Category: Opinions

 A number of civil society organizations in Nepal are busy working on the rights of youths to be guaranteed in the new constitution. The Committee on Fundamental Rights and Directive Principles (CFRDP) at the Constituent Assembly (CA) seems to be keen to lay down some principles for the Constitutional Committee, the principal constitution drafting organ in the CA, in this regard.

Unfortunately, the youths of this country seem to be offering very little to the committee in terms of interest or input. It appears that youths’ organizations have no youths’ rights issues that need to be mentioned separately in the new constitution. What they generally have are the usual stuff like rights of women, dalits, indigenous people and federalism that civil rights groups have been emphasizing or some other political bags on behalf of political parties whose patronage they enjoy. Most of them think that their rights fall somewhere within these issues. They are not at the hub of the fundamental rights discourse where they should be as the country’s largest political constituency. The “scapegoat” generation stands out in the political scenario as somebody to be taken for granted rather than doers for their own cause.

This trend does not appear to be confined to Nepal, however. On Jan. 25, Bolivia approved a new constitution through a national referendum — promising vast new powers to the country’s indigenous majority and bolstering the political clout of the leftist movement. This movement, which more or less follows in the footsteps of populist leftist allies like President Hugo Chávez of Venezuela and Rafael Correa of Ecuador, has tried to enhance the interests of the indigenous groups that have been marginalized since the Spanish conquest 500 years ago. But it has ignored the rights of youths as an independent issue in the constitution which contains over 400 articles. Singling out Bolivia or its elite communist leaders does not serve any purpose because this habit of downplaying the rights of young people has defined the history of constitution making around the world.

Youths in Nepal not just make up a significant part of the national population, they are also a prime mover in bringing change in this country. Their empowerment is a crucial issue for the development of Nepal and its democratic future. But there has been little debate about their rights other than children’s rights, educational opportunities and the right to employment, although all these issues are vital for their future.

Nepal is a society which is still not free from age restrictions. There is so much adult centrism in the legal political system. Issues of intergenerational equity has never been discussed here. There are constitutional restrictions against youths aspiring for major political and constitutional positions. The age of candidacy in electoral contests needs to be reconsidered keeping in view the growing numbers of smart and well-educated young professionals. Most of the fair labour standards that the present world is talking are important for the youths, and they must not be skipped when drafting the new constitution.

Even with regard to the right to education, no voice has been raised for alternative schooling. Certain norms are needed to guide the school authorities, meaningful student involvement, junk knowledge, sex education and student activism. A sense of nationalism must be inculcated in the youths. Additionally, the increasing problems of violence, drugs, alcoholism, teen pregnancy, mental illness and suicide have their own fundamental rights dimensions. It is a pity that these issues are being ignored at a time when they must be seriously looked into by the concerned constituencies.

A nation thrives on the constructive activism of its youths. Through history, young people have often been the force that challenges outdated traditions and reinvigorates society and culture. Furthermore, they are the people who will one day lead our society in all sectors. If general lethargy and fatalistic cynicism sets in permanently and persists, the pool of bright leaders and active citizen participants will recede. This has already been happening for many years now in the political sphere. Few able and well-educated people have been joining politics in this country recently.

In this context, it must be stated here that Nepal’s youths need a guarantee that the state will protect them from political parties which have been radicalizing and politicizing them for their vested interests. Young people seem to be grossly negligent about how politicians, private interests, the media and invisible foreign hands have been unfairly making a scapegoat out of them. The Committee on Fundamental Rights and Directive Principles should be informed about this by the concerned sectors in order to give proper treatment to this matter in the new constitution.

These are just some of the basic issues which must be discussed. They may not attract the MTV generation of Nepal, which is not just self-centred but also materialistic, and probably knows the price of everything but the value of none having grown up in an era of opportunism (in its worst sense). Without a sense of history and informed nationalism, they are sure to become a generation lost in limbo.

lawyers_inc_nepal@yahoo.com

 ”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.”

The recently released exhaustive list of fundamental rights and directive principles of state policy proposed under the new constitution of Nepal 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 issue of sanction is so important. A right without remedy is no right at all. In a way, even the Panchayat constitution, criticised on so many grounds, guaranteed a list of basic fundamental rights. Some rights were guaranteed only to Nepali citizens, and some were guaranteed to both citizens and non-citizens. The right to proceed for the enforcement of these rights was guaranteed by Article 16, and the Supreme Court was empowered with extra-ordinary jurisdiction to deal with any eventuality of their violation subject to the provisions of the constitution.

Like the constitution of 1959, the Panchayat constitution also provided for a Supreme Court, a court of record with the power to impose punishment for contempt of court. The king was to appoint its chief justice after consulting, if he so desired, the members of the state council and other judges after consultation with the chief justice. Apart from ordinary jurisdiction, it also had extraordinary jurisdiction to issue directives, orders or writs for the enforcement of fundamental rights, or in cases where no other remedy is provided, for the enforcement of rights conferred by any other law for the time being in force.

The decision of the Supreme Court was to be final. The Judicial Committee which could ask the king to order a revision of a case was basically the king’s committee. In any case, the principle of law declared by the Supreme Court in cases within its jurisdiction was binding on all courts. A Judicial Service Commission was also created to organise judicial service. But the functional aspect of the Supreme Court was not promising.

The constraints on the Supreme Court which according to the constitution exercised judicial powers of an absolute monarch were many. Nevertheless, the Supreme Court had performed its due role in cases of sensitive and serious political nature involving the monarchy, foreign relations and politics. It had also in many instances exercised its extraordinary power of judicial review assertively and effectively on the grounds of violation of natural justice and refusal of right to legal representation, non-conformity with the procedure prescribed by law, dismissal under a wrong way, non-disclosure of grounds and so forth.

There were some decisions which equally put questions on the status of the Supreme Court. It was not able to maintain consistency in its decisions in several cases, notwithstanding publicly expressed commitments and emphasis of justices in favour of judicial control for preserving the rule of law. The area of dissatisfaction for many against the passive stand taken by the Supreme Court is related to restrictions on fundamental rights imposed by Article 17 (2) and 11 (2A).

