National 1 (Spotlight Weekly)

Under Civil Servants

The government amends Local Self Governance Act 1999 extending the term of bureaucrats in handling local bodies

By KESHAB POUDEL

With the amendment of certain clauses of the Local Self Governance Act 1999 through ordinance promulgated by King Gyanendra, the government can now appoint civil servants to run the local bodies including village development councils, municipalities and district development councils.

After the promulgation of the ordinance, the government can extend the existing tenure of bureaucrats by another year. However, since the life of any ordinance is only six months, the government will have to re-issue the ordinance every six months to give the continuity. Local Self-Governance Act 1999 fell in crisis because it had restricted the discretionary power of the executive by not giving any playing space to dissolve or constitute; and it only gave one year maximum extension period. As a result, this year the government had to come out with the ordinance amending the act to extend the tenure of bureaucrats to handle the local bodies. The promulgation of ordinance, which amends the act till the final approval by parliament, is not a permanent solution. (See box)

"Under the present constitutional and legal provisions, the government does not have any option other than to call the elections," said a senior lawyer. "The act also sets the date for elections."

Following the expiry of tenures of elected representatives a year ago; the government handed over the bodies to the civil servants exercising the local self-governance act. According to the clause, the term of office of member of village council, village development committee, municipal council, district development council and other members shall be five years.

"After promulgation of ordinance by King, we can now constitute the councils continuing with the existing system," said Khem Raj Nepal, secretary at the Local Development Ministry, talking to state-run Nepal Television. "The local bodies now have the right to summon the council meeting and pass annual budgets."

Under the clause 239 of the local self governance act, if elections of the members of the local bodies cannot be held due to natural calamity, economic disarray or similar other special circumstances, His Majesty's Government may make arrangements for the performance of the function by either extending the time-limit for up to one year or ëin any other manner.'

Despite the provision in the act for the extension of the elected representatives for up to one year, the government led by Sher Bahadur Deuba waited till the expiry of tenure of the local bodies and handed them over to the civil servants for one year.

As the act restricts the duration of such arrangements, King Gyanendra has issued ordinance to amend the act and continue with the previous arrangements for another year. If the parliament cannot be constituted within six months, it will require another ordinance.

As per the legal provision, the terms of office bearers of the local bodies shall be reckoned from the first day of Shrawan (mid-July) of the year in which the term of office begins, and the term of office shall be deemed to have been expired on the last day of Asadha (mid-July) of every five years, not exceeding a term of five years.

With the promulgation of ordinance, the uncertainties regarding who will head the local bodies have come to an end. The major questions, however, remain whether the forthcoming parliament will endorse these changes in the local bodies or not.

The secretary at the local bodies will head the village development committee and can call the VDC council, which will consist of village level government officials. The executive officer of Municipalities will now lead the municipality and summon the municipal council. Since, there are no elected representatives in the council, executive officer will nominate ward secretaries as members. So far as the district councils are concerned, VDCs secretaries of the concerned districts and other heads of other district level officials will be its members.

Following the announcement of the ordinance, uncertainties over the local bodies have temporarily come to an end. However, as long as the elections cannot be held within the limitation of six months, this crisis will reemerge.

Constitutional Provision for Ordinance

According to the article 72(1) of the Constitution of the Kingdom of Nepal 1990, if at any time, except when both Houses of Parliament are in session, His Majesty is satisfied that circumstances exist which render it necessary for him to take immediate actions, he may, without prejudicing the provisions set forth in this constitution, promulgate action. He may, without prejudicing the provisions set forth in this constitution, promulgate any ordinance as he may deem necessary.

(2) An ordinance promulgated under clause 72(1) shall have the same force and effect as an act: provided that every such Ordinance

(a) Shall be tabled at the next session of both House of Parliament, and if not passed by both Houses, in shall ipso facto cease to be effective.

(b) may be repealed at any time by His Majesty; and

(C) shall, unless rendered ineffective or replaced under sub-clause (a) or (b), ipso facto cease to have effect at the expiration of six months from its promulgation or sixty days from the commencement of a session of both the House.