Use of Legislation as a State’s

Tool of Power to Administer

Good Governance
Definition of Good Governance
• Concept of good governance, for the first time started, with
the work of international agencies such as International
Monetary Fund, World Bank etc.
• Good governance in itself is very vague subject-matter.
Therefore, there is not a precise definition.
• World Bank 1992: “the manner in which power is exercised
in the management of a country’s economic and social
resources for development.”
• UNDP defines that good governance is “… among other
things participatory, transparent and accountable. It is also
effective and equitable. And it promotes the rule of law.” 
• Chief Justice Sabharwal identified that good governance
includes, “improving the standard of living; providing security
to the people; instilling hope in their hearts for a promising
future; providing access to opportunities for personal growth;
affording participation in the decision-making in public affairs;
sustaining a responsive and fair judicial system; maintaining
accountability and honesty in each branch of government.”
Good Governance
• Good governance is argued to have or is judged on the
basis of four major principles : (a) accountability, (b)
transparency, (c) rule of law and, (d) participation.
• Good governance is possible when government’s
activities are done on the basis of people’s consent and
those activities are legitimate and accountable. Thus, it
could be argued that good governance empowers state
institutions through legislation.
• Good governance ensures that governance, i.e. the
exercise of power by authorities to whom and how it is
conferred and how it is to be exercised, are done in an
effective manner.
• In any democratic state, good governance is recognized
as the most important practice. Therefore, laws are made
to make sure that such practice are enforced.
Good governance and its administering
• State is an abstract entity (talked in previous class) and
good governance is just a mere principle or practice.
• Therefore to administer i.e. to operate, regulate or
implement such practice or principle, we need laws. For
e.g. rule of law is one of the key aspects of good
governance and requires police officers to present
accused before courts within 24 hours.
• In absence of laws or legislation good governance is
just a principle and thus could be less binding.
• Therefore, there has been development of legislation.
For e.g. Good Governance (Management and
Operation) Act 2008 is an example in our context.
• Government branch such as Executive, Legislature and
Judiciary agencies under them are the ones who act as
player to administer good governance.
Good governance in the Constitution
The 1990 constitution:
•It carried some aspects of good governance. In its
preamble it guaranteed that the objective of the state
and state’s institution is to ensure the concept rule of
law in transferred into a living reality.
•It also made provisions on multi-party democracy,
independent and component system of justice etc.
The 2007 Interim Constitution:
•For the first time, constitutionally, it termed ‘good
governance’. Art. 33 (c) has made a provision regarding
obligation of the state to “…maintain good governance
while putting an end to corruption and impunity.”
Further, it also requires the adoption of political system
that ensures good governance.
Good governance in the Constitution
The 2007 Interim Constitution:
•Additionally, the Constitution has also made provision
on rule of law, public participation, accountability and
transparency.
•Therefore, it could be argued that the 2007 Interim
Constitution has, for the first time, conceptualized
principles of good governance.
•All state’s institution such as Executive, Legislature
and Judiciary have a duty to ensure that they
administer good governance when they exercise their
respective functions. For e.g. Executive cannot exercise
more power than given and Parliament is required to
do public consultation while making laws.
Good governance in the
Constitution of 2072
• Preamble: To fulfill the aspirations of good governance
• Art. 51 (b) (4): “Guaranteeing good governance by
ensuring equal and easy access of people to services
provided by the State and making public administration
clean, competent, impartial, transparent, accountable
and participatory.”
• On the whole, it could be said that the constitution
2072 has guaranteed good governance.
• All state’s institution such as Executive, Legislature and
Judiciary and their branches have a duty to ensure that
they administer good governance.
Good Governance (Management and
Operation) Act 2008
Objective of the Act:
•Preamble: “…to make legal provision in relation to good
governance by making public administration of the country
pro-people, accountable, transparent, inclusive and
participatory and make available its outcome to the general
public; upon adopting the basic values of good governance
like rule of law, corruption–free and smart (lean or smooth)
administration, financial discipline, and efficient
management of public work and resources to create
situation for providing public services in speedy and cost-
effective manner; by bringing into execution (enforcement)
of the right of the citizens upon having good governance by
translating it to practical reality; and transform the
administrative mechanism into service delivery mechanism
and facilitator;”
Good Governance (Management and
Operation) Act 2008
• Sec. 3(1): It requires that while exercising administrative
function throughout Nepal, the government of Nepal is
required to maintain good governance.
• Sec. 6 mandates that while exercising administrative
function to maintain good governance issues such as
greater interest of the people, rule of law, human rights,
transparency, objectivity, accountability and honesty
etc. are to be ensured.
• Sec. 8 says that it shall be the duty of the concerned
authority to carry out administrative function of the
country pursuant to this Act or other prevailing laws, in
speedy manner, with the objective of maintaining good
governance and make available its outcomes to the
people in time.
Executive, legislation and good governance
• The executive has the duty to comply with laws passed
by legislation to ensure good governance. In absence of
such compliance, administering of good governance
may not be possible. For e.g. Prevention of Corruption
Act 2002 requires executive and its agencies to comply
with the law by not being involved in corrupt practices.
• In addition to enforcing laws made by parliament, the
executive sometimes could also make new laws to
make sure that good governance is ensured. For e.g.
Sec. 44 of the 2008 Good Governance Act mandates
that he Government of Nepal may frame necessary
Rules to implement the objectives of this Act.
• Executive usually frame laws i.e. sub-ordinate
legislation to comply with good governance.
Legislature, legislation and good governance
• Being a law-making agency, legislature has the sole
duty to guarantee that laws relating to good
governance are made.
• Good Governance (Management and Operation) Act
2008 is the prime example that illustrates how
important role legislature has to play not only to
make laws on good governance, but also to fulfill the
constitutional mandate.
• On few occasions, legislature is required to consult
public participation to collect public opinion while
making laws just to ensure that participation is
ensured and good governance is promoted. For e.g.
CA is required to do so by CA regulation.
Judiciary, legislation and good governance

• Judiciary has the sole role to interpret laws made by

legislature to ensure if good governance is maintained
or not.
• Judiciary usually applies principles of rule of law,
accountability and also is empowered to have judicial
review whether or not actions or laws are made as
mandated by the law.
• Judiciary checks the activities of both executive as well
as legislature to see if they are complying with laws
such as Good Governance (Management and
Operation) Act 2008 .