Do mayors have free rein?Experts say constitutional spirit is for local unit chiefs to behave themselves, rather than others disciplining them.
Last week, on Monday, the Kathmandu Metropolitan City (KMC) Mayor Balendra Shah banned the Hindi movie ‘Adipurush’ from screening in the cinemas inside the metropolis. The problem, he said, was that the film had a line that claimed that ‘Janaki’ (Goddess Sita) is a daughter of India. The suit was followed by the mayors of Pokhara Metropolitan City and Dharan Sub-metropolitan City. Later, the screening of the movie was stalled, citing the issue of law and order.
But then it turned out that the film had no such dialogue. That led to cinema operators to move court against Mayor Shah’s action.
On Wednesday, the Patan High Court issued an interlocutory order asking the authorities not to intervene in the screening of any movie cleared by the censor board. Soon, Shah took to social media to lambast the court’s order.
He not only vented his ire at the court’s decision but also went on to say that the court and the government had become ‘slaves’ to the southern neighbour, India.
Experts say the Kathmandu mayor’s posture could be held as contempt of court and even cost him his public position.
“The mayor is not above the law,” senior advocate Sambhu Thapa said, adding that Shah has no freedom to disobey the court’s order.
Earlier, on June 16, Shah abruptly stopped the Kantipur-HISSAN education fair, which had kicked off with permission from the Ministry of Education, creating chaos in an event that was attended by hundreds of students.
The same week, Shah tussled with the Civil Aviation Authority of Nepal (CAAN) as well over a piece of land, from where the metropolitan office removed squatters and where it planned to develop a park. Claiming the piece of land, the CAAN fenced the area and the municipal force removed it. The aviation authority sought clarification from Mayor Shah who promptly moved the Patan High Court.
In April first week, the mayor was in the spotlight for announcing a halt to garbage collection from the country’s administrative hub, Singha Durbar. He levelled 14 charges against various ministries, accusing them of not cooperating with the City in managing waste.
Some of Shah’s initiatives, however, have been appreciated too. For instance, the City office came up with innovative ideas such as the ‘Book-free Fridays’ at community schools. He also enforced the provision of 10 percent scholarships in schools, mainly for those from poor families, disabled ones and those from marginalised communities. The City office drew praise for making hospitals allocate 10 percent of their beds for free treatment of poor patients as required by the law.
Like Shah, Harka Sampang Rai, mayor of Dharan Sub-Metropolitan City, has been widely appreciated for some of his initiatives such as bringing water to the City via a 40 km-long pipeline to address Dharan’s water scarcity.
“Though Mayor Sampang is energetic, the problem is that he always prefers to tussle with those whom he disagrees with. More than that, the mayor engages in verbal altercations at a personal level and also does not care about his jurisdiction,” said a Dharan municipal officer on the condition that his identity not be revealed.
“I am sure, if I or any other official questions his activities, the public will attack us, so we express our reservations only in internal meetings,” said the official.
Despite their commendable work and good intentions, some local level chiefs, including Shah and Sampang are criticised for taking abrupt decisions and not consulting the stakeholders while making decisions.
These activities have caused a debate on the systems’ ability to check and balance, making the local level accountable.
Constitution powers of local units
The constitution has listed 22 powers to be exercised by the local federal units that include jurisdictions over city police, cooperative institutions, FM stations, local tax (property tax, house rent tax, land and building registration fee, motor vehicle tax), service charge, tourism fee, advertisement tax, business tax, land tax (land revenue), penalty, entertainment tax, land revenue; basic and secondary education; basic health and sanitation; local market management, environment protection, local roads, rural roads, agri-roads and irrigation.
Likewise, they lead rural Municipal Assembly, Municipal Assembly, District Assembly, local courts, oversee affairs of distribution of house and land ownership certificates; agriculture and animal husbandry, agri-products management, animal health; management of senior citizens, persons with disabilities and the incapacitated; disaster management; protection and development of languages, cultures and fine arts, including others. However, many powers are shared by both provincial and federal governments, and this has invited conflict between the three tiers of government.
