Category: Interviews
२०६२/६३ को राजनीतिक परिवर्तनपश्चात जननिर्वाचित संविधानसभाबाट संविधानको निर्माण गरेर मुलुकलाई समृद्धशाली बनाउने सोचका साथ अगाडि बढेका नेताहरू आजसम्म आइपुग्दा संविधान निर्माणबाट चुकेको देखिएका छन् । मुलुकमा दुई पटक संविधानसभाको निर्वाचन भएर संविधानसभा स्थापित हुँदा पनि त्यहाँबाट संविधानको खाकासम्म पनि तयार हुनसकेको छैन ।
नेपालको संवैधानिक कानूनका क्षेत्रमा विगत लामो समयदेखि क्रियाशील संवैधानिक कानूनका ज्ञाता डा. विपिन अधिकारी अहिले पनि संविधान निर्माणमा विकल्पहरू रहेको बताउँछन् । तर, राजनेताहरूले राजनीतिलाई व्यवसाय बनाएको कारण तिनले ठूलो आँट देखाउन नसकेको उनको ठम्याइ छ । यसै सन्दर्भमा संविधान निर्माण लगायत विविध विषयमा केन्द्रित रहेर संविधानविद् एवं हाल काठमाण्डौ विश्वविद्यालय ‘स्कूल अफ ल’का डीन रहेका डा. विपिन अधिकारीसँग हिमालय टाइम्सका लागि राजेश खनालले लिएको अन्तरवार्ता ।
– संविधान बन्छ ?
बनाउन खोज्यो भने बन्छ । बनाउनै नखोजे कसरी बन्ला त ?
– गएको ७ वर्षको अवधिलाई हेर्ने हो भने संविधानसभालाई नाटक गर्ने थलोको रूपमा मात्रै लिएको जस्तो पाइन्छ नि ?
त्यति कडा गरी मूल्यांकन नगरौं । नेपाली नेतृत्ववर्ग संविधानसभाको बाटोमा लाग्दा धेरै महत्वाकांक्षी भएकै हो । नेपालका नेता तथा राजनीतिककर्मीहरूको समग्र क्षमता वा सामथ्र्य सर्वविदितै छ । अर्को पक्ष देश बनाउने उद्देश्य पनि हुनुप¥यो । राष्ट्रवादी चिन्तनको अभावमा यति ठूलो काम गर्न गाह्रो हुने नै भयो । त्यसैगरी छिमेकको दृष्टिकोण पनि त्यत्तिकै महत्वपूर्ण हुन्छ । उनीहरूले बोल्ने गरेको र गर्ने गरेको कामकारबाहीले पनि प्रभावित गरेको छ । अन्त्यमा देशमा स्थायित्व दिन सक्ने न राजा छन् न राजनेता । यी समस्याहरूलाई जुधेर जान नसकेकाले परिणाम नदेखिएको हो । नाटकै गरेको होइन ।
– आजको संवैधानिक निष्क्रियता (डेडलक) को अवस्थाले के संकेत गर्दछ ?
झट्ट हेर्दा संविधानका विषयवस्तुहरूमा कुरा नमिलेको हो कि भन्ने आममान्छेको सोचाइ छ । म जस्तै धेरै सर्वसाधारणले पनि सकेसम्म विवादास्पद संवैधानिक विषयहरूमा धेरै विकल्पहरू समेतको मध्यमार्गी समाधानका बारेमा राय दिइरहेको परिस्थिति छ । कतिपय नेताहरूका सिर्जनशील विचारहरू पनि सार्वजनिक भएका छन् । ठूलासाना सबै दलहरू र पहाडे, मधेसी र जनजाति लगायत सबै पक्षबाट त्यस्ता कुरा आएका छन् । त्यसैले विकल्प नभएको परिस्थिति पनि होइन । तर, के लाग्दछ भने नेपालको दुरगामी भविष्यलाई प्रभावित गर्ने गरी यसलाई कुनै अनिश्चयको बाटोमा हिँडाइदै छ ।
– कस्तो खाले अनिश्चयको बाटो हो त्यो ?
यो धेरै राजनीतिक कुरा भयो । यसलाई क्षेत्रका मान्छेले स्पष्ट गर्न सक्लान् । संविधानको विद्यार्थीका रूपमा मैले के देखेको छु भने स्व. विपी कोइराला जस्तो राजनेताले पनि संविधानसभामार्फत् संविधान जारी गराउने अडान छोडी राजाले जारी गरेको संविधानअन्तर्गत नै प्रजातन्त्रलाई संस्थागत गर्ने अनुमति दिएका थिए । नपढेर नजानेर होइन, नेपालको परिस्थिति र आफ्नो क्षमताको मूल्यांकन गरेर हो । आज संविधानसभा नेपालीको नाममा गठन भएको छ । यसको गठन गर्ने राजनीतिक शक्तिहरू यसको एजेण्डा मान्न तयार छैनन् । अर्कोरूपमा भन्दा नेपालीलाई संविधानसभामा जाने बाटो तयार गर्ने अधिकार त थियो तर यसलाई सफल बनाउने अधिकार रहेनछ । यसबाट अनिश्चयको बाटो के–कस्तो हो बुझिँदैन र ¤
– सबै दलका नेता टाठाबाठा छन् र पनि किन मूल चुरो समाउन नसकेका हुन् ?
मलाई लाग्छ, सबैले कुरा बुझेका छन् तर राजनीतिलाई व्यवसाय बनाएपछि राजनीतिज्ञहरूले ठूलो आँट र विश्वास देखाउन सक्दैनन् । उनीहरूले आफ्ना लागि राजनीति गरेका छन् । आफूले पाएको सम्मान र ख्याति देशका लागि खर्च गर्छु भन्ने सोच बनाउने हो भने सही कुरा बाहिर आउन सक्छ । यस्तो भयो भने मात्र जनताले उर्जा प्राप्त गर्दछ । जबसम्म जनताको उर्जा प्राप्त हुँदैन, शक्तिशौर्यमा परिवर्तन हुन सक्दैन । यस्तो गर्न गराउन धेरै किसिमका लोभ र आकांक्षालाई तिलाञ्जली दिनुपर्दछ । राजनीतिमा टिक्न पनि चाहने तर जोखिम पनि नलिने मान्छेले गर्दा राजनीति यति बद्नाम भएको हो । यो वातावरणमा देशका नेताहरूलाई आफूले बाटेको डोरी आफ्नै लागि गलपासो हुनपुगेको छ ।
– निदाएको मानिसलाई उठाउन सकिन्छ, तर निदाए स्वाङ पार्नेलाई उठाउन सकिन्न भन्ने भनाइ छ । यही हो हाम्रा नेताहरूको मनस्थिति ?
