Category: Opinions

 GP. Koirala became history on March 20. A four-time prime minister, giving leadership to the country for almost eight years in that capacity, Koirala had been active in politics for the last six decades. From January 2007 to July 2008, he also had the honour of symbolising the nation as the acting head of the state.

During the last 20 years, he had a pervasive presence in the politics of Nepal; and his role, whether he was leading the government or the opposition, had a decisive impact on the situation that Nepal was in all through these years. He was crucial to resolving the Maoist insurgency, affecting the quality of the liberal democratic movement in the country, bringing them into mainstream politics, abrogating the constitution of 1990, taking several strategic decisions affecting the country, establishing a new constitutent assembly and abolishing the monarchy. Koirala also gave leadership to the seven party alliance in signing the 12-point understanding with the Maoists in November 2005 (according to a peace plan facilitated by India).

It is difficult for anybody to face the reality that Koirala is no more. He was the state at least in the perception of the Maoists. The (most visible) guardian of the peace process and the one who gave a democratic facade to the recent reshuffles in Nepal is out of the scene. There is no heir apparent, and no roadmap for the future. He was crucial to taking away so many things from the people of Nepal; he was able to return none before his demise. One such debt that Koirala incurred but left without paying it off was a democratic constitution. The other was the pride of the Nepali people — their precious independence as a sovereign nation.

Nepal’s constitution of 1990 and the German constitution of the Weimar Republic of 1919 suffered a similar fate. They became the victim of insincere leaders and international forces playing foul on different pretexts. The constitution of the Weimar Republic also intended to institutionalise the parliamentary form of government, and establish the image of Germany as a democratic country leaving the imperial regime behind. It also emerged from the German revolution of November 1918, which expressed faith in liberal institutions. Unfortunately, the liberal democracy that it established eventually lapsed in the early 1930s, leading to the ascent of the National Socialist German Workers’ Party and Adolf Hitler.

The Weimar constitution (adopted in the city of Weimar) was also (when promulgated) described as the best constitution in the world. It provided, like the constitution of 1990, the required space for all the political forces of the day. Both had a very decent beginning and promises for the future. Both were accepted by the common people. Unfortunately, the Weimar constitution was thrown out because it could not give enough leverage to the aspirations of Adolf Hitler, and the 1990 constitution was thrown out because it allowed little foreign hand in Nepal’s politics.

Moreover, it must be noted that the Weimar constitution was never officially repealed. The people were not prepared for this. It was attacked bit by bit, through a planned conspiracy. The legal measures taken by the Nazi government in early 1933, commonly known as “coordination” (gleichschaltung) meant that the government could legislate contrary to the constitution. Like the 1990 constitution of Nepal, it became irrelevant as time passed. The only major difference is that the next constitution was brought faster in Nepal than in Germany — but in both cases bringing major changes in the country in which the ordinary people had no say. The contexts of both the countries are different, and so the motivating factors and the tensions of cold war. But in Germany, Adolf Hitler was the main architect of this transition, and in Nepal, it was G.P. Koirala.

Koirala had a long and cherished democratic history. He was a seasoned politician. He also had an important role in all the past mass movements in Nepal. His contribution to political and economic reform in Nepal in the 1990s is also laudable. His tall, soaring personality always appealed to the people. In daura suruwal and black cap, he had a very firm and noble look. Wearing spotless clothes and shining shoes, he was a clean person, up and moving all the time. He never allowed his personality to be soiled. Full of energy, nothing was impossible for Koirala. He was a man of action — and a man of the masses. His confidence always demonstrated how smart he was in his mental make-up. He did his work himself. The personal discipline that he maintained in his day-to-day life was remarkably outstanding.

Koirala never spoke more than what would be necessary in a particular situation. He never promised anything that was not within his capacity to fulfil. He was gifted with unlimited patience to listen to others. He had an unusually high respect for women and children. He did not talk about money ever. He never kept a wallet either. He ate little, and lived with only what could be considered the bare necessities of life. He hated speculation. He was straight in his approach to politics. Above all, he endeavoured hard to implement what he had decided. These simple yet incredible aspects of his character and personality made him a tall human being.

Yet, as a politician, Koirala had a problem in the basics. A political Koirala was a problematic Koirala. He talked of democracy only in relation to the king and himself — and not in relation to his cadres and himself. It had no meaning in his political life. His party the Nepali Congress always suffered his apathy to party conventions, free competition, internal elections and popular decision making. He believed in his coterie more than his cadres. The party was without intellectual leadership during these difficult years. He had neither a big head as a planner and campaigner, nor a big heart as a politician. Yet he prevailed everywhere.

The peace process is faltering. The legacy that Koirala has left has no content of inspiration for anybody. The mood of the Constituent Assembly, and the political parties on the front line, hardly show that a new democratic constitution is about to be promulgated within the next two months. There are flaws in many documents that the assembly has produced. Koirala had no inputs for the constitution making, nor comments on the output of the house. He had little design options even as a party leader.

Extremist forces are coming up. This country is being divided on regional, ethnic and communal lines. The capacity of the democratic forces to deal with these issues remains shattered. The most terrible part of the scenario, however, is that there is no direction for a change.

The country is without leadership. Its nationalist ego is also being shattered. There are attempts to destabilise the national army as well. Had Koirala understood his own capacity and the capacity of this nation to go for revolutionary changes without hurting the values of the rule of law and the dictates of constitutionalism, this country would not have suffered this much. His poor leadership, personal ambitions and taking decisions upon the advice of foreign patrons are largely responsible for the poor state of democratic politics in this country. Koirala should have lived to face the mess that he created himself, and sort it out in a dignified way. Unfortunately, that option has also been taken away by God.

 ”The Bolsheviks had only won a quarter of the seats in the elections to the Constituent Assembly (CA) in November 1917. They were shocked to see that the October Revolution they had forced on Russia one month before by overthrowing the provisional government had not been legitimised by the voters. So they proclaimed the newly elected assembly to be a “bourgeoisie” assembly – an assembly that had no regard for the Soviet government instituted by Lenin & Company.”

The Bolsheviks had only won a quarter of the seats in the elections to the Constituent Assembly (CA) in November 1917. They were shocked to see that the October Revolution they had forced on Russia one month before by overthrowing the provisional government had not been legitimised by the voters. So they proclaimed the newly elected assembly to be a “bourgeoisie” assembly – an assembly that had no regard for the Soviet government instituted by Lenin & Company.

When the newly elected assembly refused to support the programme of the new Soviet government, the Bolsheviks walked out in protest, and later dissolved the house. For Vladimir Lenin, the leader of the revolution and the Soviet government, the elected house was an obstacle to the Soviet government. His ambitions were further unfolding. Many years after Lenin’s death, British statesman Winston Churchill had a comment on the fate of Russia, “The Russian people were left floundering in the bog. Their worst misfortune was his birth… their next worst his death.”

