in the draft bill, in order to carry out his/her duties and responsibilities with due diligence.
Moreover, acknowledging the nominal salary provided to a civil servant, it seems justifiable for allowing workers to seek outside work in order to enhance their career as well as fulfill their economic needs. However, the growing prevalence of civil servants to abuse the leniency provided to them to work outside of the service should be monitored adequately. In essence, there is a need to balance between the genuine servants who strive to work outside of the civil service sphere in order to expand their horizons and provide a meaningful contribution to society through their expertise and those who are looking to abuse this discretion provided to them.