कसैले निदाएको नाटक गरेजस्तो लाग्दैन । पहिलो संविधानसभा अवसान हुँदा रोएका नेताहरू पनि देखिएको छ, कराएका नेताहरू पनि देखिएको छ । उनीहरूलाई पनि पीडाबोध छ । असल नियतका नेताहरूको पनि कमी छैन । मूल कुरा चुनौती बुझेर रणनीतिक रुपमा अगाडि बढ्नु नै हो । देश यही हो । क्षमता यही हो । तपाई अन्दाज गर्नुस्, कसरी नेपाल प्राचीन कालदेखि आजसम्म टिकेको छ । केवल सेनाले होला त ? के हुन् त अन्य पक्षहरू ? क्षमताको परीक्षण यस्तै बेलामा हुने हो । आँट, विश्वास र रणनीति चाहिन्छ । देशका लागि जे सही हो, आफ्ना लागि पनि त्यही सही ठानिनु पर्दछ । यो मनस्थितिका आधारमा देश चलाउन सकिएको छैन ।
– यस्तोमा स्थितिमा निकास निस्केला ? आशावादी हुन सकिन्छ ?
मैले भनेँ नि, राम्रो संविधान निर्माण गर्न तात्कालीक विकल्पहरू धेरै छन् । मैले नै संघीयता, शासकीय स्वरूप, निर्वाचन पद्धति तथा संवैधानिक अदालतका सम्बन्धमा मध्यमार्गको खोजीका लागि विभिन्न विकल्पहरू प्रस्तावका रूपमा सार्वजनिक गरेको छु । त्यो ‘इस्यु’ नै होइन । संविधान भनेको रामायण, महाभारत होइन । आज बन्छ, भोलि संशोधन हुन्छ, पर्सि फेरिन्छ । यो नियमित प्रक्रिया हो । आज जस्तो किसिमको बहुमत छ, त्यसैका आधारमा मिलेसम्मको संविधान बनाउने हो ।
– अनि चित्त नबुझ्नेले नि ?
जसलाई चित्त बुझेको छैन, उसले यसैका आधारमा नयाँ राजनीति सुरु गर्ने हो । जनताको अभिमत छ भने आजको संविधान अर्को चुनावपछि तत्कालै चाहेअनुसार संशोधन हुन सक्छ । यति साधारण कुरा बुझिदिने हो भने किन आशावादी हुन सकिँदैन ? बाँकी कुरा रहृयो संविधानसभालाई नेपालीको हित विपरीत प्रयोग गर्न चाहने शक्तिहरूको कुरो । ठूला नेताहरूले आफ्नो पद र प्रतिष्ठालाई दाउमा लगाइदिने हो भने कुनै विदेशीले त्यो हिम्मत गर्न सक्ने छैन ।
– नेपालको भूगोलका आधारमा संघीयता जरुरी देखिन्छ र ?
संघीयता भनेको यहाँका अंशियारहरू बीच नेपाललाई अंशवण्डा गर्ने भन्ने होइन । नेपाली जनतालाई कसरी सशक्तीकरण गर्ने भन्ने प्रयोजनका लागि संघीयतालाई अगाडि सारिएको हो । भूगोल एउटा कुरा हो, पहिचान र सामथ्र्यका कुराहरू पनि छन् । विकासका आधारभूत मान्यताहरू पनि छन् । यी सबैका आधारमा संघीयकरण गर्ने हो । नेपाललाई कमजोर बनाउने सर्तमा संघीयताको संरचना बनाउने होइन । नेपालको प्रजातन्त्र र राष्ट्रवादका लागि संघीयता सहायक बन्न सकोस् भन्ने चाहना सबैले राख्नुपर्दछ ।
– भन्ने बेलामा भारतीय प्रान्तहरू युपी र बिहारभन्दा पनि सानो आकारको नेपाल भन्ने, अनि नेपालमा ८–१० वटा प्रान्तको कुरा गर्ने ? यसलाई कसरी हेर्नुहुन्छ ?
प्रान्तहरूको संख्या ८–१० भनेको धेरै नै हो । तर यसबाट आत्तिनु पर्दैन । सबैलाई चित्त बुझ्छ भने धेरै भए पनि यो सम्बन्धमा जोखिम लिन सकिन्छ । युपी, बिहार वा तिब्बत र सिञ्जियाङसँग तुलना मात्रै गरेर हुँदैन । यहाँका राजनीतिक मुद्दाहरूलाई कसरी व्यवस्थापन गर्ने भन्ने कुरा मुख्य हो । यसका लागि यसैमा सहमति हुन्छ भने पछि पर्नु हुँदैन । संघीय संरचना प्रजातान्त्रिक, राष्ट्रिय हितको पक्षधर र सबै जातजाति, धर्म र संस्कृतिका लागि समान र बहिष्करणविहीन हुनुपर्दछ । देशको राजनीतिक मूलधारमा नभएका दलित, जनजाति तथा मधेसीका लागि पनि गौरवपूर्ण हुनुपर्दछ ।
– अनि जातीयताको कुरा पनि छ नि ¤
नेपालमा जातीय आधारमा बन्न सक्नेसम्मको प्रदेशहरूको संरचना बनाउन सकिन्छ । यस्तो संरचना बन्यो भने उचित निर्वाचन प्रणालीको माध्यमबाट त्यहाँका स्थानीय जनजाति वा अन्य जनसंख्याको संसद् वा विधायिकी निकायमा जनसंख्या बमोजिमको प्रतिनिधित्व हुन सक्छ । यसबाट किनारमा भएका कतिपय समुदायलाई सन्तोष मिल्छ भन्ने कुरा जान्दाजान्दै पनि विरोध गर्नु हुँदैन । यसबाट विरोध गर्नेले केही पाउला जस्तो लाग्दैन तर देशको एउटा ठूलो समूहले असन्तोषको अनुभव गर्नेछ । मुख्य विवाद प्रदेशहरूको जातीय नामांकनको कुरामा हो । नेपालको हरेक क्षेत्र बहुपहिचानयुक्त छन् । नामसम्म त हो नि भनेर अरूले चित्त बुझाउन सकेको छैन । त्यसमा चित्त बुझाउने बाटो पनि खोज्ने प्रयास भएको छैन । कतिपय विषयहरू प्रजातान्त्रिक संरचनाहरूको प्रयोग हुँदै जाँदा आफैं समाधान हुन सक्छन् । कतिका लागि समय पर्खिनु पर्ने हुन्छ ।
– के गर्दा चित्त बुझ्छ त ?
