Chief Attorney of Province 2 Dipendra Jha has worked for almost a decade as a human rights activist. He has been trying to help Province 2 government enact human rights-friendly laws as well as laws that will help the provincial government enjoy full autonomy as envisaged in the constitution. Ram Kumar Kamat of The Himalayan Times caught up with him to know his views on some key legal and political issues that concern the province where two Madhesi parties — Federal Socialist Forum-Nepal and Rastriya Janata Party-Nepal — are running their coalition government: Excerpts:

It’s been almost a year since you took up the job of chief attorney of Province 2. What have you achieved thus far?

I basically have two mandates: to assist the chief minister on legal issues and to defend the provincial government in cases filed against it.

But I was also given the additional role of coordinating a committee formed to facilitate drafting of bills. I have provided my expertise in this regard. Almost 35 bills have been registered in the Province 2 Assembly.

They include some powerful bill such as Provincial Police Bill and Provincial Administrators’ Bill, Dalit Empowerment Bill, Good Governance Bill and Constitution of Madarsa Education Board Bill. Some of these bills have already been passed and they have helped institutionalise federalism.

My office has appointed legal officers in eight districts of the province to assist victims of statelessness, domestic violence and caste discrimination get justice. These legal officers are providing services to the victims free of cost. They have also been defending the provincial government in cases filed against it.

How many bills does the provincial government want to bring this year?

Although we had planned to bring 50 bills, we could bring only 35. As of now, the number of bills that have already been certified by the governor stands at 16. Nineteen other bills are being considered by the relevant panels of the PA, but we will meet the target of passing 50 bills in the current fiscal. Provincial Public Service Commission Bill has also been registered in the PA and the moment the federal government gives us guidelines, we will move the bill accordingly.

We have the Provincial Civil Service Bill ready and we are now trying to bring Women Bill, Land Management Bill and Trust Management Bill soon.

Province 2 government was criticised for bringing the Police Bill. Now Province 2 has okayed a new Provincial Administration Bill that intends to create structure parallel to the District Administration Office. What do you say?

Those who do not have basic understanding of our constitution raise these issues. Nowhere is it stated in the constitution that the provincial government should bring these bills only after the federal government brings them. The term ‘umbrella bills’ that some people have used is a wrong term. The constitution has not mentioned umbrella acts anywhere.

Article 268 (2) of the constitution stipulates that the provincial government will form provincial police as per the law, so there is no problem in constituting the provincial police. There are no ifs and buts here. Article 268 (3), however, says that coordination and supervision of provincial police will be governed by central guidelines. This means that the question of supervision and coordination can arise only after the provincial police is formed and we are trying to do exactly this. Section 99 of the Provincial Police Bill stipulates that supervision and coordination of the provincial police will be as per the provisions of the federal law. Provincial governments have absolute right to constitute provincial police. Province 2 government has recognised the role of federal law in adjusting police personnel. Province 2 government has not exceeded its constitutional boundary on any of these bills.

It is provinces’ exclusive right to run their own administration.

Schedule 5, which deals with the exclusive power of the federal government, does not give it power to run the provincial administration.

Schedule 6 of the constitution that gives provincial governments exclusive powers, stipulates that provincial governments have exclusive power over provincial police, provincial administration and peace and security. The federal government should not have introduced a bill with the objective of continuing the service of chief district officers. Province 2 does not want to compromise on powers that the constitution has given.

What are the major problems that you think impede the implementation of federalism?

There are three or four issues that impede the implementation of federalism.

Delay in adjustment of civil servants is one of them. The period from mid-March to mid-June is very crucial for provincial governments to carry out major development works. As the adjustment of civil servants is taking place around this time, it is certain the provincial government will not be able to spend its development budget this year.

The government should have completed this process last year.

This adjustment does not have the sanction of the constitution because as per Article 302 (2) only those employees that existed during promulgation of the constitution qualify for adjustment. Contrary to this provision, the federal government is adjusting also those civil servants that were appointed this year. Had the federal government issued the criteria, the provincial Public Service Commission could have appointed its own civil servants in Province 2.

This shows that the federal government wants to control things that are not under its jurisdiction.

For example, Article 227 of the constitution stipulates that the management of employees in local governments will be the responsibility of provincial governments, but in reality, the federal government is sending executive officers to local levels, thereby minimising the role of the provincial government. The federal government does not want to hand over power to other tiers of the government.

