Category: Opinions

 The report of the Constituent Assembly (CA) Committee on the Protection of Rights and Freedoms of Minority and Marginalized Communities, which is now under discussion at the plenary session of the House, captures many of the current requirements under its terms of reference. The report contains a concept paper and a preliminary draft as much as they relate with the minority rights issues to be covered by the new constitution to be drafted by the unicameral House.

The report deals not only with normal individual rights as applied to members of ethnic, class, religious, linguistic or sexual minorities, but also collective rights accorded to minority groups by virtue of their minority status. Marginalized groups are also carefully brought within the fold. In its entirety, it covers protection of existence, protection from discrimination, protection and promotion of identity, and participation in political life. But then it also happens to contain a very controversial provision while dealing with the right to equality.

As a proviso to the general rule which guarantees that the state shall not discriminate between people on the basis of ethnicity, religion and so on, it also goes on maintaining that the state shall provide by law special measures on the basis of positive discrimination along with compensation for the persecution rendered in the past for the protection, development and empowerment of the communities and classes left behind in economic, social, political and educational areas and in the area of health (emphasis added).

An identical provision has been proposed also in the context of racial discrimination and misconduct of “untouchability” and religious and personal persecution. Here, too, the state has been obliged to provide compensation for the discrimination, misconduct and persecution, in addition to the measure of proportional representation in state institutions.

Firstly, the committee intends to treat the first set of communities above differently than the second set of communities, yet both these provisions maintain that Nepal has been a persecuting state — a grave charge that remains to be substantiated on explicit grounds. Secondly, it defines discrimination associated with the untouchability stigma as racial.

At the outset, it must be emphasized that comparative constitutional law has developed a rich discourse over the last half century or so on how the state might respond in varying ways to the claims concerning historical injustices. There are different models of reverse discrimination or affirmative action, which could be applied to promote equal opportunity and set the balance right. They focus on measures ranging from employment and education to public contracting and health programmes. The drive behind them are two-fold: to maximize diversity in all levels of society, along with its presumed benefits, and to redress perceived disadvantages due to overt, institutional or involuntary discrimination.

The intention here, as far as the report of the committee is concerned, seems to be apparently different. Going beyond the historical wrongs, it talks about “persecution”, which in general may imply the systematic mistreatment of a community by another community through murderous activities and efforts of extermination, enslavement, deportation or maltreatment on political, racial or religious grounds. The most common forms of persecution are religious, ethnic and political, though there is naturally some overlap between these terms. In any case, the term “persecution” implies deeply traumatic injustices.

Without generalizing too much, certain apparent characteristics of persecution could easily be established. When the committee uses the term, (a) It assumes in the first place that Nepal has a history of persecution (b) That the persecutors have acted with the power of the state in the job of persecution (c) That this went on for a long time of history and (d) Resulted in continuous deprivation of some groups, which needs to be remedied by offering compensation by the state. It also implies that affirmative actions or measures of positive discrimination are not enough to redeem them.

In the given framework, the “state” must be defined as persecutor, and compensation must be paid by it as the culprit of history. It goes without saying that the state (persecutor) here means the Khas community, especially Bahuns and Chhetris, who are now implicated for capturing this country for long. This is the community that produced King Prithvi Narayan Shah, who unified the country in the latter half of the 18th century and allegedly started the process of persecution through his new establishment. Linked with this is the argument that Khasas are the invaders while the other communities are the victims. The committee has not offered the basis on which this conclusion has been grounded.

The world definitely has a history of systematic mistreatment of groups due to their religious affiliation — resulting in the persecution and killing of millions. Atheists have experienced persecution throughout history. In the two thousand years of the Christian faith, about 70 million believers have been killed for their inability to turn back from their religion. The persecution of Jews occurred many times in Jewish history. Hindus have been historically persecuted during Islamic rule on the South Asian subcontinent. The persecution of many ethnic groups, not to mention ethnic Germans and albinos, are the most scandalous episodes in world history. These are not stories of isolated examples, but of unrelenting persecution over a long period of time. But do they have parallels in Nepal?