The court had, no doubt, failed in some instances to support the cause of the constitution by withdrawing itself from going into the property of the Act simply because the preamble of the enactment had shielded it with the “firewall” of “public good”, hence the judicial activism.

When the constitution of 1990 was promulgated 28 years later, all these problematic issues were reconsidered, and some outstanding arrangements were made to make sure that the Supreme Court, which got continuity in its form, changed significantly in terms of its substance. Not only was its power as the guardian of the constitution acknowledged, but efforts were also made to make sure that it was independent and able to protect the fundamental rights of the citizens.

In fact, as a Duke Professor Donald L. Horowitz has emphasised in a 2006 article, as of 2005 more than three quarters of the world’s states had some form of judicial review for constitutionality enshrined in their constitutions. It is a very popular constitutional institution. Even some undemocratic countries take it as a feature that constitutions should inculcate (even if in substance they imply quite a different angle). Although constitutional experts may be divided on whether the power of judicial review shall lie in the Supreme Court or a constitutional court separate from this conventional institution, it has become more and more difficult for constitution makers to avoid judicial review.

The introduction of a Supreme Court for the United Kingdom provides greater clarity in our constitutional arrangements by further separating the judiciary from the legislature.

The concept paper and preliminary draft submitted by the Constituent Assembly (CA) Committee on Fundamental Rights and Directive Principles, no matter how good they are, cannot be properly studied without referring to the reports of the Committee on Judicial System.

The later report recommends infamous provisions in the new constitution which belittles the parameters of the Supreme Court as the guardian of the Constitution, and robs the power of judicial review from the Supreme Court in significant sense. It can neither interpret the constitution in important sense, nor it can judge upon the constitutionality of any law where it matters 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. If this is so, the question is how the concept paper and preliminary draft submitted by the CA Committee on Fundamental Rights and Directive Principles can safeguard the fundamental rights of the Nepali people. A list of rights without inbuilt judicial sanctions is not worth its name.

 ”Nepal could study the Turkish model amind demands to communalise personal laws. The importance of secular laws and institutions cannot be over-emphasized in a progressive society. They are important because they are essential for the protection and promotion of human rights of all the people. But many democratic countries have conceded to the pressure and created exceptions in their legal systems to remain politically correct. The most recent example is Britain, which has officially adopted Islamic law, with sharia courts given powers to rule on Muslim civil cases. “

A Muslim social activist in Lahan was asking this critique why the Muslims in the Constituent Assembly had not been able to garner enough support to make sure that the Muslims of Nepal, as many other Muslims of the world, were guaranteed the right to be governed by their own personal laws as far as their communities were concerned.

The forum that this author was participating in was on the theme of local self-government in the scheme of state restructuring, which was not something that attracted his attention at that moment. The question was very simple, but the answer remains difficult for many reasons.

Nepal has been practicing a uniform civil code from the very beginning. The National Civil Code (known to Nepalis as the New Muluki Ain) prescribes uniform rules for all Nepali communities and cultures. The code covers most of the laws governing rights relating to property and personal matters like marriage, divorce, maintenance, adoption and inheritance. The code allows communities and cultures to act according to their traditions in these matters, but the standard rules apply to everybody in the country, and the law courts in Nepal administer them uniformly except when exceptions are permitted by the code itself. As such, the code has been applied to Muslims as well since a very long time.

It was early this year when the Nepal Muslim Sangh, a federation of Nepali Muslim communities, made a request to the government to accept its six-point demand. These demands were intended to protect the interest of Muslims as a minority community in the country. The federation wanted the country’s Maoist government at that time to acknowledge that Nepali Muslims had a separate identity, and that this warranted the creation of a separate Islamic Affairs Commission, an Islamic School (Madrassah) Board, a Hajj Committee (for annual pilgrimages to Mecca) and the introduction of Islamic personal law based on the sharia for Muslim communities.

The Muslims, who number just over 800,000 or about 3.5 percent out of a population of 26 million, constitute Nepal’s second largest religious minority after Buddhists. On March 15, the government even signed an agreement with their representatives which, however, declined to accept their demand for recognition of sharia-based personal law in the new constitution.

Many Nepali Muslims in recent years are in touch with Muslims in other countries through their civil society organizations. A significant portion of Indian Muslims were able to receive citizenship certificates before the Constituent Assembly elections in 2007. Those who are familiar with the legal arrangements in India question why Nepal’s legal system cannot afford the same treatment to Nepali Muslims what the Indian legal system has afforded to Indian Muslims. They are aware that in India, family law is still determined by the religion of the parties concerned, despite many advances made by the legal system in other sectors.

While Muslims and Christians in India have their own personal laws, Hindus, Sikhs, Jains and Buddhists come under the Hindu law enacted by parliament. India accepted communalizing family law as an extraordinary measure of protection to minorities for healing the wounds of the partition caused by communal polarization. The question is whether India should be followed as the best example in this case.

One must also not forget that the constitution of India directs the state to work towards a uniform civil code for the country (assuming that these arrangements are temporary interventions). This demand essentially means unifying all these personal laws to have one set of secular code that will apply to all citizens of India irrespective of the community they belong to. Though the exact contours of such a uniform code have not been spelt out, it should presumably incorporate the most modern and progressive aspects of all existing personal laws while discarding those which are discriminatory and violative of the basic rights of Indian citizens.

The Indian Supreme Court, which has established a very sublime image for itself as the guardian of fundamental rights of Indian citizens, has repeatedly regretted the fact that the state has not implemented this provision even after all these years. It has indeed been bold enough to instruct the government that it must move forward towards a secular regime.

The importance of secular laws and institutions cannot be over-emphasized in a progressive society. They are important because they are essential for the protection and promotion of human rights of all the people. But many democratic countries have conceded to the pressure and created exceptions in their legal systems to remain politically correct. The most recent example is Britain, which has officially adopted Islamic law, with sharia courts given powers to rule on Muslim civil cases.

