Law-making At Local Level
Dr. Mukti Rijal
Local governments have started to formulate local laws on different subjects especially bearing upon core basic rights and services pursuant to the provisions of the constitution of Nepal, 2015 and the Local Government Operation Act, 2017. Needless to say, the federal constitution enacted in 2015 recognises the local government as an important sphere of the governmental system and elevates them as the constituent units of the state system. The present federal constitutional provision transforms the local bodies into the legally competent democratic government institutions – an instance of highest version of decentralisation of power. They are made responsible for delivering core public services which is impregnated with potentials and promises for participatory democracy and development in the country.
The constitution allocates separate list for functions and competencies for local government. Of the twenty-two major competencies enshrined in the constitution, most of them are related with public service delivery and social protection of citizens. Nonetheless, health and education constitute core areas of service delivery and infrastructure development which fall within the mandate of the local government. The most important part of the constitutional scheme of devolution is that the basic and secondary education have been devolved and inalienably fixed as the major mandates of the local government.
It is to be noted that the local governments – both Gaupalikas and Nagapalikas- have accorded priority to formulate local law to administer and govern education at the local level. Questions have been raised alleging that the local governments have exceeded their limits while formulating local law on such vital subject as education. The constitution also sets forth both exclusive and concurrent jurisdictions for local government endowing them with executive and legislative competencies. The Local Government Operation Act, 2017 formulated to give teeth and operational leverage to constitutional provision has worked out details on legislative procedures in adherence of which local governments should formulate and implement local laws. The federal government has also developed the guidelines to assist local government to legislate and formulate local laws.
It is worthwhile to note that the local governments in the country from Kathmandu Municipal Corporation to rural municipalities like Malarani in Arghakhanchi district have, among others, exercised their legislative authority to execute mandates entrusted to them on education governance. This offers an example that the local government’s institutions have started to use their legislative competencies consistent to the standard procedure of law making envisaged in the constitution of Nepal and the federal law concerned. It heralds a beginning of the local government attempt to gradually take grip on implementation of the twenty two major competencies spelt out in the schedule 8 of the constitution through formulation of local law.
Moreover, the publication of the local law related with education management in the Local Gazette (Sthaniaya Rajpatra) conforms to pro forma and specification similar to the Nepal Gazette which has been issued by the federal government to publish and disseminate the official text of federal law on a regular basis. It is indicative of the initiation and elevation of local entities into local government exercising state authority more or less similar to the federal and provincial government. In fact, the School Education Management rules formulated by local governments are comprehensive and elaborate enough to cover several aspects dealing with governance and management of educational institutions. The school education had been controlled and managed by the central government agencies established at the district level named as District Education Offices.
Currently, these central government agency offices looking after the management and administration of the school education and their assets and liabilities are being transferred to local government in line with the letter and spirit of the constitution and law. Local government laws place education office, officers, teachers and other personnel under their management, purview and control. According to local laws on Education Committee (Shiksya Samitee) headed by mayor and chairperson and composed of the deputy mayor, chief administrative officer, representatives of the teacher association , social organisation and locally reputed persons having made contribution in the development of education is an important and powerful body in formulation of education policy and giving final approval for the establishment and operation of new schools including community owned, trust operated and private corporate schools.
Likewise, the local law creates mechanism like education department within local government to be headed by the official at the rank of the undersecretary or section officer . Likewise, local laws make provision for merger of two or more schools, upgrading and down grading of schools and so on for which local government s can use their authority effectively. The structures and mechanism like school management committees, parent-teacher associations (PTA), school resource centres, teacher recruitment committees, school supervisors, headmasters, and so on are provisioned crucial for implementation of school education.
Moreover, the local laws specify terms and conditions for grants allocation and disbursement to schools. These, among others, include meeting and fulfilling prioritised minimum conditions and grants provided to the school will be transferred to the respective school’s consolidated fund. The local law on school management follows and subscribes to the existing school education policy and provisions of the federal government. The major problem public school education system is facing in Nepal is attributed to poor implementation and enforcement of the existing policies and institutional arrangements. Local governments should see to it that the provisions in the local laws formulated by them are effectively implemented for quality and competitive education to prove that the decentralised education services produce better learning outcomes.