खुलारूपमा छलफल गर्नुपर्दछ । प्रादेशिक स्तरमा मूल जनजाति समुदायको जातीय नाम स्वीकार गर्न बहुमतले नमानेको हो । सांस्कृतिक नामका बारेमा विवाद भएको छैन । त्यस्ता मूल जनजाति समुदायलाई आफूलाई स्वीकार हुने सांस्कृतिक नामहरू प्रदेशका लागि प्रस्ताव गर्न भन्न सकिन्छ । यो मन पर्दैन भने उपप्रदेशको स्तरमा सबैका लागि जातीय नामकरण दिन सकिन्छ । यसो गर्दा मूल जनजातिमात्र नभई अन्य विभिन्न जनजातिले आफ्नो सघन उपस्थिति रहेको क्षेत्रमा उपप्रदेश प्राप्त गर्न सक्दछन् । यस्तोमा २५–३० वटा उपप्रदेश बन्न सक्दछ । दलित समुदाय, मुस्लिम समुदाय र यादवहरूले पनि यस्तो उपप्रदेश प्राप्त गर्न सक्दछन् । यो विकल्प पनि राम्रो लाग्दैन भने सबै प्रदेशहरूको बहुपहिचानमा आधारित नामकरण गर्न सकिन्छ ।
– त्यो पनि सम्भव भएन भने नि ?
त्यो पनि स्वीकार्य छैन भने सबै प्रदेशहरूको जातीय र जाति निरपेक्ष नामांकन गरी निर्वाचनमा तेस्रो मतपत्र दिई एउटा नाम छान्ने अधिकार हरेक मतदातालाई उपलब्ध गराउन सकिन्छ । यो एक किसिमको जनमत संग्रह नै हो । जनताले दुईवटा मध्ये एउटा नाम छान्दछन् । यो पनि सम्भव छैन भने प्रदेशको नामविना नै संविधान पारित गर्न सकिन्छ । यस्तोमा सम्बन्धित प्रदेशको विधानसभाले पहिलो निर्वाचन पछि दुईतिहाई बहुमतका आधारमा नाम छनोट गर्ने अधिकार प्रयोग गर्नेछन् । यी सबै विकल्पहरू मध्ये कुनै पनि विकल्प चिरस्थायी नहुन सक्छ । त्यो त भविष्यले तय गर्ने कुरा हो । सबैलाई मनपर्ने नभए पनि आजका लागि हामी एउटा मध्यमार्गी बाटोमा जान सक्छौं ।
– यति धेरै विकल्प हुँदा पनि मिल्न सक्दैनन् भने संघीयता नै किन चाहियो त ?
अब त्यसो भन्नु राम्रो कुरा होइन । संघीयताका लागि देशमा एक प्रकारको जनमत छ । त्यो जनमतलाई अस्वीकार गर्नु हुँदैन । अहिले बन्ने संविधानमा प्रजातान्त्रिक आदर्श र राष्ट्रवादी नीतिका आधारमा संघीयताको निकास खोज्नु पर्दछ । कुनै जात, धर्म, वर्ण वा क्षेत्रका लागि सम्पूर्ण देशले घाटा व्यहोर्नु पर्ने अवस्था ल्याउनु हुँदैन ।
उपयुक्त समाधान भनेको अत्यधिक बहुमतलाई स्वीकार भएको समाधान हो । पछि जनमत परिवर्तन हुन्छ, राजनीतिक दलको हैसियतहरूमा फेरबदल आउँछ । त्यसअनुसार संविधान संशोधन गरी नयाँ व्यवस्था गर्न सकिन्छ । मान्छेले खोजेको शक्तिको निक्षेपीकरण र स्थानीय विकास हो । त्यसलाई लक्षित गर्नुपर्दछ । विवादहरू समाधान हुँदैनन् भने तिनीहरू कायमै छन् भन्ने आधारमा जनतातर्फ आफ्नो प्रयासहरू सोझ्याउने हो । यो मानसिकता छ भने मात्र प्रजातन्त्र चल्दछ ।
– एमाओवादी र मधेसवादीको आन्दोलनले निराकरणको बिन्दु पहिल्याउँछ त ?
बाध्यता छ । पहिल्याउनै पर्दछ । आन्दोलन कसको छैन । जसले प्रशस्त पैसा खर्च गरेको छ, उनीहरू अगाडि छन् । जोसँग कौडी छैन, उनीहरू हाइहाइ गरेर बसेका छन् । उनीहरूको पनि आआफ्नो मुद्दाहरू छन् । यसो भए पनि मुख्य कुरा सम्झौता गरेर हिँड्ने हो । राजनीतिमा सम्झौता निरन्तर प्रक्रिया हो । कि त जनताको भोट चाहियो, कि सम्झौता गरेर हिँड्नु प¥यो । एमाओवादी र मधेसवादी सबैलाई यो प्रष्ट नै छ । उनीहरू पनि सम्झौता गर्दै अघि बढ्दै गरेका हुन् । सम्झौता गर्न नसक्ने हो भने चुनावको माग गर्नु प¥यो । त्यस्तो चुनावमा आफ्नो क्षमता देखाउनु प¥यो । देशलाई ‘लिङ्गरिङ’ गरेर अनिर्णयको बन्दी बनाइराख्नु सही कुरा होइन ।
– भनाइको अर्थ उनीहरूले सही दृष्टिकोण राखिरहेका छैनन् ?
त्यो मैले भन्न सक्ने कुरा होइन । यो जनताबाट परीक्षण हुने कुरा हो । ती दलहरूले पनि आफ्नो निर्वाचक जनताकै लागि बोलेका हुन्, मागेका हुन् नभन्ने हो भने प्रजातान्त्रिक प्रणालीको कुनै अर्थ हुँदैन तर निर्वाचक जनता अरू पनि छन् । संविधानसभामा दक्षिणपन्थी, वामपन्थी तथा मिश्रित सबै धारहरू छन् । प्रजातन्त्रवादीको पनि ठूलो समूह छ । प्रजातन्त्रभन्दा राष्ट्रवादलाई महत्व दिने धार पनि छ । एउटाले भनेजस्तै त हुनै सक्दैन । त्यसैले समझदारीको कुरा आएको हो ।
– हाम्रा नेताहरू आन्दोलनको मानसिकताबाट पर जान किन नसकेका होलान् ?
धेरै हदसम्म हाम्रा नेताहरूमा यो मानसिकता हुनुको कारण प्रजातान्त्रिक पद्धतिप्रतिको प्रतिबद्धता र सोको परिपालना गर्ने क्षमता नभएर हो । सबै नेताहरू क्षमताविहीन छन् भन्न खोजिएको होइन । अधिकांशका हकमा यस्तै लाग्दछ । आधुनिक युग विचार प्रधान युग हो । असल विचार छ, सही दृष्टिकोण छ, कार्यक्रम छ, दृढता छ र प्रतिस्पर्धाशील क्षमता छ भने अब आन्दोलन गरेर हिँड्नु पर्दैन । मान्छेले कुरा बुझ्दछन् । उनीहरूलाई बुझाउन सक्नु पर्दछ । यसका लागि हरेक राजनीतिक दलले कसैगरी पनि राजनीतिमा टिक्ने र भीड जम्मा पारी बलमिच्याइँको राजनीति गर्ने सोच त्याग्नु पर्दछ । राजनीतिका लागि स्वस्थ्य आधार तयार गर्नुपर्दछ । यस्तो आधार भयो भने ‘डर्टी पोलिटिक्स्’ गर्ने पर्दैन ।
– त्यस्तो राजनीतिका लागि स्वस्थ्य आधार भनेका के हो ?
