“The UN mission had some significance for the peace process”
Source: New Spotlight Newsmagazine Vol. : 05 No.-2 July 01-2011 (Ashar 17,2068)
Category: Interviews
Q1) As you must be aware, more than 50 peace agreements have been signed in the last five years since November 2005, but the implementation is hard to come by. Where do you think the problem lies:
i. In the unfavorable political situation and the myriad variables that complicate it; or
ii. Do you find the drafting of the agreements itself fallacious?
Let me begin by clarifying the situation. You must know that, what was agreed at the time of negotiation was done in a very political manner, and the situation was very charged up. If you take the 12-point Understanding as an example, it was concluded in a clandestine manner and was handled by leaders keeping it off from the general public. The process was also facilitated by India though it was not a signatory to the document. There are two main aspects of the 12-point Understanding. First, it was the very first agreement [in peace process], yet the document is more of a political statement. Second, India assisted the negotiation process to reach the agreement for its own reasons. The Maoists were looking upto India for legitimization and the other seven political parties were also brought on board. But India’s role was only in the background and did not come at the forefront. Now, knowing the circumstances under which the 12-point Understanding was signed, we must understand that the parties did neither want to create any clear jural relationship with each other, nor any machinery for its enforcement had been envisaged. Again many of its provisions were drafted ambiguously – with a deliberate intention. An instance of the ambiguity is regarding one of the terms of the agreement, which was to abolish the “autocratic monarchy.” This can be interpreted in different ways. To the people who wanted constitutional monarchy to continue, it simply meant that the king is going to be stripped off the executive power that he had unconstitutionally assumed. For the republicans, it meant abolition of monarchy per se.
Q2) You mentioned some of the clauses in the 12-point Understanding were drafted ambiguously on purpose. Could you elaborate on that?
Purposeful ambiguity can be seen and could be attributed mainly to the lack of trust and uncertainty in the then political situation. Many political leaders at that time were not very certain about their own stand on some issues. For example, Girija Prasad Koirala, for a long time, spoke about establishing a cultural king, thus giving the impression that the issue about monarchy was still unsettled in-spite of the Understanding. Only towards the end of his life, when he was offered by the Maoists to be the first President of Nepal, did he actually stop talking about constitutional monarchy and clarified the issue finally. Another example of ambiguity is the use of a term “full democracy”. The Understanding mentions “full democracy” to constitute of plurality, multiparty system and rule of law. But the Maoists did not ever have this understanding of “full democracy” though they have signed it.
Q3) Is the definition of “full democracy” binding on the parties in a legal sense?
One of the aims of the Understanding was establishing “full democracy” and it was proposed to be done through the following”:
1. Bringing absolute monarchy to an end
2. Restoring the parliament
3. Forming a “power full – party Government” by the decision of the parliament
4. Hold election of the Constituent Assembly on the basis of negotiations with Maoists
But today we find the Maoists and other political parties at loggerheads while defining the term “full democracy”. Do you think the terms of this agreement, more specifically points 1, 2, 4 and 8 can bind the parties to a common basic definition of “full democracy”? The Seven Party Alliance (SPA) and the Maoists had agreed to all the terms of the Understanding and signed it. So if we interpret the question in black and white manner, they are accountable for it. However, for all the parties involved, the Understanding meant different things, and consolidated their own strategic positions in the post-conflict scenario. As there is no enforcement mechanism, we cannot really bind the parties, even if we discover their real intent. It was more of a political document than a legal document and the parties had no intention to enter in jural relations with each other. In that sense, they signed only a manifesto and not an agreement. And thus from the very beginning had no real intention of enforcing it.
Q4) How do you think these peace agreements can be enforced and implemented?
Implementation is difficult because of the current political stalemate. Even when they drafted the interim constitution, there was no political will for the entire process to be monitored; only some lofty principles were drafted. Their intention was to take the process as political and not legal.
