Nepal | July 16, 2020

Ministry lacks clarity on umbrella law


Ram Kumar Kamat
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The judiciary is unitary, but the constitution provisions creation of Provincial Judicial Service Commission

Kathmandu, April 20

Although the KP Sharma Oli-led government has enacted more than a dozen laws to facilitate implementation of the new constitution, it failed to bring new legislation to implement Article 156 of the constitution that provisions formation of Provincial Judicial Service Commission.

Article 156 of the constitution stipulates that provisions related to formation of State Judicial Service Commission and remuneration, facilities and conditions of service of employees of the State Judicial Service shall be as provided for in the federal law.

Human rights lawyer Mohan Kumar Karna said the federal government should have enacted a new federal law earlier to facilitate formation of the Provincial Judicial Service Commission.

“Federalism cannot be strengthened in the absence of federal structures. The federal government has been very slow to enact federal laws, particularly umbrella laws required for creation of provincial structures, including the Provincial Judicial Service Commission,” he said.

Advocate Sunil Ranjan Singh said the federal government enacted other laws but did not ensure enactment of the Provincial Judicial Service Commission law because it did not want provinces’ role in selecting employees in the provinces. “Our judiciary remains the most exclusive institution compared to other institutions.

This is one reason why there has not been any attempt to register a new umbrella bill to facilitate the formation of the Provincial Judicial Service Commission,” Singh argued.

Delay in enacting a federal law governing the process of formation of Provincial Judicial Service Commission prompted law student Sunil Kumar Chauhan to seek information about the process with MoLJPA under the RTI Act.

The ministry told Chauhan that it had requested Nepal Law Commission to draft a new bill to facilitate formation of Provincial Judicial Service Commission.

Vice-chair of Nepal Law Commission Bhesh Raj Sharma said his office recently wrote to the Ministry of Law, Justice and Parliamentary Affairs seeking clarity on some issues of the proposed bill, but his office is yet to get a response from the ministry.

He said the constitution’s provision on Provincial Judicial Service Commission was yet to be implemented.

Spokesperson for MoLJPA Dhan Raj Gyawali said a new federal law was not enacted thus far mainly because the ministry was still discussing all aspects of the bill. “There is no conceptual clarity about what the Provincial Judicial Service Council should address. Our judiciary is a unitary institution.

Employees of the Provincial Chief Attorney’s Office are directed and controlled by the Office of the Attorney General.

However, the constitution provisions creation of Provincial Judicial Service Commission, so we need to discuss more on the issue,” he added.

Lawmaker Radhe Shyam Adhikari, who was actively involved in drafting the constitution, said the constitution allowed the provinces to form their own Provincial Public Service Commission and Judicial Service Commission mainly to address the concerns of political parties that raised the issue of marginalisation in the state organs. “Although our judiciary is unitary in nature, the spirit of Article 156 gives the provinces power to form its own Judicial Service Commission enabling them to recruit employees up to a certain level in district and high courts under their jurisdiction,” he argued.

A version of this article appears in print on April 21, 2019 of The Himalayan Times.

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