राजनीति राष्ट्रिय सम्पन्नता प्राप्त गर्ने उद्देश्यबाट सञ्चालित हुनु पर्दछ । राष्ट्रिय सम्पन्नता मेहनत नगरी प्राप्त गर्न सकिँदैन । यो अपुताली पर्ने चिज होइन । प्राकृतिक सम्पदा टन्न भएर वा प्रशस्त मजदूर वा काम गर्ने व्यक्तिहरू भएर वा मुलुकको ब्याजदर सस्तो वा महँगो भएका कारणले या पैसाको मूल्य घटबढ भएका कारणले मात्र कुनै देश सम्पन्न हुन सक्दैन । सम्पन्नताका लागि प्रतिस्पर्धाशील बन्नुपर्दछ । प्रतिस्पर्धा गर्ने क्षमता हाम्रो उद्योगधन्दा लगायतका आर्थिक क्षेत्रको क्षमता अभिवृद्धि गर्नसक्ने तागत र सिर्जनशीलतामा भर पर्दछ । कानुनको शासन छ र प्रतिद्वन्द्वीहरू बलियोसँग प्रतिस्पर्धा गर्न सक्दछन् भने परिस्थितिमा तुरुन्तै सुधार आउँदछ । राजनीतिक दलहरू लगायत आर्थिक, सामाजिक एवम् अन्य क्षेत्रले यी सबै विषयमा आफ्नो प्रतिस्पर्धात्मक योग्यताको विकास गर्नुपर्दछ । यो योग्यताका कारण आमनागरिक बलियो हुन पुग्दछ । यसैबाट देशको विकास हुने हो ।
– दलभित्रै पनि गुटउपगुटमा बाँडिएका नेताहरू दलभित्रै त मिल्न सक्दैनन् भने तिनीहरूबाट संविधान निर्माणमा सहमति र सहकार्यको अपेक्षा कत्तिको गर्न सकिन्छ ?
प्रत्येक राजनीतिक दलहरूले जनताका लागि प्रतिस्पर्धात्मक कार्यक्रमहरू ल्याउने हो, नेताहरूको व्यक्तिगत फाइदाभन्दा देशको र जनताको हितमा सोच्ने हो र ठूला उद्देश्य तथा कार्यक्रमका लागि आफूलाई परिचालन गर्ने हो भने कुनै पनि दलभित्र कसैले पनि गुटउपगुटमा विभाजित हुनुपर्दैन । ठूलोमान्छे सानो भइदिँदा सानामान्छेहरू यताउता गुटउपगुटमा विभाजित हुनपुग्नु स्वाभाविक हो । त्यसैले त प्रत्येक दलमा नेपालमा असल र प्रतिस्पर्धाशील नेतृत्वको खाँचो छ भनिएको हो । त्यस्तो नेतृत्व हुनेबित्तिक्कै संविधान निर्माणको कुरामा मात्र होइन, नेपालको समग्र निर्माणको कुरामा सहमति र सहकार्य हुन सक्दछ ।
– आज संविधानसभा स्थगित छ । यसले गन्तव्यमा पु¥याउँछ त ?
मैले सुरुमै भने संविधान बनाउन चाहेमा संविधान बन्न सक्छ । उद्देश्य अर्कै छ, नियत ठिक छैन र प्रजातान्त्रिक दृष्टिकोण छैन भने संविधान कसरी बन्ला ? प्रजातान्त्रिक मात्र भएर पनि पुग्दैन । नेपालका महत्वपूर्ण राष्ट्रिय हितका विषयमा धोका दिएर संविधान बनाउँला वा बनेको संविधान टिकाउँला भन्नु सम्भव छैन । सकारात्मक सोच र राष्ट्रवादी दृष्टिकोण सँगसँगै प्रजातान्त्रिक कार्यपद्धतिबाटै संविधानको गन्तव्यमा पुगिने हो ।
– अहिलेको परिस्थितिमा विज्ञहरूको कुनै भूमिका हुन सक्छ कि ?
राजनीति गर्ने नेताहरूले नै हो । जनताको अगाडि जसले सपथ लिएको छ, जिम्मेवारी निर्वाह गर्ने प्रमुख दायित्व उसैको हो । संविधान निर्माणका प्राविधिक पक्षहरू पनि छन् । संवैधानिक कानुन एउटा गहन शास्त्र हो । यो नपढीकन बुझिँदैन । विज्ञता सडकबाट आउँदैन । संविधान लेख्ने जहिले पनि विज्ञले नै हो । कुरा के हो भने के गर्ने भन्ने कुरा राजनीतिले तय गर्ने कुरा हो । तय गरिएको कुरालाई वा खोजिएको निकासलाई सिद्धान्तहरूका आधारमा कसरी संविधानका रूपमा लेखबद्ध गर्ने भन्ने कुरा विज्ञको कुरा हो । यसमा राम्रो मस्यौदाकार पनि चाहिन्छ । हाम्रो आफ्नै देशको पुराना अनुभवहरू पनि छन् । त्यस्तै अन्तर्राष्ट्रिय क्षेत्रबाट पनि धेरै कुरा सिक्न सकिन्छ । मुर्खले मात्र विज्ञ चाहिँदैन भन्दछ । विज्ञको भूमिका भनेको पर्दापछाडिको हो । पर्दा अगाडिका क्रियाकलापहरू राजनीतिबाटै तय हुने कुरा हो ।
– Bipin Adhikari
News Spotlight Magazine
Issue Name : Vol: 08 No. -13 December. 26- 2014 (Poush 11, 2071)
Nepal’s constitution building process continues to linger in no man’s land. There are efforts going on to sort out contentious constitutional issues. However, solutions have been elusive. Despite the fact that there is a constitutional proposal that has the support of two-third majority, which is a prerequisite to pass the draft constitution at the Constituent Assembly (CA), it does not seem to be a solution. On one hand, the Communist Party of Nepal (Maoist), the splinter Maoist group which remains outside the CA and Madhesi parties want the draft constitution to be finalized by way of consensus. They think the effort of the ruling coalition of Nepali Congress (NC) and CPN (UML) to pass the constitution on numerical strength in the house will be a disaster for the country and curtail the ongoing peace process. On the other hand, for the ruling coalition, the demands of the opposition parties sound too undemocratic and dangerous to the national interest. The question is how to break the impasse and move ahead. Senior Constitutional lawyer and Dean of Kathmandu University School of Law Bipin Adhikari, who has been following the constitution building process very closely on all issues,spoke to New Spotlight on various constitutional issues: Excerpts:
What is the latest update on constitution building?
