Analysis

“Bill on supervision of federal police and provincial police reflects state’s unitary mindset”

Jivesh Jha

Police Bill

In the Federal Democratic Republic of Nepal, the policing ought to be primarily a shared domain of the federal and provincial governments. However, the recent bill related to the provisions concerned with the works, operation, supervision, and coordination of the federal police and provincial police tabled in the parliament not only provides an opportunity to the advocates of federalism to criticise the central government, the efficacy of the provincial law enforcement authorities is also being contested.

The Constitution of Nepal under Schedule-VI confers the provincial governments an exclusive right to administer their security affairs. But the recently tabled bill grants ample power on the Centre to supervise the federal and provincial police both, say the stakeholders. The experts are of the view that the bill hosts a plethora of conflicting provisions that have potential to challenge the federal fabrics and spirits of the Constitution itself.

“This bill has been drafted in hurry and reflects the centralised mindset of the government. The Constitution confers powers on the provincial governments to enact laws relating to the administration of police as well as law and order in theory while in practice the government is curtailing the powers of the second tier government by encroaching upon the provincial domains,” said Dr Surya Dungel, a senior advocate and eminent expert of Constitutional Law in an interaction programme organized by Kathmandu University School of Law Dhulikhel in Kathmandu on Friday.

Likewise, Hemant Malla, a retired Deputy Inspector General (DIG) of Police, was of the opinion that though the bill envisages federal police as well as provincial police, the provisions reflect the unitary mindset of the policymakers.

“The federal police have been conferred with the power to investigate the criminal cases and the Chief District Officer, who is accountable to the Centre, has been vested with power to maintain law and order. This way, the provincial police have been provided a limited role to play in their domain,” said Malla, the main speaker in the programme. He further said that the bill intends to push the federal principles at backburner.

Malla added that if the District Magistrates are not under the internal security ministers of provinces, they can never be answerable to the provincial governments. “If the police working in districts will be under the District Magistrate’s control or if the District Magistrate holds the power to mobilise the provincial polices, and centre looks after all these things, there is no relevance of provincial structure.”

Malla said that the Nepal Police was the first government agency to prepare a federal roadmap for itself. “But the government remains reluctant to pay any heed to our roadmap (which was prepared in 2007) designed to ensure the federal nature of Nepal’s Police system.”

He was of the view that the bill contains ample provisions that have potential to create internal conflict and confusion among the police staffs. “It’s unfortunate to witness that the bills are introduced in our part of the world without consulting the stakeholders. For instance, Province-2 had not consulted police staffs while enacting police Act.”

Seconding Malla’s view, Abhishekh Adhikari, an advocate, said, “One cannot serve two Masters at a time. But this bill envisages many masters which would ultimately bring about disasters.” He further said that the bill restricts the provincial governments to set its own police uniform.

Police Bill2

Geja Sharma Wagle, an expert on national security and policy, said, “These types of bills have potential to frustrate the cause of federalism. The bill contains ambiguous provisions regarding the chain of command. It contravenes with the spirits of the Constitution and fails to address the security concerns.”

More so, Usha Malla Pathak, Vice President of Nepal Bar Association, said that the bill is designed in a fashion to canvass the cause of unitary characters of the state. “The bill fails to demarcate the powers of the provincial polices and confers wide powers on the apparatuses of the centre which goes against the basic norms of federalism as well as Constitution itself,” further said she.

Bishnu Maya Bhushal, a lecturer at Nepal Law Campus, said that the bill has grossly failed to address the federal equations. “It appears that the bill has been drafted without any deliberate discussions and homework. It would ultimately question the federal nature of the state.”

Shailendra Suman, an advocate, said that the bill is in want of modifications for clarity and brevity. “This bill confers unlimited powers on the District Magistrates which have potential to override the powers of the Chief Ministers. In doing so, the government wants to put the federal principles in dormant stage,” added he.

Likewise, Som Bahadur Thapa, former secretary of Parliament of Nepal, said that the bill confers unlimited powers on the central government. “Irony is that the province cannot even decide the dress code of their police staffs. Also, the bill is silent about the conduct and behaviour of the police or the government regarding the philosophy of the security of the state,” further said Thapa. He argued that the bill contains only directive provisions, not enabling ones, which clarifies that the drafters have taken the issues of security apparatuses very lightly.

Similarly, Prasanna Kumar Das, an advocate, said, “This bill hosts cosmetic provisions which have no use in federal context. The bill aims to run a parallel government in province and treat provinces as its liaison offices.” He further said that the proposed law would ultimately frustrate the federal principles.

Over and above all this, the law enforcement should be the domain of the province to improve the coordination (and avoid tussle with the Centre) among different pillars of criminal justice system. Ultimately, reforms or policies that do not secure the concerns of provinces or allow the provincial governments to act under their jurisdiction may not yield desired dividend in the Federal Democratic Republic of Nepal.

As Nepal goes fully federal, the instrumentalities of the Centre should not shy away from conferring powers on the second and third tiers of the government by citing ambiguous reasons or lack of institutional capacity.

jhajivesh@gmail.com

Published on 9 March  2019

Comments