Roles and responsibilities of local governments
Nepal’s constitution has adopted a model of three-tier government—federal, provincial and local, and all are envisioned as autonomous. The constitution has given a role to the local government (rural municipalities, municipalities, sub-metropolitan cities and metropolitan cities), and their major role is to improve the living standards of citizens by utilising local resources for transport, planning, housing, economy and community development.
“If you look at the constitution, local units themselves can exercise executive, legislative and judicial powers,” said Khim Lal Devkota, an expert on federalism and local governance.
Constitutional expert Dinesh Tripathi said the spirit of the constitution is that different layers of government in the federal set-up work hand in hand, as they cooperate and coordinate. “If there is a conflict, it has to be solved with dialogue or negotiation. If not, it has to be resolved through the constitutional bench of the Supreme Court.”
Tripathi said it is problematic that there are no proper laws to address conflicts. “For example, there is no law regarding tax. Even though the constitution authorises the local government to raise tax, the federal government is doing that,” said Tripathi.
Likewise, the constitution empowers the local units to run FM radios, but the central government claims that authority. “Still, to get an FM licence, you need to go to the Ministry of Communication,” he said.
What if a local authority challenges a court verdict?
Legal experts say it is unconstitutional for the head of a local unit not to abide by the court’s decision, and could thus invite legal trouble.
They said Shah’s comment is against Article 126(2), Article 128(4), Article 139 (2) and Article 151(1) and is an act of contempt of court.
Article 126(2) states that all shall abide by the orders or decisions made by courts in the course of hearing a lawsuit.
Article 126(2) states that the Supreme Court may initiate proceedings of contempt and impose punishment in case someone obstructs the dispensation of justice or disregards any order or judgement handed down by it or any subordinate court.
As per the article, the top court can initiate a case against Shah as his statement amounts to contempt of court.
Article 139(2) of the constitution states that the High Court may initiate proceedings on and impose punishment for contempt, as provided for in the federal law, in case anyone obstructs the dispensation of justice by, or disregards any order or judgement handed down by it or any of its subordinate courts or judicial institutions.
Which bodies can check the mayor’s powers?
The constitution has envisioned checks and balances among the three branches of the government—executive, legislative and judiciary—at federal and provincial levels.
With regard to the local level, the municipal executive committee can exercise the check and balance as mentioned in Article 214 of the constitution.
Federalism expert Devkota said only the municipal executives can check the chief’s activities. Mayor or the head of the local government can’t decide on anything without approval of the executive that includes ward chairs, and other elected representatives.
Can the mayor be forcibly removed?
Once the local unit elects representatives, there are no constitutional or legal clauses that can force a mayor to quit. Article 216(8) of the constitution specifies how the offices of the mayor, deputy mayor, ward chairperson or member can become vacant.
The position becomes vacant only “if the mayor tenders resignation in writing to the deputy mayor, and if the deputy mayor tenders resignation, in writing, before the mayor, (b) if his or her term of office expires, (c) if he or she dies.”
Constitutional expert Bipin Adhikari, however, said that if a mayor breaches the law of the nation, s/he can’t escape legal action.
“The constitution provides for a five-year tenure of local representatives, ensuring stability and enough time for development. This is good in principle, but now a problem has surfaced as some local units crossed their jurisdictions and touched the boundaries of the provincial and federal governments,” said Adhikari. One can disagree with the court's decision, “but no one can defy a court order. If you disobey, it amounts to contempt of court,” said Adhikari.
He said if the local unit chief has breached the ‘criminal law’, there is a provision that the federal government can take action against them. “A mayor can take decisions on issues related to local units, but s/he can’t go beyond his jurisdiction. In the case of the Kathmandu mayor, it seems he has crossed his boundaries,” said Adhikari. “Also, if someone engages in corruption or abuses authority, the Commission for Investigation of Abuse of Authority can investigate the matter and take action.”
How to make mayors and local leaders accountable
Experts say only the people who voted for the mayor and other local representatives can make them accountable. Other elected representatives can raise questions about the Mayor's actions in the executive meeting and municipal assemblies.
Constitutional experts say the three tires of government complement each other. If one doesn’t cooperate, it will cause a problem in the whole federal system. “If all the local units challenge the federal bodies, and keep on making unilateral decisions, the whole federal system will fail,” said Tripathi.