Q5) Since the 12-point Understanding, as other peace agreements, is a public document, can Nepali citizens enforce its implementation by filing a petition at the court?
I agree that the Understanding is a public document but at the same time you must remember that it is also a political document. The political leaders made it the basis of transition in Nepal. So in a way they should be accountable for its implementation. But the problem is that even if the petition is filed in the court, the court cannot issue mandamus [a writ in Latin. Literally means “we command”] for the same, after all this was a supra-legal process. The courts lack the authority to enforce these documents. The entire transition process was decided politically while ignoring the basic tenets of the rule of law. Q6) What role could Supreme Court take up for the enforcement of these agreements? The Comprehensive Peace Accord (CPA) has been annexed to the Interim Constitution and thus should be considered the fundamental law of the land. But the CPA has its own political arrangement for the implementation and monitoring of its terms and conditions. There is no explicit commitment to the jurisdiction of the ordinary courts of law in this regard. The judiciary can do little in implementing these agreements because even if it gives a decision for enforcement, as an activist court, for example, there is a little chance that it will be respected. For proper enforcement of judicial decisions in a case like this, backing of a stable government and general political legitimacy is required. Recent example would be regarding the oath of the Vice President in Hindi, which was challenged before the Supreme Court. The court held it as unconstitutional as the oath was required to be in the national language Nepali. The court directed the state to take the oath in Nepali within a week’s period, nonoccurrence of which lead to reelection of the Vice President post. But the decision of the court was not enforced and the Vice President in spite of not taking the oath in the required period continued to be in office. The Constitution was amended in favour of the defaulting vice-president. Thus to uphold the prestige of judiciary, the Supreme Court might try to escape from such intensely political matters.
Q7) In such a situation where there is no political will and judiciary lacks the authority, could third parties play an important role in the enforcement of peace agreements?
Yes, the civil society can play an important role in such a situation. Drafting of the Interim Constitution was one chance that the people had to decide on an enforcement mechanism for peace agreements, but even in that there is no mention of it.
Q8) Do you think international community could help in facilitating enforcement?
Nepal is in a very precarious situation. It is considered a “yam between two huge boulders.” The reference is to India and China. They do not trust each other. India and Maoists had good relations with each other until monarchy was abolished. After that they have moved apart. The Chinese government is also sensitive about what is going on here. The UN can play a role. But its presence here is not something that everybody has liked. Increased UN role means more space to the western powers. So there is triangular distrust.
Q9) How would you interpret the last line of clause 3:?
“We also expect for the involvement of a reliable international community even This can be interpreted to mean a presumed role for the UN in the future. It was something India potentially did not want and thus perhaps it has not been worded very clearly.
Q10) How would you interpret clause 6 and 7?
Clause 6: “Making a self-assessment and a self-criticism of the past mistakes and weaknesses, the CPN (Maoists) has expressed its commitment for not allowing the mistakes and weaknesses to be committed in future.”
Clause 7: “Making a self-assessment towards the mistakes and weaknesses committed while staying in the Government and parliament in the past, the seven political parties have expressed their commitment for not repeating such mistakes and weaknesses now onwards.”
These clauses apparently relate to the violence and atrocities during the People’s War. The government wanted Maoists to agree to stop the violence. So they included Clause 5 and 6. But the Maoists also demanded a reciprocal obligation on the part of the government thus Clause 7 must have been drafted.
Q11) Even after the Understanding, there was continuation of violence by people affiliated to both Maoists and other political parties. Can this be considered nonconformity with the agreement?
Since the CPA and the Interim Constitution has been in place, all the cases of violence by political parties are treated like any other criminal case. It is the criminal law of the country that applies. But then the parties have been decisive in sorting out all these breaches, and the law has not been able to take its course.
Q12) The Truth and Reconciliation Commission Bill is still pending before the house since 2007. What would you say about this? Is there any hope for transitional justice in Nepal?