The British government has sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence. Rulings issued by a network of five sharia courts are enforceable with the full power of the judicial system, through the county courts or High Court. These courts are hearing cases where Muslims involved agree to be bound by traditional sharia law; and under the 1996 Arbitration Act, the court’s decisions can then be enforced by the county courts or the High Court. Previously, the rulings of sharia courts in Britain could not be enforced, and depended on voluntary compliance among Muslims.

So a sort of parallel legal system has already come into the picture there. Critics fear that Britain’s Islamic hardliners will now try to make sharia law the dominant legal system in Muslim neighborhoods, and warn that women often receive less favorable treatment at the hands of the traditional Islamic courts.

It is good that this country already has a system of uniform civil law. One possible alternative for Nepali Muslims would be to review the provisions of this national civil code and ask the government to revise and streamline the provisions which are objectionable from a secular point of view. Sharia law has certain religious values for Muslims, but then secular laws would have that value for every community.

It is interesting to note that Turkey, a predominantly Muslim state, has a secular constitution which provides for freedom of religion and many other human rights. It has very carefully worked out a civil code that very keenly secures the rights of all communities. The government, however, imposes some restrictions on all religious expression in its offices and state-run institutions, including universities, usually for the stated reason of preserving the state’s secular character.

The secularity, bearing the meaning of protection of beliefs, plays an important role to protect the state in Turkey. The region has a long and rich Islamic tradition stretching back to the dawn of the Seljuk period and the Ottoman Empire. Yet it still believes that secular institutions can serve all. This model could definitely be studied.

In the context of devolution of power from the centre to the provinces, one of the key issues that the Constituent Assembly (CA) has to respond to is how the obligations that Nepal has made under the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 are going to be achieved in the new set-up.

Under this convention, Nepal has undertaken to identify and delineate the different “cultural heritage” and “natural heritage” situated on its territory. As a member state, it is the duty of Nepal to ensure the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage on its territory. Each member state under the convention has to endeavour to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes.

In addition, the quest for the function and values of cultural expressions and practices and of monuments and sites, led by UNESCO, has paved the way for various new approaches to understanding, protecting and respecting cultural heritage of each country. These approaches, which involve the recognition of communities and groups as those who identify, enact, recreate and transmit the intangible or living heritage, found their culminating point in the adoption of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage.

This convention which Nepal has shown willingness to ratify states that the “Intangible Cultural Heritage” is manifested — inter alia — in the following domains: ?oral traditions and expressions including languages as a vehicle of the intangible cultural heritage; performing arts (such as traditional music, dance and theatre); social practices, rituals and festive events; knowledge and practices concerning nature and the universe and traditional craftsmanship.

Under the present constitution, which provides for an interim arrangement until a new constitution is adopted by the CA, the words and phrases employed to help preserve national heritage do not adequately reflect the authoritative expressions of the 1972 convention, the 2003 instrument, other conventions and many soft norms established in recent years. Although certain norms established in the rights perspective, as far as religion, culture, language and script and the arts, there is enough room for improvement taking the overall issue of the preservation and management of national heritage in the broader UNESCO perspective.

Nepal is renowned for its natural and cultural heritages. As far as the current legal regime is concerned, the power of preservation of national heritage has been provided for by the Ancient Monuments Preservation Act 1956, the Local Self-Governance Act 1999, various forestry and national park related laws, the Religious Endowments (Guthi) Corporation Act and so on. The Ministry of Culture and State Restructuring is the overall responsible body at the central level for safeguarding and promoting the cultural heritage, both intangible and tangible. The Department of Archaeology under the ministry has the responsibility for the preservation of the tangible cultural heritage. It has historically played a crucial role in its area of business.

The legal system also provides for specific institutions like the Cultural Corporation, the Nepal Copyright Office and similar institutions dealing with related components of national heritage. In 2007, the government also established new institutions in the form of the Nepal Academy for Language and Literature, the Academy of Fine Arts and the Academy of Music and Performing Arts with three separate statutes.

Mention may also be made of trusts like the Lumbini Development Trust and the Pashupati Area Development Trust, which operate under their defined jurisdiction. Similarly, there are councils like the Greater Janakpur Development Council, development committees for religious areas, i.e., Deoghat area, Manakamana area, Halesi area, Bouddhanath area, Budhanilkantha area, Pathibhara area and others which cater to the requirements of preservation and management of the national heritage.

Now while the CA is drafting a new constitution for Nepal is the time to deliberate on how the existing legal regime — crafted along the principles of a unitary system of government — should be restructured into a central-provincial framework. Such a discussion must look into relevant pragmatic technical and jurisdictional aspects of institution and site management, including funding considerations and human resource concerns for public cultural institutions in the new system.

What responsibilities are to be retained by the national government at the central level and what powers are to be devolved to the provincial units at the sub-national level are the main questions here. The devolution is not only to the provinces, but also to the regional, local and village levels. Similarly, a constitutional framework of devolution must respond to various managerial, financial and legislative issues as far as the devolved power and responsibilities are concerned. Unless the constitution makers discuss what the strengths or weaknesses of the present system are, it will be difficult for them to decide how the new arrangements must be made in the given perspective.

There could be several suggestions towards new, effective and sustainable arrangements. It might also be necessary to arrange for a national body to enforce national standards in the matter of preservation of national heritages and their multifarious uses. For example, the constitution makers may consider establishing something like a Nepal Heritage Council as a body of heritage experts to work as the Nepal Government’s independent expert advisory body on heritage matters. The council can play a key role in assessment, advice and policy formulation and support for major heritage programmes. Such a council could be far more effective than the existing multiple agency approach being applied hitherto.

