Category: Interviews

As the Government of Nepal has shown strong interest in the China-led “One Belt One Road” (OBOR) initiative announced by President Xi Jinping in 2013,senior constitutional expert DR. BIPIN ADHIKARI, who is also dean of Kathmandu University School of Law, discusses legal side of the issue. Presently, it has become a vital foreign policy approach, mainly with the intention of promoting economic cooperation through infrastructure development amongst countries along the “Belt” and “Road” routes. The initiative has a role and importance for Nepal as well. However, this opportunity also presents significant challenges, legal and otherwise, for Nepal and its policies, as would any new initiative of such a global significance. Senior constitutional expert Adhikari spoke to NAMIT WAGLEY about the related issues recently. Excerpts:

What exactly is the One Belt One Road (hereafter ‘OBOR’) initiative? What is Nepal’s role in this initiative?

Fundamentally, the One Belt One Road (OBOR) initiative is a Chinese dream that envisions the revival of the historic Silk Road that gave a basis to Chinese prosperity based on international trade and political relations. It is now being reinvented with a plan to develop the land-based Silk Road Economic Belt that links up China with the rest of Central Asia, Europe, the Middle East and Russia and East Asia according to the modern parameters. The Belt includes more than 60 countries which were once situated on the original Silk Road. Nepal is connected to the Silk Road through the Tibet region of China. The other South Asian countries are also linked. In the OBOR concept, Nepal may serve as a gateway into the rest of South Asia.

What is the main focus of the initiative? Why is it considered important?

I think the main focus is on trade, investment and political relations. The objective is to improve the connectivity between the concerned countries by promoting investments in areas like policy, infrastructure, trade, currency and people. It is especially significant because this connectivity linked prospering China, one of the biggest and still-growing economies in the world, to Europe through Central Asia and Russia, the Persian Gulf through Central Asia and South East Asia, South Asia and the Indian Ocean. The Chinese also have the Maritime Silk Road concept that complements the Silk Road Economic Belt.

Moreover, in the Chinese neighborhood of developing and impoverished economies, the initiative stresses a win-win prospect for everyone. Although the initiative will no doubt boost China’s growth by exporting its capital, technology and capacity globally, it will additionally make it possible for the countries on the Belt to invite investments, develop their own infrastructure and exchange comparative advantages.

Is Tibet a hindrance for Nepal to develop connectivity with the mainland China and, for that matter, the western provinces and the other countries in the central Asia?

I think the economic landscape of Tibet Autonomous Region is changing fast. Over the past few years, Tibet has seen a surge in investment in transportation, modern infrastructures, mining and metal processing, hydropower, wind power and solar power, beverage production (bottled water), and economic network. For example, an extension of Qinghai-Tibet railway line is a significant development. The upsurge of the tourism industry in Tibet is no secret. Rural infrastructures are being extended even to the interior parts of the region. The railway from Lhasa has already been extended to Shigatse, the closest largest city of Tibet from Kathmandu. It is being led to Kerung at the Nepal-China border. Therefore, rather than being a hindrance, Tibet will serve as a valuable gateway for Nepal to connect to China, its western provinces and then the countries in central Asia.

What opportunities are there for Nepal in that case?

Opportunities are plentiful, as long as we can adequately assess our needs and requirement and support the operation of the OBOR infrastructures and investments. With this our growth potential will increase in all core areas of our economy, including hydropower development, mining, agriculture and tourism. Once Nepal and China begin capitalizing on resources the Himalayas have to offer, there will be immense changes in the development landscape. The number of people travelling for leisure or business to Nepal will increase. And of course, as the gateway to South Asia for China and others in the Belt, Nepal will also be the safest and closest transit route for India and the rest of the region. With careful planning, Nepal can also establish itself as a regional financial and trading hub, further seizing additional growth opportunities.

They look very theoretical though!

I do not dispute your proposition. However, these kinds of initiatives start at a conceptual level anywhere. Activities start with trust. Building trusts begin with small things and shared values. After all we have to accept that infrastructure, investment and trade are mutually inclusive. One can see that the OBOR is already being implemented, which is the reason why it is gradually winning the faith of many countries.

How do you see the MOU signed between Nepal and China during Prime Minister K. P. Oli’s recent visit to China?

The MOU most definitely brings in different milestones in Nepal and China’s future relations. Nepal is set to use China’s sea port facility, and Road and Railway connectivity is already being worked on. As a result, it will receive investments for new infrastructures. Trade will flourish and shipment costs will be drastically reduced. Nepal has already started conducting a feasibility study to extend the Qinghai-Lhasa-Shigatse Railway line to Kathmandu via Rasuwagadhi. A bilateral free trade agreement is the next order. Ultimately, through China, Nepal will be able to create relations with all the countries on the border of China which were historically inaccessible for it. Energy sector collaboration is being emphasized, and Nepal and China are also to strengthen the legal and intellectual property system. These commitments give the hope that Nepal can diversify its trade and increase its export to several new trade partners.

Would that not involve greater legal and policy coordination between the countries involved?

Obviously, it is a huge project that requires policy coordination from all sides to make connectivity viable. The Chinese have been emphasizing on creating a win-win situation regarding the investment in and development of trade and infrastructure. This will require coordination of law and policy on promotion of intergovernmental cooperation in the region, generating a macro policy exchange and communication mechanism, and enhancing the exchange of policy ideas and political trust amongst the countries along the Belt and Road. Implementation of future regional projects and trade cooperation will require policy support as well.

What are the specific legal issues that need to be taken care of in materializing the OBOR cooperation in the long run?

The OBOR is definitely an evolving concept. It is to bring in trade and investment facilitation measures, infrastructure development, financial integration and promotion of people to people relations. All of this will require proper laws in place to improve trade and investment facilitation via the removal of investment and trade barriers for the optimization of the potential for expanded cooperation. Trade structures may need improvement. Bilateral investment protection and double taxation avoidance agreements should be pushed forward for integrating investment and trade. The importance of arbitration or other dispute settlement machinery must also be understood.

What about additional legal measures for infrastructure development?

Obviously, there are some issues here too. The idea of improving connectivity is the idea of linking up infrastructure construction plans throughout the all sub-regions in Asia, Europe and Africa, taking into account countries’ respective security and sovereignty concerns. This will require improvement of key transportation passageways. Countries and regions will be linked up by railways and highways, sea ports, aviation, energy, oil and gas pipelines, power supply, communications, and optical networks, etc.

Q. I believe there is a context of financial regulations as well? Do you think there are challenges in this area?

If the region is to be financially integrated, it will need a currency stability system, investment and financing system, and credit information system. How can they be operated without some shared legal basis?. For example, to facilitate the OBOR, financial institutions such as the Asian Infrastructure Investment Bank have started to function. China has generously contributed for the Bank and has urged Western countries to begin investing in this initiative as well. In addition, improved regulations will be necessary for increased cross-border exchange and cooperation between credit rating institutions and systems. I think it is so important.

Are there bound to be problems created by conflict of laws in all these sectors?

Precisely! In the beginning, you cannot avoid the conflict in the application of laws of different countries on the Belt. Goods and services passing through different jurisdiction will have to face contradictions of different sorts in the application of laws. In developing countries, it is quite common to find legislative gaps that may differ vastly from the regulations of European countries that typically have more stable and developed economic systems. Harmony will be necessary even in the use of international treaties and conventions. Even the countries which have achieved something by now have been accused of restrictions on foreign investment because of industrial policies, exchange control and market entry. Anti-monopoly law is a common concern of all. So the initiative needs efforts towards minimization, if not elimination, of conflict of laws.

These are the risks in terms of the legal systems independently working with each other. But what about political risks?

