Nepal | November 29, 2020

Law-making process: Far from participatory

Mukti Rijal
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Bureaucrats are keen to ensure that their interests are secured and protected in the laws and regulations. They seem to make efforts to insulate public concern and interests from prying into the policy-making process

Nepal’s law-making process has come under serious scrutiny these days. It is alleged that stakeholder participation is more or less discouraged or deterred, if not denied, in airing views, suggestions and inputs into the process. This nay saying to citizen participation is true at both the pre-legislative and post-legislative stages. There seems to be no significant departure in the law-making process from the past even though the country has embraced the federal type of governance. Under federalism, sovereign citizens should be legitimately valued as the primary stakeholders and placed at the centre of law-making as its shaper and maker. The larger interests of the citizens should receive primary attention, and their interests should be reflected in the policies, laws and regulations formulated and enforced by the government.

Citizens raise and articulate their voices and concerns over government laws, policies and programmes by lending meaningful participation in the process of formulating policies. This is at times time taking, circuitous and daunting. In fact, citizen participation can help the government gauge the stakeholders’ mood, feel the pulse of the people, and moderate, deflect and avert disastrous consequences in the event of flawed policies and legislation.

Nepal’s federal constitution in its preamble clearly states that the sovereign power of the state resides in the people, and their participation offers the bedrock for the country’s federalist governing system. In the preamble, egalitarian values and participatory principles are clearly stated as key descriptors of the federal politics that places emphasis on equity-based allocation and distribution of resources and meaningful participation of the people.

However, citizen-based participatory political order has not been upheld, nurtured and respected by the incumbent political and administrative authorities as they seem to be oblivious of the promise of the constitution that seeks and enunciates democratic political transformation in the country. The traditional administrative authorities, long entrenched in the ruling apparatus and bureaucratic mechanism of the country, have usurped and dominated the spaces which otherwise would have been cultivated, used and utilised by the citizens and their representatives who are expected to not only articulate views and inputs in the policy-making process but also hold the authorities to account for their performance or non-performance.

Top notch bureaucrats are always at the lead in conceptualising and drafting the laws. And they finalise them even without necessary consultation and deliberation in the Parliament. The bureaucrats seem very keen to ensure that their interests are secured and protected in the laws and regulations. They seem to make efforts to insulate public concern and interests from prying into the policy-making process. Bureaucrats tend to shy away from meaningful civic deliberation and contestation to churn relevant inputs and ideas from the public sphere into the policy-making process. A recent example in this regard has been the passage and ratification of sixteen laws related to fundamental human rights.

These laws were mandatorily required to be enacted by the Federal Parliament in the manner the fundamental rights enshrined in the constitution are implemented and realised. Since these laws have larger repercussions in attaining and enforcing human rights, especially for underprivileged groups, they demand discussion and deliberation among the critical stakeholder groups. But this was not considered and rushed through both the houses of the Parliament without deliberation, technically to meet the constitutional deadline.

The constitution had made it mandatory that the sixteen laws related to human rights be in place within three years since the promulgation of the federal constitution on September 20, 2015. The government showed no requisite interest in drafting the laws in time and allowing the stakeholders to discuss the provisions seriously to ensure that their interests and concerns were reflected before the laws were enacted by the Parliament. Now the stakeholders have raised several questions and contentions to dispute the significance of the legislation.

Similarly, the Guthi Bill, Media Council Bill, Information Technology Bill and many other legislative proposals have faced stiff resistance, both from the stakeholders and lawmakers, which has more or less stalled the process for their passage and enactment for some time now. The government was forced to withdraw the Guthi Bill due to stiff opposition by the stakeholders.

The Federal Parliament is discussing the Federal Civil Service Bill, which is expected to be ratified during the on-going session of the Parliament. Though it is an important bill with critical stakes of the local and state (Pradesh) governments, the sub-national governments have not been invited to discuss and give their feedback in the proposed civil service law. The lawmakers are also divided over the provisions of the proposed legislation because they have not had the time to deliberate on the bill and forge consensus. Nepal, therefore, needs to follow the participatory law-making process to ensure that the government policies are owned and effectively enforced to nurture the values of participatory democracy.


A version of this article appears in print on March 19, 2020 of The Himalayan Times.

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