To this day, the reports of the CA have not touched on the issue of national heritage as an exclusive issue. The Committee on the Determination of Bases for Cultural and Social Solidarity, which has already submitted its report, should have dealt with this issue at length. Failing this, one can only hope that the Committee on Restructuring of the State and Allocation of State Powers and the Committee on the Allocation of Natural Resources, Financial Powers and Revenues, which are the two remaining thematic committees on this issue, must take time and reflect on the new framework.

 ”Everybody knows that the Maoists after spoiling many important months of parliament need a facelift to reach a compromise that does not create any political value except for their cadres sweating on the campaign for civilian supremacy.”

While Nepal’s Constituent Assembly (CA) has only eight months left to finish its alleged historical mission of drafting a new constitution, certain forces seem to be trying desperately to make a case for a seventh amendment to the Interim Constitution. An enabling political environment is being created to table the seventh constitution amendment bill in parliament as soon as the Dashain-Tihar festive weeks end. The political exercises towards this end painfully remind critiques of what poet Bhupi Sherchan (1937-1990) so skilfully described in his poem “We” a few decades ago:

We are the Ekalabya in the tale of the Mahabharata
In every generation [or amendment?] a Dronacharya comes to us
And we gladly, at his signal,
Cut off our thumb and offer it to him as a preceptor’s fee,
Destroying our own existence we hand it over to him
And we are ecstatic about our devotion to our teacher
About the strength of our own souls.

This time around as well, the United Communist Party of Nepal (Maoist) is going to create a popular cause for such a move. It is basically the demand of this party that the constitution be amended once again. They have been insisting that the president, who had no power to ask the government to pursue the objective of dismissing the then chief of army staff Rookmangud Katawal according to the prescribed statutory procedures, and not to act on the decision made going beyond the standard traditions, was acting ultra vires. They interpreted it as an operation of the president with the assistance of the army, which led to the (enforced) resignation of their Prime Minister Pushpa Kamal Dahal.

With the alleged seventh amendment, the Maoists want to make sure that the president, a constitutional head, does not abuse his power once again. Everybody knows that the Maoists after spoiling many important months of parliament need a facelift to reach a compromise that does not create any political value except for their cadres sweating on the campaign for civilian supremacy. But their move has meaning for somebody else.

It is not a new phenomenon. It has been happening ever since April 2006, when King Gyanendra was forced to reinstate parliament and end his direct rule due to strikes and street protests in Kathmandu. The idea then was to restore the constitutional machinery that had become inoperative because the Maoists did not allow the government of the day to conduct elections to parliament whose term had already ended. On the contrary, as soon as the dead parliament was reinstated, it started acting against the very constitution which it wanted to restore.

The nine-point declaration unanimously passed by it aimed to keep the king out of the process while meeting many of the Maoist rebels’ conditions for taking part in the upcoming elections. Tabled by Prime Minister Girija Prasad Koirala, the resolution left the king with only a ceremonial role by ending his title of commander-in-chief of the army, declaring the king’s income and assets taxable, removing his power to select an heir and changing the name of the government from “His Majesty’s Government” to “Nepal Government.” The reinstated parliament also dissolved the king’s advisory council. The resolution also declared parliament the supreme legislator and nullified any current laws that contradicted these points. The political developments have gone far beyond the May 2006 parameters for the restoration of democracy under a road map which is not clear to anybody.

The trend continues even now, although an elected CA is already in place under the Interim Constitution, the source of most of the instabilities of this country. It has been subjected to six amendments since it came into existence. Each amendment was sought on certain legitimate grounds; but in the final act, it ended up severely circumscribing the legitimate powers of the CA to take decisions on all issues made controversial at the hands of the seven-party alliance and the CPN (Maoist).

Whether it is about the declaration of the abolition of the monarchy or the decision to kick off the CA process without adopting an objective resolution, the Interim Constitution was played out with deliberate efforts. Similarly, the concept of federalism was imposed on the country pre-empting the power of the CA to take an appropriate decision in this regard. The constitution was also ruthlessly amended to allow every willing Indian living in Nepal or abroad to acquire Nepali citizenship.

The people of this country still do not know who are the 5.2 million people who have been given citizenship by committing fraud against the CA. It all went on as all covert operations in Nepal have shown — changing the demographic structure of the country overnight without giving any opportunity to the CA to decide if there were any legitimate claims for such a move at all. There is no reason to believe that the impending constitutional amendment is going to be any different.

Despite all these manoeuvrings, the present composition of the CA cannot be changed; and certain proposals for the new constitution cannot be passed by a two-thirds majority of the house, no matter how covert the operations are. In a way, recent political controversies regarding Vice President Parmanand Jha’s refusal to comply with the court’s directive to retake the oath of office in Nepali has sufficiently educated the people of this country as to what their motherland has really become in the hands of forces who have neither loyalty to this country nor commitment to constitutional democracy or the rule of law. This education has come as a blessing in disguise.

Everybody wants peace in Nepal. It comes only when Nepalis are left to decide their destiny themselves. They understand what gives them the pride of a nation. The CA should be allowed to take decisions on all important matters inside the house itself. Any policy decisions by way of a new constitutional amendment evading CA procedures is not a proper course of action.

Such excessive interventions and enforced compulsions for the political parties in Nepal will only result in further erosion in their capacity to organize their people. The decreasing faith of the common people in their leaders is not good for anybody. Moreover, Nepalis are no longer interested in paying any gurudakshina (a preceptor’s fee) anymore. The alternative is another conflict and chaotic Nepal.

 ”In fact, the CA Committee on Judicial System has not spent its energy on how justice can be made accessible to all the deprived and downtrodden people of this country, which is the major issue of the day. It has rather focused on how judicial power can be belittled, and the doctrine of the separation of powers to protect the liberty of the common people be kept at the mercy of the majority party in the legislature.”

While the Constituent Assembly (CA) is losing its sense of direction, the Committee on Judicial System (CJS) has now proposed a strange concept paper and preliminary draft on the form and nature of the judiciary under the new constitution.

Submitted for discussion in the full house, this proposal is yet another example of how vulnerable Nepal has become as a country adhering to the principles of the rule of law and independence of the judiciary in the hands of illiberal constitution makers.

