Structure of Government of Nepal

Structure of Government of Nepal :

The executive branch of government includes the President, the Prime Minister, the Council of Ministers or Cabinet, constitutional and statutory bodies, and the bureaucracy, comprising various personnel services, formed to carry out executive functions. The President, as head of state, does not perform day-to-day executive functions, but is a part of the executive branch. In practical terms, the Cabinet is the highest executive body with authority to issue directives to guide, control, and govern. Under Article 43 of the Interim Constitution, the Cabinet can make its own rules on the allocation and transaction of business, allowing it to set up and run the central secretariat. The Constitution also requires the Cabinet to perform executive functions in accordance with laws enacted by parliament. The Interim Constitution provides for a political system with an “impartial, efficient and fair” bureaucracy.

Head of State :

As head of state, the President of Nepal is vested with the responsibility of protecting the Constitution. Under the provisions of the Interim Constitution, the President was elected from among the members of the CA to remain in office until the promulgation of the new Constitution. The President is briefed by the Prime Minister at regular intervals, but does not have substantive executive functions. All bills passed by parliament become laws upon approval of the President; the President may ask the government to reconsider the bill but has no authority to reject it. The President may also seek information and advice from the Prime Minister as needed. The Vice President functions as the head of state in the absence of the President. The CA elects both the President and the Vice President, and also has authority to impeach the two office holders. The CA elected Nepal’s first President and Vice President in July 2008.

 Prime Minister and the Council of Ministers :

The Prime Minister is the chief executive of the Government of Nepal and is elected by the Legislature-Parliament. The first responsibility of a newly elected Prime Minister is to put together a cabinet by appointing ministers, ministers of state, and assistant ministers. The law does not limit the number of ministers, and since 2008, depending on the political needs, different prime ministers have had cabinets of varying sizes. The ministers are individually accountable to the Prime Minister and parliament, and the Cabinet, including the Prime Minister and his ministers, is also collectively answerable to parliament. Under the Interim Constitution, an individual does not need to be a member of parliament to become a minister.

 Administrative Structures :

Ministry :

Office of the Prime Minister and Council of Ministers:

 

There is an Office of the Prime Minister and Council of Ministers (OPMCM) headed by the Chief Secretary, of special class rank. The Chief Secretary serves as secretary to the Cabinet, head of the OPMCM, and coordinator of other secretaries. Primary responsibilities include providing leadership to the civil service, directing and supervising its performance, making the bureaucracy active and efficient and leading governance reforms.

Minister:

 

Ministers are political appointees who manage the responsibilities of their respective ministries. As custodian of the executive power flowing down from the Cabinet, a minister communicates policy directions, administrative orders and decisions to the bureaucracy. The bureaucracy formulates policies and plans to implement decisions and directives of the government or the minister through various central and field level administrative mechanisms. The bureaucracy also monitors and evaluates program implementation, and recommends policy to the minister.

The Secretary:

 

The secretary is a special class officer. Under the minister’s direction, the secretary prepares and submits policy proposals for consideration by the Cabinet. The secretary is the administrative head of the ministry, its line agencies and field offices, and also supervises and monitors policy and program implementation.

The secretary has both administrative and substantive (policy) responsibilities. The Good Governance (Management and Operation) Act 2007 (GGMOA) specifies administrative responsibilities, which broadly encompass day-to-day duties and functions. The substantive responsibilities include the technical and policy functions of the ministry as assigned by law or delegated by the minister.

Field level organizations :

The GGMOA has organized the administrative system into central and field level units. The field units focus on service delivery and are present in all five development regions, 14 zones and 75 districts and sub-districts. Further reorganization is likely, as there have been demands that the districts be redrawn, because the existing boundaries laid down five decades ago no longer match local realities. Changes will also be needed to conform to the new federal structure.

Constitutional Bodies :

Constitutional bodies function as checks and balances on executive authority by independently performing certain executive functions. The Interim Constitution provides for seven such bodies: 

(i) The Commission for Investigation of Abuse of Authority (CIAA),

(ii) The Auditor General,

(iii) The Public Service Commission,

(iv) The Election Commission,

(v) The National Human Rights Commission,

(vi) The Attorney General, and

(vii) the Constitutional Council. 

The cabinet appoints the members of these constitutional bodies on the recommendation of the Constitutional Council — a measure to ensure their independence and impartiality.

Governance :

Good governance, the ultimate objective of the executive, can be analyzed in terms of institutional framework, flow of authority, standards or rules, and processes of operation.

As discussed earlier, Article 43(2) of the constitution empowers the Cabinet to make rules for the allocation and transaction of business, but since the GNABR and GNTBR are not enforceable in a court of law, their application for the purpose of transparent and accountable public administration is limited: they are largely internal guidelines. The other basis for government operations is law enacted by parliament and the regulations the government adopts for implementing those laws. Here are some of the major laws related to public administration.

