On April 14, the Constitutional Bench of the Supreme Court has repealed Section 12 (1) of the ‘Civil Relief, Compensation and Financial Assistance Procedure’. According to this, former specials who used to receive expenses incurred during treatment abroad will no longer receive them. There had been debate and criticism about this for a long time. But questions were raised from the point of view of morality. In this article, we will discuss how this procedure was unconstitutional and how the act of collecting treatment expenses is serious corruption.

In 2068 BS, the then government made the ‘Civil Relief, Compensation and Financial Assistance Procedure’ and it was amended twice. Based on the procedure, many including the President, former President, former Prime Minister and others received expenses from the state treasury. It has been made public that KP Oli repeatedly received about 25 million, Ram Baran Yadav received about 15 million, Ram Chandra Poudal received about 5 million, and Jhalanath Khanal received 5 million. Due to this arrangement, the trend of going abroad for treatment at government expense increased. Not only the patient, but also the cost of transporting large 'intoraj' was borne by the state treasury. Whereas, most diseases are treated in Nepal.

In this process, the bill of expenses was not asked. Why treatment should not be done in Nepal was not asked. The recommendation of the medical board was not sought. The remaining amount was not refunded, but added. 15 lakhs was specified in the 'procedure' not recognized by the law, but up to 25 million was given. 1 lakh became normal. The amount requested was given by the Prime Minister in the 'Hukum Pramangi'. Such actions are and were extreme abuse of executive power enshrined in Article 75(2) of the Constitution, violation of the fundamental rights related to equality and health, and corruption.

Misunderstanding of democracy

The Panchayat system was not democratic. But the Panchayat was very disciplined in ‘governance’ and good governance. Today, Nepal is fully democratic in principle and constitutionally. But there is also laxity. Due to the participation of political parties in periodic elections, fair elections, separation of powers, independent judiciary and parliamentary system, the ‘byproduct’ of parliament is the executive. Since the executive is accountable to parliament, it is and has been a democratic system. In a democracy, ‘rule by law, not by men’. But in Nepal, ‘rule by leaders’ has become. After cutting off the powers of the judiciary and the executive, all the remaining powers belong to the executive. The state has three inherent powers. The right of ‘eminent domain’ can acquire a person’s land for public works. ‘Police power’ can enact laws and restrict the fundamental rights of citizens. Another is ‘No Taxation Without Legislation’ i.e. ‘Taxes can be imposed only by making laws’. But in Nepal, money is distributed from the government treasury without a law.

Although the Panchayat system was not democratic, it ruled on the ‘values ​​and norms’ of ‘governance’. During the Panchayat period, money was not distributed from ‘ordinances’ and ‘state treasury’. But in the republic, even the minimum values ​​and norms of democracy were not followed. The money from the consolidated fund was misused. The leaders did not understand that the consolidated fund should not be spent without the authority of the law. It seems that they understood that democracy is to remove the monarchy. They did not understand that distributing government money is not democracy. They did not understand that an act is needed to spend money from the government treasury, and they did not understand that an act cannot be made in a way that conflicts with the constitution. They did not even understand that the law should be 'fair, just, and reasonable'. They did not understand that the Council of Ministers cannot make a law, and that the procedures made by the Council of Ministers are not 'fair, just, and reasonable'. This is why they said they did not understand democracy.

Those who rule should understand that democracy means 'rule by law, not by men'. If they had understood, they would not have made procedures that were against the constitution. The Ranas ruled for 104 years. There was no constitution or rule of law during the Rana regime. Just as the ruler himself said 'I am the State', the Ranas thought that the government itself was the government. Their orders were the law. There was no parliament to make laws. There was no Auditor General. Today's bank was called Tejarath at that time. The Prime Minister was called the Prime Minister. They were above the law. Money was distributed as they pleased. It was considered a crime to question that act, and there was severe punishment. In a country with a 104-year-long 'legacy' of governance, it is natural for those who have no experience and studies but who have the mentality and culture of wanting power and power to become rulers, not to understand why an act was written in the federal economic system of Part 10 of the Constitution, why a law was not written. We citizens were also not alert, aware, vigilant and informed, so we brought the rulers to Singha Durbar. The result of that was 'procedures' and misuse of the government treasury.

Today's rulers seem to think that the Ranas used to distribute money from the government treasury, and we should also distribute it. Due to a misunderstanding of democracy, the state treasury has been looted by making procedures.