This is a huge initiative, and it will take years to realize the vision. Obviously, it is not without risk. Political instabilities, trade embargos, infrastructure impediment and corruption are difficult issues in some of the countries and may come in conflict with or halt the objectives of this initiative. Labour laws, particularly provisions on unionization and the right to interfere with corporate layoffs, may turn out to be a challenge. Credit risk would be the next concern as foreign customers may operate on different credit and payment terms. There could be countries, often loaded with the concept of hegemony, who could continue to be concerned on the possibility of increasing Chinese influence in the region. These are some of the inevitable challenges and risks faced by the relevant parties.

Aside from the legal and political implications of this initiative, is money not a major issue under the OBOR?

It appears to be a major issue. On the get-go, China had decided to invest around $900 billion in projects along the Belt. Therefore, Nepal too can expect to benefit from this resource, which is a combination of financing options. This financing will come from bilateral lending by Chinese policy banks but also from international private sector investors and lenders, who are predicted to gain 6 to 8 percent returns on OBOR infrastructure. Singapore, Hong Kong and many other international finance centers can also assist this project on their own initiatives. Though a major issue, money is not a major problem. If implemented with integrity, the OBOR will serve to promote a free flow of economic factors, the efficient allocation of resources, and the integration of markets. This is bound to result in development

What if China uses the whole Belt for its own advantage and to the disadvantage of others?

How can that happen? The future of the OBOR depends on a shared vision about infrastructure, investment, trade and win-win situations. Obviously, as a leading country, China will have to have proactive good faith arrangement to navigate through the rough regional setting. It is prepared for this role. It would not have come out with the concept of OBOR had it no intention of doing something great that works for China, and for all. In any case, all the countries on the Belt are sovereign countries that have the ability to negotiate the terms of the business. Instead of becoming skeptical, the countries in the region need to work together to create necessary legal environment and seize the opportunities under One Belt One Road initiative.

० लोकतन्त्र प्राप्तिपछि अहिलेसम्मको अवस्थालाई यहाँले कसरी हेर्नुहुन्छ ?

यसका दुईवटा पाटाहरु छन् । प्राविधिक रुपमा कुरा गर्ने हो भने विविध चुनौतीहरूका साथ अन्ततः संविधान जारी भएको छ । जुन प्रक्रिया सुरु भएको थियो, त्यसले एउटा मूल्य मान्यता स्थापित गर्न सकेको छ र त्यो मूल्य मान्यताहरू संविधानका रुपमा आएका छन् । प्राविधिक रुपमा किन भन्दैछु भने संविधानमा लेखेर मात्र सबै कुरा हँुदैन । त्यसलाई प्रयोग गरेर लेखिएका कुराहरूको आदर्शलाई स्थापित गर्न सक्नुपर्दछ । त्यो प्राविधिक रुपमा भएको छ । अर्कोतर्फ आएको संविधानको आफ्ना चुनौतीहरू पनि छन् ।

० त्यस्ता चुनौतीहरू चाहिं के के हुन् नि ?

वि.सं. २०७२ असोज ३ गते संविधान आउँदाखेरि एउटा सानो समूह छुटेका छन् । अल्पसंख्यक समूहहरू छन् । तिनले यो संविधानबारे आपत्ति जनाइरहेका छन् । केही मानिसहरू उक्त प्रावधानउपर पुनर्विचार हुन सक्दछ भन्छन् भने कोही पुनर्लेखन गर्नुपर्दछ भन्छन् । कोही त्योभन्दा अझ बढी उत्ताउलो कुरा पनि गर्छन् । यो संविधान नै फाल्नुपर्छ, नयाँ लेख्नुपर्छ भन्ने पनि छन् । यो एकापट्टिको कुरा भयो । अर्कोपट्टि नयाँ संविधानले केही विषयमा एउटा मूल्य–मान्यता कायम गरेको छ । ती मूल्य–मान्यतालाई कार्यान्वयन गर्न अझ कानुनहरू बनाउनु पर्ने हुन्छ । कानुन बनाउन पनि धेरै कुराहरू गर्नुपर्ने हुन्छ । त्यसमध्ये विभिन्न राजनीतिक दलहरूको मन मिलाउनु पर्ने विषयहरू पनि छन् । थ्रेसहोल्ड सम्बन्धी व्यवस्थालाई उदाहरणको रुपमा लिन सकिन्छ । अहिले आएको व्यवस्थामा थ्रेसहोल्डको प्रावधान राखिएन भने एउटै मतपत्र पाँच–छ मिटर लामो हुन सक्ने अवस्था छ । किनकी दलहरू जति पनि खुल्न सक्छन् । अनि खुलेका दलहरुलाई उम्मेदवारी दिनबाट रोक्न सक्नुहुन्न ।

० यो संविधान कार्यान्वयनमा लानका लागि कसरी अघि बढ्नु पर्छ भन्ने लाग्छ ?

हामीले जुन परिवेशमा संविधान निर्माण ग¥यौं, त्यहाँ सबैको सहमति हुन्छ भन्ने छैन । कुनै पनि देशको शत प्रतिशत मत मिलेर आउँदैन । तर, संविधानको मान्यता के हो भने दुईतिहाई भन्दा बढीको जुन समझदारी भएको छ, त्यही नै संविधान निर्माणको समझदारी हो । बाँकी रहेका विषयहरूमा पुरानो नमिलेका कुरालाई पनि मिलाउने र नयाँ विषयहरूलाई पनि महत्व दिंदै त्यसको छिनोफानो गर्दै जानुपर्छ । चुनौतीहरू छन् । छुटेको पक्षलाई समाहित गरेर लैजानु पर्ने भएकाले पनि केही मेहेनत गर्नुपर्छ । संविधान बनाउने पक्ष र छुटेको पक्षलाई मिलाउन केही गृहकार्य त गर्नैपर्छ । त्यसले गर्दा केही ढिलाइ हुने सम्भावना प्रशस्त छन् । जिम्मेवार हुन सकिएन भने सोचेको भन्दा बढी समय लिन सक्छ । त्यसका लागि संविधानमा जे छ, त्यसलाई तत्काल कार्यान्वयनमा लानु पर्दछ ।

० कार्यान्वयनका लागि प्रयास भइरहेका छन्, जस्तो लाग्छ ?

कार्यान्वयनका लागि केही पनि हुन सकेको छैन । दृढता पनि देखिएको छैन । मधेसवादी दलहरूले गरेको आन्दोलनको कारणले गर्दा अप्ठेरो भएको छ । उनीहरूलाई समेटेर अगाडि बढौं भन्ने आकांक्षा पनि छ । र, सँगसँगै उनीहरू पनि अलिकति मध्यमार्गी भएर आउन् भन्ने सोचाइ पनि देखिन्छ । उनीहरू सुधारवादी नभएकैले पर्खिने मानसिकता एकापट्टि देखिन्छ भने अर्कातिर राजनीतिक अस्थिरता देखिउञ्जेल ‘ल एण्ड अर्डर’ समस्या रहिरहन्छ । शान्ति–सुरक्षाको समस्या यथास्थानमा भयो भने संविधान कार्यान्वयन हुन सक्दैन । त्यही कारणले कार्यान्वयनमा रोकावट देखिएको छ । तेस्रो कुरो के हो भने सरकार पनि अलिकति चनाखो र अलिकति दृढतापूर्वक लागिदिनु प¥यो । टिप्पणीहरू धेरै गर्न सकिन्छ । तर, सरकारले अहिले गर्नुपर्ने कार्य भनेको संविधान अन्तर्गत बन्नुपर्ने कानुनहरू निर्माणमा गृहकार्य थाल्नु पर्छ । किनकी ती कानुनहरु नबनाइकन संविधान कार्यान्वयनको प्रक्रिया अगाडि बढ्न सक्दैन । कानुन मन्त्रालयले केही काम सुरु पनि गरेको छ । तर, कानुन मन्त्रालयले पनि गर्न सक्ने भनेको मूल्य–मान्यता स्थिर भएमात्र न हो ।

० प्रधानन्यायाधीशको नियुक्ति, राजदूतहरूको नियुक्ति, संसदीय सुनुवाइ पनि हुन नसकेको अवस्था र अर्कातिर असन्तुष्ट संघीय गठबन्धनले सहभागिता नजनाएका सन्दर्भमा कार्यान्वयन कसरी अगाडि बढ्न सक्ला ?