This is not a story of the Bolsheviks only. The history of constitution making is replete with revolutions misled and new constitutions backfiring upon the people. A few successful examples like the United States (1787), India (1950), South Africa (1996) and others are the best part of the discourse. However, many revolutions produced very good literature for posterity, but either very bad constitutions or the worst governments for the suffering people.

The French Assemblée nationale constituante of 1789 is a case in point. It produced a constitution in 1791 after surviving the vicissitudes of a revolutionary two years, but led the country to prolonged instability. That came to an end only after adopting the constitution of the Fifth Republic in 1958. It was drafted by Gaullist politician Michael Debré, and not by any Constituent Assembly. It was indeed the 17th constitution of France.

General Charles de Gaulle, World War II fighter and founder of the Fifth Republic, commented very frankly that a country which had 246 varieties of cheese cannot just be governed by uniform standards. He said, “I have come to the conclusion that politics are too serious a matter to be left to the politicians.” As president, Charles de Gaulle ended the political chaos that preceded his return to power. But France is still struggling to eliminate the imprints of authoritarianism in the system of government that has a strong historical legacy.

Nepal remains misled while the Constituent Assembly is faltering. It should have been seen working with nervous energy, and fixing the first comprehensive draft of the constitution to bring it to the public any time now. This is not the case. The assembly has not even been able to match the pull and efficiency of Prime Minister Jung Bahadur Rana’s Kaushal Adda that codified the first national code of Nepal back in 1854. It was a representative body by the standards of his time, powerful and filled with experts which had the mandate for codifying any type of law or constitutional arrangement that they found Nepal had been observing as the rule of law. Above all, it was able to deliver what it was appointed for. The heartiness of the house and the euphoria that it created must be something the sovereign representatives of the present day Nepal find enlightening.

The idea of a Constituent Assembly does not hold water where there is no faith in certain immutable principles that establish the basic human rights of the people and check democracy. The process loses sanctity in the absence of this basic commitment. One must be reminded of how the Constitutional Court of South Africa back in 1996 had turned down the draft constitution that the Constituent Assembly had proposed. There is little doubt that they followed a remarkable and exemplary process of constitution-making, signalling not only a formal transition from apartheid to constitutional democracy, but also a peaceful end to what had been a very violent struggle for a new form of governance.

South Africans started drafting the constitution by first setting out 34 constitutional principles in the Interim Constitution. The Constitutional Court was given the responsibility to certify that the draft constitution was in conformity with these principles. This certification process ensured that the draft constitution met with the original basic principles that the opposing sides had agreed to before beginning constitutional negotiations. After the Constitutional Court identified the draft’s deficiencies, based on certain immutable principles of the rule of law and constitutionalism, the constitutional assembly reconvened and amended their original draft. This amended version was later certified by the court, and came into force in 1997.

It is not just South Africa, but all civilised societies believe in what the South African CA re-established through its remarkable procedures. If Constitutional Committee (CC) Chairman Nilambar Acharya, going by the same principles, calls for clarity on 16 issues, it should not be politicised. The CC, which is entrusted with working out an integrated draft report that incorporates all the 11 preliminary drafts, has every right to bring these issues to the table because the committee can’t take its work ahead without resolving these contentious issues immediately. Many of the questions that Acharya has raised bring back the same issues whether the substantive limit on a political process related to the formulation of a constitution should be observed or not.

The Constituent Assembly has no right to fail. Its failure will not only raise a serious question on the ability and integrity of the present generation of leaders, but also on the faith that democracy delivers after all. The luxury has become an essence now. Whether by way of a framework constitution, as this critique proposed on the eve of the New Year in this column, or a comprehensive constitution, whatever that might mean, it must produce a document that ends the transition process, at least for now. The initiation of CA Chairman Subas Nembang and the Constitutional Committee chairman must continue (despite the Maoist concerns on the move).

A Constituent Assembly that establishes representative democracy, but not the substantial aspects of constitutionalism, amounts to a total failure. This is the reason that people these days talk about “constitutional democracy” more than representative democracy. Certain basic principles of the rule of law and constitutionalism must be in place to establish “constitutional democracy”. It provides assurances that the end of politics – while unknown – can still be guided in a particular direction. This, of course, requires an effective enforcement mechanism.

 Identities may be defined in terms of race, ethnicity, religion, language, culture, gender, sexual orientation and similar other variables. Politics aimed at establishing these identities, among other things, involves empowering the oppressed segments among them to articulate their oppression in terms of their experience, and establishing their claims for equality, nondiscrimination and for real opportunities to end marginalisation.

Whether the institution of ethnicity-based federalism per se or some identical discriminatory arrangement under its broad set-up is the answer to achieve this objective is still a very controversial issue.

It has become a fashion in Nepal to refer to Ethiopia as a successful model of ethnic federalism. Indeed Nepali experts got the same impression from Ethiopian expert Dr. Hashim Mohamed Tewfik, who is also Minister of Law in his country at present. He visited Nepal last month as a guest of the Nepal Constitution Foundation. It is said that ethnic federalism enabled Ethiopia to avoid falling back into violent internal conflict during the transition to a federal state.

Ethiopia is the oldest independent country in Africa, and one of the oldest in the world — at least 2,000 years. Its 1994 Constitution created an ethnically based federal republic in response to the ideological orientation of the major political forces at that time and as a way of resolving conflict between ethno-nationalism and the state. The government has created nine ethnic-based regional states and two federally administered city-states. This ethnic federalism intends to significantly protect and promote the interests and concern of the ethnic groups by creating nine states on the basis of settlement patterns, language, identity and the consent of the people living within them.

The system tries to marry political pluralism with the right of secession in the federal parliamentary framework. The constitution empowers each state the power to draft, adopt and amend the state constitution, so long as its provisions are consistent with the federal constitution. A federal judiciary, which is independent of the executive and the legislature, is expected to safeguard the constitution by maintaining its supremacy. Ethnicity and federalism are so intertwined that they have become the major factors in organising the political and territorial space in the country.

Yet, Ethiopia has neither scored high on ethnic empowerment nor on democracy. It has certainly given a guaranteed space for ethno-politics, democratic elections and self-determination; but the forces working for communalisation have not disappeared. A majority of the people hardly feel that their “ethnic self” has been protected. There is widespread ethnic discontent in the country even after 15 years of identity politics and democratic exercise. The system is still described as a “hybrid regime” falling somewhere between a “flawed democracy” and an “authoritarian regime”.

Ethiopia ranks 105 out of 167 countries with the larger number being less democratic in the report of The Economist. (It is amazing to note that Nepal’s position is 115, only 10 points less, even though it has not gone beyond the transitional arrangement, and current uncertainties must have affected Nepal’s ranking.) The threat of instability is still looming large in Ethiopia. There is no improvement in mass poverty, stagnant agriculture, slow rate of investment and the general economic crisis. The only apparent achievement is the gradual decline in the pan-nationalist sentiment of a proud country, which nobody wants to see declining. What then is the value addition for Ethiopia as an ethnic federalism? This is an important issue.

