NATIONAL 4 - (Spotlight Weekly)

‘We Can Control Corruption By Examples Set By Persons In Highest Position Than By Any Other Means"

— Kul Shekhar Sharma

KUL SHEKHAR SHARMA is a respected name in Nepalese bureaucracy. Having joined civil service in 1952, Sharma held different portfolios during his tenure in civil service. Seventy three- year-old former Secretary, Sharma is still busy in his retired life. Also the former governor of Nepal Rastra Bank, Sharma currently publishes religious magazine. Sharma spoke to KESHAB POUDEL on different issues of civil service of Nepal. Excerpts:

What type of reform do we need for the Nepalese civil service?

All I want to say is we need to change the old system in line with reforms which are being introduced by other countries. What people are saying is to install a new managerial system based on decentralized autonomy and modernization. There should be well-defined duties, operative manual and clearly accountable persons. It will be a drastic change that will bring results. This can be done by taking many steps. Downsizing the government will be the first step. Another step will be making public servants accountable by delegating upon them the full power to implement the programs. Still another step is converting the government entity into autonomous units. Associating the civil society into the bureaucracy will also increase the acceptability of government policy as well as help making the policy more public-oriented. This requires giving full authority to service delivering officers and enabling them to deliver services more efficiently. There should be no encroachment or interference in the affairs of officers.

How can service delivery be made effective?

Enabling the service provider to provide services more effectively is one side and giving them incentives is another effective way and the government should support these efforts. There should be more flattened system rather than hierarchy because that will cut down the process. Other important step is to provide decent wages to the employees as they are presently getting very low salary. Determining the numbers and means of work is equally important. The job description should be made according to the volume of work rather than political pressures. It involves the scarce resources of state so management is all about the efficiency of civil service. And wastage of government resources in the form of large number of ministries and ministers send wrong signals to the bureaucrats down the line.

What about the de-politicization?

De-politicization is another important aspect to improve efficiency in bureaucracy. Transfers should be based on efficiency and capability. Political leadership should pick up the persons on the basis of competitiveness. But at all levels, political leadership should keep away from the postings.

As a long experienced former civil servant, how do you see the present state of civil service?

The civil service now is more trained and their capability have also gone up considering that they are exposed to modern techniques of administration. They have travelled far and wide and seen how other countries' administration functions. That way their level of capability has gone up. Simultaneously, Nepalese civil servants performance has gone down. It is a result of lack of morality. One of the reasons for lack of ethics is that political leadership of the government has not been able to lead them.

In the last ten years, every successive governments have been saying that they want to de-link politics from administration. How do you find their commitments?

I find that the statements of many of the leaders are good. Good statements have been made by all politicians but very few of them have tried to implement what they have said.

As Nepal's bureaucratic system is said to be not moving properly, what corrective measures does Nepal need to take?

In order to enable civil service, it is necessary that the political leadership should be sincere. All their actions should be guided more by the welfare of the people rather than personal welfare or the welfare of their party. So, sincerity in the conduct of government is as infectious as lack of will.

Nepalese bureaucracy is said to be mired in corruption. How do you look at this statement?

I have lost the administrative contact for a long time but I hear about widespread complaints regarding corruption. It is very difficult to say how far the statements are true. People have been saying that there are corruption at various levels. We must be clear about whether the corruption is in political level or bureaucratic level.

There are various mechanisms to contain corruption. Why are these mechanisms not functioning to address these issues?

We can control the corruption through examples set by the people at highest position rather than by any other means. How much corruption there would be in the government could largely depend upon how the Prime Minister and other ministers conduct. But it is also essential that corruption should be legally dealt as and when it occurs. Punishment is not enough to contain corruption. A feeling should be created in society that corruption is not tolerable and it is unacceptable. Other important aspect is that creation of an environment in which character and conduct of people is given greater respect than people in power. Corruption starts from the minds of the people so right conduct should be encouraged.

How do you see the commitments on the part of the political leadership?

So far I have not seen any tangible commitment from the leadership.

As Prime Minister Girija Prasad Koirala is calling for civil service reforms, what kinds of reforms is the PM Koirala intending for?

When we are talking about the civil service reforms, you must be determined on what kind of management do you want. Our management system should be at par with civil service. Only after that can we determine types of reforms in civil service. What kinds of management system we need and what kind of management system we want, all these factors determine the civil service reform. We cannot start the reform by placing the civil service in vacuum. The country now has traditional type of civil service which is not useful at all.

What do you mean by traditional type of civil service? Can you explain?

The traditional type of hierarchical administrative system is based on command and control bound by combination of rules and regulations. It is designed to avoid blames and respects rather than specific objective. It is not suitable for the present time for the completion of competitive task. Today's legal system is flexible and result-oriented and in which the accountability is clearly located. In the new system, managers should be allowed greater freedom and access to fulfill their responsibility. The organizational structure should not be hierarchical but flat. It means that people should be involved in this process.

