CONCEPT PAPER
OF
TRANSPARENCY INTERNATIONAL NEPAL

PRESENTED AT THE
REGIONAL SEMINAR ON GOOD GOVERNANCE,
DHAKA, BANGALADESH, MARCH 19-24, 1999

Development of Political Process and Good Governance in Nepal

This paper was been prepared in the background of the restoration of parliamentary democracy in Nepal in 1991, constitutional guarantees to individual freedom and transfer of sovereign power from the King to the people. The political change brought about high public expectations of good governance, social justice and economic prosperity. However, the democratic exercise since then has been less than satisfactory giving rise to public disenchantment. How this situation can be redressed has been prime concern of TI-Nepal.

Good governance is a goal cherished under a democratic system. Under democracy, good governance is supposed to deliver results that meet good aspirations of the people. People's aspirations however differ from country to country depending on levels of economic and political development. Nevertheless good governance focuses on activities related to upliftment of people's living standard. It is heartening to find good governance as the basic agenda in all countries of the world.

New democratic governments of South Asia, Africa and Latin Africa are passing through a process of difficult political development. Failure of democratic system is inviting disincentive for economic assistance from the developed to the developing world.

A typical example of the trend can be found in a 1993 formulation of the British Government in which its principal agency responsible for development assistance described the agenda for good governance as follows:

• "the legitimacy of government which depends upon the existence of participatory process and the consent of those who are governed;

• the accountability of both political and official elements of government for their actions, depending on the availability of information, freedom of media, transparency of decision-making and the existence of mechanisms to call individuals and institutions to account;

• the competence of government to formulate appropriate policies, make timely decisions, implement them effectively and deliver services;

• respect for human rights and the rule of law to guarantee individual and group rights and security, to provide a framework for economic and social activity and to allow and encourage all individuals to participate."

Similarly multinational organisations like World Bank, Asian Development Bank and OECD are also putting restrictive conditions of Good Governance practices on the client nations for the flow of aid.

For the developed countries, their strategic and economic interests supersede their commitment to global democratization. This contradiction has inevitably invited double standards in some of their behavior, adding to the armory of anti-democratic elements in the developing world that would rather be left alone to rule over their peoples "as dictated by native culture and values". More importantly, perhaps, it is now clear that democracy has to take roots, not so much on the strength of external impetus, as from the perseverance and commitment by the people themselves. As a result, it may be easier and more profitable for the external partners to support the internally generated processes as many are doing, howsoever slow and generally frustrating that might be, than to impose conditions on how the recipients of their aid or goodwill should behave politically.

The success of an open economy does not necessarily rest on open polity, and political liberalization has its value only in so long as it is supportive of economic liberalization. In this view, good governance would, therefore, mean that the economic role of the state should be limited to such concerns as:

• providing a legal foundation for efficient functioning of the markets,

• maintaining non-distortionary policy environment with macroeconomic stability,

• investment in basic social services,

• protecting the environment and, perhaps,

• making some provisions for vulnerable groups, resources permitting.

Nepal and Good Governance

In the context of Nepal, Good Governance practice is conspicuous by its absence. Installation of the democratic political system was hailed by the people nine years before for the better days to come in all spheres of activities. The first agenda for the newly elected government was 1) to frame a democratic constitution 2) to formulate a visionary planning process of economic development and 3) to re-organise bureaucratic system for better delivery. Unfortunately the politicians failed to rise up to the public expectations. They were seen more self centered than public service oriented. Questions of food, shelter, health, education and drinking water as basic requirements of a developing economy, gradually vanished from the scene. On top of it, basic human rights were violated everyday with the killings of innocent people for an obscure political slogan. Government's performance in these regards was dismal. This was not only resented by the people but also by the civil service. As a testimony, six of the top government officials

( Secretaries) recently came out in a public forum against political interference in their duty. Politician are mostly interested in exercising bureaucratic power and some of the bureaucrats are dreaming of political role in the future.

The nexus between politicians and others is exhausting public funds earmarked for the development projects. Corruption has paralyzed development activities, that means a negative multiplier growth rate is visible in most of the development projects resulting in total loss of investment made so far.

Transparency in Politics for Good Governance in Nepal

Nepal has a constitution based on liberal democratic traditions. It has therefore provisions, which require transparency in government and politics. Experience shows, however, that this is possible in practice only if the politics of governance permits it to be so. Hence, the first emphasis should be on transparency in politics. In fact, considering the frequently expressed concerns of the major political parties for a national consensus on governance, it would be good to see them begin this exercise from this front.