Although the committee proposal has not been unanimously decided, and the full house of the CA can still reshape it, the fact that some political forces at the committee level can go to this extent is ever disturbing. Led by a Maoist member, Prabhu Shah, the Committee on Judicial System enables the appointment of the chief justice who is not a sitting Supreme Court (SC) justice. Even knowing that this provision could have lethal use in the prevailing political culture, some Madhesi parties have joined the Maoists to allow them to form a majority. This provision has been introduced undoubtedly to break with the past, resize the concept of the independence of the judiciary, and create a judiciary committed to the government.

The provision of direct appointment of the chief justice from outside the Supreme Court is not problematic per se, but it must be seen among other changes to be put in place. The proposal also provides for a committee within the legislature to appoint judges and take action against them when they breach justice.

Details are not provided, but it is this committee which will have the power to interpret the constitution, where necessary, thereby stripping the Supreme Court of its role as the guardian of the constitution. Once passed, it will no longer be the Supreme Court which will have the final word on what the constitution says, or does not say, on a particular constitutional issue, and leave the responsibility to the legislature.

But that does not seem to be enough, though. Reforms being contemplated by the Committee on Judicial System make explicit that the legislature will have complete jurisdiction to decide issues involving the position and powers of the head of state, the chief executive of the country, and officials to be elected by the legislature (like the speaker, deputy speaker, committee chairs and so on).

All political issues, even if they involve legal constitutional questions, and issues of laws contradicting the constitution, will be taken care of by the legislature itself in the future. Besides, a special court could be created by the legislature, whenever there is a vacancy, to take action against judges (should they breach the trust of the legislature), and give the final verdict, with no scope for an independent judicial review.

These changes are coming against a background of Maoist allegations that the judiciary and the Nepal Army, two stable state apparatus in Nepal still not shattered by belligerent winds, must be overcome to establish a genuine “people’s democracy” in the country. An independent judiciary, which does not want to be guided by the government, and the national army, which is said to be firm on certain national security issues, do not help the transition towards an authoritarian regime.

In fact, the committee has not spent its energy on how justice can be made accessible to all the deprived and downtrodden people of this country, which is the major issue of the day. It has rather focused on how judicial power can be belittled, and the doctrine of the separation of powers to protect the liberty of the common people be kept at the mercy of the majority party in the legislature.

The template for this change is without doubt not democratic. Even in China, wherefrom these constitutional arrangements are said to have been imitated, things have been changing. In the past 30 years, owing to the tragic experience of the Cultural Revolution and the urge for economic development, China attached great importance to the independence of the judiciary and reform of its legal system. It is trying to catch up with other technically advanced nations in the world and has begun to actively co-exist in the global economic system.

Every modern Chinese believes that a credible judiciary and legal system can provide a solid base for developing a market economy. Economic construction replaced class struggle as the basic task of the Chinese Communist Party. Its growing legal system has quickly become a new means relied on both by this party for its governance and by Chinese citizens as a safeguard for their increasing individual rights.

Under economic reform and an open-door policy, an increase in individual autonomy and contacts with the outside world has further raised the expectations of the people for more protection of their basic rights. As a result, legal reform has become an urgent task to resolve the rising conflicts and expectations in society. To meet these expectations of the citizenry, China has even started ushering in periodic plans to modernize the judiciary, comply with international standards and rationalize the legal system.

Much of the study of their legal reform efforts concerns the struggle to adapt international norms to local conditions. As a huge country with a fast growing economy and fears of internal instability and external security threats, Chinese policymakers are careful not to jump on everywhere without stabilizing changes. Although not without limitations, the direction is certainly positive.

Even now, the structure of China’s government, especially the judiciary, is very peculiar. It is one of the five organs of the National People’s Congress. There is no special status given to it by the constitution. The other four organs are the president of China, the State Council, the Central Military Commission and the Supreme People’s “Procuratorate”. The Communist Party of China still prevails everywhere. In this environment, the judiciary is yet to emerge as a fully independent institution — based on the doctrine of separation of powers.

Yet, China is certainly trying to emerge from the rubbish of the past. It is so strange that the Maoists of Nepal are still attracted to people’s courts which existed in China from 1949-78 as component parts of the corresponding government.

Bipin Adhikari
The Kathmandu Post
August 27, 2009
From: constituentassembly.blogspot.com

“British Prime Minister Gordon Brown, for example, has recently put forward changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of the House of Commons procedures. His plans to introduce legislation that could see a shift from self-regulation of the House of Commons — and subsequently the House of Lords — to independent, statutory regulation has been a subject of rigorous debate in the United Kingdom. A new Parliamentary Standards Authority is supposed to be given the power to regulate legislators’ allowances and the Commons would be asked to agree on a code of conduct for legislators in order to increase accountability.”

The Constituent Assembly (CA) Committee on the Determination of the Form of Legislative Organ (CDFLO) has finally presented its concept paper and preliminary constitutional draft in the CA for further discussion. It, however, deals only a bare minimum with the form of legislature that a majority of its members want. Why the CDFLO had a very small breathing space is very clear. It was supposed to build on the report of the Committee on the Determination of the Form of Government as to whether this country was picking up a new governmental system or continuing with the parliamentary form with necessary reform.

In the same vein, the report of the Committee on State Restructuring and Allocation of State Powers was necessary for it to plan the form of legislature in Kathmandu and the provinces as well as the ambit of their powers and relationship. The CDFLO concept paper and preliminary constitutional draft have been produced without basic policy support from the two important thematic committees, which had more say on the form of the legislature than the CDFLO itself in some important sense.

Nepal has a long experience of practicing elected legislatures in some form. There have been good days and bad days; but it would not have been out of context to discuss a variety of proposals and changes keeping in view the country’s past experience. Alterations to the composition, powers, procedure and structure of the legislature, elected or notional, have continued since 1950-51. The Constitution of 1990 had tried much to push ahead sustainable efforts to ensure a functioning legislature. That process has now been discredited already. But it is very clear that the committee has not been able to show a better regime for the prospective legislature to regain the country’s trust.

