Court Rules Out Fund To Lawmakers

It may not be a mere coincidence that  the Supreme Courts of Nepal and the African nation Kenya have come up with landmark ruling of similar import that have halted the implementation of the constituency infrastructure development programme in their respective countries. The court rulings in both the parliamentary democracies reflect the judicial concern over their obligation to safeguard the values of democratic separation of power among the three organs of the government. In fact, the decision of the Supreme Court of Kenya is far reaching and conclusive compared to that of Nepal. The Kenyan Supreme court, in a judgement delivered by Chief Justice Martha Koome, ruled that the Constituency Development Fund Act 2013 that allowed lawmakers to manage funds undermines the division of power among the organs of the government. 

In the case of Nepal, the apex court has handed the interim order to postpone the implementation of the fund. The court is yet to give final verdict and write its full text of judgment explaining its jurisprudential basis. The court’s interim order, nevertheless, states that Nepal’s constitution has adopted a democratic governance system based on the separation of powers. Article 75 of the constitution has granted executive authority to the federal Cabinet, while Article 162 has granted executive authority to the provincial Cabinet. Performing legislative work is the main task of the federal and provincial legislatures. According to the court order, “no authority has been provided by the constitution to federal and provincial legislatures to perform executive tasks.”

Lawmakers’ reservation 

It should be noted that the court order would potentially rescue nearly 20 billion rupees from being consumed in a fragmented and irregular spending methodology. However, the court order has not gone well down the stomach of the lawmakers in both Nepal and Kenya. The parliamentarians in both the countries have expressed the same level of concerns and reservation about judicial ruling stating that the judicial activism of this type transgresses into the jurisdiction of the legislature.

Nepali Congress Chief Whip Ramesh Lekhak told that the executive, legislature and judiciary should work within their own jurisdiction. The apex court order reeks of judicial activism which has ended democracy in many nations. Our court should also be well aware of it. Likewise a CPN- UML lawmaker criticised the court’s interim order in a strident tone stating that the sovereign parliament has passed the budget and made laws related to it. It is the parliament’s prerogative. This type of judicial activism cannot help resolve the problem.

There is no gainsaying the fact that powerful politicians and ministers do exercise disproportionate influence in the allocation of national budget in Nepal and many other developing countries. In Nepal’s case, this tendency does not limit to one or the other party, one leader or the other leaders but common to all the parties and leaders. This has become a phenomenon especially in the developing world where democratic institutions are weak, and hence democratic values, ethos and norms are undermined. During the federal republican era that began institutionally from 2015, prime ministers, ministers and leaders have not eschewed their tendencies to favour the respective constituencies at the expense of balanced national development. 

As reported in the media, some districts have not received any projects provisioning in the federal spending whereas districts such as Dadeldhura, Gorkha, Nuwakot and Salyan have received huge chunk of resources to implement the pet pork barrel projects through allocations in the national budget in the current fiscal year. The districts mentioned above are represented by the powerful politicians and ministers in the incumbent political dispensation where pork barrel projects are allocated in disproportionate way. 

Needless to repeat, Constituency Development Funds are controversial in almost all countries as they directly involve lawmakers in the utilisation of public funds and resources. A major concern has been raised by scholars, civil society organisations and development partners that such type of fund allocations erode the separation of powers between the legislative and executive branches of the government which is an arrangement to secure checks and balances. In democratic systems, the legislature is mandated to make policies through the formulation of laws and oversee the executive acts, while the executive implements such policies for the provision of public services. 

It has been argued that this approach of giving funds to lawmakers blurs the boundaries of these distinct functions of the government branches. Some researchers tend to argue that Constituency Development Funds have positive effects on electoral democracy in developing countries. Given that many lawmakers in developing countries raise funds legally or illegally to directly support different types of projects for their constituents, this is conducive to the prevalence of clientelism. However, the Constituency Development Funds, if designed and implemented in a transparent and accountable ways, will have the positive ramifications. It will have the potential to mitigate the influence of other illicit type of political financing on electoral competition and level the electoral playing field. 

Ring-fencing effect

In addition, in view of public finance management, constituency funds may have a ring-fencing effect. It will set aside a small portion of public funds for lawmakers. The remaining development budgets of local governments may be protected from being abused by politicians or political parties for electoral purposes. Van de Walle, in his recent study, has argued that the proliferation of Constituency Development Funds in sub-Saharan Africa illustrates a shift of the locus of political clientelism from the presidency to the legislature. 

In fact, clientelism and rent-seeking has been a central feature of politics in several African and Asian countries which is at the root of decaying political institutions. Nonetheless, there is a need to take cognizance of the fact that principle of separation of power and check and balance should not be sacrificed at the altar of the smaller positive effects of the funds to lawmakers to be debited from national exchequer.   

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com.)