चुनौतीपूर्ण अवस्था छ भनेकै त्यसैले हो । तर यो संविधानमा यति धेरै कुराहरू छन् कि यसलाई सही हिसाबले कार्यान्वयनमा लग्ने हो भने धेरै मान्छेहरूको विश्वास पाउन सक्दछ । जस्तो एकैपटक सर्वोच्च अदालतका लागि ११ जना न्यायाधीश नियुक्त गर्ने अवसर अहिले समयले दियो । त्यस्तै २१ जना राजदूत नियुक्त गर्ने अवसर त्यसले प्राप्त ग¥यो । यसका लागि संविधानले स्थापित गरेका मान्यताहरू, अनि समावेशिताका कुराहरू तथा राज्यका हरेक तह र तप्कामा समावेशी प्रतिनिधित्वको कुराहरुलाई सम्बन्धित निकायहरूले संविधानप्रति आफ्नो समभाव देखाउनु पर्दथ्यो । अब त्यो नगराएको वा गराए पनि चित्त नबुझ्ने जुन परिस्थिति छ, त्यसले संविधानको कार्यान्वयनलाई अझ बढी चुनौतीपूर्ण बनाइदिएको छ । संविधानका मान्यताहरूलाई चाँडोभन्दा चाँडो कार्यान्वयन गर्न सकियो भने मात्र क्रिटिकल पक्षले नयाँ संविधानबाट आत्मविश्वास पाउँछ । अनि मात्र उनीहरुमा यो संविधानबाट हामीले केही गुमाएका रहेनछौं, पाएकै कुरा धेरै छन् भन्ने अनुभव गर्नेछन् र चुनौतीहरू घट्नेछन् । राजनीतिक पार्टीहरू पनि एउटा कारणसहितको अडान लिएर वार्तामा आउन बाध्य हुन्छन् ।

० अहिले वार्तासमेत नभएको स्थिति छ नि ?

यसमा पनि त एउटा कुरालाई महत्व दिइँदैन । नेतृत्वमा जो छ, त्यसले नै काँध थाप्नुपर्छ । त्यो भनेको राजनीतिक सिद्धान्त हो । जसले कार्यादेश लिएर आएको छ, ऊ अगाडि बढ्नु पर्छ । अगाडि सर्दा सम्झौता पनि गर्नुपर्छ । विकल्प पनि अगाडि सार्नुपर्छ । त्यतिमात्र होइन ‘इस्यु’ पहिचान भएपछि सम्वन्धित पक्षलाई डोहो¥याएर ल्याउन सक्नुपर्छ । सकेसम्म लचिलो हुन सक्नुपर्छ । तर यदि त्यो गर्न सकिँदैन वा जनादेश हाम्रो हातमा छ भन्ने सरकारलाई लाग्छ भने त्यो पक्षलाई कर्नर गरेर हिँड्नुप¥यो । यतिसम्म कर्नर गरिदिनुप¥यो कि राजनीतिक रुपमा उसको कुनै हैसियत नै नहोस् । तर यो पेन्डुलमको स्थिति चाहिं हुनुहुँदैन । तसर्थ सरकारले भरमग्दूर प्रयास गर्न बाँकी छ । त्यसका लागि विश्वासिलो मान्छे र विश्वासिलो तरिका र विश्वासको वातावरणमा लेनदेन गर्नुपर्दछ । आन्दोलन गर्नेका लागि पनि मुख लुकाउने ठाउँ हुनुप¥यो । मूल्य मान्यतामा अडेको सरकारले पनि नयाँ किसिमको ‘म्यान्डेट’ स्थापित गर्नुप¥यो । दुवै पक्ष आफ्नो ठाउँमा अडियो भने त समाधान हुने देखिदैन । सबै पक्षले के सोच्नुपर्छ भने यो परिस्थिति भनेको आजका लागि हो । भोलि नयाँ चुनाउ हुन्छ । नयाँ मान्छेहरू म्यान्डेट लिएर आउँछन् । नयाँ किसिमको घोषणापत्रमा हरेक पार्टीले चुनाउ लड्छ । अनि जनताबाट राम्रो मत ल्याउन सक्यो भने संविधानलाई आरामसँग संशोधन गर्न सकिन्छ । यतिठूलो अवसरलाई चुनाउमा नगइकन टेबुलमा बसेर लेनदेन गरौं भन्नु पनि त राम्रो कुरा हैन नि ।

० लोकतन्त्र संस्थागत गर्ने स्थिति कहिले बन्ला त ?

यसको सुरुवात नै अविवेकी थियो । यसमा भूराजनीतिक परिस्थितिको फाइदाहरू उठाएर आलोकाँचो मान्छेले आलोकाँचो प्रक्रियामा परिवर्तन गराइएको छ । यदि सोचपूर्ण भएर विकासमुखी प्रक्रियाबाट अगाडि बढेको भए सबै कुरा नेपाली जनताको पहुँचमा हुन्थ्यो । उनीहरूले चाहे अनुसारको परिवर्तन हुन्थ्यो । तर उत्ताउलो प्रक्रियाले गर्दा देशले धेरै दुख पाइसक्यो । हिजोका कुरोलाई बिर्सेर भविष्यमुखी भएर सोच्ने र अहिले भएका खराब कुरामा अल्झिने भन्दा पनि प्राप्त गरेको उपलब्धिमा टेकेर नयाँ र राम्रो परिपाटीमा कसरी जाने भनेर सोच्नु पर्दछ । हिजोका प्रक्रिया राम्रा थिएनन् । संविधानसभाको निर्वाचन अर्बौं रुपैयाँ खर्च गरेर भएको थियो । देश कंगाल भयो । आखिर त्यसले संविधान दिन सकेन । पछि संविधान आयो । तर जसले संविधान सभाको माग गरेको थियो, ऊ नै कुनामा गएर बस्नु प¥यो । यस्तो परिस्थिति राम्रो हैन । अब हिजो के भयो भन्नुभन्दा पनि भोलि के हुने भनेर सकारात्मक सोच लिएर अगाडि बढ्नु पर्छ ।

० आउँदा दिनमा अब सहज ढंगले अगाडि बढ्न सकिएला त ?

मलाई के लाग्छ भने दुई चार जना मान्छेले त जहिले पनि संविधान जलाउँछन् । खोलामा पनि फाल्लान् । मुख्य कुरो के हो भने जब निर्वाचन हुन्छ तब जनताले यसको स्वामित्व लिन्छन् कि लिँदैनन् ? विश्वमा सत्प्रतिशत सहमति त कहीं हुँदैन । ‘मेनस्ट्रिम’ संविधानको पक्षमा छ भने निर्वाचनमा भाग लिन्छ र राजनीतिक परिवर्तनमा सहभागी हुन्छ । यसको सबैभन्दा ठूलो अवसर त स्थानीय निर्वाचन हो । संविधानले प्रतिबद्धता पनि देखाएको छ । स्थानीय निकायको निर्वाचन किन हुन सकेको छैन भने न त निर्वाचन आयोगले निर्वाचन मिति तोक्ने अधिकार पाएको छ, न त नेपाल सरकारले निर्वाचन गराएरै जान्छु भन्ने दृढता देखाएको छ । लोकतन्त्र भन्नुस् या गणतन्त्र, यसको जगका रुपमा रहने स्थानीय तहको निर्वाचन प्रतिपक्षले पनि माग्न सकेका छैनन् । यहाँ त मुख्य कुरा सत्ताको साझेदारी गरौं, मन्त्रालय बाँडौं भन्ने मात्र देखियो । अलिकति ठूलो धरातलमा सबैले राजनीति गर्नुपर्छ । चुनौती त छन् । यी मान्छेहरू र यी प्रवृत्तिहरू कहिले पनि कम हुँदैनन् ।

० संघीयता पनि त त्यत्तिकै चुनौतीपूर्ण देखियो नि ?