The points raised below are not necessarily new. There are many submissions and representations to this effect from citizens and civil society agents that are working for democratic consolidation. Many political leaders themselves have been emphasizing the need for better behavior on their part in their speeches and mutual interactions. Drawing partly from one such submission made by the Citizens’ Campaign for Democratic Consolidation are listed below some important areas where profitable improvements can be made in the interest of transparency.

• The constitution provides for all possible safeguards and instruments for good governance. It also calls for an "open society". It guarantees the right to information. The condition is thus ideal for transparency. If the structures crafted in the constitution do not produce the expected functions, it is because the actors concerned are not following the norms and the spirit behind them.

• In the case of the Council of Ministers (COM), there is, for example, little transparency in its working. On many occasions, the ministers themselves publicly express disagreement with or even claim ignorance of the decisions taken by the COM--sometimes even about decisions on subjects falling under the jurisdiction of their own ministries. Apart from its implications for the norms of transparency, such a situation also makes a mockery of the principle of collective responsibility under Article 36(4) of the constitution.

• The parliament and the individual MPs, together with the political parties they may represent, have a special role in promoting transparency. When the floor of the parliament is used more for unproductive politicking than legislative work, governance is bound to suffer. Legislative work does not seem to receive priority at all. Until very recently the House of Representatives (HOR) did not even find time—for eight years, to formulate its own bylaws for the conduct of its affairs. The Upper House is yet to attend to this task. The MPs were happy to be guided by the Rules prepared, on an ad hoc basis, at the time of the Interim Government. The political parties have been happier, it appears, to function without the constraint of a law to regulate their affairs as anticipated by the constitution. When legislative functions of the parliament receive less priority, the executive can be tempted to "rule by Ordinance" which is an antithesis of a transparent and accountable government. The lesson of the past eight years or so is that the parliament must discipline itself before it disciplines others. It has a great potential of making every action of the executive transparent through its watchdog role and the privilege it has to demand information on each and every issue. In addition, the committee work in the parliament must be strengthened and made more result-oriented. It should be a matter of concern for the parliament that the executive does not conform to the principles and practices warranted by the constitution in respect of such constitutional bodies as, for example, the Office of the Auditor General or the Public Service Commission. These bodies regularly record the acts of omissions and commissions by the executive in their annual reports that are tabled and discussed in the parliament. Yet, the government is rarely taken to task because of which no improvement in the conduct of the government takes place either. It is good that the Public Accounts Committee (PAC) of the HOR has been more active for some time. There is even some apprehension that it might be transgressing its jurisdiction when it summons people and documents in cases that may not fall within its designated area of responsibility. It would be better, in any case, if one could see evidence of a punishment meted out to public officials found involved in illegal or inappropriate conduct at the cost of public money. It would be better, still, if one could see an evidence of general improvement in practices in the government due to the intervention of the PAC.

• The judiciary has been made most powerful by the constitution. But it is in a state of disrepute. Some of the problems are beyond the competence of the judiciary, for example the overload of petitions in all tiers of the court. But here, too, there should be room for at least some relief if the judiciary is sensitive to the difficulties of the citizens looking for justice. Some progress is reportedly being made already in developing a transparent system of storing and retrieving information on court proceedings on different legal cases. A part of the reason for the shortcoming is generic to the Nepali society, at present, where merit and competence are not necessarily the criteria followed in judicial appointments and promotions. Most importantly, the judiciary may even be subject to political influence at the cost of citizens whose recourse for justice can thus be impaired. The existing situation is untenable especially since the courts still prefer to take refuge behind the special privilege against any criticism from the aggrieved party or the civil society in general. In the interest of transparency in judiciary, the law and the tradition concerning the "contempt of court" must be reviewed, in the least. After all, the very concept of rule of law is contingent upon an independent judiciary which is also transparent and accountable.

