Federal Secular Irresponsible Republic of Unaccountability

Federal Secular Irresponsible Republic of Unaccountability

April 21, 2016, 5:45 p.m. Published in Magazine Issue: Vol.9 No 19, April 22,2016 (Baisakh 10,2073)

As the first anniversary of the April 2015 Gorkha Earthquake nears, the main concern roiling the public is the incompetence of the Nepali government when it comes to handling earthquake rehabilitation. Their excuses are many: we were too busy drafting the constitution (in haste producing a highly contradictory document that just cannot be implemented, they might add); Party X (fill in your choice) was not really cooperating in trying to get a national consensus; and the Mother of All Excuses – the Mughlanis blockaded us damaging our economy ten times more than the earthquake and throwing all life out of kilter. All true, no doubt; but behind all of them, and making everything all that much worse than needed to be, is the sheer incompetence of those at the political helm running the state.

It all started with the attempt by the previous Sushil Koirala government (which was a partnership of the Kangress with the current prime minister KP Oli’s party the UML, hence one may say both being a political continuity born of an understanding and many, many misunderstandings) pledging to set up a National Reconstruction Authority, and then trying to foist the vice-chair of the National Planning Commission as its CEO. With the NPC being more than a full-time job in itself, why did Koirala put his political credibility and the future of the earthquake victims on the block by this insane and obstinate insistence? Just because he had to promote a Kangressi cadre and family to boot?

The partner UML would of course have none of it, and sabotaged the formation of the authority, only to revive it after Oli became prime minister. Oli then proceeded to bring one of his own UML party cadre as the CEO, a rather junior person under whom no senior bureaucrat from any relevant ministry was willing to work. More seriously, not even the VDC secretaries would want to have anything to do with this Reconstruction Authority, indeed the association of VDC secretaries (many of them openly cadres of one or the other big political parties) even passing a resolution that they would not cooperate with it! And the government has been a mute spectator. Anarchy, thy name is Federal, Secular Republic of Nepal!

Behind this madness, there lies a fundamental flaw in political thinking born of a kind of Vulgar Leftism which sees the state and monopoly control over it as the only solution to all social ills. Why do you need an earthquake rehabilitation and reconstruction authority at all? After all, there exists the Home Ministry with a powerful CDO office in every district, the LDO office from the Local Development Ministry, DDC and VDC offices, to say nothing of Housing, Water Supply and a whole host of other ministries and departments as well as the Army and Police. They have been there for much of the last eight decades when the big earthquake of 1934 and 1988 struck, and these Nepal government outfits were quite effective in doing all the rescue and rehabilitation without the need for a specialized authority.

Indeed, the creation of a special authority has invited a backlash from the above mentioned established institutions: “Well”, they seem to be saying, “If the Reconstruction Authority is the one asked to do the reconstruction, let them do it. Why should we be bothered to even lift a finger since we are not authorized, or trusted by the government to do so?” And without the full and active cooperation of the CDO, LDO and other established outfits in the districts, how can a new authority headed by a junior party hack do anything meaningful on the ground? Of course, those in the old outfits understand why a new authority was created and why they were not given the responsibility that was their due: all the big parties, salivating from the international donor commitment of funds – Cash Maoists included since Baburam was pleading on bended knees to become the CEO of this Reconstruction Authority – wanted their man in there to rake in the moolah! Why cooperate if there is neither the trust, nor the responsibility, nor a share of the moolah?

The Reconstruction Authority is only one manifestation of the political establishment bypassing responsibility, the other being the Investment Board – created to handle large water resources and other infrastructure projects – which bypasses legitimate and long-standing institutions such as the ministries and departments of energy, irrigation, aviation, transport and tourism. It is also a convenient way to use institutional amnesia to benefit fly-by-night “investors” chomping at the bits and straining at the leash to bag contracts and make the fast buck. This body, like the Reconstruction Authority which has no institutional memory of past efforts at rehabilitation after disasters, is oblivious of past problems of dealing with the lower riparians or the capacity to learn. How convenient for those who don’t want inconvenient questions asked!

The disease of structural irresponsibility indeed goes much further back into the very heart of the new and old “democratic” constitutions that have been promulgated since the disbanding of the Panchayat system. It had indeed begun to creep in during the latter days of a dying Panchayat with the creation of the ombudsman Commission for the Investigation of Abuse of Authority (CIAA). That body is now seen as the only and primary body responsible for controlling corruption in Nepal, and none of the ministries or departments of governments feel it is their innate responsibility to provide corruption-free service to the Nepali public. Indeed, they seem to feel it is their right to indulge in corruption and to see if they can play a cat-and-mouse game with the CIAA and outsmart it with the help of the party politicians.

To take another example, the Judicial Council built into the 2015 constitution also helped institutionalize irresponsibility. My late father, the eminent constitutional lawyer Shambhu Prasad Gyawali criticized the inclusion of this provision in the 1990 constitution on the following grounds. As far as dispensing justice is concerned, all judges of the Supreme Court are equal. The only difference between them and the Chief Justice is the administration of justice, of which he (or now she) is the primary functionary. What the Judicial Council does is take away from the Chief Justice the responsibility for its administration: he can now blame all delays in appointment of judges or their disciplining on this non-functioning and responsibility diluted body, even while enjoying all the power, pomp and privilege as the Chief Justice.

The same is the case with the Constitutional Council. It takes away from the Prime Minister and the Council of Ministers the responsibility for making sure constitutional bodies are well-staffed, funded and functioning. The appointments of the heads of constitutional bodies now have to be made by this ungainly outfit which also has the Chief Justice as well as the Leader of the Opposition as members. Why? Any appointment is an executive function and contradicts the position of the Chief Justice who is the head of the judiciary and should not have to be involved in executive decision making. Indeed, if the executive decision is flawed or faulty, where would one go for redress if the Chief Justice is already implicated in it? By the same logic, why should the Leader of the Opposition, who should be opposing executive decisions by the government in parliament, be involved in decision making that is the prerogative of the ruling party?

By implicating the Leader of the Opposition (and bypassing his MPs in parliament), this harebrained system of backroom “consensus” emasculates the parliament and its members, something we have sadly seen with both CA1 and CA2. A cabal of big party oligarchs can sit in a dark room and foist their decisions on 601 sheep gathered at the Birendra Convention Hall with no fear of uncomfortable questions asked! Philosophically, these conceptual flaws can be traced to Vulgar Leftism practiced in Nepal that insists on a nebulous “consensus” that goes against the spirit of a democratic and open society where differences are welcome and openly faced and debated.

The current 2015 constitution is flawed, not for reasons mentioned by the Mughlanis or their Madheshi clientele of election losers, but for many other such contradictions therein. Yes, it has the world’s largest laundry list of rights and ethnic commissions; but that hardly makes it “the world’s best” as claimed by its votaries if the responsibility that goes with those rights, both of the citizen who is to enjoy those rights and of the state that is to guarantee them, does not come pre-defined. Indeed, this constitution is the most rights-mentioned and responsibility-avoided document in the world. With it, the rulers of New Nepal can claim everything and not have to deliver anything: they can shelve responsibility and blame any one of the umpteen commissions except of course themselves, their leadership or their parties. Given that blaming 240 years of monarchy – or King Gyanendra – is now well past its sell-by date, this state of affairs is a self-made bonanza for them where they have to take no responsibility, account to none and milk fully at least till the next elections however far they can postpone it. At least King Gyanendra took responsibility for what he did or failed to do. No wonder there is much nostalgia in New Nepal for Old Nepal!!


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