During 1915-20, when Ismail Anwar was the ruler of Turkey, 12 lakh Armenians, almost 8 lakh Greeks and 5 lakh Assyrians were eliminated because of ethnic reasons. It is said that during the reign of Chairman Mao Tse-tung of the Chinese Communist Party, more than seven million people were killed due to political and ethnic reasons. During 1932-39, Joseph Stalin eliminated 2.3 million people from different parts of the Soviet Union. Adolf Hitler of Germany was by all means the worst persecutor. He killed six million Jews to establish what he described as Nazism just seven decade ago. During 1941-44, almost 50 million people were killed in Japan.

Cambodia’s Pol Pot regime of 1975-79 and of North Korea’s Kim Il Sung’s regime between 1946-1994 were the other worst scenarios. All these examples can help explain what persecution is, and at what time the state must be identified with the persecuting rulers or their communities.

Even among the cases softer than them, treating the problems of Nepal on a par with the treatment of indigenous peoples, such as the Indians and Inuits in Canada, the Aboriginal people of Australia, the Maoris of New Zealand, the Sami of Scandinavia, the Inuits of Greenland and the Indian tribes of the United States cannot be prudent. There are many such examples, where natives suffered because of persecution rendered by outsiders who settled in the country.

Unfortunately, Nepal as a persecuting state does not fit anywhere. The committee report must then be discussed why the state should be scolded for grave injustices and persecution that it has not committed against anybody. And if the purpose is only to create space for further affirmative action and positive discrimination measures for those who deserve them, why the reference about persecuting state or the persecuting community. If the strategy is not to diminish the political identity of this country, there is scope for serious discussion.

[lawyers_inc_nepal@yahoo.com]

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 ”Although most British people do not think of any other form of government for their country, there are many who agree that the Westminster system that they have been practicing needs reform from within. While the reform process has been on for more than a decade, in a recent statement to the House of Commons, Prime Minister Gordon Brown was compelled to expedite changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of House procedures on a priority basis.”

While Nepal’s Constituent Assembly (CA) is considering whether it should endorse the parliamentary system that Nepal has been practicing for many years or go for a new system when it writes the country’s new constitution, the need to reform parliament is also on the agenda of Westminster and Number 10, Downing Street, the office of the British prime minister.

Although most British people do not think of any other form of government for their country, there are many who agree that the Westminster system that they have been practicing needs reform from within. While the reform process has been on for more than a decade, in a recent statement to the House of Commons, Prime Minister Gordon Brown was compelled to expedite changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of House procedures on a priority basis.

The prime minister said his government planned to introduce legislation that could see a shift from self-regulation of the House of Commons, the lower house of the British parliament — and subsequently the House of Lords — to an independent and statutory regulation. A new Parliamentary Standards Authority would be given the power to regulate MPs’ allowances and the House of Commons would be asked to agree on a code of conduct for MPs in order to increase their accountability.

Gordon Brown emphasized, “There will be consultation with all sides of the House to come 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.” His proposal on the expenses of legislators came in addition to those already in place with cross-party agreement, such as the requirement for all spending to be receipted and incomes from second jobs to be fully accounted.

Apart from this, the British prime minister also assured, what his predecessor Tony Blair pronounced more or less as early as 1997, his determination 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 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.

He also said, “Our proposals will also be informed by leading external figures, including academics and others who command public respect and have a recognised interest or expertise in the different elements of democratic reform.”

These renewed assurances are coming up following the resignation of Michael Martin, speaker of the British House of Commons last month. Martin had to resign under growing public pressure against his inability to check the ongoing financial misconduct in the House. For the first time in history, the British people read in the Telegraph that their legislators claim reimbursement from the government for everything from cookies and pet food to installing chandeliers, cleaning of a moat and even mortgage payments. They were surprised that many lawmakers employ family members as staff, allowing them to charge numerous routine household expenses to British taxpayers.