It will remain pending because the UCPN (Maoist) is not eager to open up the issue as they have committed more atrocities than anybody else during the war. So there is a lot of resistance from the Maoists, as also from the army. Again, the national army will continue to have a very crucial role in the stability of the country in the foreseeable future. So probably any government in power will want to wait and see if TRC would be a good option to address transitional justice.
Q13) Keeping this in mind, what kind of transitional justice would you as a lawyer suggest in the context of Nepal?
I am not in favor of Truth and Reconciliation Committee (TRC) because it is more of a settlement and a peace process rather than a justice delivery mechanism. However other methods like trials and reparations would not work in the Nepali context because of the unique situation and the complete lack of commitment by any political party as well as the faith of the people in them.
Q14) Assuming trials at an international tribunal were held in Nepal, and many would be guilty of some or the other criminal activity, would not it create a political vacuum in the country?
The international humanitarian law does not track down people at the grass-root level. Only the top-notch leaders who were in the position of power and committed or allowed atrocities are charged and tried.
If the trial is conducted in a gradual manner, then the possibility of political vacuum can be averted. For example in Cambodia, a tribunal for the Khmer Rouge trial was set up in 2006, almost 27 years after the conflict. By the time the trial began, leading perpetrator like Pol Pot was already dead. But it was possible after such a long time to take into custody senior leaders of the regime like Kaing Guek Eav, Nuon Chea and Khieu Samphan among others. So trials in Nepal could be possible in a gradual manner, once new leadership emerges so that political vacuum can be averted.
Q15) Would you elaborate on the negotiation process at the time of drafting of these agreements?
It is usually done by people in leadership position. In case of 12-point Understanding, there were rumors about the draft coming from India and the Nepali leaders merely signing the same. But these documents, as far as common knowledge goes, were drafted by the leaders themselves. K.P. Oli had made a public statement that the first draft was penned down by him. All this is done behind closed doors and there was no access to public.
Q16) What should be the ideal process in drafting a peace accord?
In case of Nepal, peace agreements have become completely obsolete now, they have run over time. The doctrine of pacta sund servanda (in Latin: “agreements must be kept”) has hardly been accepted by the parties concerned. Political developments have gone far ahead and sincere efforts demand one to start all over again except in case of Maoists combatants.
Q17) What have been the trends in the way peace agreements have been drafted since 2005 to date?
Every agreement signed was done in piecemeal situation, but it is not too strange since it happens in every peace process. But yes, the parties did not have any comprehensive understanding while drafting these agreements, and they were mostly done only to overcome the current pressing situations. There is no trend or extra seriousness as such that can be seen in these agreements. The 12 Point Understanding as well as the recent agreements lack the level of commitment needed for its implementation.
Q18) As a lawyer, how do you define the significance of the peace agreements as conflict resolution tool?
The physical violence is no more present and this can be considered the biggest change and achievement of the peace agreements. But I believe the rest of the issues are same. A lot depends on whether the Constituent Assembly is successful or not in devising a new constitution that not only protects Nepal’s national interests, but also the rule of law and constitutional democracy. The peace agreements could act as efficient conflict resolution tool, but the other supporting factors must also be in place.
अन्नपूर्ण पोष्ट, आइतबारे परिशिष्टाक, ६ असार, २०६७
(संघीय मुलुक होस् या अन्य, संविधानको व्याख्या गर्ने कार्य भनेकै सर्वोच्च अदालतको हो । व्याख्याको भूमिका संसदीय समितिलाई दिनु न्यायप्रणाली समितिको मस्यौदाको कठोर पक्ष हो । न्यायप्रणाली कार्यकारिणी वा व्यवस्थापकीय जस्तो सिधै जनताप्रति उत्तरदायी भन्दा पनि न्यायका सिद्धान्तप्रति उत्तरदायी हुन्छ ।)
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अन्नपूर्ण पोष्ट, आइतबारे परिशिष्टांक, सभा, १४ भदौ, २०६६
(सात प्रादेशिक नमुना पाँच विकास क्षेत्रको अवधारणा जस्तो मुलुकको प्रशासकीय व्यवस्थापनका लागि बनाइएको होइन । यो शक्ति निक्षेपीकरणको बलियो संवैधानिक आधार भएको प्रादेशिक संरचना हो ।)
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Constitutional expert Bipin Adhikari has been providing his invaluable insights into the current constitution-making process. He has authored many books on constitution-making, including his most famous 1998 volume “Commentary on the Nepalese Constitution”.