As one goes through the CDFLO report, one finds few new features in the scheme except for the change in the number of members of the House of Representatives and the National Assembly, the system of mixed representation, which is without rightful prescriptions, and provisions for provincial legislatures. The system of proportional representation as it applies to the House of Representatives at the centre really surprises many.

The committee proposals do not state how the legislatures that they have proposed for the centre and the provinces are more representative and responsive in their legislative and policy making activities. They do not explain how they are going to be more efficient and effective, or more accountable and accessible than their predecessor under the 1990 constitution. It is not clear in what ways they are more legitimate and linked to the people than before. In a great many cases, institutional changes influence legislative behaviour and leads to tangible outcomes in legislative settings. The presence of new institutions leads to new patterns of legislative behaviour, and institutions matter in predictable ways. But those providing prescriptions must know in advance what the problem areas are.

British Prime Minister Gordon Brown, for example, has recently put forward changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of the House of Commons procedures. His plans to introduce legislation that could see a shift from self-regulation of the House of Commons — and subsequently the House of Lords — to independent, statutory regulation has been a subject of rigorous debate in the United Kingdom. A new Parliamentary Standards Authority is supposed to be given the power to regulate legislators’ allowances and the Commons would be asked to agree on a code of conduct for legislators in order to increase accountability.

Additionally, they are also thinking of coming forward with new proposals for dealing effectively with inappropriate behaviour, including potentially the options of effective exclusion and recall for gross financial misconduct identified by the new independent regulator and the House itself. These proposals have come forward in addition to those already with cross-party agreement, such as the requirement for all spending to be receipted and incomes from second jobs to be fully accounted for.

Prime Minister Brown also intends to set out proposals for public debate on five major issues in the coming months: Reform of the House of Lords to an elected House, introduction of a written constitution, devolution of power away from Westminster, reform of the electoral system and increased public participation through electoral registration and greater engagement of young people, including a potential lowering of the voting age. There is also a proposal to progressively reduce the time taken to release official documents from 30 to 20 years and to broaden the terms of application of the Freedom of Information Act to include a wider range of organisations.

Some British experts have argued the case for parliament’s deliberations to be spread more evenly over the year. They consider that members of parliament are not on holiday for the period of the recess. Committee-level activities in parliament continue even then. But with a more sensible organisation of parliamentary oversight, many critiques believe that parliament might avoid the sense that the entire government is on holiday. A combination of these changes could be considered in Nepal as well, which would enable the new legislature to do its work more efficiently, and to be seen to do so.

A clear code of conduct for all legislators and stringent action against those violating it has certainly become essential in Nepal. A legislator should lose his membership and be expelled from the house if he conducts himself in a manner that results in gross violation of basic democratic norms and/or misuse of office. The constitution needs clear guidelines to ensure strict time limits for assembly sessions and speeches of its members. The new constitution should also expressly prohibit any development towards a constituency development fund for the members. It should also restrict the tendency of the members to exercise executive powers on whatever pretext. Even the oversight functions of the committees in the legislature should understand this limitation.

Not only is a clear delineation between executive and legislative functions necessary, the constitution should also expressly state that members of the legislature will not have any role regarding local governments and administrative institutions. These provisions are necessary to make sure that legislators focus on what they have been elected for instead of intruding into the sphere of activities meant for the government of the day. It is apparent that the CDFLO concept paper and preliminary draft have ignored many aspects of the reforms that should have been discussed and carefully proposed for further discussion. As they exist today, they do not propose anything other than business as usual. This is, no doubt, another point of worry.

[lawyers_inc_nepal@yahoo.com]

 While a debate on the best form of government for Nepal is going on, senior political scientist Prof. Lok Raj Baral has proposed that the French system of government could be discussed as a suitable model. A recent paper prepared by Baral — and discussed at a combined forum of the Society for Constitutional and Parliamentary Exercises (SCOPE) and the Constituent Assembly (CA) Committee on the Determination of the Form of Government — explores what Nepal needs after democratic experiments through all these years in the parliamentary form of government.

Discussing some key characteristics of the French system as developed under the Constitution of the Fifth Republic, Baral suggests that the model has potential to address Nepal’s recurring problem of instability and that it also seems to be compatible with Nepal’s other on-the-ground situations. Also described as being midway between the American presidential government and the British cabinet system, the most distinctive feature of the French model is the division of executive power between the president and the government headed by the prime minister. In this system, the president is directly elected by the people, but the prime minister comes from the majority party in parliament. The issue here is whether the model proposed by Baral could be a viable model

As one can see, the French model insists on the parliamentary character of the system, but does not make secret its determination to check abuse of parliamentary democracy, generally keeping the president out of parliament’s clutches, which had cursed republican France with dictatorship and/or chronic governmental instability for many decades before the promulgation of the present constitution. For example, under the Constitution of the Fourth Republic (1946-1948) governments had lasted an average of six months only.

Many analysts and leaders including General Charles de Gaulle, who ruled France from 1959 to 1969, agreed that their governments before the promulgation of the present constitution were overthrown with distressing regularity mostly because they were accountable to a fickle parliament. Under the present arrangement, political parties holding sway in parliament, who by their very nature represent particular interests rather than the general interest of the country, cannot destabilise the president — the number one executive — who is said to be responsible for making decisions in the area of “high” politics, such as foreign affairs, defence, statecraft and crisis decision-making.

The role of the prime minister, who is accountable to parliament, is not that crucial because he is responsible for making decisions in the area of “low” politics only, such as domestic policy, the budget and routine decision-making. His power is carefully hedged with a number of constitutional provisions intended to protect governmental stability and thereby to ensure the capacity of the government to act when action — especially unpopular action — is called for. Arguably, any instability (in France) at this stage cannot affect the overall issue of governmental firmness and efficiency.