At the time of promulgation, the constitution was applauded for its commitment to liberal democracy and respect for political freedoms and human rights. By now, many analysts think there is a mismatch in Ethiopia between the liberal-democratic political-pluralist elements of the constitution and ethnic politics. Ethnic considerations have impacted the quality of the constitutional system, norms and procedures.

The 2009 report of the International Crisis Group (ICG) states, “Authoritarianism and reluctance to accept genuine multi-party competition, political positions and parties have proliferated in recent years. This process, however, is not driven by democratisation or the inclusion of opposition parties in representative institutions. Rather it is the result of a continuous polarisation of national politics that has sharpened tensions between and within parties and ethnic groups since the mid-1990s.” According to the report, the ethnic federalism employed in Ethiopia “has not dampened conflict, but rather increased competition among groups that vie over land and natural resources, as well as administrative boundaries and government budgets”. Furthermore, the report also points out that ethnic federalism has failed to resolve the “national question”.

Contrary to what had been expected, the liberal values of state organisations and the multiparty system have suffered in Ethiopia in recent years. They have resulted in insurmountable governance problems. Although the constitution vests all powers not attributed to the federal government in the states, the regional states are in fact weak. The ICG report as quoted above frankly admits against this background that the next federal and regional elections, scheduled for June 2010, most probably will be much more contentious as numerous opposition parties are preparing to challenge the ruling party, which is likely to continue to use its political machine to retain its position.

It is imperative for multi-ethnic states to engineer an accommodative structure ensuring participation of all in the political system of the country in order to achieve peaceful coexistence. This does not require politicisation of ethnicity and excessive leverage to blood relationships and ascriptive loyalties in place of rights and duties. Such an arrangement is bound to promote the rule of kin, instead of the rule of law, and minimise value-based politics. This space is bound to be used by ethnic leaders to gather justification or legitimisation for autocratic rule in the name of their ethnic state. Such kinship ties within societies when they go beyond a certain limit pose formidable barriers to building tolerant multiethnic societies.

 A country can certainly go for federalism if this is the decision of its Constituent Assembly. But, as a visiting British scholar pointed out recently, federalism is not inherently a superior form of democracy. It cannot guarantee democracy or good governance any more than a unitary government can. Its success depends on so many important political and other variables. If these variables contribute, even unitary states can have high performance. The house was deprived of the opportunity to debate it.

The Constituent Assembly Committee on State Restructuring and Allocation of State Powers (CSRASP) has finally published its report reaffirming its controversial commitment to re-design Nepal on the basis of federalisation along ethnic lines.

As a principle, it is not uncommon to see various in-built constitutional mechanisms around the world for addressing the priorities and desires of minority or ethnic groups on a state or sub-state level. A number of institutions and procedures have been internalised by new democracies to ensure that the human rights of all communities and cultures are protected, and justice is proactively done to all those who have been exploited in the past in different ways, deprived for generations and marginalised. There have been many success stories which could serve as the point of departure for learning how to do what is best for this country along the most democratic traditions.

That was not the temperament of the CSRASP. It would indeed be very naive for anybody to expect any committee to show this temperament when one realises how fraudulently the stage was organised to set the scene for the Fourth Amendment to the Interim Constitution. The country was declared a federal state outright in December 2007 while a jumbo Constituent Assembly was being convened — precluding discussion in the house over this important issue for ever. There was no more any choice as to whether this country should “go” federal or not; the choice was only what type of federal arrangement it should seek. The house was accorded only a limited right to self-determination in this matter.

A country can certainly go for federalism if this is the decision of its Constituent Assembly. But, as a visiting British scholar pointed out recently, federalism is not inherently a superior form of democracy. It cannot guarantee democracy or good governance any more than a unitary government can. Its success depends on so many important political and other variables. If these variables contribute, even unitary states can have high performance. The house was deprived of the opportunity to debate it.

This critique always recommended asymmetrical devolution arrangements in Nepal, based on reasonable claims, capacity and potentials of each province in the country. This arrangement could provide a means for accomplishing the goal of addressing ethnic, regional, lingual and cultural discontent by granting different powers to different provinces, with an emphasis on local demand and their regional ability to control their own affairs. The constitution could have provided the necessary framework for a negotiated settlement of all issues based on given models. Such measures could have addressed or prevented disputes that otherwise would have the potential to destabilise the country’s democratic process. But it is important that these mechanisms are not based on discriminatory arrangements.

A 14-province Nepal is a big joke. It is not economically workable. It is a recipe for disaster in terms of organisation and management. It is not, as claimed, based on “identity” and “ability to stand”. There is cynicism in the demarcation of the provinces, and also the basis on which their size is determined. Most of these provinces will not be able to survive with the blueprint of autonomy that the draft intends to demonstrate for even six months.

Again, the proposal that seven of these provinces be given identity based on ethnicity and the others should go ahead on non-ethnic categorisation is going to be the bête noire of this arrangement. It links Rai-Limbus, Sherpas, Newars, Gurungs, Magars and Tamangs with their so-called lands, leaving the other 96 ethnic groups in the country to manifest themselves or their language, culture, religion and ethnicity through the remaining seven provinces.

The report does not explain anywhere why the identity of a few ethnic groups is more sacred than the identity of others. It does not explain why Khasas or Tharus should not have exclusive “Khasan” or “Tharuhat” the way “Kirantis” have an exclusive Kirant. If there could be a “Jadan” out of the blue, why cannot there be a “Yadavdesh” in the Tarai? If the history of relationship with the land is the factor, which has been accepted as the criteria for naming and shaming communities this way, then the committee report should be able to demonstrate some rigorous research on what is the communal history of Nepal.

There are many potential pitfalls to this approach. If a certain region can have an ethnic name even though 60 percent of the people in that province are people outside this group, why should not this same categorisation work in the case of Tharus. After all, there is little controversy that Tharus along with some other identical smaller communities are the original inhabitants of that territory. Why should the so-called “Tharuhat” share its name with non-Tharuhat people simply because the demography has changed over the last few decades? There is no reply to this question as well. The charge of in-built constitutional discrimination, and potential fault lines in this framework, cannot be avoided with such an arrangement.

It is quite one thing to create a formal political space for ethnic identities and harness the country’s available political strength in support of this, but it is quite another to beef up discriminatory ethnic arrangements. These political variables apart, the symmetrical approach that the committee has applied in the matter of centre-state relations may not make this federalisation a workable model. The way the province of Jadan has been created and the Sherpa province has been established, nobody needs to doubt that developing a viable economy and an effective financial resources management will not be easy. The committee has not even tried to ensure administrative viability for most of the provinces, nor has it been able to see the farmland capacity of the demarcated territories. This is another funny part of the report.

Finally, the committee seems to have taken the challenges of globalisation as a non-issue. In the 21st century, globalisation has placed new demands on organisational systems of all types, including the restructuring of states. Whether a state is federal or unitary, its interests in relation to the rest of the nations have to be protected creating a competitive economic advantage for it. The report contains nothing about how a tribal state is going to secure a competitive advantage for Nepal. What it has done instead is create space for those who want to divide and rule this country based on ethnic strife.