These revelations also disclosed how legislators used public money to fix a tennis court, pay for an ornamental bird house or furnish lavish second homes. Some of these claims were said to be legally valid; but some, like claiming mortgage payments for mortgages that had already been paid off, could spark criminal charges. No doubt the House of Commons has faced an unprecedented public backlash, with voters especially incensed that public funds were squandered amid a deep recession that has sent the country’s unemployment rate soaring.

It is rare in Britain for a speaker to resign. In fact, it is happening for the first time in three centuries. The last speaker to be forced from his position was Sir John Trevor who was found guilty of accepting a bribe in 1695. In a sharp break with British tradition, the speaker was asked to step down from the powerful post citing lack of leadership on his part. He was blamed for creating a climate in which such excesses were allowed. The press also alleged that Speaker Martin actively attempted to block Freedom of Information requests which would have exposed the unacceptable billings, charged to the public coffers, by members of Parliament and of the government.

Under British tradition, speakers usually choose when they retire, and are generally not subject to the whims of the electorate. Tradition dictates that major political parties don’t field candidates in the speaker’s constituency. They are usually treated with great respect, and criticizing them publicly is just not done. Unlike in the U.S., where the speaker of the House of Representatives, the counterpart of the British House of Commons, is often a partisan advocate for the majority party, the British speaker is supposed to be impartial and independent of government. U.K. tradition calls for the speakership to alternate from one party to the other whenever the post is open.

Even if the prime minister has shown his determination to bring the (sovereign) parliament within the legal regime, he is being pressured to call an election (due in mid-2010) as soon as possible, offering voters a chance to kick out lawmakers who have abused their expense accounts. He has rejected such a call, and has decided to respond to the pressure for reform through cross-party dialogue and legislative process. That reform will inevitably clean up the system of allowances, especially the second home perk under which MPs claimed for furnishings and gardening costs, and probably end the system of self-regulation by the Commons.

There are many activists, especially from the opposition benches, who think that a wider shakeup is needed. Compared with their colleagues in the United States Congress, British legislators have less power over the public purse, less power to create legislation, less power to investigate and just as much time to fill.

In recent years, some sort of populism has crept into British parliamentary discourse as well. There are some who want the power of the prime minister to dissolve the House of Commons to be regulated. Others have been championing the cause of a fixed term parliament (as in America and Germany) — doing away with the power of the prime minister to discipline the House. Some want it stipulated that no prime minister or minister can serve more than two terms. There are still others who want at least some percentage of all parliamentary legislation to be reserved for private members’ bills.

Noble thoughts, indeed; but there is no guarantee that they will work. There are many parliamentary democracies, take India or Australia, for example, where such untoward incidents hardly happen because there is a centralized system of finance and auditing in place, thus giving no premium power to legislators. Even in Nepal, the constitution does not give (financial autonomy) to any constitutional body which relies on appropriation from the national treasury.

A clean-up of the British parliamentary system in this regard is long overdue; but reforms that do not go well with time-tested parliamentary parameters might not work just by wishful thinking. There is a risk for sure. It will also send a very negative message to other parliamentary democracies around the world, inviting deeper crises in the way institutions will be refashioned to solve problems. Britain, after all, is home to the mother of parliaments that traces its origins back at least 800 years.

[lawyers_inc_nepal@yahoo.com]

 Like many countries in the world, Nepal is also concerned about the need to preserve its cultural and linguistic diversity according to the best formula that one can think of in the face of competing claims of different communities and cultures.

Many factors affect the existence and usage of any given language. Some of them may include the size of the native speaking population, its use in formal communication and the geographical dispersion and socio-economic weight of its speakers. A new constitution providing a policy in this regard can either mitigate or exacerbate the effects of some of these factors. It is, therefore, very important to be holistic and not to miss the jungle for the trees when working on a language policy.

In this context, it is necessary to put in perspective the language policy proposed by the Constituent Assembly (CA) Committee on the Determination of Grounds of Social and Cultural Unity for discussion at the CA plenary session. This is so far largely undone by the constituent of the constitution building process, not to mention the constitutional experts watching the process from outside.

The preliminary draft on the issue provides that all native languages spoken in Nepal are national languages. It is the obligation of the state to ensure equal protection, promotion and development of all national languages. Every native language community has the right to experience their linguistic identity and their relationship with it in dignified ways. Those without sight and voice will also have the right to use Braille and non-verbal communications.