हो त । संघीयताको चुनौती पनि त्यत्तिकै किन छ भने बसेर कुरा गर्ने मान्छेले कुरा गर्ने अवसर पाएका छन् । काम गर्ने प्रक्रिया सुरु हुने बित्तिकै सबैले हानाथाप गर्नुपर्छ । नभए हामी छुट्छौं भन्ने हुन्छ । त्यो गर्न नसकेको परिस्थिति छ । सबैलाई वार्ताको टेबुलमा बोलाउनु प¥यो । त्यो वार्तालाई सहजीकरण पनि गर्नुप¥यो । भोलि चुनाउ हुँदा सबै चिज परिवर्तन हुन सक्छ भन्ने अहिले नै बुझ्नु जरुरी छ । नयाँ मान्छे आउन सक्छन् भन्ने आंकलन अहिले नै गर्नुपर्छ । गतिशिलता दिने त चुनाउले हो । चुनाउलाई छेकेर गतिशिलता खोज्नु भनेको चेपुवामा पारेर जसरी देशलाई परिवर्तन गराउँदै आइएको छ त्यही अनुसार जाउँ भन्ने हो । तसर्थ प्रजातन्त्र संस्थागत गर्नका लागि प्रजातान्त्रिक प्रक्रियामा प्रवेश गर्नुपर्छ । प्रवेश गर्दा हामीले गद्र्धन संधैका लागि झुकायौं भन्ने हैन । हामी रणनीतिमा छौं । यसलाई आलोचनात्मक रुपमा टिप्पणी पनि गर्दैछौं । जे जति भएको छ त्यसलाई प्रयोग पनि गर्दैछौं । भविष्यका लागि एउटा शक्तिशाली धरातल निर्माण पनि गर्दैछौं भनेर जाने हो ।

 बीबीसी नेपालीबाट उतार गरिएको

चिरपरिचित पत्रकार तथा मानवअधिकारकर्मी कनकमणि दीक्षितलाई उनको साझा यातायातको भूमिकालाई लिएर छानविन गर्न पक्राउ गरेपछि त्यसबारे व्यापक प्रतिक्रिया जनाइएको छ ।

अधिकांश प्रतिक्रियाहरुमा अख्तियार दुरुपयोग अनुसन्धान आयोगका प्रमुख आयुक्त लोकमानसिंह कार्कीलाई तारो बनाइएको छ । कार्की प्रमुख आयुक्त नियुक्त हुनुअघि नै अत्यन्तै विवादित व्यक्ति थिए र, उनलाई अख्तियारको प्रमुख आयुक्तमा नियुक्त नगर्न नागरिक समाज, प्रेस र सर्वसाधारणको व्यापक दबाव थियो ।

यसै सन्दर्भमा संविधानविद विपिन अधिकारीसँग बीबीसी नेपालीले गरेको अन्तर्वार्ता

कनकमणि दीक्षितमाथि अख्तियारले जस्तो कार्वाही चलाइरहेको छ त्यसमाथि कतिपयले क्षेत्राधिकारको प्रश्न उठाइरहेका छन्, त्यसमा कुनै विवाद छ र ?
अख्तियारको जुन क्षेत्राधिकार छ त्यो धेरै स्पष्ट छ । मुख्य कुरो अख्तियारले सार्वजनिक पद धारण गरेको कुनै पनि व्यक्तिले भ्रष्टाचार गरेर अख्तियारको दुरुपयोग गर्‍यो भने अनुसन्धान गर्न गराउन सक्ने उसको अधिकार छ । त्यो त एकदमै स्पष्ट छ ।

त्यसो भए नमिलेको कुरो के छ त, मान्छेहरु किन एकदमै आलोचना गरिरहेका ?
बाहिरबाट एउटा विज्ञको नाताले हेर्दा के देखिन्छ भने, अख्तियार भनेको आफैंमा कुनै न्यायाधीश वा अड्डा अदालत होइन । यो भनेको केवल नालेश गर्ने संस्था हो । चाहिएको अनुसन्धान यसले गर्दछ ।

यसको हैसियत र अन्य नागरिकहरुको हैसियतमा केही फरक छैन । तर नालेश गर्ने संस्थाले अपनाउने प्रक्रियाहरुको जुन मापदण्ड छ त्यसमा कमीकमजोरी रहन गयो कि भन्ने मुल प्रश्न हो ।

अख्यितारले कनक दीक्षितमाथि जे गर्दैछ त्यो अनुसन्धानको चरणमा छ, अभियोग लगाइसकेको अवस्था छैन, अब यो अवस्थामा यस्तो उजुरी पर्‍यो भनेर सार्वजनिक गर्नु कानून या संविधान सम्मत छ की छैन ?
अख्तियारले आफ्नो क्षेत्राधिकारको प्रयोग गर्दाखेरी आफ्नो मापदण्ड कसरी कायम गर्दछ भन्ने मुख्य कुरो हो । भ्रष्टाचारीमाथि कार्वाही गर्ने कुरा क्रान्तिकारी प्रवृत्तिबाट हुँदैन । त्यो भनेको दण्डप्रणालीलाई छोडेर हिंडने भन्ने होइन ।

जबसम्म कसैको पनि अपराध प्रमाणित भइसक्दैन तबसम्म यसरी सार्वजनिकरुपमा आउने गरी प्रतिक्रिया दिंदा त्यो यदि पछि निर्दोष ठहर्‍यो भने उसलाई धेरै घाटा हुन्छ, चरित्रगत रुपमा पनि । उसको घरपरिवार, समाज सबै हिसाबले डुब्दछ मान्छे । त्यसरी गरिनुुहुँदैन ।

अख्तियारले बोलाउँदा आएनन् दीक्षित त्यसैले पक्रनुको विकल्प रहेन भनिएको छ, बोलाउँदा नगएपछि पक्रने अधिकार पनि अख्तियारसँग छ नी होइन ?
पक्रिन सक्छ नी, किन नसक्नु । तर, मुख्य कुरा के हो भने कनकमणि दीक्षितले ममाथि प्रतिशोध भयो भन्ने अरोप लगाउनुभएको छ ।

त्यससम्बन्धमा उहाँ सर्वोच्च अदालतमा रिट लिएर पुग्नु भएको छ । त्यसपछि सर्वोच्च अदालतले आधारहरु पर्याप्त निर्माण गरेर मात्र कार्वाही गर भनेर आदेश दिएको छ ।

र उहाँ त्यस्ता आधारहरु तयार होउन् र कानूनी प्रक्रिया बमोजिम म सहभागी हुनेछु भनेर अपेक्षा गरिरहनुभएको छ ।

त्यो प्रक्रियालाई छोडेर, सर्वोच्च अदालतको आदेशलाई उल्लेख नगरिकनै अख्तियारले यो कार्वाही अगाडि बढाएको देखिन्छ । त्यसैले उहाँले टिप्पणी गर्नुभयो, एउटा वकिलको नाताले मैले त्यो टिप्पणीमा दम देख्छु ।

अनी अख्तियारले दुई दुई पटक कनक दीक्षितको बारेमा विज्ञप्ति निकालेको छ, एकपटक अंग्रेजीमा एकपटक नेपालीमा र दुबैकोबारेमा व्यापका आलोचना भएको देखिन्छ । संविधानविद्को आँखाले त्यस्तो आलोच्य छ र त्यो ?
खासगरी जुन अंग्रेजीमा दिइएको छ, त्यो कठोर नै छ । विज्ञप्ति जसरी लेखिएको छ, त्यसमा विनयशीलता एक पैसा पनि छैन, कठोरता धेरै छ । के देखिन्छ भने, कनकमणि दीक्षितका बारेमा अख्तियारको राम्रो सोचाई छैन ।