 Nepal is on the last leg of the timeframe of writing a new constitution. The unfinished work of the Constituent Assembly needs to be completed very soon. It is also a time for self-analysis and national introspection of what has been achieved to this day. This helps to strengthen the prospects of devising a constitution that Nepal deserves. Simple facts are often in danger of being overlooked in all the angst and analysis of our partisan politics. One cryptic example of this situation is the debate on whether the judiciary should remain independent or be brought under legislative oversight. A quick but impartial process of looking into what has been done so far is certainly a welcome step for this country.

To a realist, the constitution building process is not just about sorting out universal values and principles and expressing commitment to them through a carefully designed framework. It is also about the narrow material concerns of the people who are bringing changes. There are such material interests when they vote on specific mechanisms for implementing various aspects of the constitutional design. Participants in this process refer to distinctly different sources of knowledge and information to reach a judgement. There are more frequent movements back and forth from philosophical principles to narrow material interests. Even the mass communication media who report on these patterns of relationship are not immune to these shifting positions. There is no secret about this aspect of making the constitution.

A vigilant process is without doubt a major concern. It needs not be overemphasised that every democratic constitution is the result of compromises and adjustment and accommodation. It cannot represent the complete supremacy of the views of any particular group, or of any community or region. Everybody is obliged to yield. But in the final analysis, it must be able to establish the lasting principles that give meaning to human society.

It is essential to review the constitution making process being implemented through a little different way. It is in this direction that the Nepal Constitution Foundation in cooperation with other partner organisations including the Tribhuvan University Faculty of Law and the Supreme Court Bar Association is organising a three-day International Conference on Dynamics of Constitution Making in Nepal in Post-Conflict Scenario in Kathmandu this weekend.

Taken as a very high-profile conference, its main objective is to get international inputs from mature constitution builders from around the world on what has so far been achieved by Nepal in its bid to draft a post-modern constitution for itself. This input in the form of comments, suggestions and ideas will follow the keynote speech to be delivered by the chairman of the Constituent Assembly who is giving leadership to the nation in its constitution making business.

This conference is unique in several senses. In fact, many experts have come to Nepal from abroad, talked with a limited range of local stakeholders, given their advice on important constitutional issues, some times in a very diplomatic language, and have left the scene. Many sincere donors have assisted this process. But this has happened without the necessary backup and further engagement plan. This conference is probably the first organised effort to get established international constitution builders together for their input in the constitution making process based on certain tangible materials.

In other words, these experts are not commenting on abstract issues anymore. By now, the Constituent Assembly has produced many thematic reports on the draft constitution. Not only are the issues confronting Nepal clear, the organised response of the Constituent Assembly is also more than straightforward. Even issues in which the assembly has been far behind its schedule are as clear as the cleavages behind them. This is the moment that the process of constitution making needs international expertise. This will help the stakeholders to know where they stand — and how the people who have little political interest in Nepal evaluate the norms and procedures, and systems and institutions — solely on the strength of this expertise.

The conference also gives international experts coming from diverse regions including India and China an opportunity to give their opinions on several issues that are considered contentious in this country. Again, the discussions that are to be organised are not among “internationals” only, it will be an interaction with leading Nepali constitutional experts and many important members of the Constituent Assembly, lawyers, civil society members and so on. Whatever inputs are received will be taken to the Constituent Assembly, especially its Constitutional Committee, after they have been processed.

Some of the expert participants are people who have worked with the Nepali people in the past. Others have strong academic or professional interests in emerging constitutional systems. The organisers of the conference plan to remain in touch with all these experts, engage them in the area they have so kindly agreed to contribute, and work with the Constituent Assembly until the draft Nepal constitution is adopted and promulgated.

This conference is a national initiative in every sense. It is demand driven. They have decided on not just the experts who have been invited to take part in the conference but the papers that they have contributed were sought from them in view of their special expertise. This is also a form of public participation (in fact, “international public participation”) in the constitution drafting process. Such an exercise will definitely make the people look back, review their achievements and help enhance the perceived legitimacy and acceptance of the resulting document based on the shared knowledge of humanity.

 The days ahead, however, are not that rosy. The Constituent Assembly is still without any compromise scheme about the form of government that will suit this country. It is still without a workable scheme on how the concept of devolution of power has to be implemented in a society which has already been torn apart by internal challenges of extra-constitutional strengths.

The year 2010 is going to be a crucial one for Nepal. This is the year Nepal is expected to have its sixth constitution, a new constitution. There is a point.

What is remarkable about the new constitution is not actually that it is the sixth one. It is the first constitution being written by the sovereign people themselves through their elected representatives assembled at the Constituent Assembly. This is all happening for the first time in Nepal´s history. It is also the first constitution that Nepal is venturing into in the twenty-first century – wherein virtues of democracy, rule of law and limited government are no longer contested as a weapon of cold war.

As this constitution, being drafted and finalised by the Constituent Assembly is to be adopted and promulgated by May 29, many assume that it will end all the political problems and the transition that we are in. The constitutional democracy in Nepal started to derail after the Communist Party of Nepal (Maoist), conceived as a terrorist outfit at one point, threatened the then prime minister Sher Bahadur Deuba in 2002 not to hold parliamentary elections, which was already due, or face physical action against the electoral candidates.

Many things have changed ever since. The rift between the monarch and the mainstream political parties has led to the closer alliance between the parties and the Maoists. The traditional state was dismantled. It was an accepted fact that the democracy Nepal was ushering in, was no longer a credible one.

The new constitution is being drafted to solve so many issues apart from further democratizing the constitutional polity. The details are not very clear. What is clear is that these issues are coming up directly or from the sidelines since 2002.

The apparent goal, as the interim constitution has proclaimed is to achieve progressive restructuring of the state in order to resolve the existing problems of the country relating to class, caste, region and gender. The country is also to be federalized although without any white paper in the hand. New institutions are to be created to make Nepal an inclusive state, although here are so much of differences in the basic understanding about what inclusion really is. This is being done after the change in the balance of power in the country, and in the environment of a fragile state. Anything seems to be possible. The institution of monarchy that formed this country and gave it an identity in the historical process is no longer on the scene. It is up to the people to decide what they want. This is true at least in principle.

The days ahead, however, are not that rosy. The Constituent Assembly is still without any compromise scheme about the form of government that will suit this country. It is still without a workable scheme on how the concept of devolution of power has to be implemented in a society which has already been torn apart by internal challenges of extra-constitutional strengths.

The recently released exhaustive list of fundamental rights and directive principles of state policy by the CA Committee on Fundamental Rights and Directive Principles is not going to impress the country’s lawyers and many other critical thinkers here. The list is not without its built-in problems, but even assuming that the problems will be sorted out at a later stage, there are other crucial issues still unattended to. One such problem is that the list is without judicial sanction.