• One big issue in transparency and good governance is electoral reform. Elections are an integral part of good governance. Elections are expected to produce governments that are representative as well as accountable to the people. One may argue about different types of institutions that are necessary for good governance under different circumstances (or cultures?). But there can be no governance without free and fair elections. Yet, it is elections that are having corrupting influence in politics and thus adversely affecting governance. The issues are widely known and reported. They have to do with the electoral system as well as the process. Under the first, questions are raised about the suitability of the first-past-the-post system in the election for HOR, as is the practice now. Under the latter, the areas requiring reform range from the scale and the monitoring of election expenses to the conduct of political parties and other candidates as they campaign for election. The reported incidents of allowing convicted criminals to contest elections on a party ticket are also a part of the problem which is germane to this issue. The use and abuse of state resources and other facilities require similar attention and must be considered an area of special problem from the standpoint of governance. One reason why governance suffers in the country is because no political party really wishes to sit in the opposition for long. And one can’t really have a parliamentary democracy without a "loyal" and responsible opposition. The political parties want to be in the opposition camp even less during elections. Hence, all the perversions in politics and the parliament and in the conduct of individual MPs who sometimes give an impression that they are unaware of the shift that has taken place in the political dispensation from party less to a party system.

• All major political parties have been a party to the highly objectionable acts of withdrawing cases from the court of law or recommending pardon against individuals charged or convicted of such serious crimes as homicide, armed robbery, smuggling and drug trafficking, and financial embezzlement. The political leaders who parrot the word "transparency" with great ease have never told the people why it was necessary "in public interest" to give relief to individuals and groups who are apparently the enemy of the public. When every party, which has had a share in the government violates every norm of transparency and accountability and has its image tarnished, it is only natural that the rot trickles down to lower levels. When the higher ups gravely abuse authority with impunity, it is difficult to find fault with public officials and other public persons at lower levels who may be weighed down and driven into despair by the mundane burden of maintaining one’s family.

• None of the above is possible unless the conduct of the political parties improves drastically. The political parties should have no difficulty in re-examining their ways because the party leaders and other major personalities have been admitting that their conduct has not served their own cause, let alone of democracy, in any case. The news in the electronic and print media, of late, reads and sounds like a mass confession by the prime minister, ministers, speaker of the HOR and the MPs including the Chair and members of various committees of HOR. It should not, therefore, be difficult for them to do something about it, admitting, "better late than never".

• Inducting large number of MP's in the cabinet without even having any work and providing opportunities to politicians for pecuniary benefits are crimes. Public Enterprises are the worst victims of the politicians in this respect.

TI-Nepal and Transparency

It is these issues resulting in Corruption which has now become the prime concern of the people of this Himalayan country. It has permeated through almost all the major sectors of the national economy. Common people, specially the downtrodden find themselves deeply immersed in this morass. Transparency International Nepal (TI-Nepal) has, therefore, been established with the objective of combating corruption in Nepal. It is a part of global network of national chapters of transparency movement against corruption at the national and international levels.

Since its establishment in 1996, TI-Nepal has conducted a number of programmes for the cause of a transparent society. It has been busy on programs for raising public awareness and lobbying to achieve its objectives. A strategic plan has already been launched to create awareness on different forms of corruption. To mention a few of these activities, an interaction with the diplomatic missions in Kathmandu was held to combat this problem. Programs were also held with close co-operation of the Public Accounts Committee of Parliament, the Commission for the Investigation on Abuse of Authority, the Supreme Court, the Auditor General's Office and other civil societies for concerted actions against corruption. Interaction programs were also held on topics such as good governance, tender documents, procurement procedures and enhancement of transparency. Besides, a number of public information programs, TI-Nepal is carrying out an integrity island scheme at one of the prominent municipalities of Nepal.

Role of TI-Nepal

TI-Nepal is laying main stress on systemic reforms in political process to achieve its goal of a corruption-free society. Parliamentarians with a clean track record and commitment to basic tenets of transparency, public accountability and good governance can deliver and fulfill aspirations of the people at large. At this critical juncture of electoral campaign in Nepal, it emphasized to end the nexus between politicians, bureaucrats and brokers; and issued an appeal to the people to vote for candidates with clean image.

In its appeal it said the forthcoming General Election in Nepal should be considered as the significant opportunity to strengthen democracy and enhance transparency. It should also be utilized as a significant opportunity to contain corruption relating to political parties and their leaders and cadres. Formation of the parliament committed to the cause of good governance, transparency and the code of conduct as expected by the electorate will also be a significant step towards the incorporation of the system accountable to the sovereign people and their constitution.

Democracy should not only emerge as the system to guarantee political and fundamental rights of the citizen but also as the means to salvage the people from poverty and destitution. In order to achieve this objective all the agencies and institutions associated with the general election should clearly express their commitment towards the issues raised by the TI-Nepal appeal. All the political parties should adhere to the code of conduct of the Election Commission. People of all the regions, ethnic groups and especially the women and under privileged should be provided with full opportunity of political participation.

