Whose Rights Were Violated?

April 16, Kathmandu – Dhangadhi Sub-Metropolitan City has directed to start the student admission campaign from Baisakh 4 (April 17, 2024). However, the federal government had instructed that admissions commence on Baisakh 15 (April 28) and classes start on Baisakh 21 (May 4).

Mayor Gopal Hamal of Dhangadhi stated that the admission campaign was allowed by exercising constitutional authority. He said, “We are initiating admissions according to the old academic calendar to avoid disrupting students’ studies,” adding, “Education up to grade 12 falls under the exclusive authority of local governments.”

Dhangadhi is not the first local government to disregard the federal instruction. Municipalities such as Tilottama in Rupandehi, Jhimruk in Pyuthan, Aambukhaireni in Tanahun, and Bandipur have also already started admissions.

Local leaders argue that the federal government’s directive is unconstitutional and that failure to begin classes on time would affect course completion.

The National Federation of Rural Municipalities, the umbrella organization of rural municipalities, has also drawn the federal education minister’s attention on this issue. Laxmi Pande, president of the federation, said they submitted a letter of concern opposing the government’s decision.

Pande, who is also chairperson of Hupsekot Rural Municipality in Nawalpur, emphasized, “No one has the right to undermine the authority granted by the constitution. We operate through coordination under jointly defined authority. Decisions such as when to hold exams, conduct admissions, or start classes are taken independently by the local governments.”

Several decisions in the governance reform agenda, approved under the leadership of Senior Raswpa leader Balendra (Balen) Shah’s government, contradict constitutional provisions and federalism.

One clause in the agenda commits to drafting and approving a national standard for the organization and management survey of federal, provincial, and local bodies within 15 days.

However, another clause shows the federal government making decisions on education matters that fall under the exclusive jurisdiction of local governments.

The government has decreed ending internal exams for students up to grade five starting from the next academic session.

Educationist Dr. Bidyanath Koirala says, conceptually the decision to discontinue exams is correct but the process was flawed. He explains, “In terms of thought, this decision is appropriate, but the practice and procedure could have been improved.”

The constitution grants local governments full authority over educational matters through grade 12. According to Schedule 8 of the constitution, basic and secondary education is the exclusive right of local governments.

Narulaal Chaudhary, General Secretary of the Nepal Municipal Association, advises the federal government to consider constitutional provisions when making decisions. He said, “There is no dispute that local governments should decide on matters that fall under their exclusive constitutional rights.”

The government has further made decisions violating the spirit of the constitution and federalism. On Chaitra 18 (March 31, 2024), the Prime Minister’s Office issued a secretary-level directive instructing provincial and local governments as if they were subordinate entities, issuing them instructions like their own subordinate bodies.

According to the PMO notice, “When publishing and broadcasting public procurement and related information from public bodies via media, Nepal Government, provincial governments, local bodies, and their agencies should arrange for publication and broadcast only through government media such as Gorkhapatra Institution, Radio Nepal, and Nepal Television.”

The decision to restrict publication of public notices in private media remains contentious. Experts and stakeholders consider it legally and constitutionally incorrect.

Former Chief Minister of Madhesh Province, Lalbabu Raut, states the federal government has no authority to direct provincial or local governments. He said, “Provincial and local governments are not under the federal government’s control. The federal government has no right to decide where advertisements can or cannot be published.”

When Raut was chief minister, Madhesh Province filed legal cases against the federal government at the Supreme Court over jurisdictional conflicts.

More than half a dozen cases filed at that time are still pending, and in those decided, the province has prevailed.

On Jestha 23, 2076 BS (June 6, 2019), the federal government merged the Sagararnath Forest Development Project into ‘The Timber Corporation of Nepal’ and registered it as Nepal Forest Limited.

Though the constitution grants forest rights to the provincial government, the federal government’s intervention led Madhesh Province’s Ministry of Industry, Tourism, Forest and Environment to file a case in the Supreme Court.

The Supreme Court ruled that all rights related to forests rest with the provincial government, and directed the federal government to formulate policies accordingly.

Raut noted, “Although the Raswpa-led government promised reforms, some decisions appear to follow past patterns. The constitutionally guaranteed rights of provinces and local governments cannot be undermined by the federal government.”

Article 56 of the constitution establishes Nepal as a federal democratic republic with three tiers: federal, provincial, and local levels. Shared and exclusive rights of all three levels are outlined in the schedules of the constitution.

Subsection 2 of Article 57 specifies that provinces may exercise exclusive rights listed according to the constitution and provincial laws.

Similarly, subsection 4 allows local governments to exercise their exclusive rights per the constitution and laws enacted by village or municipal assemblies.

Constitutional expert Dr. Bipin Adhikari states that no one has the authority to make decisions or issue directives beyond the constitution.

He says, “The federal government may have executive or administrative powers, but it does not have the authority to formulate policies for provincial or local governments.”

Dr. Adhikari adds that only the respective province or local government has the capacity to legislate, make administrative decisions, establish structures, and formulate policies within their jurisdiction. He stresses, “The federal government’s authority cannot extend beyond this, otherwise federalism itself would cease to exist.”