The update is that there is no real update. The last important development was the joint proposal of Nepali Congress (NC) and the CPN (UML) in early November to solve the existing contentious constitutional issues. The proposal contained their position on state restructuring, system of governance, electoral model, and judicial system for resolution of federal disputes.
The proposal was registered by the ruling coalition at the Constituent Assembly (CA) Secretariat as a point of departure for further processes. It was to be further discussed at CPDCC (the Constitutional Political Dialogue and Consensus Committee), and then sent to the full house complying with the Committee procedures. This could not materialise.
What did the CPDCC procedure entailed? Why were these procedures not complied with in your opinion?
According to CA procedural rules, the proposal must have been discussed and put to vote at the Committee. However, it was not granted acceptance. The reasons are, in fact, all political.
CPDCC Chairperson Dr Baburam Bhattarai feared giving it the right to passage in light of the widespread dissent from his own party and others in the opposition. The ruling parties were criticized by his Party UCPN (M) and others for preparing the proposal against the past agreements. They warned against starting the Committee procedure for giving it an exit. After weeks of negotiations, he (Dr. Bhattarai) conceded to send it to the full house, along with other competing proposals as well, but not with any back up from the committee procedures. We are well aware of Bhattarai’s claims that the discussion and voting at the Committee was put off in a bid to avoid further confrontation among political parties.
Subsequently, they were sent just for the information of the full house. Had it been put to discussion in the Committee, and then to voting, the proposal of the ruling coalition would have been conveniently passed, and sent to the full house for remaining procedures.
What is your comment on the quality of the proposal?
As a student of constitutional law, I do not have specific comments on the proposed outlines. A Westminster model of parliamentary democracy with German feature of the constructive vote of no-confidence is not a bad idea for a stable government. A seven province federalization is also practical; although I believe adding another couple of provinces is a viable compromise if that leads to a consensus. The idea of Constitutional Bench at Supreme Court is also okay. Furthermore, the mixed electoral system has remained acceptable to all. They all can be tried. In general, what has been proposed is based on liberal values of democracy and constitutionalism.
So you mean there are no comments?
No, this is not what I mean. These features do not seem to be a problem on their own. However, the ruling coalition should work a little more and be able to explain how they plan to respond to identity politics and the demand, by Janjatis and Madhesis, for autonomous administration.
It is possible to establish identity structures within the declared provinces, and also solve all the contentious federalization issues including naming of these structures, their autonomy and linkages with the provincial and national legislatures. The proposal does not have clear indication on how they want to make sure that the national and provincial structures have proportional inclusion in the proposed system.
In order for inclusive democracy to thrive, the system of inclusion, representation and the regulation of political parties must be clearly defined. However, the current proposal is not much reassuring as far as these issues are concerned.
How is it possible to establish identity structures within the declared provinces? Will it be acceptable?
As I’ve stated earlier, the NC-UML proposal has set forward seven provinces at present. Although, judging from the ruling coalition’s willingness for negotiations on this matter, pertaining to political consensus, further provinces could also be added in the near future.
Even if there is no change in the number of provinces, due to any other reason, the proposed provinces could be demarcated in a way that makes it possible for different identity-based regions in each province. This is a viable mid-way. If this is acceptable, it is possible to design at least two dozen of identity based regions in the country. This means every province will have at least 3 to 4 regions depending on its geographical size and population. In other words, not just the seven dominant ethnic groups, but many groups along with the ‘dalits’ and Muslims will be able to get autonomous regions.
Nobody will object to having ethnic names for these regions as long as the province continues to have the presently proposed names. This will establish ethnic identity as well as meet the concerns for the province as commonwealth of all castes and tribes.
This means you think the present names for the proposed provinces are fine?
They are fine as long as they are consensually appropriate. We cannot say that Sagarmatha province is a bad name or Karnali province does not give a good impression.
The issue is that some ethnic groups want to establish their historical identity by way of provincial names; and others have harboured misconceptions that it will be exclusionary for people who are not from that group. So you have to find a mutually acceptable solution if you want to settle it amicably.
There could be many local ethnic names which could be considered for all these provinces, but the alternatives must not annoy the majority people living out there. Judging from Nepal’s history, most of the districts’ names like Kaski, Myagdi, Dolpa, Manang, Saptari or Namche have ethnic origin, and they have never been an issue in Nepal.
In a way you are advocating about four-tier federal system in Nepal?
Not really! I do not advocate anything. The fundamental criteria are that there must be a workable democratic system which can protect national interest as well.
And what I am envisaging is not a four tier arrangement. It is a three tier arrangement, where apart from national government, there is provincial set up, and each province will have autonomous regions within it that will enable self-government focusing on ethnic requirements. All the autonomous regions will be represented in the provincial legislature and national parliament. When you have autonomous regions you need not constitute smaller self-government units to compete with them.
Obviously, there will be municipalities with diverse populations standing on their own feet as self government units. But all rural areas will be a part of one of the autonomous regions. They will have a sort of autonomous administration under the provincial government.
Will that fulfil the demands of the Janjatis?
This could be a compromise solution. In addition, the leaders at the top level should sit with Janjatis and convince them with appropriate alternative features for their identity and empowerment. Mainly, the leaders need to address pertinent issues like formation of ethnicity dominant upper house in the bicameral national legislature, carefully crafted electoral constituencies, guarantee of diversity in the use of their languages, recognition of their traditional court system, implementation of the rights of ethnic and marginalized groups, their claims for ownership in the land, water and forest in all appropriate cases, the right to self determination, the promotion of their skills, local taxation, and above all, internal democratization of political parties, and so on. Is this also not what the Madhesis want?
Madhesis have their own logic for one Madhes, or something close to this?
I think the provincial proposal on Terai is fine. It divides Terai into two provinces. The tracts resided by hill people have been attached to the hills. This establishes Madhesi identity and also assures sustainability and helps make the populations in all provinces in proportionate size.
How to manage electoral constituencies for the national and provincial level elections?
My suggestion is that the new constitution would have to lay down all basic norms about the autonomous regions. When demarcating electoral constituencies, efforts should be made to make larger constituencies that can ensure ethnic representation. Constituencies may be offered to Women, Dalits and ethno-cultural groups on rotational basis where necessary. They can change the current scenario of representation positively. There is ample room for reformation.
So obviously you suggest some changes in the proposed representation system.
It is not enough to continue with what is known in Nepal as the mixed system. Despite certain visible changes, the so called mixed system that Nepal started in 2008 has not worked well.
On the ‘first past the post’ (FPTP) part, the constitutional assurance for inclusive representation was not effectively carried out. On the proportional representation part of the election, or the LIST PR system, which was created to make the CA inclusive for women, Madhesis, Janajatis, Dalits, Backward Regions and others, the electoral quotas were introduced not only for those who were traditionally disadvantaged, but also for the elite as well as predominantly represented groups.
