Rule of law has been the buzzword in the Nepali society for a long time. It is not something that is being raised in this Republican setup, it also existed during the Panchayat period. Even though numerous laws and regulations have been introduced over time, rule of law is still a distant dream.
A multitude of laws, regulations, and work procedures have been established to uphold the rule of law. So much so that experts often say that Nepal is overburdened by laws. At the same time, new laws are being enacted due to perceived insufficiencies in existing laws to regulate specific matters.
No matter how many new laws are introduced, the deficiency in the rule of law persists due to two factors. First, the ubiquitous clauses that grant discretionary power to the officers regardless of their rank. Second, the equally ubiquitous point in the job description of the officers or lower level government employees mandating compliance with directives from higher authorities.
Take the example of any big or smaller scandals of the national level. Whether it is the Namita-Sunita case or the carpet export scandal of the Panchayat period, the Chase air and Lauda Air cases from the post- Panchayat period or the recent Lalita Niwas land, fictitious Bhutanese refugees or gold smuggling cases, the afore-mentioned points are the primary reasons. This also elucidates why foreign or domestic investments face hindrances, government supports fail to reach intended beneficiaries, universities do not function adequately or any other issue deemed a national problem.
Imagine a totally different scenario, one that eliminates discretionary power from the hands of government officers and negates their obligation to comply with the orders from their seniors if the same is inconsistent with the law. In such a situation, they will be able to respond to superiors with, “Sorry sir, but you lack the legal authority to issue such an order”. At the same time, they would bear full responsibility for their decisions, actions or inactions. Investigations and consequences for such cases will be focused and expeditious.
Some might dismiss it as a mere dream. But it is a dream that is attainable. Most of the developed countries have already embraced this approach. There are numerous accounts of former US presidents facing such retort from government employees.
Some existing examples from our own country are sufficient to support this argument. Visit any district administration office for a citizenship certificate, you will get the job done within hours if all required documents are in order. The same applies to the registration of land transfer deeds. Equally clear is the system for passport issuance. The delay we are seeing in passport issuance is not because of the employees in the distribution system, but rather due to the passport printing process which is suffering from the two points mentioned above - discretionary authority wielded by authorities and the obligation of lower-level staff to follow the order of their seniors even when the orders are not lawful.
Although rectifying these two factors may not work as a panacea for all the problems that the country is facing, it will definitely go a long way in reducing these problems.
