| 23 |
In law, can citizens sue the government for infringement of their civil rights? |
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23:
In law, can citizens sue the government for infringement of their civil rights?
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| Score: |
YES |
NO |
 |
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Comments: Citizens have a constitutionally guaranteed right to defend their infringed fundamental and legal rights. The Supreme Court and the Appellate Courts of Nepal have a power to issue writs against the executive (Article 32 and 107). These constitutional remedies, however, may be suspended during the state of emergency. [Article 143 (7)].
References: The Interim Constitution of Nepal 2007; Citizens' Right Act 1953; Compensation of Torture Act 1996
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| 24 |
Can the chief executive be held accountable for his/her actions? |
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24a:
In practice, the chief executive gives reasons for his/her policy decisions.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: The chief executive generally has to give reasons for policy decisions. The reinstated House, through its historical Declaration of May 18,2006, has made it binding upon the executive to give reasons for every action taken. In addition to this, there is a trend, especially after the negotiated political settlement, that the issue is discussed in the eight political parties before any policy decision is made.
However, no reasons are given especially for the politically-sensitive issues. The report of the Rayamajhi Commission, for instance, was delayed for long and the prime minister, who happens to be the head of the state also, did not give any reasons for not making the report public.
References: House of Representatives (HoR) Declaration 2006
Peer Review Comments: The chief executive and ministers routinely can't give formal explanations on policy matters. Executives want their decisions to be secret unnecessarily. The latest example is a decision about selling Nepal's first embassy in England.
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24b:
In law, the judiciary can review the actions of the executive.
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| Score: |
YES |
NO |
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Comments: The judiciary has the power to review the executive actions contravening the constitution and other statutory provisions.
References: The Interim Constitution of Nepal 2007 [Article 1, 107 and 116]
Peer Review Comments: The judiciary also plays a proactive role in many cases.
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24c:
In practice, when necessary, the judiciary reviews the actions of the executive.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: Nepalese courts are generally pro-active in defending citizens' rights. The judicial activism demonstrated by the Supreme Court in some cases in the past is really commendable. However, political prejudice may influence the decisions. This was the case during the king's direct rule.
References: Various decisions and verdicts of the Supreme Court; Annual Reports of the Supreme Court www.supremecourt.gov.np
Peer Review Comments: Sometimes the judiciary forgets its jurisdiction.
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24d:
In practice, the chief executive limits the use of executive orders for establishing new regulations, policies, or government practices.
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| Score: |
100 |
75 |
50 |
25 |
0 |
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Comments: The chief executive of Nepal is required to obey, respect, protect and maintain the constitution. The Council of Ministers has the right to formulate policy and regulations. The decisions made by the Council of Ministers have to be defended in the Parliament.
References: The Interim Constitution of Nepal 2007 www.opmcm.gov.np
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| 25 |
Is the executive leadership subject to criminal proceedings? |
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25a:
In law, the heads of state and government can be prosecuted for crimes they commit.
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| Score: |
YES |
NO |
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Comments: Due to the ongoing peace process in Nepal, the prime minister is both the head of state and the head of government in the current transitional period. No prevalent Nepalese laws bar the prosecution of the prime minister for criminal offences. In the past too, the prime minister could be investigated and prosecuted for criminal charges. However, there is no known case of any prime minister prosecuted when in power.
So far as the then king is concerned, he, as a head of state and a constitutional monarch, did enjoy the absolute immunity in this regard.
References: The Interim Constitution of Nepal 2007 and other prevalent Nepalese laws; The Constitution of the Kingdom of Nepal 1990
Peer Review Comments: After the exit of the king as the political power, the state and government head has no impunity. The constitution provides all citizens with equal rights.
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25b:
In law, ministerial-level officials can be prosecuted for crimes they commit.
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| Score: |
YES |
NO |
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Comments: Ministers can be prosecuted. There are cases (not during the study period, of course) of ministers being prosecuted when in power. Padma Sunder Lawoti, a cabinet minister, was investigated and prosecuted for a corruption charge. The then secretary in the Ministry of Agriculture, Dan Bahadur Shahi, was prosecuted along with the minister Lawoti.
References: The Interim Constitution of Nepal 2007; other prevalent Nepalese laws
Peer Review Comments: Former Ministers Khum Bahadur Khadka, Chiranjivi Wagle and others who were appointed during the democratic period after 1990 people's movement were also prosecuted for their involvement in corruption.
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| 26 |
Are there regulations governing conflicts of interest by the executive branch? |
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26a:
In law, the heads of state and government are required to file a regular asset disclosure form.
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| Score: |
YES |
NO |
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Comments: From peon to prime minister, all are obliged to disclose their income and assets in Nepal. Earlier the king, as a head of the state, was immune from disclosing the assets, as no questions could be raised in relation to his property.
However, this provision is largely ineffective as the monitoring authority, the National Vigilance Center, has not been able to effectively monitor these disclosures due to the inadequate governing rules and regulations.
References: Corruption Control Act 2002, Section 50; Article 30 of the Constitution of the Kingdom of Nepal 1990;
Kamal Pokhrel, "Legal Framework on Income and Asset Disclosure in Nepal," Research and Media Center against Corruption (ReMAC) Nepal, 2007.
Peer Review Comments: Yes, but it is not strictly regularized.
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26b:
In law, ministerial-level officials are required to file a regular asset disclosure form.
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| Score: |
YES |
NO |
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Comments: All who hold the public office shall have to compulsorily disclose their assets.