The report of the Committee on Judicial System is one of the issues here. It recommends many infamous provisions in the new constitution which belittles the parameters of the Supreme Court as the guardian of the constitution. It robs the power of judicial review from the Supreme Court in significant sense. It can neither interpret the constitution in important sense, nor can it judge upon the constitutionality of any law where it matters the most. The report also makes sure that the Supreme Court and its judges are under parliamentary control in all matters relating to their appointment, dismissal and the job of judicial decision making. A Supreme Court which lacks independence, which has to be accountable to a legislative committee, and which is always under the threat and duress of a legislative majority cannot protect any fundamental rights whatsoever.

Again, the CA Committee on the Determination of Legislative Organ has produced its report based on the parameters of the parliamentary system because the committee leadership belongs to the Nepali Congress. In the same vein, the Committee on the Judicial System produced its report proposing a judiciary almost committed to the government because its chairperson belongs to the UCPN (Maoist), which does not believe in the independence of the judiciary and its power of judicial review of issues of unconstitutionality. The values that both these parties have built are almost irreconcilable on fundamental grounds.

Some outfits are strongly advocating the right to self-determination of the indigenous people. Some others fear about its extra-constitutional proportions. Although a sub-committee constituted to advise the Constituent Assembly Committee on Restructuring of State and Distribution of State Powers on the very issue has already submitted its report, it does not in any significant sense address the magnitude of the issue, and its complexity and implication in a constitutional framework which is to be based on democracy and constitutionalism. It offers little in the way of concrete suggestions or strategies for realising the claim for indigenous self-determination in Nepal. The issues like federalisation of the country based on ethnicity and grounding of rights jurisprudence on the concept of “agradhikar” put additional dimensions of the unresolved controversies. The road ahead is not clear.

A credible defence force remains one of the best means by which to guarantee security to the nation in a variety of ways. It must be kept outside the day-to-day politics, and attempts to bring abrupt change in the institution must also be resisted. However, the attempt to establish a national defence council where there is no representation of the chief of army staff is a very wild arrangement. It neither serves democracy nor any national interest. The provision of compulsory military training to youths without the leadership and support of a disciplined army is not a viable concept. All of the successful small states practice this to some extent. The provision serves well only when there is explicit determination to keep the army out of any military alliance, soft or hard, and its politicization thoroughly prevented. The interests of each regional power can also be preserved only by preventing the domination of the country´s force by one of them, or any other outside the region.

It is in Nepal´s enlightened national interest to make herself a neutral centre of trade, commerce, communications and finance, useful to all powers, and capable of absorbing and integrating their presence and influence. Unfortunately, the committee report is without any direction in this area. It does not even consider and take a position on how to preserve access to reasonably priced and secure supply of oil in place of the current India guarded supply system. There is no direction about the national food security strategy, an all time crucial issue. It is surprising how a country can preserve its national interest without a clear concept of internal security challenges like climate change and floods and natural disasters affecting a large segment of the people, like earthquakes.

The world has never been a safe place for small states. And Nepal is no exception. It has become even less so with the advent of regional rivalry, economic conflict, scramble for energy and mineral wealth and terrorism. One does not have to be Sam Huntington or Donald Nuechterlein or Alexander George or Robert Keohane to understand these basic survival issues. The point is why are these issues being ignored?

All this shows that Nepal is still in a very difficult phase. It must go ahead, keeping these issues in mind. At the moment, the only sustainable way for Nepal is to go for a framework constitution that represents the existing consensus in our political society, leaving the rest of the issues for the future. It is possible to solve all these issues over time. It is, however, not a viable option for us to solve everything now. Nepal´s geopolitical situation is not in its favour. But, we can certainly wait and see for a favourable environment as we go along.
(Bipin Adhikari is a constitutional expert and writes for different vernaculars on constituent assembly.)

 ”संविधानसभाको समयसीमा साँघुरिदै जाँदा तोकिएको अवधिमा मुलुकले प्रजातान्त्रिक संविधानप्राप्त गर्न सक्नेछ या छैन भन्ने विषयलाई लिएर यतिबेला विभिन्न शंका/उपशंका गरिँदैछ । संविधानसभाको कार्यप्रगति, यसको स्तर, त्यहाँ भएको राजनीतिक मूल्य र मान्यताका बहसहरू तथा विभिन्न दलहरूको संविधान निर्माणप्रतिको निष्ठा हेर्दा धेरैलाई विरक्ति लाग्न थालेको छ । एउटा प्रश्न बारम्बार उपस्थित हुन्छ – ‘किन संविधान नबन्नेतर्फ सबैको ध्यान मोडिदैछ ?'”

यो एउटा यक्ष प्रश्न हो । पश्चिमी संस्कृतिमा अंग्रेजी साहित्यकार सेक्सपियरको प्रसिद्ध नाटक जुलियस सिजरमा एउटा हृदयविदारक प्रसंग बारम्बार कोट्याइने गरिन्छ । सम्राट सिजरका भरपर्दा मित्र मार्कस जुनियस बु्रटस् उनको साम्राज्य तथा समृद्धिमा जहिले पनि गहिरो अर्थ राख्दथे । सिजरको जीवनकालभरि बु्रटस्को क्षमता, निष्ठा तथा उत्साहप्रति सिजरलाई कहिल्यै शंका भएन । एकरात सिजरलाई केही व्यक्तिहरूले षड्यन्त्रपर्ण तरिकाले भालाले घोचीघोची मार्न खोज्छन् । एउटा योद्धाका रूपमा सिजरले हत्याराहरूको उक्त झुन्डलाई एक्लैले प्रतिरोध गरिरहेका हुन्छन् । त्यस्तो प्रकारको आक्रमणको कुनै सम्भावना कहिल्यै नसोचेका सिजरलाई हत्याराहरूको अनुहार निहाल्ने रहर जाग्दछ । जब प्रतिरोधको क्रममा ती अनुहारहरू उनी हेर्न लाग्दछन् । सिजरको मुटु उनको मुखसम्म आइपुग्छ र उनी फत्रक्क गल्दछन् । आफ्नो प्रतिरक्षा गर्ने उनको चाहना समाप्त भएर जान्छ ।

पत्यार गर्न गाह्रो थियो- त्यस हत्याराहरूको समूहमा उनका सबैभन्दा विश्वासिला साथी बु्रटस्लाई देख्दा संसारप्रति सम्राट सिजरमा कुनै आशक्ति बाँकी रहँदैन । उनको मुखबाट केवल तीनटुक्रा शब्दमात्र निस्कन्छः ‘इभेन यु, ब्रुटस ?’ जब ब्रुटसस्जस्ता साम्राज्य निर्माण गर्न सहयोग गर्ने सहयात्री नै सिजरको हत्या गर्न तयार भई आउँछन् र सिजरको विशाल साम्राज्यको धोकापूर्ण पतनका लागि उभिन्छन् भने त्यो लडाइँ लडेर कुन मूल्य र मान्यतालाई बचाउने भन्ने दर्दनाक आशय हुन्छ, ती तीन टुक्रा शब्दको । सेक्स्ापियरद्वारा रचित उक्त नाटक क्राइस्ट जन्मनुभन्दा ४४ वर्षअघिको सम्राट जुलियस सिजरको हत्याको कथा हो । तर यसको नैतिक पाठ आज पनि उत्तिकै महत्त्व राख्दछ ।