Featuring additional changes, the draft recognizes Nepali — the present official language of Nepal — as the official language of the central government. Along with Nepali, each province has been given the competence to decide how many provincial languages it wants as its official languages. The local units within the provinces may also employ the local language of the area as the official language for their particular region as per the law enacted by the respective provincial legislature.

None of these provisions, however, are deemed to restrain anybody from the use of his or her native language to receive public services from the state. Although it will be necessary to define the nature of this last provision by law, the first three provisions are clear enough and mostly address many of the demands of Nepal’s natives.

The committee draft also provides that the official language of the central government shall be the language to be employed for the communication between the centre and the provinces. There are two exceptions, however. First, a province may decide to communicate with the centre in one of the languages it has approved for official business within the province. It goes without saying that the central government has to prepare its bureaucracy — civil, military or judicial — to receive and process business in at least seven or eight languages and respond to the corresponding province as necessary.

Secondly, the provinces are to conduct their official business with each other in the official language of the centre and any other language to be mutually agreed upon between them. There is no provision which addresses the stake of a third party, for example, a province which is a little far from the provinces which have mutually decided to employ a particular language in their dealings with each other. Again, it could be a language, for which the central government has to be better equipped with — whether it is its choice or within its logistical capacity or not. It is assumed that this language policy can maintain the business requirements of the state as well as the cultural and social harmony in the country.

Many commentators, in the House or down the street, are pretending that the language problem has more or less been solved, at least at the committee level; and that efforts to introduce Hindi as a parallel governmental language along with Nepali has been checked at the threshold. The conclusion is without doubt a faulty one, if not malicious.

According to a provision, the central government may choose to recognize a language that fulfills certain required standards as its official language upon the recommendation of the language commission. The only requirement is that such a recommendation be passed by a simple majority of the central legislature.

In other words, the status of the Nepali language as the only lingua franca of the nation has been challenged on multiple fronts. It may no longer be the language of choice for the provinces, as an operative language between the central government and a province, or practically, even as the official language of the centre. The clutches around Nepali — the language of national integration — will try to keep it not just under size, but also inoperative because of a seemingly inappropriate approach.

Additionally, the above provision, which enables the central government to adopt any other language as the official language for its purpose is a carefully inducted provision to give unsoiled entrance to Hindi — a foreign language — as the second official language of the centre through the backdoor. This provision must be dropped altogether.

While the indigenous Nepali language and the treatment given to it by the proposed preliminary draft will have to be subjected to heated discussions and passed by a two-thirds majority in the Constituent Assembly, Hindi can now be the second official language by the decision of the government of the day. A language commission, or the fragile government of Nepal, which continues to be constituted by decisions made elsewhere cannot check the tide of events that unfolds here when it decides on a crucial national issue. It need not be emphasized here how such a decision will be enforced by proxy forces in Nepal overnight.

There is no reason why Hindi should be allowed in Nepal as an official language simply because it serves somebody’s strategic interests here. It is an attempt to fish in muddy waters. If it is to be accepted as an official language either of the centre or of any province, it must be proposed and voted according to the Constituent Assembly process. There is a danger that a process to empower the natives and their language and cultures might further marginalize them through a provision whose effect is disastrous to the nationalist aspirations of the Nepalese people (already much fatigued by the sponsored changes).

An end to the political spin of this sort is not in sight. Even if a spin of some kind is intrinsic to politics, it just has to be kept in check and not allowed into areas like this where it should have no place.

 A government which not only governs but also occupies the place traditionally given to a loyal opposition has become a fact of life in Nepal in the third year of the long-cherished “loktantra”.

One faction of the ruling coalition, the CPN (UML), has joined the backbenchers. Another faction, the Madhesi Janaadhikar Forum, is not quite sure whether to hold onto the caretaker government or join the new coalition that is about to emerge. The second faction is crucial for everybody as the kingmaker, because although it cannot establish itself as a party to lead the government, no one can form an alternative government without its active support.