This arrangement brought together a compelling presidential position with manifold executive powers and a parliamentary executive (prime minister) responsible before the elected house. The president’s task was primarily to end any deadlock and act decisively to avoid the stagnation prevalent under the Constitution of the Fourth Republic. The prime minister, similarly, was to direct the work of the government, providing a strong leadership to the legislative branch and help overcome partisan squabbles.

The scheme also had the potential to produce some unintended relationships, usually described as “cohabitation” in government. It occurs when the president is from a different party than the majority party in parliament. It comes about because such a system forces the president to name a prime minister acceptable to the majority within parliament. Such cohabitation is supposed to prevent the stagnation of split majorities that can frequently occur in presidential systems.

There are important implications of this model in the typical Nepalese context. Even in France, from charismatic General Charles de Gaulle to the current President Nicolas Sarkozy, who was elected two years ago on a very divisive political platform, neither the patterns of power relationships that are being described nor the political impact of the sort have been consistent. This was true during the tenure of all the eight presidents who ruled France with their prime ministers approved by the house.

During the last 50 years, France experimented with different types of governments, although theoretically the constitutional form was the same. There is hardly any disagreement on the analysis that there was a shift from, say, segmented government from 1959 to 1962 to monocratic presidential government from 1962 to 1976. The first situation demonstrates sectoral division of labour within the executive in which responsibility for one set of matters is incumbent upon one person and responsibility for another set of matters is incumbent upon another person. The second situation is all about the exercise of personal leadership by a single individual.

This is not all. A further shift to shared government from 1976 to 1981 was also noted. Then a shift back to monocratic presidential government from 1981 to 1984, to a return to segmented government from 1986 and then a further shift to monocratic prime ministerial government from 1986 to 1988 was also noted. It goes on. These shifts are remarkable by any standard but bizarre and heretical in Nepal’s political scenario. There are administrative implications of this strange constitutional “hybrid” or “duarchy”. Besides, this model has different implications for the first executive (the president) in his relations with parliament.

This major issue apart, the cohabitation experience in 1986 during the tenure of President Francois Mitterrand (1981-95), for example, and similar other experiences have led many to argue that a majority opposed to the president is somehow contrary to the spirit of the Fifth Republic. Mitterrand worked with seven prime ministers with a variety of experiences. The two further “cohabitations” of 1993 and 1995 and 1997-2002 also suggested that the primacy of the president, or what some French political analysts describe as “republican monarchy”, could no longer be taken on the normal institutional practice.

In 1964, Francois Mitterrand launched a famous denunciation against General de Gaulle called the permanent coup d’état. After 42 years, during the electoral campaign in 2006, Nicolas Sarkozy, at that time the interior minister, was quoted for his commitment against the unitary executive, and his intention to expand the powers of the French president, were he to occupy that office. There are many positions. But the possibility of cohabitation in the future is said to be remote.

While discussing France as a model, one also needs to consider the fortune of a legislature in the new (non-parliamentary) set up. Some additional questions are: Can a president who wields power in the area of “high” politics give the feeling of an emotionally united head of state? Is it possible for a directly elected head of state to remain non-partisan in a country with so many socio-political and ethnic cleavages? These questions come up unhesitatingly in a country whose parliamentary template has already grown discernible patterns over the last six decades.

Apparently, this critique has not focussed on the strengths of Prof. Baral’s propositions. This must be done both within and without the CA at a more serious level. In that case, one must also consider how a decision about the choice of the form of government can be made in a country where constitutions come and go, not in the exercise of legitimate process but enforced hiatus and geopolitical machinations. This aspect of Nepal’s democratic experiment is definitely not a secret anymore.

 Without an all-embracing theory, the process of drafting the constitution continues to be piecemeal, and both the need and calls for further reform will continue to rumble on for this very reason.

The report produced by the Constituent Assembly (CA) Committee on Determination of the Structure of Constitutional Bodies (CDSCB), which includes the preliminary draft and its concept paper, has surprised many critiques in the country by proposing creation of 11 commissions under the constitution in the making. This is the fourth committee submitting its report to the full house for further discussion and comments. As in the case of the last three reports, it appears the CDSCB committee members tend to see constitutional reform as part of pragmatic politics with no clear vision of the final product. They have created more problems than what they presume to have solved.

The principal objective of this report, as any other committee report on the given constitutional themes, is to act as a working document for the Constitutional Committee in light of the perceived shortfalls identified through deliberations, expert consultations, written submissions and from views expressed to the CA members in the field in respect of constitutional and other oversight bodies. This should have been done making the (questionable?) provisions of the earlier constitutions as a point of departure.

The major questions before the CDSCB should have been, one, what are the areas in which Nepal needs independent constitutional bodies or watchdogs; two, how these independent constitutional bodies or watchdogs should have been provided for in the changed context (it definitely involved decisions regarding their jurisdiction, power and modus operandi); and how these independent bodies were to maintain public accountability. The concept of independence without accountability neither bears any fruit nor protects any constitutional value.

As one expected, the committee has chosen to continue with all independent constitutional commissions under the Interim Constitution like the Commission on the Investigation of Abuse of Authority (CIAA), Audit Commission (as of now, the Office of the Auditor General of Nepal), Public Service Commission, Election Commission and Human Rights Commission. It is, however, not clear in what areas involving these constitutional bodies there has been an attempt on the part of the committee to reform these institutions, make them more independent, and as a corollary, accountable to the constitution and the general public.

There were some issues to be addressed. In professional circles, many human rights practitioners wanted the chapter on National Human Rights Commission (NHRC) to have a clear-cut reference on the 1993 Paris Principles relating to the status and functioning of national institutions for protection and promotion of human rights. It is not just about making this commission financially independent through the constitution, but also about linking the NHRC with developing international system and practices.

Similarly, some people had the opinion that there should be a rethink on the mandate of the CIAA. It needs to capture all areas of maladministration and good governance issues. Many new provisions were suggested to make the Election Commission smarter and more efficient, including vesting power in it whereby it could outsource some of its electoral tasks to private entities who could do the job more professionally under its general supervision.