अहिले संविधान बनाउनका लागि पाँच महिना बाँकी छ । धेरै ब्रुटसस्हरू लागि परेका छन् संविधान नबनोस् भनेर । प्रजातन्त्रप्रतिको आस्था समाप्त हुन लाग्यो भन्ने पिर कसैलाई छैन । पाँच महिनाको अवधिमा यो विश्वमा कतिपय संविधानहरू बनेर जारी भइसकेको इतिहासले देखाउँछ । नेपालमा किन सम्भव छैन ? यदि साँच्चिकै संविधान बनाउन सकिने स्थिति छैन भने किन छैन ? त्यसको जिम्मेवारी लिन अगाडि बढ्नुपर्‍यो । भइरहेको एउटा प्रजातान्त्रिक तथा भविष्यमुखी संविधानलाई फालेर मुलुकमा यति भद्दा मजाक गर्ने छुट कसैलाई प्राप्त हुनुहुँदैन । साँच्चिकै यो देशको स्थिति नयाँ संविधान बनाउन सकिने खालको छैन भने जिम्मेवार पक्षले अगाडि आएर भन्नुपर्‍यो- संविधानसभाको आयोजना कसका लागि गरिएको थियोे भनेर ? यसको चुनाव गराउनु र यति ठूलो आकारको संविधानसभालाई आजसम्म सकिनसकि थेग्नुको अर्थ के थियो ? त्यो स्पष्ट गर्न सक्नुपर्दछ । यदि प्रजातन्त्रप्रतिको अटुट आस्था तथा विश्वासका कारण संविधानसभाको रचना गरिएको थिएन भने यसको प्रष्ट जवाफ जनतासमक्ष आउनुपर्छ । किन यति भ्रामक आशयहरू राजनीतिज्ञ, सभासदहरू तथा नागरिक समाजको मुखबाट निस्किरहेका छन् । आज यस्ता प्रश्नहरू ती व्यक्ति तथा क्षेत्रहरूबाट उठाइनु के एउटा विडम्बना मात्र मानेर बिर्सिदिने ?

वास्तवमा मुलुकभरि मूलप्रवाहका पत्रपत्रिकादेखि रेडियो, टेलिभिजनलगायत सबै क्षेत्रबाट संविधान बन्न नसकेमा यो राजनीतिक संक्रमणकाललाई कसरी अगाडि बढाउने भन्ने चिन्ता व्यक्त गर्न थालिएको छ । कतिपय राजनीतिज्ञ तथा कानुनविद्हरू अन्तरिम संविधानको छिद्रान्वेषण गर्दै यसबाट राष्ट्रपति शासन हुन सक्ने तथा यसको आधारमा अगाडि बढ्न सकिने विश्लेषण अगाडि सार्न पछाडि परेका छैनन् भने कतिपय व्यक्तिहरू वर्तमान संविधानको संशोधन गर्दै संविधान बनाउनका लागि थप समयावधिको व्यवस्था गर्नुपर्ने कुरालाई अगाडि राख्दै हिँडेका छन् । यी दुवै कुतर्क हुन् ।

प्रथमतः अहिले पनि नेपालले आम नेपालीलाई स्वीकार्य संविधान बनाउन सक्ने समय टरेको छैन । मुलुकमा आज पनि भविष्यका लागि कुनै ऊर्जा बाँकी छ भने त्यो ऊर्जा यो पाँच महिनाको अवधिमा बाँकी रहेको संविधान निर्माणसम्बन्धी कार्यलाई सम्पन्न गर्न प्रयोग गर्नुपर्दछ । संविधान निर्माणका लागि व्यवस्था गरिएको दुई वर्षको अवधि स्थिर अवधि हो । यसलाई बढाउने वा घटाउनेतर्फ संविधानले स्पष्ट दृष्टिकोण नदिएको सम्बन्धमा कसैको दुईमत हुनसक्दैन । त्यस्तै दुई वर्षभित्र संविधान बनेन भने त्यस्तो दुर्भाग्यपूर्ण स्थितिका लागि के गर्ने भन्ने सम्बन्धमा वर्तमान संविधानले कुनै पनि प्रकारको वैकल्पिक व्यवस्था -कन्टिन्जेन्सी प्लान) को प्रावधान उल्लेख गरेको छैन । त्यसैगरी संकटकाल जाल बुनेर थप्ने विषय होइन । यसको अर्थ प्रष्ट छ- संविधानको भावनाअनुसार संविधान बन्नुपर्दछ ।

नेपालको प्रजातान्त्रिक विकासका लागि संविधानसभा जरुरी थिएन । कानुनको शासन तथा समन्यायलाई प्राणवायु बनाउन सक्ने जुनसुकै संवैधानिक पद्धतिले पनि अन्ततः प्रजातान्त्रिक अवधारणा तथा संस्थाहरूलाई आफ्नो जीवनपद्धति बनाउन सक्छ । प्रजातन्त्रको इतिहास यही हो । संविधानसभाको प्रक्रिया खतरामुक्त छैन तथा यसको प्रयोगका धेरै भूराजनीतिक सीमाहरू छन् भन्ने नेपालीहरूको आज पनि कमी छैन । यही विश्वासकै कारण विश्वेश्वरप्रसाद कोइरालाजस्ता शीर्षस्थ राजनेताले न्यूनतम प्रजातान्त्रिक मान्यता छ भने राजाले नै जारी गरेको संविधान पनि स्वीकार गर्दै त्यसको निष्ठापूर्वक पालनाको पक्षलाई जोड दिँदै निर्वाचनमा भाग लिएको आजको नेपालको राजनीतिको शीर्षस्थ नेताहरूलाई थाहा भएकै कुरा हो । तर आफ्नो राजनीतिक औकात तथा यो मुलुकको क्षमता तथा सामथ्र्य दुवै प्रति असंवेदनशील हुँदै जुन प्रयोगमा यो मुलुकलाई धकेलिएको छ । अब त्यसबाट देशलाई कसैगरी पनि उकासेर प्रजातान्त्रिक प्रक्रियालाई अगाडि बढाउनुको अर्को विकल्प छैन । एउटा गल्तीको आधारमा अर्को गल्ती गर्ने छुट कसैलाई पनि प्राप्त हुनुहुँदैन ।