Moreover, the Closed List, contrary to international practice, was not the priority list which must have been followed.
Why is there a problem as long as it is proportional?
This is the issue. There must have been effort to target these quotas as affirmative action for otherwise excluded groups, and secure diverse representation that the country needs.
As a matter of fact, many deprived communities did not find the opportunity for representation at all. Affirmative action should have been maintained for such groups whose electorate has been too small to secure their representation. But the system was repeated again in 2013 elections. This is what is being generally proposed again for the new constitution by the ruling coalition.
They could have thought of providing affirmative action to some excluded groups only for a limited time whereas assuring a more permanent protection to others.
So the provision of affirmative action should be time bound?
This should be left to the laws to be worked out by the parliament. Such a law should provide that politically excluded groups who have consistently been underrepresented under systems of representation to parliament, and which do not have affirmative action, are adequately represented. This is not a new thing.
A Norwegian expert, Kåre Vollan, working with the Election Commission has already submitted his opinion on this matter. According to him, if the mixed electoral system is adopted in Nepal and the affirmative action is applied to the proportional representation system, then the results of the FPTP could form a measuring scale for monitoring proportionate representation. This means that the electoral system could continue with affirmative action as long as the FPTP produces disproportionate representation from all groups on a consistent basis.
In the same vein, affirmative action could be removed once proportionate representation, including the perennially underrepresented group, is achieved on a consistent basis. On the other hand, if affirmative action is applied to both FPTP and the List PR, then indirect assessment of political participation at large may be used as a measuring scale.
In either case, a periodic assessment will be necessary to check if affirmative action is needed any longer.
Why is the NC-UML coalition so keen about giving continuity to parliamentary system? Is it not stubbornness on their part for no apparent benefit?
I also consider parliamentary system as a good system for Nepal. As the saying goes, “Better the devil you know than the devil you don’t know”.
We have experience in a parliamentary system. Also, I believe that a parliamentary system promotes diversity and pluralism. We know where the shoe pinches. So we can reform the existing system with our own insight.
When I provided a model constitution to the Constitution Assembly back in 2009, I also thought that the system could be continued, with necessary reforms. I proposed several new features including the code of conduct for the Ministers, limit on their numbers, some norms for ministerial advisors, and so on.
But, I defended the power of a prime minister to dissolve the House of Representatives and the vote of no confidence provision on various grounds.
So you do not hold on to it now?
Yes, I am not defending it anymore. In view of the conflicting positions between parties, although none of them are principled, I do not want to lay my emphasis on any form of government.
My only suggestion is that if you want to go for presidential system: go for the American model. If it is mixed system, go for the French model. The system of directly elected prime minister that Israel once practised is a very poor system. That is not a solution to our lawlessness and governmental instabilities. When the political factors of instabilities are around, and the rule of law becomes the victim of politicians, you cannot solve the problem just by creating a fixed term executive. Israel itself could not sustain the change.
I do not suggest the parties to venture around underdeveloped models, or try any new form of government. And the Maoist model is a very dangerous model. I do not recommend it.
The good thing about an established democratic model is that it gives you opportunity to learn from others’ experience. You have a comparative advantage whilst fighting against the same vices which have already been overcome by others.
You talked about the German model of the form of government that NC-UML proposal has recommended. How is it?
In fact, there is little difference between German and Westminster model of parliamentary system. The German model is also the British model.
However, based on their own experience with the Weimar Constitution, and the proliferating political parties, stable governments were becoming increasingly difficult in Germany. They faced much instability after the World War I. This is the reason why they developed the concept of constructive vote of no-confidence. This made it obligatory that a coalition that wanted to get rid of the prime minister through the parliament had to propose a new prime minister to replace him or her through the same resolution. The idea is great. The system has moved on despite some complications in early years.
If parliamentary system is to be approved, this feature will certainly be helpful. Of course, as I said, stability depends on how you resolve political problems. In Nepal, this also means how you tackle your immediate neighbours.
What do you say about British Ambassador Andrew James Sparkes’ advise on religious conversion?
Nepal has a high level of religious tolerance. The freedom of religion is guaranteed to all. The state is already a secular state. The situation will continue to improve as we go along.
It is not good to do anything that helps develop militancy among the dominant Hindu majority in the country. Remember always that Talibans were not Talibans historically. Hindus are already worried about the ongoing level of conversion in Nepal. The advice of British Ambassador provides fuel to those who think the ‘conversion industry’ has been financially supported by the Europeans. They think ‘conversions’ mean ‘forced conversation.’
Not just Himalayan Hinduism, but also the Kiranti religion and Buddhism in the high mountains and Himalayan regions are very renowned cultural property of Nepal. The Hindus will not want these properties to be shattered. They do not change the identity and religions of others. Also, there is no concept of church and proselytization here. They want to see reciprocity in this regard.
Do you believe that these solutions are acceptable to the ruling coalition or those in the opposition?
I am not sure. They are just some possible scenario for negotiated settlement. They are not the best solution for sure. But this is not the end of the story.
Constitution making is a dynamic process. You can never accomplish it at one stroke. A new constitution will also provide the political parties new grounds for politics, new electoral mandate and new structure for future negotiations. This is the norm in every system that has endured democratically.
Unfortunately, in Nepal, the regard for democratic process is minimal and this has led to political deadlocks in the past as well as the current impasse.
Do you mean Article 70 process for passing the new constitution must be accomplished?
Yes, it is good to do so. A transparent process always has clear advantages in situations like ours. There has been too much of dark room negotiations.An open parliamentary process will give opportunity to all legitimate forces to discuss and oppose within the house itself. Article 70 does not mean you have to pass the document quickly. However, it will keep everybody reminding their strength in the house. Had this been done during CA – I, it would have been able to adopt the constitution.
In that case, the Nepali Congress and UML would have already amended the new constitution according to their new mandate.
Finally, is it possible to have the constitution on or by January 22?
Anything is possible. If the draft constitution is promulgated by January 22, without giving people the opportunity to comment on this, the draft should in that case be put to a referendum before it is enforced. This is also a sort of popular process.
The tussle between the Parliamentary Hearing Special Committee (PHSC) and the Judicial Council (JC) regarding the hearing for eight controversial nominees for Supreme Court justices has progressed to a new level. Initially, the Council argued that the House had overstepped its jurisdiction by summoning its members for clarification while the latter argued that it had the right to do so. The hearings of the nominees, however, ended on Sunday. In this context, Pranab Kharel and Darshan Karki spoke to constitutional expert and Dean of Kathmandu University’s School of Law, Bipin Adhikari, about the constitutional underpinnings of the dispute, ways to address the problem and what this controversy means for the independence of the judiciary and the notion of separation of powers.
How do you see the ongoing controversy regarding the eight nominees for positions as Supreme Court justices?