You were also Vice Chairman of the high level committee formed in 1992 by PM Girija Prasad Koirala and your committee also recommended some suggestions for the administrative reform. What is the position of your report?

The government has been telling time to time that it would be implementing the report fully. To my knowledge so far, not much of the recommendations are implemented.

After becoming the Prime Minister, Girija Prasad Koirala is repeatedly saying that he wants to reform administration. Does he mean to implement your report?

I don't know but I read his statements in paper giving top priority to the reforms in administration and development process. But he has not said how he would do it. The question now is how is he going to implement it.

In 1993, in the name of administrative reforms, Prime Minister Girija Prasad Koirala dismissed a large number of high ranking government employees at a time when you were Vice Chairman of the high level administrative commission. Were you consulted by Koirala, then?

He discussed me about his ideas and I suggested some models for reform but he took the particular decision without consulting me. After the decision, I resigned as the Vice Chairman of the Commission.

How do you evaluate the civil service of present day and the day when you were there?

Two decades ago the morale of the civil servants was very high. Today the morale of civil servants is much lower.

Why has the morale lowered in the last ten years?

Well, it is because of lack of effective political leadership.

FACE TO FACE
‘Whatever The Nature Of Case, Nepalese Courts See Them Through Civil Code’

— Anup Raj Sharma

Advocate ANUP RAJ SHARMA, President of Supreme Court Bar Association, is one of the busiest corporate lawyers in the country. Sharma spoke to SPOTLIGHT on various issues regarding the overall situation of corporate law in the country. Excerpts:

How do you see the performance of judiciary in the areas of business and corporate dispute?

Whatever the nature of the case may be, the court sees any complications through the eye of Civil Code. Now we have been talking about globalization, joint ventures and multi-national companies but there are few judges who understand the concept and terminology. Even large number of our lawyers are unaware about such concepts. Whenever we file any corporate case in the court, it is very difficult to explain problems and disputes. Since our studies are outdated, no one can explain the complications lying in the corporate case. Neither we lawyers try to explain them through the studies nor the judges do so. This is the reason many such disputes are unpredictable. Main problem is that nobody tries to update the judges. We are demanding the judicial academy to make judges up-to-date on new developments. We need to strive hard to understand today's corporate words. For instance, only a few of us know the terms like back to back Letter of Credit. Only a person working in the banking sector knows the meaning of the word. Our judges decide such case on the basis of civil code. Even in the changing world dominated by corporate sector, our courts are still guided by Civil Code. Even on the cases of transfer of share, we still follow partition clause of Civil Code though the term used in the banking sector do not match with it. We are settling the most complicated modern economic cases through the civil code.

At a time when many joint venture banks are coming and multi-national companies, too, are entering into the country, how do you establish the credibility of judicial system?

We know many international parties including multilateral agencies do not recognize our Foreign Investment Act. According to the act, Nepalese courts are authorized to settle any kinds of disputes within Nepalese judiciary. Some multilateral agencies openly refused to accept it on the ground that Nepalese Laws are vague. Some agencies even questioned the capability of Nepalese judiciary to settle issues of international standard. According to present practices, a foreign party which has investment of 50 million rupees can file arbitration case wherever it prefers. It shows that we are yet to establish our credibility. At a time when the global companies are questioning the capability of our judiciary, the time has come to do something about it.

When foreign investors are coming in aviation, banking, power sector and other areas, what will happen if we fail to establish the credibility?

We must do something to assure the investors that our laws will impartially address their problems and we are able to provide justice to the parties concerned. At present when foreigners have to undergo in a long process to get back his\her equity at the time of disputes with Nepalese partners, I don't think any foreigner except Indians will come here to invest. I don't know any multi-national investing in Nepal. Now only Indian companies are coming to Nepal who face similar situation in their country. They know how to settle the dispute by hook or by crook. Only a few genuine industrialists are coming to invest in Nepal. The credibility of the government is at low ebb. One of my foreign clients showed me three different land ownership document of a small piece of land. He asked how could it happen. I don't think any genuine investors will come to invest in the country. A foreign investor is sometimes even declined the facilities he\she is supposed to get. We don't have any kind of tradition to follow the rule of law. We don't care about the written documents and clauses. Our officials spend most of their time to interpret and reinterpret the agreement signed with parties. There is a need to change our overall perception on foreign investment. Unless we establish our credibility, we cannot lure any foreign investor into the country.

What needs to be done then?

Our concerned offices must follow and work according to the spirit of foreign investment act and judiciary, too, should convince the investors that they are capable to protect them. In many cases, foreign investors feel that they do not get justice and the interpretation of law is influenced by undue means. Foreign investors who know the circumstances in Nepal may get benefit by using unwarranted influence.