संविधान निर्माण सम्बन्धमा एउटा भरपर्दो बाटो देशका लागि आज पनि उपलब्ध छ । त्यो बाटो भनेको अहिलेकै संविधानसभा तथा यसले सुरु गरेको प्रक्रियाबमोजिम आगामी पाँच महिनामा एउटा संक्षिप्त संरचना भएको छोटो तथा छरितो संविधान बनाउन सकिन्छ । संविधान निर्माणसम्बन्धी विभिन्न प्रयोगमा एउटा प्रयोग यस किसिमको संविधान बनाउने प्रयोग पनि हो । जब कुनै मुलुकमा वर्तमान राजनीतिक नेतृत्व वर्गले समाधान गर्न नसक्ने गरी नीतिगत प्रश्नहरू उपस्थित हुन जान्छन् तथा विभिन्न दलहरूबीच आम सहमति हरेक विषयमा देखा पर्दैन, त्यस अवस्थामा सहमतिका बुँदाहरूका आधारमा संक्षिप्त संरचना भएको सबैलाई स्वीकार्य संविधान निर्माण गरी अगाडि बढ्न सकिन्छ । जब मुलुकमा पुनः निर्वाचन हुन्छ तथा नयाँ संविधानका आधारमा नयाँ नेतृत्व वर्ग व्यवस्थापिकामा देखा पर्दछ । बाँकी रहेका नीतिगत प्रश्नहरूलाई पुनः छलफल गरी दुई तिहाई बहुमतले पारित गरी समाधान दिँदै जान सकिन्छ । संविधान बन्दै नबन्नुभन्दा एउटा भविष्यमुखी संविधान बनाएर मात्र विश्राम लिनु रणनीतिक हिसाबले व्यावहारिक देखिन्छ । प्रजातान्त्रिक संस्थाहरूप्रतिको आस्था जोगाइ राख्न भए पनि यो प्रक्रियामा जानै पर्दछ ।

यो नयाँ कुराचाहिँ होइन । उदाहरणका रूपमा डेनमार्कबाट स्वतन्त्रता दाबी गर्दै संविधान बनाउने राजनीति थेग्न नसकेपछि आइसल्यान्डले सन् १९४४ मा संक्षिप्त संरचना भएको संविधान निर्माण गरी संक्रमणकाललाई अन्त्य गरेको थियो । त्यसैगरी ७५ वर्षसम्म प|mान्सको संरक्षणमा रहेको ट्युनिसियाले सन् १९५६ मा स्वतन्त्रता प्राप्त गर्दा आइसल्यान्डकै जस्तो परिस्थिति खप्नुपर्‍यो । यसबाट पार पाउन उनीहरूले तीन वर्षसम्म संविधानसभामा छलफल गरे । टुंगोमा पुग्न नसकेपछि संक्षिप्त संरचना भएको संविधानमा सहमति गरेर राजनीतिक प्रक्रियालाई अगाडि बढाए । इन्डोनेसियामा पनि सन् १९४५ ताका त्यही नै भयो । आमसहमति बन्न नसक्दा एउटा अस्थायी संविधान निर्माण गरेर सभासदहरू बिदा भए । आजसम्म त्यही अस्थायी संविधान नै स्थायी सरह लागू भई बसेको छ । रोमानियाको कथा पनि त्यस्तै छ । सन् १९८९ मा तानाशाही व्यवस्थाबाट मुक्ति पाएको रोमानियाले सन् १९९१ मै एउटा संक्षिप्त संविधान बनाइ राजनीतिक अस्थिरतालाई अन्त्य गर्न सक्यो । पोहोर कोसोभोमा पनि त्यसै गरियो । आन्तरिक जातीय द्वन्द्वलाई व्यवस्थापन गर्ने क्रममा यसले पनि मुख मिलेका कुराहरूलाई आधार बनाई एउटा संक्षिप्त संविधान जारी गरी मुलुकलाई अगाडि बढाउन मदत गर्‍यो ।

यी सबै उदाहरणहरूले नेपालले चाह्यो भने एउटा संक्षिप्त संरचना भएको संविधान निर्माण गरी यो संविधानसभाको प्रक्रियालाई सार्थक निष्कर्षमा पुर्‍याउन सक्छ । मूल कुरा के हो भने प्रजातान्त्रिक निष्ठा र विश्वास कमजोर धरातलमा उभ्याउनु हुँदैन । यसले आफूलाई पनि र सम्पूर्ण मुलुकलाई डुबाउने छ ।

 One of the major issues before the Constituent Assembly of Nepal is deciding on the mechanics of devolving judicial power to the far-flung villages in the new state structure.

The Constituent Assembly (CA), a body of 601 members formed in the election held on 10 April 2008, is tasked with writing a new constitution for Nepal within two years under the authority of the interim constitution.

The history of the modern independent judiciary in Nepal dates back to 1950, when a revolution overthrew the hereditary and despotic prime ministerial system, a system in which the post of prime minister was passed from one member to another member in the same family. It was replaced by an interim constitutional regime meant to be a modern constitutional democracy. Different forms of judiciary have been in place during the last 58 years within the framework of Nepal’s unitary state. Thus, one of the key subjects of national debate in modern Nepal is restructuring the judiciary – in particular, devolving judicial power to the autonomous provinces, according to the aspiration of the people of Nepal.

How Nepal’s judiciary works today
Nepal’s judiciary operates within the framework of its parliamentary democracy. All powers relating to justice in the country are exercised by courts and other judicial institutions in accordance with the constitution, the laws and the recognized principles of justice. Judicial procedures are adversarial, largely based on common-law principles and lawyers play a key role in the process of judicial decision making.

Nepal has a National Code which deals with traditionally important:

– civil laws
– penal laws, and
– court procedures

Many of the modern areas of criminal and civil laws are not covered by the National Code as such. They were dealt with by special statutes enacted by the legislature after 1962 on different dates.

The judicial branch is led by the Supreme Court, the highest court in the judicial hierarchy of the land. In this capacity, the constitution confers upon the Supreme Court not only original and appellate jurisdiction, but also extraordinary constitutional jurisdiction. This includes the authority of the Supreme Court to hear petitions challenging the constitutionality of any law, and declare such law or any part of it void in order to ensure that justice is done. It can also, when convinced, respond to public-interest litigation involving constitutional issues regarding the rights of the marginalized.

As the guardian of the constitution, the Supreme Court has all the requisite powers and status that such responsibilities call for. All other courts in the country — that is Appellate Courts (of which there are currently 16), and District Courts (of which there is one for each of the 75 administrative Districts in Nepal) — are subordinate courts and are administered by the Supreme Court.

Based on constitutional prescriptions, the Administration of Justice Act of 1991 has empowered the Supreme Court to inspect and supervise its inferior courts, and give them directives, which are obliged to implement them. The Supreme Court is a court of record — its decisions are accepted to be of evolutionary value and are not to be challenged when produced before any court. They are binding on all and the Court has the power to mete out punishment to anyone it holds in contempt of court.

Moving towards a devolved system
In addition to Nepal’s three-tier unitary judiciary, there are several tribunals and specific types of courts established by parliamentary statutes. They are meant to hear special types of applications, claims and controversies.

There is one Administrative Court, two public-debts courts, four revenue tribunals, one Town Development Committee Court, one Military Court, one Labour Court and one Constituent Assembly Court.

The Constituent Assembly Court has been functioning since 2007. It deals exclusively with complaints regarding CA elections.