The federal government monopolistically sets criteria to decide which project remains with which tier of government. For example, the federal government haphazardly decides on projects that will remain under its jurisdiction.

In Province 2, the federal government neither handed over the Bagmati Irrigation and Kamala Irrigation projects to Province 2 government nor did it hand over Janakpur Fisheries Project to the provincial government. The federal government did not give Nawalpur-based Horticulture Project to the provincial government, but it did hand over Janakpur-based horticulture to Province 2. Primary education is under the local government’s jurisdiction, but the federal government has decided to revive District Education Office with the objective of taking control over primary education. The federal government is trying to revive old structures with new names.

The federal government has fear psychosis that if Province 2 is given the power to run its own police and administration, then one day it might secede. What the federal government needs to know is that the more mandate and autonomy it gives to provinces, the more it strengthens unity and integrity of the nation.

Province 2 government’s attempt to introduce a Madarsa Education Board bill was criticised by some political leaders. What are the major provisions of the bill?

Those who criticised the bill did so without thoroughly reading its contents.

Muslims constitute 13 per cent population in Province 2. In Rautahat and Mahottari districts, the Muslim population is higher than in other districts of Province 2.

Literary rate and HDI index are very low in Muslim dominated areas and we have to increase these rates to improve the situation of Muslims.

Unless Province 2 government improves literary rate among the Muslim population, their HDI will remain low. Province 2 government does not want to promote Madarsa education. The Madarsa Education Board Bill intends to modernise Madarsa education. This means if Madarsas want to teach Quran to its pupils, they are free do so. We are also trying to make it mandatory for Madarsas to introduce English, Science, Mathematics and Computer Science so as to modernise Madarsa education.

This bill will also help the government have records of the exact number of Madarsas in the province.

At present, the provincial government does not have actual data of Madarsas and there is no uniformity in the syllabus of Madarsas.

Teachers are also not qualified, but some people wrongly interpreted the bill’s contents. This is not a religious bill, but an education bill. In no way will the bill radicalise Muslim pupils. It will rather help modernise Madarsa education.

The provinces have recently lobbied the federal government to allow them to seek foreign aid and investment without restriction. What are your views on this?

The constitution does not put any restriction on provincial governments receiving foreign aid and investment.

The spirit of the constitutional provision is that provinces will have to coordinate with the federal government before receiving foreign aid and investment. But it should be clear that provinces should initially be allowed to hold negotiations with foreign donors and investors. Provinces should be obligated to coordinate with the federal government only before signing the final deal.

The constitution does not allow the federal government to prevent provincial governments from holding talks with foreign donors and investors.

We have been holding talks with foreign donors and investors and the day we are constrained by the federal government, we will raise the issue. Province 2 has a lot of potential for development as it has accessible roads and adequate land for carrying out development projects.

Linkage of broad-gauge railway service from Janakpur to Jaynagar and Kolkata will certainly boost trade between the two countries.

What are the challenges that policymakers face in their efforts to empower women and Dalits in Province 2?

Province 2 government is basically targeting Dalits and women. It has given the slogan ‘save the girl child educate the girl child’ and the government has also initiated a new programme of insurance cover of Rs 100,000 for each girl child. But girls will get this sum only if they marry after 20 years of age and if they go to school regularly. According to data, around 50,000 girls are born in Province 2 every year. We need almost 700 million rupees to insure girl children, for which we also got funds from the federal government. Province 2 government has ensured 50 per cent reservation for women in the provincial police and provincial civil service. We have registered a bill to protect the rights of Dalits. We have anti-caste discrimination law, but police are not registering FIRs against culprits in many cases. Province 2 government is preparing to reserve seats for Dalits in state organs in proportion to the Dalit population.

In the Provincial Police Bill, there is a proposal to allocate 50 per cent seats for women. Ten years from now, you may see all women SPs in the provincial police force of Province 2. Also, Province 2 government has a provision whereby Dalit students, who win scholarships, will get government fund for pursuing their MBBS degree. In Province 2, daughters are viewed as burden for the family. We are bringing a powerful Women Empowerment Bill, which will ensure women’s equal right, prohibit dowry and foeticide.

Are you satisfied with your role or do you think the chief attorney should have more powers?

I am supposed to give advice to the provincial government and defend it in the courts, but I now realise that the chief attorney should also have prosecutorial right in certain cases. The Office of the Attorney General can have prosecutorial rights in cases of serious offence, it can delegate some prosecutorial rights to the chief attorneys, but the constitution will have to be amended for this.