Tell us a little about your reading habit.
I have no fixed time for reading as such. But most often, I read between 9-12 at night. I can concentrate better at night.
What do you read?
Mostly, I read on current issues, legal thoughts, and modern constitution-making.
Talking about constitution, what are the major issues that the new constitution should address?
There are so many things the new statute needs to address, chief among them institutionalisation of democracy, guaranteeing of human rights, deciding on the form of the government, restructuring the judiciary, and the all important issues of provisional set-up and devolution.
That must call for a lot of reading…
It does. Legal profession itself involves a lot of reading. We need to read a lot to develop our analytical skills and grasp the larger context while discussing legal disputes. For instance, in order to provide valuable suggestions to constitution making, I need to have a good handle of the country’s political and constitutional background. I also have to keep myself updated on constitutions of other countries.
Do you do a lot of inter-disciplinary reading?
As I said, without a proper grounding in our political, cultural and social context, I cannot make any valuable suggestion for drafting of the constitution of New Nepal. That, in turn, involves a lot of reading on political thought, geo-politics, society, economy, education system, etc.
Which writers inspire you?
If you are talking about the legal field, I closely follow the likes of Prof. Michael Porter of Harvard Business School, Richard Postner who is considered the first name in law and economics and economist Jeffery Sachs.
Besides that I used to read Shakespeare a lot. In Nepali, my favourite writers are Laxmi Prasad Devkota, BP Koirala, Guru P. Mainali and Bhawani Bhikshu.
What books are you reading?
I have recently gone through Ludwig Stiller’s “The Silent Cry” and Balkrishna Pokharel’s “History of Khas People”.
You are a columnist for The Kathmandu Post. In your opinion, are short newspaper articles as effective as books?
Well-written articles can save a lot of time by directly going into the crux of the matter. Read a good book review and you get a hang of what it is all about without having to read it. At other times, you might want to read more of a book that has gotten a good review. There is no hard and fast rule that one must read just books to gain knowledge.
Federalism is proving to be a tricky concept for Nepalis. Could you recommend a book which could be a good starting point to getting it?
No one book can cover each and every aspect of as vast a concept as federalism. But I had to recommend one, it would be Ronald Watts’ “Comparing Federal Systems.”
What about a book to help make sense of current political and constitutional turmoil in Nepal?
There are very few comprehensive books that cover the current political turmoil in the country. In fact, I cannot even think of one serious work on the topic. There is no substitute to reading as much on the topic as you can.
Bipin Adhikari is a constitutional expert. His opinions in the field of constitutional law, human rights, legal reforms and democratization process are widely reported. A Doctor of Constitutional Law, Adhikari is working as a freelance lawyer supporting the ongoing constitution making process in Nepal. Recently, Adhikari spoke to SPOTLIGHT about the controversies regarding the form of government that Nepal should adopt through the Constituent Assembly. Excerpts:
Why do you consider the Westminster model of the parliamentary system as still the best choice for Nepal?
The history of democracy in Nepal is the history of parliamentary democracy. In particular, the1990 constitution, based on the outstanding ability of all political forces, was able to take democracy to every household in far flung villages. Almost every adult in this country knows the basics of the system after all these years. They know how it operates. It is already rooted in the conscience of the people. For most of the people, democracy means parliamentary democracy and nothing else. The greatest advantage is that most of the politically active people know where the shoe pinches, and what should be on the agenda of constitutional reform to fix the shoe and make it smooth. There is no reason why they should be offered something that will require another 50 years of experimentation. Moreover, it is the parliamentary system which can facilitate diversity, social inclusion and multiple leadership more than any other alternative before the nation.