Except for the CA Court, all these special courts and tribunals are created and regulated under the terms of their enabling parliamentary statute. These statutes define the number, size and location of courts, as well as their territorial and subject-matter jurisdiction. Where there are complicated questions of law, or issues of fundamental rights and constitutional interpretation, cases decided by these courts or tribunals may be referred to the appellate courts, or the Supreme Court, according to the terms of the enabling law.

The structure of Nepal’s court system is one of the simplest in the region. It is constitutionally defined in substance, and statutorily elaborated in detail.

The unified and unitary judiciary makes it easy to administer and to ensure necessary quality control. All judges are appointed on the recommendation of the Judicial Council led by the Chief Justice who, in turn, is appointed and supervised by a high-profile constitutional body. A flourishing law profession, a legally qualified judicial bureaucracy and an independent judiciary complement each other. This does not mean that the present three-tier structure and the workings of the judiciary are not in need of reform. But, to effect change, it may not be necessary to start from a blank slate and create everything anew.

There are many issues that could be reopened to ensure devolution of judicial power to the newly constituted provinces. It is important that the political issues are settled first — including the degree of internal autonomy of these provinces and their law-making powers. Establishing the number of provinces and their territorial limits is also a substantial part of the job.

Options for change
However, there are feasible options. A four-tier judiciary is one option, with a National Supreme Court at the top, almost as it exists today, including a National Court of Appeal in each devolved territory, acting under national laws. The court of appeal would have appellate jurisdiction over the lower courts and tribunals. No doubt, in such a changed context, the National Supreme Court should be looked at more as a constitutional court.

Apart from carrying out its normal duties as guardian of the fundamental rights of Nepalese citizens, it would deal with inter-provincial as well as national-provincial issues. Similarly, the National Courts of Appeal, replacing the existing Appellate Courts, may well have to serve as the top courts in each province, assuming some additional constitutional jurisdiction, and in effect become the local arm of the National Supreme Court.

Again, if the current 75 administrative districts are divided into some workable provincial set-up of eight or 10 provinces, with a national government at the top, it will be necessary to provide for a locally recruited and operated provincial court in each province. There would also be a locally recruited and operated district court in each district within the province.

As such, the existing district courts could continue working as the court of first instance for cases coming under provincial laws and institutions. Each provincial court in its area would not only enjoy the status of appellate court over all district courts, but also serve as trial court for all cases falling under the laws and institutions under the national jurisdiction. As such a provincial court, locally recruited and operated, would function not only for the province; but also as the court of first instance for the centre.

It is at the provincial level that access to justice in Nepal must be ensured first. At this level, there is a need for an approachable judiciary. It must be simple enough to be accessed without the mediation of lawyers and must function in a participatory and transparent manner. Such an achievement would definitely require redefining the number, size and location of district courts, as well as their territorial and subject-matter jurisdiction.

For example, each district court (as suggested above) could have three or four separate one-member benches, according to the subject specificity, such as a family bench (dealing with marriage, divorce, domestic violence and women’s rights), civil bench, criminal bench and small business bench. Simplifying existing trial-court procedures should encourage greater respect for the law, making the judiciary more accessible to the public and self-represented litigants. Such restructuring at the district-court and provincial-court level could provide greater uniformity in rules and procedures — simplifying the tasks of lawyers, clerical personnel and judges, and cutting the costs of litigation.

There have been principles established and lessons learned in the restructuring of many other smaller democracies, especially in budgeting, planning and personnel administration, integration and standardization of the judiciary’s information-management systems, judicial compensation and access to justice. These may be applicable in a wide variety of court-reform contexts, whether to justify a court’s existence or its closure, or to accommodate political sensitivities. The CA must also be mindful of serious flaws in the current judicial system, that it is not accessible to most people in the countryside. Even worse, it is increasingly acquiring an elitist character. The problems start right there.
Dr Bipin Adhikari is a member of Nepal Consulting Lawyers, Inc, Kathmandu.

 The quality of discussion as to the right to self-determination has always suffered in Nepal because of the awfully motivated efforts by activists either to contain it, or to misinterpret it in a way that no country can ever afford to apply it.

Although a sub-committee constituted to advise the Constituent Assembly Committee on Restructuring of State and Distribution of State Powers on this issue has already submitted its report, it does not in any significant sense address the magnitude of the issue, and its complexity and implication in a constitutional framework which is to be based on democracy and constitutionalism. It offers little in the way of concrete suggestions or strategies for realising the claim for indigenous self-determination in Nepal.

In international law, the application of the right to self-determination in the context of decolonisation or associated independence movements is much clear. The United Nations itself was created “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. In this context, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) hold on their right “to freely determine their political status and freely pursue their economic, social and cultural development”.

This right has been applied in the context of people under colonial domination and foreign occupation. But even international law, the UN Charter or other covenants do not explain what independence means, or provide any enforcement mechanism to implement this right when violated.

Since the early 1990s, however, the right to self-determination has gone beyond that. It is everywhere, and with different undercurrents. It is no longer an issue of colonial domination or foreign occupation only. It is being applied also in the context of subgroups within the people of a country. These sub-groups may or may not include indigenous groups depending on the situation of a particular country. But where there are indigenous groups, the right to indigenous self-determination is being recognised to freely determine their political status, and pursue their economic, social and cultural development.

In many countries, increasing political overtones of this right has also helped undermine the valid claims in it. It has thus led to an increase in the number of conflicts within states, where subgroups seek greater self-determination and even full secession. This is precisely the reason many constitutions forbid the right to self-determination through secession, and many others do not recognise this right in express words, although it does significantly contribute to the jurisprudence of fundamental rights in any country.

In order to avoid this trend, the United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly in 2007, the latest document on the theme, holds two principles together: That indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognised in the UN Charter, the Universal Declaration of Human Rights (UDHR) and international human rights law; and that “nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”.

In addition, the 2007 Declaration responds to all misconceptions by stating thereon that “in the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected”. They could be subjected only to such limitations “as are determined by law and in accordance with international human rights obligations”. “Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.”

The 2007 Declaration makes it very explicit that the provisions set forth there should be interpreted in accordance with “the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith”.

These fundamental principles leave little confusion to those who want to “operationalise” this principle in Nepal. In several countries, one can see patterns which are emerging pointing out to effective strategies that will allow communities to realise their goals in the framework of democracy, human rights and territorial integrity. It has been evidenced in both common law and civil law systems.

Many of the finished work of the CA thematic committees have already logically approached the issue of the right to self-determination through several specific content areas including provisions on basic collective and inclusionary rights, political representation, and recognition of identity variables in the letter and spirit of their preliminary drafts. So far, notwithstanding several drawbacks of the Constituent Assembly, it is difficult to find any report that betrays the cause of the indigenous people of the country.

Diverse jurisdictions can be looked into for additional models, for example, from the Saami Parliaments of Scandinavia to the Maori seats in the New Zealand Parliament to the Canadian experience in territorial governance for further discussion. Models help, but only when the ground situations are not overlooked. But issues like federalisation of the country based on ethnicity and grounding of rights jurisprudence on the concept of “premium rights” (agradhikar) going beyond the claims of affirmative action or reverse discrimination defy any such move.