Most of the commissioners or members in the existing bodies do think that they have not been given enough access to parliament to speak about their activities, and relate their mandate with the direct representatives of the people. Even now the government acts as a bridge, and that entails a lot of consequences. Unfortunately, the report of the committee does not deal with these issues.

Amazing more than this though is the proposal of the CDSCB to create six additional commissions to protect the interests of (a) Women (b) Dalits (c) Adivasis/Janajatis (d) Disabled people, minorities, marginalised communities, backward classes and areas (e) Madhesia and (f) Muslims. All these proposed commissions deal with the right to equality, non-discrimination and other human rights issues. While attempts have been made to lay down their powers and functions separately, no effort has been made to sort out conceptual cleavages on the constitutional arrangements and jurisdictional overlap between these commissions.

The issue of jurisdictional overlap is most prominent. There is no reason why an integrated national human rights commission cannot deal with all the components above — clubbing them together. The draft model constitution that this author suggested to the Constituent Assembly for their discussion in May this year also provided one human rights commission dealing with all human rights issues, whether they relate with caste, ethnicity or people from remote (backward) areas. An additional commission was recommended for Adivasis/Janajatis, minorities and communities depreciated as smaller castes.

While the first commission had the power to receive complaints of human rights violations, investigative powers regarding them and the power to award compensation to victims of human rights violations, the latter had to rely on the former as to all these things. But then the latter commission had all other powers and responsibilities regarding most of the issues that have a bearing on specific communities. This arrangement not only avoided jurisdictional overlap, but also allowed enough working space to the second commission and the elected government.

The committee concept paper has a serious flaw. If Muslims deserve an independent commission to protect their community interests in the state system, why not Kirants; and if Kirants, why not Christians? If Madhesis think they have a cause to protect through the new commission, what prevents Himalis (the high mountain dwellers) from claiming a similar commission on the same grounds? What type of justice is it? Should some people be left behind because they do not have enough heads in the Constituent Assembly? This type of proposal hardly makes any sense.

 ”The Committee on Preservation of National Interest falls woefully short of expectations”

When Nepalis talk about national interests, they talk about very basic things about their survival. These basic things are the country’s perceived needs and aspirations in relation to their immediate external environment.

Nepalis do not have the luxury of worrying about interests that are remote in a geographical, moral or worldly sense. They hardly expect a higher level of security that many in the developed world will think of, rarely imagine prosperity that many countries in Europe and America might want, and never dream of advancing any of their national values to other countries, or set objectives that are much more expansive in space, time and even conception. However, it does not mean Nepalis do not (or should not) have survival instincts.

Just early this week, India’s Border Security Force (SSB) violently evicted thousands of Nepalese families by crossing the international border once again. Kantipur reported that among the more than 6,000 people chased away from their villages, 1,800 had to look for shelter in the Satbariaya forest in Deukhuri. Indian troops invaded their land, burned their homes and told them that they could no longer live in that area. Over 15 young women are said to be still missing. Once again, the troops moved the pillars marking the border between the two countries approximately 35 metres into Nepali territory. This is the everyday trauma that Nepalis have been forced to suffer by a jealous neighbour.

While the Committee on Preservation of National Interest (CPNI) has become the first among the 10 thematic committees of the Constituent Assembly (CA) to present its report to House Chairperson Subhash Chandra Nembang within the revised time schedule, the question whether its report has been able to propose arrangements that might preserve Nepal’s vital interests as a nation is open to discussion. The issue here is: Has the committee responded to the trauma which the people of this country have been forced to suffer?

The committee report comprises a concept paper on the areas of its competence, a preliminary constitutional draft based on it, which also has a separate column for an explanatory memorandum for every issue dealt thereon. Led by UCPN (Maoist) leader Amik Sherchan, the committee has claimed that its report is based on consultations with 26 subject matter specialists and a review of the recommendations of 48,985 respondents to the questionnaires distributed by them early this year. Besides, 46 in-house experts of the government were also consulted on different issues.

In addition, they also checked 294 suggestions received from different quarters. Further, 7,500 informal slips were received and entertained by the committee to gauge public opinion. The committee had 98 meetings to finalize the report in its present shape, and spent 337 working hours to process all concerns. Moreover, the committee had created eight sub-committees — one each for the eight constitutional areas allocated to the committee by the CA Rules 2008 to provide small group focus on these matters. Some of the sub-committee members said they are happy with the net output of the process they followed so vigorously.

Indeed, the report has captured many of the issues that relate to the preservation of Nepal’s national interests. It has not been able to hit the core of our problems, however. Some of the fundamental issues that should have been addressed by the report at this level have been left unattended, miserably failing to read the nerve of this poor country. Some others do not find proper expression in the present draft format, even though several inputs have been received from the people on this score. Apparently, the plenary session of the CA has to compensate for these deficits, or send the report back to the committee for improvement.

To begin with, it is very important for Nepal to close all its open international borders and guard the house against unsolicited intruders to preserve its core national interest. This strategy has to encompass national border security, immigration control, sanctity of Nepal’s airspace and a mechanism to fight terrorism and other sponsored activities from outside the country. Just recovery of lost lands, demarcation of the international border and its regulation is not enough. The committee needs to come forward and reflect boldly on the suggestions received from the common people, which among many other things, include explicit demand for passport control for every foreigner visiting Nepal.

The CA must also say no to the strategy of overwhelming Nepal’s indigenous population by unsolicited immigrants. This country cannot remain a population importing country anymore. It would not be able to offer another round of five million citizenship certificates to immigrant Indians after another 20 years without finishing itself. The practice of offering citizenship en masse must be constitutionally halted for ever. Together with this, Nepali natives must be protected from pseudo Nepalese enjoying dual citizenship. The constitution should be able to provide stringent action against foreigners holding Nepalese citizenship while retaining their native passport.

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. Nepal is not safe either. 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?

lawyers_inc_nepal@yahoo.com