Is the American system bad?
I don’t say that. Americans have one of the best political systems in the world. It has worked for them so well. However, this does not prove anything for Nepal. We operate in different conditions. We have different mindsets. We don’t have good accountability culture.
So …?
So, in this scenario, there are potential dangers in their replication here. Many executive presidents have developed dictatorial tendency, and spoiled the democratic system. The winner-take-all character of the office is also a problem. It is for the same reason that I have said the system of the directly elected prime minister within the set up of unicameral legislature is also risky.
In principle, one can compensate for this by devising a proper electoral system, presidential powers, and legislative organization and procedures. There are ways to structure the decision-making process in presidential democracies so as to neutralize most of the centrifugal forces that may operate in these regimes.
But then this means we will have to try everything anew. This means starting a new experiment once again. The question is should we start everything afresh – or try to learn from our own experience?
Does it make a case for continuation of the parliamentary system? If you go by recent history, you will find that parliamentary democracies are doing a lot better than presidential democracies. This is what the Freedom House political index generally shows.
It is true in the case of the developing countries as well. India is a very strong example. There are countries like Botswana and Papua New Guinea showing encouraging records. They all are now institutionalized. But most of the new presidential democracies have suffered some form of breakdown. Overall, parliamentary systems have three times the rate of survival over presidential systems.
But there is a debate in India as to the need of switching over to the presidential system?
Yes, we find references about it now and then. Many constitutional experts have suggested a changeover to the American system. Some want small, professional administration, which doesn’t depend on parliament. Other experts go further – and suggest Washington-style presidency. B ut the country’s main political parties remain divided on the most suitable form of government. The truth is they have been learning from their own experience. And they are doing very well. Our problem is we pick up only bad examples from India, not the most encouraging ones.
Why did the parliamentary system fail in Nepal then?
Certainly a wide range of factors come into play, and it would be unwise to generalise too starkly from macro data.
The problem of Nepal was not the defective constitution for sure. It was not the low levels of income per capita either. At this level of interference from outside, any form of government will come to its knee. A change in the government system doesn’t mean waving a magic wand and healing the problems and ills of our region.
Why parties like Maoists and MJF have been advocating for presidentail system? Even UML and a section of Congress people have been arguing for the directly elected prime ministerial system? There must be some reasons.
It is very funny. Maybe personal ambitions; or they don’t care at all. Maoists in particular have strange thoughts. I have not seen any political party in Nepal ever researching on what form of government might suit this country, or taking any intellectual feed back from one of the available academic institutions. They seem to be oblivious of the multi-ethnic character of Nepal, and so much of politicisation in the country.
Interviewed by: Avash Karmacharya
Source: The Kathmandu Post
Born in Bastipur village of Siraha District, Bipin Adhikari is a prominent lawyer. A graduate from Tribhuvan University’s Institute of Law, he joined the University of Delhi in 1989 to do his Master’s degree in Comparative Laws. Soon, Bipin earned his doctorate in Constitutional Law. His legal apprenticeship and practice as a young lawyer focused on tax and revenue laws.
Following his post-graduation, he started working in the area of constitutional laws, justice-sector reforms, parliamentary practices, resource management and development laws. As a consulting lawyer, he has been working for the public international system in Nepal and abroad. Having been a ‘UNor’ (UN professional) for many years, Bipin operates Nepal Consulting Lawyers Inc, his own law forum. He has written and edited about a dozen of books on constitutional laws and other legal and human rights subjects and is a regular contributor to The Kathmandu Post.