In each case, nobody has any principle to establish or a theory to contest. This is not simple patronage, corruption and nepotism. How this strange process works in an allegedly democratic Nepal is no secret.

The government of Prime Minister Pushpa Kamal Dahal, which has assumed the character of a caretaker government, does not want to confine itself to the limit which applies while negotiations to form a new coalition is taking place.

A government with this status is not supposed to carry on like this and take major executive decisions for which it needs a continued majority status.

Again, the caretaker government is aware that taking action against the president, who has publicly shown his differences with the government on the issue of the dismissal of the chief of army staff, is simply beyond its capacity at this stage. A government which has reduced itself to a minority status cannot claim to have the strength to move an impeachment motion against the president, which in any case requires a two-thirds majority to pass. It will be a travesty of the rule of law if the speaker of the House concedes to it.

This is precisely the reason why the prime minister and his party are talking about bringing a parliamentary resolution in the House against the president before it is allowed to vote for an alternative government. Such a resolution is very “unparliamentary” in terms of the Interim Constitution, as it stands now, and also the parliamentary traditions that Nepal has been exposed to so far. Resolutions are to be expressed by the majority in the House, not by a section of it, and it is not meant to be a censure motion against anybody (including the president). He is definitely immune from this process.

The system definitely lacks moral contents at every turn. It is not amusing when lawmakers of the Madheshi Janaadhikar Forum engage in a fistfight over which party to support in the new coalition. It hurts when people who have faith in the recognised procedures of government formation find a mainstream party like the CPN (UML) running after legislators to collect their signatures in favour of its senior leader Madhav Kumar Nepal.

The finance minister in the caretaker government Baburam Bhattarai has accused political parties of engaging in nasty horse trading to accumulate a majority for a new coalition. He has even claimed that parties paid hefty amounts of money to lawmakers to gain their support to form a government. The allegation may not be true, but one has to seriously ponder why all these things are happening at all.

According to parliamentary tradition, the basic rule is that following a general election, the head of state will always call upon the leader of the majority party in the House of Representatives to form a government. The electoral system usually provides a clear winner, but this is not always the case. When there is no clear winner able to form a government, the head of state has the obligation to see if there could be a coalition government capable of commanding a majority in order to sustain itself.

There are obviously claims from all interested parties. It is the responsibility of the head of state to look objectively whose claim appears to be realistic. It is his duty, therefore, to ask someone to form a coalition. Where there is no possibility of a coalition government either, the head of state can even ask a party which can provide a viable minority government. This means he should ask the leader of the party most likely to be able to sustain a government to become prime minister.

The survival of any government, whether a minority government or a government by way of a coalition, will depend upon its ability to maintain a majority among the legislators in the House of Representatives. In any case, a government is not formed by a vote of the House, not at all. At this level, it is merely a commission from the head of state.

The House gets its first chance to express its confidence in the new government when it votes on the speech by the head of state in parliament. This is the rule in most parliamentary democracies. This is the rule that the framers of the constitution and their mentors parted with for many unseen reasons when they drafted the Interim Constitution. In this environment, where there are no stakeholders in the rule of law, it is doubtful how the Constituent Assembly can draft a good constitution.

There would have been no constitutional crisis had the authors of the Sixth Amendment to the Interim Constitution resisted pressure to maintain silence on this matter in order to allow extra-constitutional forces to have their way.
lawyers_inc_nepal@yahoo.com

 The resignation of Prime Minister Pushpa Kamal Dahal “Prachanda” after his coalition government lost its majority when two key allies pulled out in protest against his dismissal of the Chief of Army Staff is not without consequences for the Constituent Assembly (CA). Yet it is difficult to gauge the scale of the impact that it might have unless other variables of politics become clear.

The CA is in its 11th month of operation. It will have to adopt a new constitution for Nepal within the next 13 months. It is already behind the original schedule. While the work is going on, albeit at a slower speed, it is without direction on key constitutional features of the new constitution, such as the form of government and devolution of power. All major parties still differ remarkably with each other on these issues.