कतिले भन्छन्, दीक्षितको मुद्दालाई जसरी प्रस्तुत गरिएको छ त्यसले त ठूल्ठूला अपराधीलाई उम्किने वातावरण बन्ने भो ?
कानूनमा भनिन्छ, ‘हार्ड केसेज मेक ब्याड ल’ भनेर । एउटा केसलाई अख्तियारले र सार्वजनिकरुपमा पनि यो हदसम्म महत्व दिएर जुन सरोकार व्यक्त गरिंदैछ त्यसअनुसार दुर्घटना हुने सम्भावनाहरु धेरै छन् ।

कस्तो खालको दुर्घटना ?
एउटा निरपराध मान्छेलाई… । के हुन्छ भने अड्डा अदालती प्रक्रियालाई जब सार्वजनिक बहसमा ल्याइन्छ र मिडियामा ट्रायल गरिन्छ तब त्यसले निर्णय गर्ने पक्षलाई प्रभावित गर्दछ । त्यो प्रभावित हुनु भनेको राम्रो कुरा होइन ।

भनेको अहिले दुबै पक्षबाट जे भइरहेको छ त्यो ठिक छैन ?
दुबै पक्ष मैले भनेको होइन । यो जवाफदेहिता सरकारपक्षबाट खोज्नु पर्छ, राज्यबाट खोज्नु पर्छ ।

किनभने कनक दीक्षित भनेको स्टेटको एक्टर होइन तर, अख्तियार त हो । अख्तियारको जिम्मेवारी भनेको एउटा कनक दीक्षितमात्र होइन हजारौं हजार मान्छेसँग हुन्छ । त्यसकारणले गर्दा यो विषयमा संवेदनशीलता चाहिन्छ ।

अहिले धेरैले लोकमान कार्कीको विरोध गर्छन तर, तिनलाई प्रमुख बनाउन सहमति गरेका ठूला दलका नेताहरु झन गलत भएनन् ?
नेताहरु धेरै त प्रुफ भइसकेको परिस्थिति छ, टिप्पणीहरु धेरै खप्दा खप्दै । अब निश्चितरुपमा यो प्रसंग संसदको अधिवेशनमा उठ्नेछ । कनक दीक्षित भनेको कुकुर विरालो होइन । र अख्तियार पनि राज्यको संयन्त्रमा ठूलो महत्वको संस्था हो । यती ठूलो केस हुँदाहुँदै त्यो सेसन यसबारेमा छलफल नगरी जालाजस्तो मलाई लाग्दैन ।

तर, कनक दीक्षित जो व्यक्तिले लोकतन्त्र स्थापना गर्न कटिवद्ध भएर तिनै नेताहरुको पक्षमा बोले, अहिले त उनलाई वकिललाई नै भेट्न नदिने, जबकी विशेष अदालतले देउ भनेको छ, श्रीमती भेट्न जाँदाखेरी विहेको प्रमाणपत्र माग्ने, गौशालामा लगेर अपराधिसँग थुन्ने गर्दा पनि नेताहरु मौन छन् , यसको अर्थ के लगाउने ?
यो प्रमाणिक कुरा हो कि होइन भन्ने पनि लाग्यो होला । सामान्यतया कोही पनि थुनामा हुँदाखेरी कम्तीमा पनि कानून व्यवसायी र सरोकारवाला (विशेषगरी परिवारका मानिसहरु) लाई भेटन दिनुपर्दछ । त्यो मौलिक अधिकारको कुरा हो । थुनामा बसेको मान्छेले संविधानले ग्यारेन्टी गरेको जुन ट्रिटमेन्ट छ त्यो त पाउनैपर्छ ।

उनलाई दिंदैनन् भने कसरी बुझ्ने त ?
यसमा मानवअधिकार आयोग छ, मानवअधिकारका क्षेत्रमा काम गर्ने एनजिओहरु छन्, महान्यायाधिवक्ताको कार्यालय छ । महान्यायाधिवक्ताको कार्यालय दियोवत्ति गर्नका लागि राखेको हो र ? जब राज्यका संयन्त्रहरुमा संविधानका मापदण्डहरु लागू हुँदैनन्, त्यसबारेमा उनीहरुले पनि मनिटर गर्नुपर्‍यो ।

नेपालमा थुप्रै संस्थाहरु विस्तारै कमजोर हुँदै गइरहेका छन्, पुरा राज्य नै कमजोर हुँदै गइरहेको छ, यस्तो बेलामा अख्तियार पनि कमजोर बनाइँदैछ भन्नेहरु पनि छन् । अब यसलाई कसरी हेर्ने ?

त्यस्तो हुनुहुँदैन । अख्तियार जसको भूमिका असाध्यै महत्वपूर्ण छ, उसले आफ्नो कामकारवाहीलाई आमजनतामा विश्वासका साथ स्थापित गर्नुपर्दछ ।

सामान्यताया रोलमोडलहरु सानोसानो कुराका आधारमा निर्धारित हुन्छन् । यो असफल भयो भने अख्तियारको इज्जत कहाँ जाला ? यसको सफलताले अख्तियारको सम्मानमा अभिवृद्धि होला । तर जुन मापदण्डहरु छन् त्यसालाई स्थापित गरेरै हिंडनुपर्दछ । फौजदारी कानूनको अभिप्राय नै त्यही हो ।

राज्यको पुरा संयन्त्र एउटा मान्छेविरुद्ध प्रयोग गर्न लाग्यो भने त एउटा मान्छेको के औकात हुन्छ, के अवस्था होला ? जहिले पनि संरक्षककै रुपमा डिल गर्नुपर्दछ । जुनसुकै व्यक्ति होस चाहे थुनुवा होस चाहे अपराधी । त्यसैगरी कानूनको सबै प्रक्रिया सर्वसुलभ हुनुपर्छ सबैका लागि सुनिश्चित हुनु पर्दछ र प्रक्रियाको ग्यारेन्टी भनेको न्यायको ग्यारेन्टी हो ।

यो कुरामा अख्तियार संवेदनशील हुनुपर्छ । व्यक्तिले त आफ्नो अधिकार दाबी गर्छगर्छ । अधिकार दाबी गर्‍यो भन्ने आधारमा प्रश्न उठाउने होइन की, जो राज्य पक्षलाई प्रतिनिधित्व गर्दछ उसले न्यायको अनुभूति गराउनै पर्छ । हेर्नेलाई पनि, देख्नेलाई पनि र भोग्नेलाई पनि ।

– See more at: http://www.himalkhabar.com/127064

From the Nepali press

Constitutional law expert Bipin Adhikari in BBC Nepali Service, 27 April

BBC: Many have accused the Commission for Investigation of Abuse of Authority (CIAA) of overstepping its jurisdiction in Kanak Mani Dixit’s detention. Is it so?

Bipin Adhikari: If a person holding public office abuses his power, the CIAA can investigate the corruption charges against him. It is within its jurisdiction.

If so, why is the CIAA being criticised?

The CIAA is not a court, it is just an institution with a mandate to investigate corruption cases. It has to follow a due process, and there is concern that it failed to do so in Dixit’s case.

The CIAA is still investigating, but it has already made public the complaints against him. Is it legal?

If the unproved complaints are made public and the accused is later absolved of all charges, the damage done to his reputation cannot be compensated.

The CIAA has said it had to arrest Dixit because the latter did not cooperate.