Abuse of executive power

The government is the source of executive power. It is through this that the general direction, control and operation of the governance system is carried out. This is the right that makes laws through the parliament. If the law is inadequate, it gets amended. The constitution says that an ‘act’ is required to spend money from the government treasury, but spending three billion by making ‘procedures’ is a violation of the constitution. Even a law student should know that spending from the government treasury without an act is not an option. The head of the government cannot be exempted from being informed. The procedure has been made with the aim of benefiting himself from the state treasury and benefiting his associates. The ‘procedure’ has been named ‘financial assistance’. But only those with access to Singha Durbar benefit. The procedure was not made under the delegated authority of the act. The source of the act is not mentioned in the preamble of the procedure. The procedure was made under administrative authority. There is no authority to spend the money accumulated in the state treasury through a procedure like a piece of paper. The right to spend the money accumulated in the state treasury is vested in 10 articles from Article 115 to Article 125 of Part 10 of the Constitution. Money can be spent from the state treasury only through an act made under the mentioned articles. In the 10 mentioned articles, it is clearly mentioned that ‘Act’ or ‘Federal Act’ is required when spending. ‘Act’ is not mentioned. If ‘Act’ is mentioned, the word ‘Act’ is used to indicate that the government will spend by making rules, regulations, and procedures. The act must be passed by a majority. The opposition blocks the government’s discretion. That is why ‘Act’ is written in the Constitution.

The government misused the state treasury by making ‘procedures’ and giving dollars to patients and big ‘intoraj’ for prostate surgery and kidney transplants, even though treatment was possible within Nepal. There has been abuse of authority and corruption by both those who receive and give medical expenses. If money is given from the government treasury by creating a 'procedure' against the constitution, then the office head and accountant who sign checks from the Nepal Rastra Bank or other bank accounts in the name of the government office have jointly paid for their own treatment expenses.

Just as spending government money on treatment by cutting checks is considered corruption and the person cutting the checks is punished, similarly, both those who give and receive money for treatment from the state treasury based on 'procedures' should be prosecuted for corruption. Depleting the government treasury in the name of procedures is serious corruption. Both the giver and the receiver, regardless of the position, should be considered equal and their misdeeds should be looked at, not the position. In this country, there is a written constitution, there is a right to equality and everyone has the right to equal access to health services, and if it is accepted, then everyone, be it the President or the Prime Minister, should be investigated under Article 239 (1) of the A.D.A. Act and prosecuted for corruption under Clause 3.

People are not aware, alert and informed

It is wrong to say that all leaders are honest, educated and disciplined just because they say democracy. Making procedures and emptying the state treasury is a sign that Nepal's leaders are corrupt. Expenditures made through procedures are proof of corrupt leaders and corruption. Corruption is misuse of democracy. Corruption control comes from informed, aware and alert citizens. The procedures were made in 2068. From there, the exploitation of the state treasury began. The procedures were amended twice. More than three billion rupees were spent on corrupt activities by showing procedures.

Procedures against the constitution

Article 18 (1) of the Constitution provides that all citizens are equal before the law and cannot be deprived of equal protection of the law. Article 35 (3) provides that every citizen has the right to equal access to health services. Article 1 clearly states that laws should not be made in conflict with the Constitution. Access to health care in Article 35(3) does not mean sending the President or Prime Minister to the US at government expense. It means that everyone should have access to health care without having to develop the country economically like the UK's 'NHS' and the US's 'Obama Care'.

The procedure does not provide facilities to the common people. It only provides them to the leaders. A few years ago, a person committed suicide by jumping from the fourth floor of a teaching hospital because he did not have money for dialysis. These categories did not fall under the pre-specified classification of the procedure. Therefore, since the procedure is contrary to Articles 18 and 35, this is a case of serious discrimination. The Supreme Court should have struck down not only Article 12(1) of the procedure, but also the procedure itself.

Finally, the 'procedure' is an extreme abuse of executive power. The people should know the things mentioned in the 'procedure'. When it comes to giving money, no issues such as medical board recommendations and the fact that treatment is not possible in Nepal are asked. Up to 25 million was given when the limit was set at 1.5 million. Another important issue is why not use your own property for treatment? If it was not enough to take a loan or mortgage or sell your house, society would have looked at it on the basis of humanity. No one used their property. They stole the state treasury. To what extent did KP Oli say in Parliament, 'I gave the property to the government, you should also give it'? By saying this, wasn't it a drama to take 25 million from the government treasury?