How do you see the trend of foreign investment?

Those investors who have been living in Nepal for more than 15 years prefer to settle the case through different ways and avoid the legal proceeding. They know that one cannot get the relief by knocking atthe door of court. If one can get his job done by actions under the table, why would they come to us. Such businessmen feel that there is no meaning to hire lawyers and experts to settle the issues.

What should Nepal do now?

We must convince foreign investors that their investment will be fully protected.

‘You Cannot Change The Country Overnight’

— Eloisa Hagen-Melo

ELOISA HAGEN-MELO, wife of Anton Hagen, the Resident Coordinator of Swiss Agency for Development and Co-operation (SDC). Professionally a high school teacher, Eloisa Hagen secured a master degree in social psychology, and in addition studied sociology. She spoke to SPOTLIGHT about how she sees Nepal from sociologist's point of view. Excerpts:

What was your first experience after coming to Nepal?

Honestly, it was a shock. Masses of people in the streets frightened me. I encountered an entirely new culture, new people and new challenges. After a few weeks, I realized that there were no matters to complain. I gradually understood values of the new culture and the environment, and I began to feel much easier. One of the interesting things for me was the smiling people. They are smiling a lot and they hardly get angry. In the developed countries, they are all the time busy and they do not even have time to smile. Everything goes in a hurry. People are busy here, too, but they seem more quiet and relaxed. With the time, I got increasingly excited to watch the life in the streets; everybody is moving, buying, working or just doing something in and around the streets. I felt myself like watching a movie, especially looking at the ladies walking elegantly with their colorful saris. It is fascinating. The street is full of life. In Europe, you can only occasionally witness a similar street life like in Kathmandu.

As a sociologist, how do you see the transformation of Nepalese society?

Well, Nepal is a very young democracy. One of the main challenges is to carry forward democracy and development together. Changes are taking place in a slow and smooth way. The emergence of radio and television has helped to disseminate information as well as to inject new ideas among the youth. The music programs and other related matters are bringing changes in the behavior of young people. Traditional values are fading and new ones are coming up. The media is playing a very important role to bring changes in the society. The print media, too, are publishing critical opinions on different issues. In the name of change, other cultures are also penetrating into the country. I do not think that all changes are for better but changes cannot be stopped. Learning French at the Alliance Fran�aise, I have the opportunity to meet young people every day. We sit together and discuss a lot about our life, problems, school, traditions, culture and politics, and the ongoing changes in the country. For me life is always a learning process, only through learning and critical reflection we can improve ourselves.

As a foreigner living in the country, what do you think are the main challenges for Nepal?

I hear all the time that poverty alleviation is one of the biggest challenges of the country, and I do agree. However, the expression "poverty alleviation" remains an empty word as long as no clearer implementation strategies are developed. For me as a teacher, I have the feeling that, in general, the quality of education is not at the desired level, and the percentage of illiterate people and the low number of girls' enrollment is another pressing problem for Nepal. The more the people are educated and trained, the more they will know about their rights and duties in the society, and are ready to assume responsibilities. A good education is key to economic and other developments and increases the social mobility.

Every one has been talking about the need to increase the literacy level and improve the quality of education. As a woman with long experience in teaching, what do you think Nepal needs to do to wipe out illiteracy?

To improve the quality it is necessary that the teachers are well trained. Lastly, I read in the newspaper that teachers have to go for re-examinations before they are appointed again. This could be a good step forward. Regular annual seminars, meetings and refresher courses could be very helpful. I do not remember the budget figures for the education sector, but I think this sector needs more financial inputs as well. If the teachers get more, better facilities, teaching material, etc., both the individuals as the country as a whole will gain.

How many districts have you visited since your arrival?

In fact, I like to live in urban areas. Of course, I have visited Pokhara, Chitawan, and some others districts. However, I have to admit that I stay most of the time in Kathmandu. I like the Kathmandu Valley, particularly the temples and ancient buildings. Often, maintenance of the temples is still very poor, but I am aware that there are other priorities. In Europe, you have to pay money to visit a museum here most sites are open-air museums.

How did you find the life in Kathmandu, Pokhara and Chitawan?

To be honest, the life in these three places is not too much different for me. People are very polite and friendly, especially with foreigners. All the time they are smiling.

How do you see the democratic process in the country?

As we all know, the restored multi-party democracy in Nepal is only ten years old. And changes always need time. You cannot change the country overnight. The fact to experience today a quit free and open press is very encouraging. Personally, I am very happy to see the democratic transformation in Nepal towards a more open society. When I discuss with people from different strata of life, I am getting the impression that most people are willing to support the decision makers in what they are promising, but they also blame the slow implementation pace.