The CIAA can arrest a person who does not cooperate. But Dixit had moved the Supreme Court, claiming that the CIAA’s charge against him was an act of vengeance. And the court had ordered the anti-graft body to take action against Dixit only after collecting sufficient evidence. But the CIAA detained Dixit disregarding the apex court’s order. As a lawyer, I find Dixit’s stand logical.

As a constitution expert, do you find flaws in the two statements that the CIAA issued?

The second statement in English, in particular, is crude and ruthless. It exposes the CIAA’s negativity towards Dixit.

Dixit fought for democracy. But political leaders are silent even when he is not being allowed to meet his lawyers despite a Special Court order.

Perhaps they hadn’t seen the media reports. It is a person’s fundamental right to meet his lawyers and family members while in custody.

But his fundamental rights are being violated…

We have National Human Rights Commission and rights groups. We also have the Office of Attorney General. They should act if fundamental rights enshrined in the constitution are violated.

But there are also fears that the CIAA is being weakened.

The CIAA should not be weakened, it is a very important institution. The Dixit case is very big, if the CIAA fails to prove its accusations against him its reputation will be severely damaged.

Mar 14, 2016- On March 1, the Judicial Council (JC), the body responsible for selecting judges, recommended 11 judges for the Supreme Court (SC). Speaker Onsari Gharti, however, sent back the recommendations—a decision that has given rise to a controversy. Bhadra Sharma and Shashwat Acharya spoke to Bipin Adhikari, a constitutional law expert and Dean of Kathmandu University School of Law, about the validity of the Speaker’s decision, inclusiveness in the recommended names, rift between the judiciary and Parliament and increasing politicisation in key appointments.

Can the recommendations made by the JC for the appointment of SC judges be refused by the Speaker?

No, because there is no provision in the new constitution that allows such a move. Nor was there such a provision in the previous constitution. It is Parliament’s job — not the Speaker’s — to determine whether the nomination criteria were fulfilled. That the Speaker returned the recommendations without holding any discussion is very strange.

The Speaker has cited two reasons for her decision—that the JC is incomplete and the Parliamentary Hearing Special Committee is yet to be formed. How do you assess these reasons?

I do not think they are sound reasons. Whether the JC is full and has acted within its jurisdiction can be challenged, but only by the relevant person at the concerned court. It was not necessary for the Speaker to consider whether the JC fulfilled due process. As far as the second reason is concerned, if any constitutional body has the jurisdiction for an action, it cannot be rejected simply because there are some problems.

There are other constitutional bodies too. The SC, for example, cannot cite insufficient number of justices for not accepting writs. Or the Commission for the Investigation of Abuse of Authority (CIAA) cannot say it will not conduct investigations because it does not have adequate staff. All constitutional bodies have to exercise their jurisdiction. They cannot shirk their responsibilities; they must put in effort even if there are problems.

So do you think the Speaker acted beyond her jurisdiction?

I do not question the bona fides of the Speaker; she could have had good intentions. I do not think her decision was prompted by some political motivation. Still, she does not have the constitutional right to return the recommendations of any parliamentary committee, less so on an issue like this.

The Speaker has cited her reasons. What do you think could have been her intentions?

There have been various comments on the names that were recommended. Questions can be raised in the court about the constitutionality of the names or the process by which they were recommended. But that is not something that falls under the jurisdiction of the Speaker. She is only a presiding officer of Parliament and her job is to facilitate its proceedings; she should let it function the way it is supposed to. She cannot make decisions on behalf of Parliament.

Questions have also been raised about the inclusiveness in the recommended names. What is your take on that?

Eleven names have been recommended this time. This is fairly a big number. It was an opportunity to make the apex court more inclusive. Members of those groups that have not been well represented under the current structure of the court could have been included. Roughly speaking, Brahmins, Chhetris, Newars and, to some extent, Madhesis have occupied the posts of justices. Representation of the Janajatis and some other groups seems low.

Article 42 of the constitution guarantees the provision of proportional representation in the government bodies as a form of social justice. Article 16 mentions affirmative action as a way to promote equality. These articles point to the necessity of putting in efforts for inclusion. The recommended names show that there has been a lack of effort to this end.

There is another facet to the issue of inclusion. The field of justice is not only limited to judges or lawyers. There are professors of law or bureaucrats who have served in law department. They may wish to become SC judges towards the end of their career. The apex court should have room for the country’s legal eagles. There are widespread complaints about the lack of professional inclusiveness at the court. Professional inclusiveness is as much necessary as caste or ethnic inclusiveness.

Whether the 11 judges recommended by the JC represent the entire profession of law has to be examined.

Some of those who were involved in the drafting of the constitution have been recommended to interpret the constitution as judges. Do you see a conflict of interest in this?

The appointment as judges of those who were involved in the constitution writing is in fact a good thing. There is no conflict of interest in that. Only when somebody benefits illegally from one’s own decision does a conflict of interest arise. Several renowned constitution-makers have been appointed as judges in other countries too.

On the other hand, if names are recommended with a pre-conceived idea of making someone the chief justice, such as by taking into consideration the age of those recommended, that could be problematic and discriminatory.

Are you hinting at something similar in the latest recommendations?

I am not involved in the process.

But we have heard plenty of complaints in the past from professionals practising in this field about names being recommended based on whether one has the chance of being the chief justice one day. There have been similar complaints this time around as well. Only an insider can tell how valid the complaints are.

Why do you think the Speaker’s decision has been so controversial?

The provision of parliamentary hearing in the new constitution is a faulty one. In a parliamentary democracy, Parliament is under the control of the government. The day the government lacks its controlling capacity, it will be removed through a vote of no-confidence. In other words, the government is formed by the biggest party or the one that can garner majority votes. Parliament should not be involved in any aspect of appointing judges. We do not normally see such practice in parliamentary democracies.

Where there is a presidential system and the idea of separation of power is strict, like in the US, such a provision may exist. But in a system like ours, it should not have been there. Here, people became too ambitious. There is an argument that Parliament should be sovereign. That is not correct. We have a sovereign constitution. The country runs on the basis of the supremacy of the constitution. Parliament also falls within that; it cannot bypass the principles enshrined in the constitution.

What do you suggest is the way out of the controversy now?

We have seen Parliament interfering in many legal affairs. There is such a provision in the constitution. Had there been no such provision, this problem would not have arisen. So, it cannot be resolved through a legal or constitutional means. The head of the JC—that is the chief justice—has to demonstrate some leadership. So does the Speaker.

The Speaker can facilitate a way out by asking the chief justice to reconsider and resend the recommendations, and then initiating the parliamentary proceedings. But if she chooses to stick to her decision, a public interest litigation has to be filed against it at the SC. That is, however, the longer route. That will also create friction between the SC and Parliament.

Recommendations like these have generally sparked controversies in the past as well. What, in your opinion, are the reasons?

There has been a high degree of politicisation in all kinds of appointments. Take the JC for example. One member of it is nominated by the Nepal Bar Association, which is also highly politicised. Another is a law expert appointed by the government, which, obviously, is picked by the parties. They tend to reward those who are close to them. We saw how judges, after their swearing-in ceremony, ran to the CPN-UML’s office to express their gratitude.

This time too, people are openly commenting on who among the 11 names recommended are close to the Nepali Congress or the UML. Those who have been recommended are qualified, but there are many others who are also qualified. They definitely have questions, which should be answered transparently and objectively.

What can be done to stop or at least reduce politicisation?

The chief justice has to tell the politicians that it is his—not their—job to recommend names for judges. Their job is to hold discussions on the recommended names and approve the ones deemed unproblematic. If appointment without politicisation is made impossible, the chief justice has to tell the Speaker that there has been political pressure on him and that he wants to address the nation.

For the first time in Nepal, a Member of Parliament and of a political party has been appointed as a judge. If tomorrow, for example, the law minister wants to be the judge at the SC, will that be allowed? Whether somebody with political interests and partisan thinking can be appointed a judge is a major question. I will not say no, but we have to be very clear about the fundamentals.