The Legislature-Parliament :

A Nepali legislature was first conceived in the 1948 constitution, but it was never formed. The first serving legislature, the Advisory Assembly, was formed in 1952, followed by the Parliament in 1959, the Rashtriya Panchayat in 1962, and the House of Representatives in 1991. The Interim Constitution of Nepal 2007 created a new legislative body called the Legislature-Parliament.36 This chapter discusses the functions of the Legislature-Parliament, which also serves as the Constituent Assembly.

Constituent Assembly / Legislature-Parliament :

The CA was formed through a national election in April 2008, and held its first meeting on May 20 of that year. Its original two-year term expired on May 28, 2010, following which it extended its term four times, the fourth on November 30, 2011, for six months.37 There are 601 members in the CA — 240 elected through the first-past-the-post system, 335 elected through proportional representation, and 26 nominated by the Cabinet “on the basis of understanding, from amongst prominent persons … and the indigenous peoples which (sic) could not be represented through the election…”

The same person heads both these institutions, as Chairperson in the CA and Speaker in the Legislature-Parliament. Under the Interim Constitution, the Chair/Speaker and Vice Chair/Deputy Speaker are chosen by the members of parliament, either by formal election, or by “political understanding” among the various parties. The Vice Chairperson/Deputy Speaker chairs the sessions in the absence of the chair. The Speaker can be removed from office for incompatible conduct through a motion backed by a fourth of the members and with approval of a two-thirds majority of all members of the CA.

The Legislature-Parliament adopts its own rules and procedures for the conduct of business. These procedures are based on the Interim Constitution, the Constituent Assembly Rules 2008, and the Constituent Assembly (Conduct of Business of LegislatureParliament) Rules 2008. All members of parliament are required to take an oath at the first session after their election to be entitled to parliamentary rights and privileges.

The Judiciary :

The preamble of the Interim Constitution of Nepal 2007 fully commits to democratic norms and values, an independent judiciary and rule of law. It also seeks a balance between the three organs of state — the executive, the judiciary and the legislature. This section reviews the structure, systems and effectiveness of the judiciary

1. Supreme Court :

The Supreme Court is the highest judicial body. It comprises a Chief Justice and no more than 14 judges. Additionally, ad hoc judges may be appointed for a fixed term as needed. In practice, such ad hoc appointments have been limited to 10 judges.

2. Court of Appeals :

The Court of Appeals is the second in the hierarchy. The Chief Justice appoints its judges from among the judges of District Courts or Class I officers in the judicial service with at least seven years of experience. Senior advocates, advocates who have practiced for at least 10 years, or individuals who have taught or conducted research or worked in other fields of law and justice are also eligible for appointment. Judges of the Court of Appeals hold office until 63 years of age. The court mainly hears appeals of decisions of the District Courts and quasi-judicial bodies.

3. District Court :

 

The District Court is a trial court with jurisdiction to hear all civil and criminal cases. Each of Nepal’s 75 districts has a court, with varied caseloads. The Kathmandu District Court had a caseload of 11,558 in 2008/09, while the Manang District Court had only four cases. The Kathmandu court serves a population of 1,081,845, while that in Manang serves 9,587. A District Court judge holds office until 63 years of age.

Local Government Institutions :

The Local Self Governance Act (LSGA) 1999 is the basis for Nepal’s two-tier local government system. But the local bodies have been without elected representatives since May 2002, when the terms of those elected in 1998 expired. As a stopgap measure, successive governments began appointing local officials, and this practice has continued. (An attempt was made to hold municipal elections in 2005, but the political parties, who feared being sidelined by the royal regime, opposed it.) In 2008, the government formed All Party Mechanisms (APMs) to make local decisions, but they were dismissed in January 2012 amid charges of widespread misuse of local funds.

The LSGA seeks to promote people’s participation in governance through representative democracy and decentralization of authority. It establishes the institutional mechanisms needed for local self-governance and for making the bodies accountable to the people they serve and represent. Because there have been no local elections since 2002, the local institutions that were put in place to take democracy to the doorsteps of citizens have instead become an extended arm of the government under the direction of the MoLD.

Local Governance Structure The LSGA establishes the structure of local government institutions (LGIs). The council is the supreme deliberative body. The council formulates and approves policies, programs and budgets, periodic and annual plans, staffing, audit reports, taxes, fees and service charges, etc. The committee is an executive body that implements the decisions of officials to the committee who are elected periodically. Between elections, the VDC Secretary, the Chief Executive Officer of the municipality, and the Local Development Officer (LDO) at the DDC — all central government officials — carry out the functions of both the council and the committee.