SC Decision
Debate On Decentralisation

By Mukti Rijal

THE Supreme Court handed a very landmark decision, the other day, which may have a major bearing upon upon the decentralisation process in the country. The apex court judgement may raise now some discussion on the subject of relationship between the executive and judicial organ of the government. Almost a year ago the court had, through a decision, forayed into the domain of legislature too. However, the decision was not to diminish or lower the prestige and mandates of the legislative organ. Neither had the decision created jurisdictional conflicts and debates at that time. The court decision in the past was welcomed in many quarters because it had invalidated the pension benefits and entitlements to the parliamentarians which was provided to them after their tenure in the national legislature was over. The pension entitlement to the lawmakers was opposed as it was a drain on the national exchequer and politicians deserved not to benefit from such a scheme. Some lawmakers were not in favour of pension entitlement and also opposed it. And one or two parliamentarians had even refused to receive the benefits. Lawmakers did not react to that judicial decision sharply and swallowed it up as if it did not had any effect. They did it keeping in view the popular mood and positive response the judicial decision did evoke.

However, this time the situation looks different. The lawmakers being provided with the fund for constituency development may not stomach it and can launch criticism against the judicial decision. But, the spirit of the decision of the Supreme Court seems not negative. And it has not questioned the rationale of the provision that entitles them to decide about the allocation of the resources under the constituency development fund. The court, according to the newspaper report, has required the lawmakers to enact the law to entitle them to spend the money under the constituency development provision. This can be said as an reiteration of the rule of law. The decision of the court intends to further and strengthen the process.

The scheme relating to the constituency development fund was initiated in 1994. The fund is administered and implemented in accordance with the guideline issued by the government. In principle, the guideline is elaborate and also based on the participatory spirit. However, the implementation aspect is said to be plagued by some problems. The report of the Auditor General shows glaring defects in the administration and utilisation of the fund. No doubt the fund has been allocated and spent for some good causes and there are also areas where rectification has been mooted time and again. There are reports in the newspapers that the fund money was channeled to construct the party offices and serve the partisan interests at the local level. The local government institutions including VDCs, municipalities and DDCs raised their voices contending that the provision undermined the spirit of decentralisation and local self-governance. However, lawmakers justified the fund on the ground that they are compelled to meet the several demands of their constituents including those relating to development. A parliamentarian in the Nepalese context has not only to debate the issues connected to the formulation of laws but also serve the interests of the electorate and meet the voters’ demands through several other means including supporting the small development projects. This reality can not be ignored. In the countries like India and the Philippines parliamentarians and senators do receive a certain amount of resources so that they can help their constituents in fulfilling their development needs.

However, the provision is said to be against the basics of decentralisation and self-governance. Parliamentarians should not undertake responsibilities and functions as ‘development executives’ and their mandate is to initiate, contribute and strengthen the process of law making. In the event that the lawmakers get themselves involved in the development activities their national responsibilities are related to the background. And their role as the initiator and supervisor of the development functions seldom becomes effective. For the local details and the grass root based activities local bodies including the VDCs and DDCs should be made accountable and they should be given enough mandates and resources for the same. Decentralised governance calls for strong and functional local government institutions. No authority should overrule the mandates of the local bodies and institutions. The decision of the Supreme Court should be interpreted in the positive light and enough discussions should be held about the rationale and importance of the constituency development fund. Should that the rationale of the fund be established and agreed it should be provided by means of an enactment of legislation. This will contribute to upholding the rule of law and democratic governance in the country.

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• Misleading Media