What books are you currently reading or have finished…
I am reading the 2007 Book of Kolin Turpin and Adam Tomkins’ British Government and the Constitution. It deals with the changes the Westminster model of parliamentary democracy is experimenting in the United Kingdom in recent years.
Genre/s that you prefer to read is…
I’m interested in a wide range of subjects, including law, economics, history and current affairs. I don’t like to miss anything significant written about Nepal, but mostly I read genres that involve my profession—legal and constitutional thoughts, new developments and innovations, and perspectives on current issues.
One interesting reading habit that you have…
I have different tastes, rather than habits. Usually, I don’t bother to read if I’m not serious; and when I’m serious, I read, no matter how.
The story behind how you picked up the reading habit is…
As a young college fellow, I used to share my room with my uncle, Sushil Adhikari, who now is a micro finance professional, who used to read a lot as a young professional. I acquired this habit from him.
Writers who have inspired you a lot are…
There are many names that come up. But I mustn’t miss to mention Alexis de Tocqueville (French sociologist and political narrator), B.P. Koirala, Milton Friedman (American economist), Bertrand Russell (British philosopher), Lee Kuan Yew (Singapore’s nation builder and main architect), Michael Porter (Harvard business professor) and Richard Posner (American judge and legal philosopher). They are the most outstanding figures for me.
Tell us about the books that have been your source of inspiration and have touched you deeply…
I don’t wish to confine these books to any numbers. But I would definitely include all the books written by the authors I mentioned above. Needless to say, the first outstanding book that I read was Alexis de Tocqueville’s Democracy in America. For fiction and drama, William Shakespeare’s tragedies like King Lear (1603-1606) and Julius Caesar (1599) were extremely tough and full of archaic expressions.
Which comes first in reading— knowledge or entertainment?
Knowledge is definitely the first one but the thirst for knowledge gives entertainment to every reader.
There’s cinema, television channels, Internet and many other forms of entertainment. Have books been overshadowed?
I really don’t think so. They’re like bread and butter; meaning, they only complement each other.
If you happen to write a book, you’ll write about…
On nation building and development options before Nepal. Of course, I don’t mean research work. These books will be based on my exposure to the countries of Asia and Africa as well, of which I have a broad comparative understanding.
How much time and money do you spend on books?
I don’t have figures. I buy books when it’s necessary and manage time everyday to read some pages.
What would you want to advise young aspiring readers…
Reading is both fun and enlightening. It doesn’t take much to be well-read, but everyone needs to know how to get started. Turn off the television, and time will never be a problem.
Your favourite saying on reading…
I never forget Mark Twain who said, “The man who does not read good books has no advantage over the man who cannot read them.
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“अस्ति दुई गते रमेशले लेखेका थिए कि राजासँग भेटें । उनी २ महिनादेखि मलाई बारम्बार लेखिरहन्छन् कि मेरो तर्फबाट (इनिसिएटिभ) पदक्षेपण हुनुपर्छ । मेरो उत्तर हुन्थ्यो कि मेरो तर्फको (इनिसिएटिभ) को कुनै अर्थ हुँदैन जब अर्को तर्फबाट प्रतिक्रिया हुने कुनै लक्षण् देखिँदैन । २ गतेको रमेशको चिठीमा उनले भनेका छन् कि राजासँग भेटेपछि उनको यो आग्रह, कि मैले इनिसिएटिभ लिनुपर्छ, व्यावहारिक सल्लाह हो र राजाका तर्फबाट प्रतिक्रिया पनि हुन्छ भन्ने उनको विश्वास छ । उनले मेरो प्रतिक्रिया जानेपछि फेरि राजासँग भेट्छु भनेका छन् । सूर्यप्रसाद र टंकप्रसादहरुसँग पनि राजाको बराबर मुलाकात भएको खबर अखबारमा आएको छ । उनीहरु राजबन्दीको रिहाइ र नागरिक अधिकारको माग राखेर राजासँग भेट्छन् भन्ने खबर छ । यी सब दिलचस्प छन् ।”