This appeal relating to the general election was issued by the TI-Nepal after interaction with senior politicians from the major political parties, lawyers, social workers and various other professionals. Given below are the various issues raised in this appeal :

Selection of candidates

It is the high time for serious introspection and critical analysis by all the political parties and their leaders. Each of the prospective candidates to be selected by the party should, therefore, have a clean image. He/she should not be associated with

• the misutilization of his/her position and power.

• the misutilization of the diplomatic passport and the medical facility.

• the financial irregularities.

• the financial crimes and horse-trading inside the parliament.

Citizens groups and civil society organisations should get organised to give a right direction to the election activities in the country. They should develop themselves as a lobby to ask questions and seek information relating to the past records of the candidates.

Track records and background information collected in this process should include

• their achievements and contributions at the national and constituency level.

• negative records involving corruption and criminal activities, if any.

• position of their assets and property before and after they have acquired any public office.

Election Fund

• All the political parties should publicly announce the name of the person responsible for the collection of the donation.

• No one other than the person so specified should be authorized to collect the fund.

• Separate books should be maintained for exhibiting the true and fair view of the state of the fund.

• A week ahead of election, statement relating to the fund should be made public.

• Detailed accounts relating to the election fund of the party and amount spent by the individual candidates should be separately published within the 6^th day of the completion of the election. The provision should also be applicable to the independent candidates.

Economy in expenditure

All the political parties and the independent candidates should observe economy in election campaign. Given below are the commitments expected in this context :

• Expenditure limits set by the Election Commission should be strictly followed.

• Colored posters and pamphlets should not be printed. Enamels and the costly paints should not be used.

• Unnecessary painting and postering of the wall should not be allowed. Permission of the owner of the house must be obtained before utilizing it for the election.

• Microphones making loud noises should not be permitted.

• Purchase and sales of all sorts of liquors should be prohibited before 21 days of election.

Election Manifesto

Election manifesto should not be utilized as the device to deceive and hoodwink the people. The document should, however, include the commitment to promote transparency and contain corruption. The manifesto prepared in this context

• should not incorporate the sugar-coated promises and incentives that cannot be fulfilled.

• should not cajole the common people.

• should include the commitment-

* to ensure effective enactment of the law against corruption.

* to distribute the voters identity card within the first year of the election.

* to pass the bill against horse-trading in parliament.

Under this provision

- all the proxy transactions should be brought under the rule of the law.

- income tax procedures should be closely linked with the anti-corruption policy.

- procurement and sale of goods and services in government and semi-government organizations should be made transparent.

- time and place to make annual declaration of the private property held by the persons in public positions should be clearly specified. Punishment relating to the provision should also be laid down.

- necessary arrangements should also be made to promote transparency and prevent conflict of interest between the personal gains and the national integrity.

Election Commission

Election Commission has specified the limitations of the expenditures to be made by the candidates. The provision should also consider the amount required for the expenditures on the vehicles and the public announcements and publicity. The extent to which the materials and services relating to these activities can be utilised by the party and the candidates should also be specified in advance. The Commission should also develop its mechanism to monitor this election. Indicators developed in this context should specify:

• the type and number of vehicles to be used by each of the candidates and the party.

• the size, color and the quantity of posters.

• disciplinary measures for non-compliance and

• the provisions to end the state of impunity.

Election code of conduct, framed under the Election Commission Act 1993, has exhaustive prescriptions about the rules to be followed by the contesting political parties. It has meant to put a limit on expenditures of the candidate's election expenses which ranges from Rs.150000/- to Rs.275000/-. It also mentions about the Government's role in the election along with other related institutions. It demands a statement of account from the candidates for audit purposes. If found exceeding the expenditure limit, Election Commission has the power to nullify the result as well.

With the observance of the ethical norms set by the Election Commission, it is greatly hoped that election could be fair and free.

Last but not least, political parties and politicians are expected to play a disciplined role in the election. Their fair behavior and maintenance of democratic values could ensure satisfactory results from the expensive exercise of the peoples' rights. Their misconduct is fraught with unforeseen dangers.

Acknowledgement :

Contents of this paper is partly drawn from "Transparency in the Context of Good Governance in Nepal" - Dr. D. R. Pandey, June 1998.