The Judicial Council was created to deal with all issues regarding appointments, transfers and disciplinary action regarding judges. Before that, this power, one way or the other, was handled by the government, which raised many questions about the independence of the judiciary. So during the 1990s, an autonomous body was created, where the judiciary was given enough power to handle all appointments itself but was subject to confirmation by other stakeholders, including the law minister who represented the government. The idea was that the Chief Justice (CJ) should exercise all powers regarding appointments and taking disciplinary action but that he should do so only after consultations with the law minister and other members of the JC. Once the Council started working, it delivered well. However, with the emergence of partisan politics in the country, the JC became an instrument used by its members to divide their share in the appointments and transfers.
Does this state of affairs bring into question the relevance of the Council?
I think the Council has its relevance. This is the best anybody can do. If we go through the options in other parliamentary democracies, Nepal’s JC has even been a model for some countries. Our problem is basically with the leadership. The CJ was expected to take the lead to ensure that there is a proper identification process for the appointment of judges. It was expected that qualified people would be appointed by keeping the history of legal experts in mind and their performance in the law profession as well as the rest of the judiciary. But the Chief Justice could not deliver and instead, he began sharing the number of seats with other members, what we call bhagbhanda. The CJ was not able to assert himself and perform in a way that would have allowed meritocracy to prevail and also to make sure that competent people were selected and recommended.
Given the tussle we have witnessed between the Parliamentary Hearing Special Committee and the JC, how do see the practice of parliamentary hearing in our context?
This kind of parliamentary hearing does not exist anywhere in the same form. The Interim Constitution created this provision even though it hardly had any backup in terms of theories and principles and even real life experiences on how parliamentary hearings should work in a parliamentary democracy as far as judges were concerned. We are speaking here of the Parliament and how to make sure that the independence of the judiciary is upheld. The constitutional provision only says that the Parliament can conduct hearings on recommended judges. But it does not say how it should pursue this cause and whether the Parliament has the right to withdraw the recommendations made. Instead, it says that a law will be enacted, which has not happened so far. So the way the Parliament is currently exercising its jurisdiction does not have any legal basis. There is no legitimacy to anything that it has done.
But the constitution does mandate parliamentary confirmation for certain constitutional bodies.
It does not say anything about a confirmation hearing. There is a difference in terminology. This is not similar to the US where there is a senate hearing for judges recommended by the President. Our interim constitution only says that the Parliament can conduct hearings in the context of all political appointees in constitutional bodies. Apparently, the Parliament should have given effect to legislation on this regard and worked out how this should be pursued. So the provision is very clear and nowhere does it state that the Parliament can make remarks on recommended judges and undo the recommendations of the JC.
Can you elaborate on the problems with the way the Parliament is doing things?
While enacting the internal rules of procedure of the Parliament, it created two substantial provisions—that it can reject the recommendations made and that this matter will be decided upon by a two-thirds majority. These are entirely new requirements. These are not procedural matters but substantial constitutional rules. If this is what needs to be done, then the constitution should be amended. So irrespective of the fact that we have problems with some of the judges who have been recommended, this way the Parliament is trying to correct it is a very offending process. It does not help the independence of the judiciary. Rather than empowering the JC or creating additional institutions within it to make the appointment process more transparent so that only those properly trained and with the necessary integrity and character are appointed, the Parliament started conducting some sort of trial. They are not trying to reform the process. Rather, they are overturning the appointment. So the objective of the parliamentary hearing, interpreted this way, will be to empower the government to take judicial decisions through its own mercenary judges.
You say that the Parliament’s recent steps are unconstitutional but doesn’t the JC’s controversial nominations shed light on problems with the Council too?
Some of these judges have been implicated for improper conduct, including compromising their judicial decision-making powers. These issues should be taken up by the JC. The Council has all the powers, even the power to conduct hearings if it desires. So why is the Parliament not insisting that the Council conduct such hearings? Why is it not saying that upon review of the procedure, it found that there were certain faults and that certain compromises had been made? They could have sent such concerns to the JC by way of recommendation or if necessary, ask the government to change the law or propose another legislation. In any case, it should not transfer the particular powers given to the JC to itself, whether by a two-thirds majority or by unanimity. Even if unanimous, as long as this is the constitution we have, the Parliament does not have the powers it is exercising now.
What we have witnessed in the last seven to eight years is that the whole idea of separation of powers has been muddled. There is no clear distinction, so much so that executive authority has gradually been transferred to unelected institutions.
I think that’s true. When elected representatives do not perform well while exercising their democratic powers, this sort of tendency arises. In many developing countries, the people rely more on the judiciary than on elected representatives because experience shows that when judges are empowered, they are less dangerous to democracy than politicians. When you talk of restraining power in the scheme of constitutionalism, it is important to have a check on elected representatives. These checks do not work unless the people doing the checking are capable and the media is powerful and independent. Some scholars think that the judiciary should exercise self-restraint and only settle disputes without influencing political agendas. But we cannot say that giving power to the JC is antagonistic to the power of the Parliament. After all, the JC is not elected by unelected people. The law minister is part of the JC and he represents the government—the elected power of the country. Similarly, the government has its own appointees and two other appointees are people are politically known to the government. They are there to serve as checks to the decision made by the Chief Justice, which they have so far not done. Similarly, we have another Supreme Court judge who helps the Chief Justice make a decision on potential appointees. This system is not authoritarian and orthodox.
How will the partisan positions taken by the parties in Parliament on appointing judges affect the judiciary?
Irrespective of whether the recent list of recommended judges is confirmed or not, the worst damage has already been done to the Supreme Court. That is why I have been saying that this incident is being modeled in such a way that showing that most of the people who have been recommended are not competent directs the gun towards the Supreme Court. It has affected the overall status of the apex court without changing the constitution. Now the Court will have to look at the Parliament, what sort of bipartisan politics there are, worry whether the government will be supportive of its role and make decisions by making political calculations not based on merit.
How will this affect constitution writing?
In Nepal, mostly the left forces—though there are some opposing voices within the CPN-UML—are united in their opinion that judicial powers, as far as appointment of the judges and disciplinary action against them is concerned, should be left to the parliamentary committee. The Maoists have been championing this cause. So the opposition forces will try to make sure that there is a right case for such a provision, even while drafting the constitution. People will argue that the same system should be written in the new constitution. It will not help democracy. It is a very dangerous orientation.
So does this issue come down to a debate about parliamentary supremacy and constitutional supremacy?
I think parliamentary supremacy has been the standard notion, but within the confines of the constitutional law. The Parliament is supreme within the range of authorities created by the constitution but the supremacy of the constitution is fundamental. The constitution, as it stands now, treats judiciary as one of its engrained strengths. When you take away judicial powers by way of JC appointments, then the parliamentary hearing will take away those powers and transfer it to the PHSC. So the original balance of power has been affected.