Dr Bipin Adhikari being interviewed by Tikaram Yatri about Presidential Election to be held on october 28, 2015 and applicable constitutional standards

The promulgation of the Constitution of Nepal 2072 has seemingly divided the Nepali population into two: those in support of it and those opposing it. The Madhesi Morcha has been leading the protests against the constitution. And the Tarai has been reeling under the Morcha-enforced banda for over 60 days now. In addition, it has been over 20 days since the ‘unofficial’ blockade on Nepal began. This sequence of events has complicated the discourse on the new statute. Against this backdrop, Darshan Karki spoke to constitutional expert and Dean of Kathmandu University’s School of Law, Bipin Adhikari, about the contentious provisions in the new constitution, rights of women, issues of inclusion and proportional representation.

Couldn’t the constitution have addresed the grievances of various sections of society before its promulgation?

The constitution was portrayed as though it would cure all the problems of the country. And our political leadership also sought to solve multiple political issues at once. But they did not think about their capacity to manage the aftermath. They did not think about the situation they were writing the constitution in, or keep our geopolitical realities in mind. There are over 200 models of constitution in the world. No matter the model Nepal would have adopted, people would still not have been satisfied with it.

But the Constitution of Nepal 2072 (2015) has been criticised for being more regressive than the Interim Constitution 2007?

Many call it regressive but in politics, the present-day voters decide what constitutes ‘progressive’ and ‘regressive’. Nothing in the new constitution goes against constitutional standards. But if one argues that the new constitution is not at par with yesterday’s standards then one can ask, “Is it the responsibility of a democracy to enforce the standards of the past?”

In a democracy, we go by today’s standards. I can be sympathetic to what was written in the Interim Constitution. But irrespective of it, it is today’s majority that either writes or changes the constitution. The Interim Constitution was an outcome of the political commitment that took place seven years ago. It no longer exists now. So it does not make any sense to say that the basis of compromise of the past should be upheld today.

But why weren’t the good aspects of the Interim Constitution like the citizenship rights of women retained in the new one?

As part of human rights discourse, we agree on two things: no one should be stateless in any country and that the state cannot discriminate against its citizens in any respect. A man cannot be conferred more rights than a woman as long as both of them are Nepalis and there’s a level playing field. Apart from this, every country formulates its citizenship laws by keeping multiple policy issues in mind. One can talk of the International Covenant on Civil and Political Rights, the Convention on the Elimination of all Forms of Discrimination Against Women and many other human rights instruments. But they are ideals. Even the US and the UK do not adhere to them. For instance, everyone has a right to seek shelter, but look at the state of Syrians. Has the British government welcomed refugees?

Citizenship laws are similar. The point is not to discriminate against Nepal’s citizens but for those who think they deserve it, we will go into the due process. The problem is, earlier we sought 15 years domicile status to grant citizenship to a foreigner married to a Nepali woman. Now, that provision has been removed by powerful actors behind the curtains.

Isn’t the citizenship provision discriminatory towards women?

The provision in the constitution ensures that no one will be stateless and second, it does not discriminate between Nepali citizens. If we accept the notion of formal equality, then the discriminatory aspects are: the provision to give citizenship to the children of the daughters and the provision on naturalised citizenship. But personally, I do not think that they are big issues. Practically speaking, this constitution was promulgated on Asoj 3 (September 20), and the month is still not over. And according to the constitution, anyone born in Nepal till Asoj 3 can acquire citizenship by descent. So those who will face problems are children born to Nepali mothers and foreign fathers after Asoj 3. So the incidence of the problem will not be huge.

Many also argue that the current citizenship provisions create difficulties for single mothers.

The constitution addressed the major problematic issues but we are yet to formulate laws to implement it. For that, you don’t even need two-thirds majority in Parliament. Any government which has the majority in the House can formulate the kind of citizenship law it wants to offer. We are yet to draft the Citizenship Act. The new law could even mention that a foreign man if married to a Nepali woman will get naturalised citizenship on the day they get married; nothing in the constitution prevents the future laws from doing so. Furthermore, this is probably the first constitution to recognise single mothers and ensure their fundamental rights.

Still, many would argue that the statute is not inclusive. By including Khas-Arya (and only defining them) in the list of those who qualify for affirmative action, it has diluted the notion of inclusion.

This is definitely problematic. Inclusion and proportional representation (PR) are two different things. Under PR, you can ensure the representation of all segments of the population. Inclusion, however, is for those who have not been represented. For example, if Newars are included as Janajatis then their participation in all organs of the state will increase by many folds and vice-versa. So inclusion should ensure the representation of underrepresented Janajati groups. For example, Tharus and Gurungs have always been politically well-represented in comparison to Limbus and Magars. Therefore, merely talking about the proportional representation of Janajatis does not help the groups within it.

Likewise, Bahun-Chhetris have had a competitive advantage for a very long time. Together, they comprise around 32 percent of the population but their political representation is as high as 70 percent or more. Their representation has never been an issue. But those leading the Janajati movement misinterpreted the issues of representation and inclusion. It scared the Bahun-Chhetris. The Interim Constitution defined such a significant population of the country as ‘others’. And now, those drafting the constitution have made a blunder by including Khas-Arya in the list of communities in need of inclusion.

What would have been the right thing to do by the drafters of the constitution?

The constitution should have ensured proportional representation for five communities: women, Dalits, Janajatis, Madhesis and minority groups. And we could have formulated a law to define what consitutes a ‘minority group’ in Nepal. This constitution lists Tharus as a community which qualifies for inclusion. But it does not give any explanation for separating the Tharus from Janajatis. Second, it mentions Muslims and Madhesis. This raises a question, why does the constitution only mention Muslims, but not Christians or Kirantis or Buddhists? The constitution, prima facie, shows that it is pushing for proportional representation on faulty grounds.

Still, by writing so, it seems to have pleased the Janajatis, Dalits and Bahun-Chhetris. The constitution should have clearly mentioned that proportional representation is not for the dominant population. Based on social indicators, representation in previous elections, it could have said that though the Janajatis qualify for inclusion, state benefits will go to those who have been greatly marginalised among them.

What are the positive aspects of the constitution?

At least proportional representation has been accepted as a constitutional principle. But we could have made it even better by removing the four groups—Khas Aryas, Tharus, Muslims and backward regions—that currently qualify for inclusion and by adding minority groups to the list. The constitution ensures 60 percent political representation through direct elections and 40 percent through proportional representation. To make the 40 percent PR effective, we should first ensure the participation of the historically marginalised groups and then make it proportional. In that case, Newars, Gurungs, Tharus, Thakalis will compete and the Rais, Limbus, Magars, Meches, Rautes will get state protection. However, as the constitution does not envision such a situation, the PR provision is a mere consolation prize for the members of the deprived communities.

On the issue of the ongoing protests in the Madhes, do you see a possibility of incorporating their demands in the new constitution?

The issue of Madhes is more political than constitutional. In my opinion, the constitution has given equal rights to all geographical areas of the country. The major issue raised by the agitating Madhesi forces is that the constitution should ensure the representation of the Madhesis as per their population size. But we need to keep in mind that representation cannot be ensured just on the basis of population. If population size were to be the sole criteria for inclusion, why would we even need a discourse on minority rights and the rights of the indigenous peoples? What is the point in headcount if the area, religion and identity of a person is not recognised?

Therefore, the Madhesi forces cannot take the advantage of two diverse principles with equal strengths. They have to either choose one or the other. Talking about the Madhes as a single entity camouflages its deprived communities. It is not the Yadavs, Jhas, Mishras and the Tarai Brahmins who need proportional representation. If we only use the yardstick of population, then those living in Dolpa will never be represented. So, there are many things as important as headcount that needs to be taken into account by an electoral system. We must rationalise this discourse.