References: Corruption Control Act 2002
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26c:
In law, there are regulations governing gifts and hospitality offered to members of the executive branch.
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| Score: |
YES |
NO |
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Comments: A "national servant," who holds public office, is subject to restrictions on the gifts. S/he may, however, accept gifts on prior approval by the government.
References: Corruption Control Act 2002, Section 5
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26d:
In law, there are requirements for the independent auditing of the executive branch asset disclosure forms (defined here as ministers and heads of state and government).
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| Score: |
YES |
NO |
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Comments: Under the existing law, there is no room for independent auditing of disclosure forms. Instead, the law requires that all the disclosures filed by the public officials be kept confidential [Section 50 (4)].
References: Corruption Control Act 2002
Kamal Pokhrel, "Legal Framework on Income and Asset Disclosure in Nepal," Research and Media Center against Corruption (ReMAC) Nepal, 2007.
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26e:
In law, there are restrictions on heads of state and government and ministers entering the private sector after leaving the government.
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| Score: |
YES |
NO |
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Comments: There are no legal restrictions.
References: Civil Service Act 1992; Civil Service Regulation, 1993
Peer Review Comments: Ministers are free to enter the private sector. Because of such openness, many ministers were joining the private sector. Not only that, but anyone can join a ministry while holding his post in a corporate house. King Gyanendra appointed one big businessman as the finance minister two years ago. And that minister remains in the same position at his business.
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26f:
In practice, the regulations restricting post-government private sector employment for heads of state and government and ministers are effective.
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| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: Because there is no legal restriction for post-government private sector employment, this is not applicable in the Nepalese context.
There are quite of few examples of ex-government-servicemen/constitutional heads taking up the private profession. For instance Hari Pandey, the former minister for Industry and Commerce, ran a private company, Gandaki Noodles, as a director of the board. Likewise, Surya N. Upadhyaya, the former chief commissioner of Commission for the Investigation of Abuse of Authority (CIAA), is currently the president of an NGO called Better Nepal. Similarly, former attorneys general Badri Bahadur Karkee, Shshil Panta, Moti Kaji Sthapit and Sarbagya R. Tuladhar all are practicing law as private lawyers.
References: Self-Observation, Civil Service Act 1992; Civil Service Regulation, 1993
Peer Review Comments: Mr Shushil Panta instead of Shshil Panta
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26g:
In practice, the regulations governing gifts and hospitality offered to members of the executive branch are effective.
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| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: Civil servants may be tempted by certain interest groups. The institutional support mechanism for implementing laws governing gifts and hospitality is either weak or ineffective.
References: Based on the deliberations of a Discussion Forum organized by Research and Media Center against Corruption (ReMAC) Nepal.
Peer Review Comments: There is such symbolic restriction.
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26h:
In practice, executive branch asset disclosures (defined here as ministers and above) are audited.
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| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: A big "NO", because no Nepalese law provides for the independent auditing of asset disclosures.
References: Corruption Control Act 2002
Peer Review Comments: The Commission for the Investigation of Abuse of Authority may investigative this asset disclosure.
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| 27 |
Can citizens access the asset disclosure records of the heads of state and government? |
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27a:
In law, citizens can access the asset disclosure records of the heads of state and government.
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| Score: |
YES |
NO |
|
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| |
Comments: Section 50 (4) of the Act requires that all the disclosures filed by the public officials be kept confidential, hence no access is granted.
References: Corruption Control Act 2002
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27b:
In practice, citizens can access the asset disclosure records of the heads of state and government within a reasonable time period.
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| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: Because the disclosures are kept confidential, citizens are deprived of the information.
References: Corruption Control Act 2002
Peer Review Comments: In Nepal, it is well practiced by public disclosure by publishing in the national papers. Therefore, citizens can easily access it, because it is concerned with popularity and ethics.
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27c:
In practice, citizens can access the asset disclosure records of the heads of state and government at a reasonable cost.
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| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: This is not applicable because the access is restricted.
References: Corruption Control Act 2002
Peer Review Comments: People have no access to such asset disclosure records. If anybody gets it informally or formally, there is no question of cost -- i.e., it is free.
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| 28 |
In practice, official government functions are kept separate and distinct from the functions of the ruling political party. |
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28:
In practice, official government functions are kept separate and distinct from the functions of the ruling political party.
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| |
| Score: |
100 |
75 |
50 |
25 |
0 |
|
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| |
Comments: Since the political understanding between the government and the former rebels categorically stresses mutually agreed governance (which is reflected even in the interim constitution and all other agreements), there is no clear demarcation as to separation of official government functions. The issues agreed in the eight-party coalition become the government agenda. Besides, the Maoist agenda gets much attention in the government. One such example is the issue of monthly remuneration for the insurgents in cantonments. The government had to give in to the demands of the Maoist party, as they had disrupted parliamentary proceedings over this issue.
References: The Political Agreement between the Government of Nepal and NCP (M) on Nov. 8,2006; Comprehensive Peace Accord 2006; The Interim Constitution of Nepal 2007
Peer Review Comments: Currently the former rebels have threatened to hit the streets if the government declines to fulfill their demands for the declaration of a republic and adoption of a proportional electoral system instead of what was agreed in the past.
Peer Review Comments: In principle there is no relation between the ruling party and the government. In practice also, the party only guides the government in policy matters. But in many cases, the bureaucrats present themselves as the servants of political leaders. In the course of the peace process begun last year, interruption of the ruling seven parties has been high. But it is an exceptional case.
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