The April 23 decision of the Judicial Council to recommend eight names of the appeal court senior judges for the Supreme Court appointment has run into controversy. The Parliament of Nepal is set to conduct hearing amidst criticism of Judicial Council by a section of media and lawyers over some of the nominees. These recommendations can only be blocked through a two-third majority in Parliamentary Hearing Special Committee. There is, however, a controversy whether the Parliament should reverse the decision. In light of this, on May 5, SPOTLIGHT interviewed Dr Bipin Adhikari, a senior constitutional expert and the Dean of Kathmandu University School of Law on the controversy, and sought his views on what is the correct approach. Excerpts:
What is the rule of the Constitution on parliamentary hearing of Supreme Court judges?
The rule is provided for by Article 155(1) of the Constitution. It states that judges of the Supreme Court shall be appointed only after parliamentary hearing. While hearing has been a compulsory requirement, the Constitution does not say that the parliament has the power to undo the recommendation for appointment, or issue strictures that it considers best. It only states that parliamentary hearing has to be done “in accordance with the provisions of the law.”
What are the provisions of the law then?
No such law has been enacted so far. It is only the Constituent Assembly (Conduct of Parliamentary Business) Rules 2070 which prescribes procedures that should apply in parliamentary hearing. It is these procedures which state that the Parliamentary Hearing Special Committee in the Parliament can reject recommended judges by a two-third vote, and send back this notice to the Judicial Council to dispatch another recommendation.
So, do you suggest that these 2070 Rules overstep the mandate of Article 155(1) of the Constitution?
Nowhere does the Constitution maintain that the power to appoint Supreme Court judges is shared by the Judicial Council with the Parliament. There is no legal framework for this. Furthermore, the 2070 Rules are in stark contrast to the principle of “Separation of Powers.”
If that is your logic then why should there be any hearing at all? Does this formality serve any purpose?
Article 155(1) of the Interim Constitution on parliamentary hearing is a faulty provision as far as Supreme Court Judges are concerned.
This provision was not necessary. The Parliament of Nepal is not a Parliament under the presidential system of government. For example, it is not the Senate of the United States (US), or it’s Judiciary Committee. In the US, unlike in Nepal, the nominations for judicial appointments aremade by the president, and not an entity like Judicial Council, and are transmitted by message to the Senate. The Senate Judiciary Committee, then, begins the consideration of a nomination by gathering more information about the individual nominated. The nomination of federal judges is subject to a committee hearing, during which the nominee and others testify. Unsuccessful nominations typically die from inaction. These are the activities that the Judicial Council itself is or should be entitled to in Nepal.
But why should there be a problem when the Parliamentary Hearing Special Committee does so?
Nepal is a parliamentary democracy. A government is formed in Nepal by the majority in parliament. As such, it is accountable to the parliament in everything it does. As long as the government commands the confidence of the house, it decides the agenda of the house. It is the government which controls the parliament in normal times. They work in tandem with each other. The relationship between government and the parliament are very often symbiotic. In that regard, it is clear that when you allow the parliament to have a say in the appointment of judge, by virtue of this, you give this say to the government. How can you defend independence of judiciary in such a situation?
In that case, do you think there is no need of democratic mandate for judges?
The pre-appointment hearing in the parliament should not be acceptable for senior judges. Judicial appointment at this level should not be a game of majority and minority. It undermines the independence of those subsequently appointed. Yes, the legitimacy of judges does not depend on any democratic mandate. It depends on their merit and integrity.
Why do some democratic countries find parliamentary hearing important in that case?
It depends on the nature of the political system a country has chosen. In the US, for example, the Senate has this power of confirmation hearing. But it does not form government. The government of the United States cannot control the official agenda of either house of American Congress. So, the system of confirmation hearing ensures checks and balances. In a parliamentary democracy, the system of parliamentary hearing boosts up government unduly at the expense of judiciary. It is antithetical to the doctrine of separation of power to create a situation that allows the government of the day to control the appointment of judges. Is it not for this simple reason that the Judicial Council was created in Nepal in 1990?
Then why did the Interim Constitution provide for parliamentary hearing in such indefinite terms?
This is tragic. Most of the framers of the 2007 constitution were not constitutional experts. They had problems in the basic rules. They thought they knew everything. For some of them the parliamentary system was a sham. They wanted change, but had little commitment to upholding the rule of law.
So, what would be the best way to manage the current situation? Can you say ‘no’ to a constitutional provision?
It is enough on the part of the parliament to call these judges, hear them and wish them good luck with the new appointment. If it has issues it can write to the Judicial Council. The stakeholders who have problem with these judges should get back to the chief justice, or the Judicial Council, rather than the parliamentary hearing. It is the Judicial Council which has solution. I think the media has been very disingenuous. It is attempting to divert constitutional due course. It has been very provocative.
A section of the lawyers and most of the mainstream media think that many of these judges do not have integrity.
Maybe they know more than what I do. I do not want to comment on the integrity or efficiency of these judges on the media. All these judges have long experience in judiciary. They are not beginners. On the top of that they have been sitting judges for many years. If there are issues, it must be tackled in the Judicial Council itself and not through unconstitutional measures. They should not use partisan politics to discipline judges.
How should it be done?
Their appointment does not liberate them from the disciplinary jurisdiction of the Judicial Council. The Chief Justice of Nepal himself is the Chairperson of the Council. He is backed by another senior most judge in the Supreme Court. There is representation of the Council of Ministers, the government chosen jurist, and of the Nepal Bar Association. If something must be done about them, it is the Judicial Council which should take the responsibility. There are necessary laws and procedures. These issues could be handled well within the Council, and without breaking professional parameters.
If there is much pressure from the legal community, in the future, they can systematize vacancies, specify the criteria for appointment and publish diversity statistics, conduct pre-recommendation hearing, and operate in an open and transparent manner. It is the professional competence which must be central to the selection of judges.
Why do you think the media is dishonest?
The opinions that have been voiced seem to be much orchestrated. I am also shocked to see how the FM and community radios are being mobilized. They all have joined hands to discredit the Supreme Court. Even then I doubt these judges will be rejected by the parliament even upon hearing. A two-third back up is very unlikely in the Committee. There is a strong democratic block there which will defend the concept of independence of judiciary.
So why worry?
The worry is that the judges will be abused in the process, threatened behind the curtain, demoralized and finally confirmed for the appointment. By that time, these judges would have compromised much affecting their independence. This is what happened with all the prime ministers and their senior ministers during the last seven or eight years. It is the same design that is at work even now.
Don’t the lawyers have interest in the quality of judges selected?
Obviously, they have professional interest there. But do not forget that the lawyers who are making big stories are politically involved. Judges in the country should not be appointed through political patronage but rather through an independent institution, i.e.Judicial Council, as envisioned by the constitution. There is a need of concerted efforts to make sure that Judicial Council delivers what is expected of it. It is there that they need some reform.
