Opinion Forum

Bijaya Raj Gautam

Executive Director, INSEC

Democratic countries like Nepal prioritize the protection and promotion of human rights in their constitutions and laws, emphasizing the importance of their implementation. Nepal has established legal, administrative, and structural arrangements to safeguard human rights, ensuring that no one suffers from violations or abuses. The country has also signed several international United Nations human rights documents, expressing its commitment to fulfilling the obligations outlined in them. Nepal’s commitment to human rights is evident in its constitution, laws, policies, action plans, and programs. One significant example of this commitment is the National Action Plan on Human Rights, which has been implemented by the Nepal government for more than a decade. However, the economic, social, and cultural rights of the citizens remain a low priority. Basic rights are at risk in remote areas, and incidents of violence against women have not decreased. Even though the country has embraced federalism, it appears that human rights issues have not been prioritized by the governments at all three levels. With the country’s focus primarily on political agendas, the human rights agenda seems to be consistently overshadowed. It is a challenge that human rights issues are not prioritized in the executive’s actions and that the legislative parliament has been unable to create laws by the constitution. This has further complicated the implementation of citizens’ fundamental rights. The state of a country’s human rights situation reflects how accountable the government is to its citizens.

The Constitution of Nepal envisions three levels of government: federal, provincial, and local. This framework has now been implemented within the federal democratic republican system of governance. Elections have been held for all three levels of government. Initially, there were concerns and doubts about whether these elections would take place at all. According to the constitution, local elections are the priority. At the onset of federalism, a writ was filed in the Supreme Court to ensure its effective implementation. Following the Supreme Court’s order, the country advanced toward the implementation of federalism. However, there was also confusion surrounding the provincial and federal elections. Gradually, the confusion was resolved, and the country progressed according to the constitutional mandate to hold all elections by January 22, 2018. This is a very positive development. All levels of elections were completed on December 7, 2017. Since then, politics has taken a new direction. The country now has 761 governments in total: 753 local governments, seven provincial governments, and one federal government. All three levels of government have legislative powers. At the local level, there are rural and municipal councils. At the provincial level, there is a provincial assembly. At the national level, there are representatives and the National Assembly. Each of these bodies has specific jurisdictions defined in the constitution. The constitution also details single and joint rights in its Schedule. All three tiers of government are devolved to the people’s sovereignty and state power. While governments at all levels may not always meet public expectations, many development projects have progressed significantly in various rural municipalities. Even though the federal practice is new for Nepal, it has been evolving and maturing through learning and progress. During this period, issues such as legal difficulties, challenges in adapting to the new federal structure, lack of organization, legal duplication, and other concerns have surfaced. There was an existing structure for the local level, as Rural Municipalities and Municipalities had their systems in place, so the current local level did not face significant structural issues. However, the provincial government, being entirely new, encountered such problems. Most countries around the world operate with two levels of government: Central and Local Government. That is the intention of special federalism. However, since we have three levels of government, the local and provincial governments are saying that due to issues such as the distribution of rights, law-making, and exercise of power, there are obstacles in doing things according to people’s expectations. If we can work sensitively on such issues, there will be no difficulty in fulfilling public expectations. All 761 governments possess executive powers as granted by the Constitution. The constitution also outlines the responsibilities for collaborative work among the different levels of government. Additionally, there is a provision for resolving disputes through court proceedings. It is important to understand that common rights are additional to the existing rights. Some laws have not been formulated with common rights in mind. There are 22 single powers allocated to the local level, along with single powers designated for the provinces and the federal government. The federal government amended 150 laws simultaneously, which also led to some issues. Any conflicts between these laws can be resolved by the Constitutional Court. Additionally, the federal government has enacted 17 laws related to fundamental rights. However, this appears to conflict with the authority of the provinces and local levels. The federal government seems to have overlooked that state and local governments also play a role in implementing fundamental rights. The provincial government has 21 sole powers and is working to exercise these rights.

In Nepal, the provincial government began from scratch, whereas the local level had basic physical structures already in place. At the provincial level, there were no pre-existing structures or systems. Employees had to be assigned by the federal government, and considerable time was spent establishing basic physical and legal frameworks. Adjusting staff also took time. As a result, the general public began to question the necessity of the provincial government. Since this is a new structure without a prior framework, it can be challenging to convey that it will take time to become effective. The provincial government needs to proactively communicate this message to the public. It is important to actively promote the provincial government’s needs, work, and benefits. The provincial government needs help from the federal government for this, but the federal government has not provided adequate support. There is hope now that the province is making its laws. Additionally, the expectations are also high as the provincial government has improved its legal, physical, and staff management policies. In the future, if we support people’s needs with a strong legal structure, accepting the role of the provincial government will become easier.

Just like a newborn who takes time to learn to walk, continually falling and getting up, the provincial government is also in a developmental phase. There’s no need for despair, as it is still developing. In some countries where federalism is implemented, there are two levels of government, in our country there are three levels of government. Elsewhere there are local governments under the provincial government. We have 761 autonomous governments, each independent and not subordinate to one another. All governments have begun using their rights. It is now important to start utilizing common rights as well. This will clarify the role and importance of the provincial government and help communicate hope to the public. In the Federal Democratic Republic of Nepal, all three tiers of government are responsible for protecting our rights. It is essential for everyone to feel that these governments are accountable to them and that they are fulfilling their duties effectively. As a government elected by the people to ensure peace, security, and service facilities, we have just begun our journey in the federal governance system. It is important to understand that we must provide critical advice and work towards making this system sustainable. The general public needs to understand that if we are not vigilant, the government may struggle to function effectively. Local governments have a greater responsibility in this regard because they are the closest to the people. Federalism is based on the rule of law. For the government to follow the law, the people must take an active role. Strengthening federalism is a shared responsibility between the government and every individual, so everyone needs to stay alert and informed.