No provincial matterWe have to analyse the executive powers granted to the federal units by the constitution.
Khim Lal Devkota
The election manifesto of the Nepali Congress mentions enacting the Province Government Operation Act. The Nepali Congress will say why this provision has been included in its manifesto, but this law will further weaken and infringe on the autonomy of the provinces. In order to see whether it is essential or not, we have to analyse the executive powers granted to the federal units by the constitution.
The constitution has slightly weakened the role of the local units, but it provides equal rights to the federal and provincial levels. Subsection (1) of Article 75 says, “The executive power of Nepal shall, pursuant to this constitution and law, be vested in the Council of Ministers”.
There is a similar provision concerning the provinces in clauses (1) and (2) of Article 162: “The executive power of a province shall, pursuant to this constitution and the Province law, be vested in the Province Council of Ministers. The responsibility for issuing general directives, controlling and regulating the governance of the province shall, subject to this constitution and other laws, lie in the Province Council of Ministers.”
But regarding the use of executive power at the local level, Article 214 says, “The executive power of the Local Level shall, pursuant to this constitution and the Federal law, be vested in the Village Executive or the Municipal Executive”. Here, in addition to the word “constitution”, the words "federal law" have been added.
The federal government does not have the right to make laws for the provinces at the local level. What is important to understand here is that the constitution also states that the executive power of the local level will also be governed by federal laws. Article 227 of the constitution stipulates that provincial laws shall prevail over the exercise of legislative powers.
The Local Government Act is also a law related to operations at the local level. The operation provisions of the federal, provincial and local levels are also included in Articles 82, 174 and 218 respectively.
In relation to the federal level, it is stated in clause (1) of Article 82 that the business of the Government of Nepal shall be allocated and transacted in accordance with the rules approved by the Government of Nepal. According to sub-section 2 of this article, no question may be raised in any court as to whether or not the rules under clause (1) have been observed.
There is a similar provision in Article 174 regarding the province. According to this provision of the constitution, the Government of Nepal (Allocation of Business) Rules 2017 and Provincial Government (Allocation of Business) Rules 2017 have come into existence. The Rules have given full autonomy to the federal and provincial governments. As per the constitution, no law can or should violate the Rules.
Regarding the matter of using executive powers, the constitution has put the local level on a short leash. Article 218 states, “Allocation and conduct of business of the Village Executive and the Municipal Executive shall be carried out in accordance with the rules approved by the Village Executive and the Municipal Executive, respectively.” But there is no provision saying that the federal and provincial governments are not allowed to ask any question in court whether work has been done in accordance with the rules.
According to officials of the Ministry of Federal Affairs and General Administration, no local unit has created the “Allocation of Business Rules” so far. They have considered the Local Government Operation Law as their guiding document.
Rules and regulations
The management of the legislature, executive and judiciary will be carried out as per their own rules and regulations. If there is a law instead of a regulation, they cannot work at all. The government can bypass Parliament and introduce a law through an ordinance. The government can bring ordinances according to its interests, which upon fulfilment, can be made inactive.
The high-level staff of the Ministry of Federal Affairs and General Administration, retired government secretaries and law experts have repeatedly raised the need for the Province Government Operation Act. Now, I am surprised to see this issue in the election manifesto of the Nepali Congress.
The Nepali Congress and its advocates should understand well that such an arrangement will not make the provinces more prosperous; it will only make them fall into oblivion. It is important for the party to officially admit that it made a mistake inserting this point in its election manifesto.