How would you evaluate the constitution as a whole?

We repeatedly requested the leaders to discuss the constitution only with experts for at least three hours. This would have resolved many problems. We could have done a lot more, like added a threshold for political parties. Now, the political parties are unregulated while the state is overtly regulated. This could result in many problems—political parties are not transparent; we do not know their sources of funding, expenditure. Likewise, the constitution could have been clearer about ensuring affirmative action for the historically marginalised.

But overall this is a dynamic constitution. Its biggest gain is a collaborative model of federalism which can be implemented.
 

The ‘six-state deal’ of last Saturday that outlined province boundaries and tried to address concerns raised by various stakeholders on preliminary draft has landed into controversy. Protests against six-province model are escalating across the country putting pressure on political leaders to revise state boundaries. What went wrong? What should parties have done to ensure a model agreeable to majority of Nepalis? Constitutional expert and Dean of Kathmandu University School of Law, Dr Bipin Adhikari, shared insights with Mahabir Paudyal and Thira L Bhusal.

First of all, how do you respond to the ongoing constitution process?

The framers of constitution draft seem to have been guided by the notion that slower the process greater the chances of impending factors to destabilize constitution process. This is why they seem to be hastening up. There are both good and bad sides to it. One bad thing about fast track process is that it allows little time for the stakeholders to have their concerns addressed. This process seems to be rather too fast. If it had been steadily building up perhaps it would be justifiable. But everything seems to be happening too fast in the last three months. Little attention seems to have been paid to address concerns of the key stakeholders such as women, Dalits, Janajatis and Madheshis. Some good changes have been made on preliminary draft. Most of people’s feedback has been accommodated. So there is little to object. Only provision that concerns me is that of citizenship. Our constitution seems to be too liberal on citizenship.

Various rights activists say our citizenship policy is rather too rigid.

I agree that constitution should ensure that no citizen becomes stateless, that its citizenship policy is not discriminatory and all people with entitlement enjoy equal provision of citizenship. Our constitution has ensured this. But citizenship is closely related with matters related to country’s sovereignty, protecting its population, language and culture for the posterity. New provision does not seem to guarantee this. A state is not obliged to grant citizenship to a person who does not live in this country, who has nothing to do with bloodline or descent and who seeks citizenship for opportunity values. But the new provision allows granting citizenship to just about everyone who is born or lives in Nepal, irrespective of their descent and bloodline. Don’t forget Nepal has an unregulated open border with India. Thousands of Indians enter Nepal every year. There is no system to keep record of such people, nor any system of work permit. We are becoming liberal on citizenship without considering these vital factors.

Those who speak in favor of liberal policies do so because they have money. They are not speaking on behalf of Nepalis. I would say provision in the preliminary draft was much better than the current one. Current provision allows citizenship to even those who do not technically live in Nepal, who do not speak any of Nepali languages, who do not intend to stay here and start business or join civil service but whose only aim is to serve their vested interests. Like I said, Nepal has open border with India. It cannot raise boundary walls. Why should we be so liberal in such situation? Why should millions of Indians get citizenship every ten years? No country may have as liberal citizenship provision as Nepal. Even the US grants citizenship after a long process. You do not distribute citizenships like raffle tickets. Perhaps liberal policy could be justified if we had regulated border with India, like we have with China. The current provision may have delighted India but it has nothing good for Nepal and Nepalis. We need to allow citizenships to bhumi putras (‘sons of the soil’) of Nepal, those who live in Nepal and have made Nepal their home, not to those who have one of their feet in India and other in Nepal. It seems we are bringing liberal citizenship policy not because we want it but because India wants so. We are literally granting citizenship to whoever is found in Nepal, to a large mass floating population. It won’t empower real bhumi putras of Nepal. This is why I am against it.

Let’s return to the constitution. What kind of statute are we going to get from Constituent Assembly?

Look, this constitution is a document of compromise among political parties. Experts have no say in it. So don’t expect it to be perfect. Yet politicians have tried to do their best from their level. Yes, there are political statements in it but this is perhaps because of their compulsion to show something to their constituencies. If they had involved some constitution experts in the process, it would be much better both in terms of content and syntax. But I still find provisions regarding form and size of provinces, interstate relations, financial management, relation between federal government and provincial government good. There is no apparent problem in government form as well. But constitution has failed on one fundamental aspect. That is addressing the aspiration of minorities, the marginalized communities and Dalits who have high hopes from constitution.

How so?

The constitution should have considered three key aspects: fundamental rights, electoral system and inclusion and mainstreaming of backward communities to make them feel that their concerns are being heeded. All that indigenous communities like Rais and Limbus want is their presence in the parliament. They want their chief minister to be elected from among themselves. Fundamental rights, electoral system and state demarcation should have had provision to guarantee this. This could have been done under six-province model as well, without going into ethnic model. We could have created sub-province (a province within the province system) for communities with high population density of one ethnic or caste group. We could create more than one sub-province within a province and grant those sub-provinces autonomy. This would help to address their identity concern as well.

It’s not that simple. Protests would erupt however you demarcated provinces.

Yes, protests happen. We may not be able to ensure provinces absolutely agreeable to all stakeholders. Those who protest do not seem to have any rationale nor do those who demarcated federal boundaries. They seem to have consulted Nepal’s map and redrawn the boundaries as they saw fit. Despite this, there is one good thing about six-province model. Politicians have tried to maintain population balance in each province. But it does not have anything substantive to offer to the real marginalized. They should have been granted at least something symbolic which they could own up and feel proud of their identity. The sub-province system could do this. The provision of special autonomous zones, protected areas can also address identity concern. It is not too late yet. Constitution can include this provision even now.

Would it be right to interpret ‘undivided’ movement as a proof of people’s fascination with existing five development regions set-up?

You can say so, to a large extent. The five-region model was good for those who are concerned about country’s indivisibility and integrity. But it has nothing to offer to those who have been historically marginalized, who feel that they have been oppressed and not represented. Six-province does not address these concerns. Take Rolpa. It is a Magar majority district. But you have put it in province six, which is the area with Khas majority. How can a Magar of Rolpa be happy with it? If it had been put together with Magar majority district or the area they feel close to they would feel good about it.

Under six-province model, it is extremely unlikely that any province will get ethnic name. Demographic structure does not allow this. Thus ultimately there will be nothing to address their identity concerns. Leadership could have taken measures not to let the protest escalate. They should have told the people that their interests would be protected and that they would be empowered even within six-province model. They should also have explained the rationale for six-province model. They did not. This helped fuel protests.

There is a demand for converting five development regions into five provinces.

This is true from a Khas perspective. But look at the issue from a Janajati perspective. Most Janajatis have high regards for this country. All that they want is a provision in which their leaders can become their rulers. You can ensure this through electoral system, constituency delimitation and, like I said, province within province system. Look at Sikkim. It has mixed population of Brahmins, Chhetris, Lepchas, Limbus, Tamangs and Chamlings. And it is not a separate province. Yet, someone like Paban Chamling, who represents the majority of his community, gets elected in the leadership position. This is not because Sikkim is an ethnic state but because constituency has been delimited in such way that it ensures their representation. Why cannot we do something similar here? As for the protest, it is happening mostly on backing from big parties and the local elites. Otherwise, it would not have escalated like this.

Finally, there was a heated debate on Constitutional Court. Some were vehemently opposed.

The constitution has a provision of Constitutional Court for ten years. Constitutional Court is vital for protecting constitution. It looks into whether right laws have been formulated or not and also provides inputs on such laws. Thus Constitutional Court is a vital entity. But they did not look at it that way. Constitutional Court will remain under the Supreme Court. There could be some overlapping of jurisdiction between Supreme Court and Constitutional Court. But largely, it won’t do us any good, nor will it do us any harm since it, in a way, will be under the Supreme Court.