Prime Minister Prachanda was certainly not able to invest his time in the constitution making process over these months. Neither was he able to provide political and intellectual leadership to the CA on any of the crucial issues before it, nor was he seen to be keen on entering into negotiations with other parties to resolve the differences they have with each other. Recent initiations at the CA, no matter how small they were, mostly came from the chair of the CA Constitutional Committee, again without much needed moral support from the prime minister.

Yet Prachanda as prime minister had a meaning for the CA processes. To many, he symbolized the change of the regime. The purano satta had gone, and the naya satta of progressive forces had been installed. A much hailed revolutionary was in the driver’s seat of the nation along with his big dreaming associates. His hardcore colleagues were forced to cooperate with the openly “bourgeois” system, even if that was just a strategy to buy time. The CA members of his party were forced to sit with other members and talk about constitutional provisions rather than Maoist catchwords.

Even at the cadre level, many of his unruly people were forced to behave as cadres of the ruling party, vindicating law and order. Rebels had to talk like politicians, asking for popular support rather than issuing threats and applying duress. The “donation terror” was fast receding. A country that was passing through violence, physical threats and intimidation had started to extricate itself out of the morass. And, most important of all, many common people had started becoming futuristic. It is a precondition of any peace process.

With Prachanda gone, there is a strong likelihood of this trend being reversed. Although nobody believes that the Maoists will revert to armed revolution, Prachanda’s May 4 television address gives enough indications of a protracted struggle on different fronts. It is not clear why the prime minister thought sacking Gen. Rookmangud Katawal illegally was so crucial for him at this stage. It defies any common sense inference. But he certainly knows that the more they struggle in the Maoist way, the more this country will lose its independence, territorial integrity, the rule of law and democracy.

Almost seven years ago, on Oct. 4, 2002, King Gyanendra, an inexperienced constitutional monarch, dismissed the Sher Bahadur Deuba government and assumed full executive powers, arguing that the prime minister lacked competence and was not determined to hold the election to the House of Representatives, which was already due. The beleaguered king justified his move under Article 127 of the then constitution, which gave him the power to remove difficulties in the implementation of the constitution. He knew that this provision did not allow him any substantial power of this nature or empower him to act without the advice of the prime minister.

After 15 months of the move, the king said to Time Asia magazine, “I did not dismiss the government on Oct. 4, 2002, out of my own free will. Are you saying I liked doing what I did, what I had to do? The compulsions of those days made me do what I had to…” The move proved to be a major setback to democracy.

It was not all, not definitely an isolated event. In the same vein, in Feb. 2005, the king usurped all executive powers of the state by proclaiming an emergency. He justified the proclamation by citing the failure of the political parties to take a unified approach against terrorism, their inability to hold elections in time and also their betrayal of the people’s aspirations for social, political and economic justice. He did not like to receive directions from any quarters this time. After three years, he was deposed.

The peace process allowed weeding out operations and installation of the Maoists (previously “terrorists”) in the government. The Interim Constitution created a powerful government and “constitutional” president to replace the undemocratic monarchy. No sooner had the president completed eight months of his tenure than he was asked to exercise executive power against the elected government. It appeared as if the rule of law had lost its cause.

The president was very much aware that he could not take any executive decision to overrule the dismissal of Gen. Katawal following a long confrontation with Prime Minister Prachanda and his party. The legal grounds for dismissal and the process he followed were certainly suspect. Again, by the time the decision was made, the government had become a minority government which could not take a decision without reaching a consensus among the major parties.

These facts did not, however, create any encumbrance on the part of the “constitutional” president to take the lead and correct the mistake. Once again, the institution of the presidency was forced to act, knowing full well that, although a little tardy, there were clear and safe avenues for the resolution of these issues. But neither was the deposed king curious about the alternatives nor the newly established Maoist prime minister, the first president of Nepal or those parties who are now trying hard to form a new government.

Wrangling for power has started again, minimizing the main business. Meanwhile, a 16-month-old tape has just been released in which the outgoing prime minister is shown very honestly explaining to his combatants the strategy to capture the state, whatever the recent rhetoric about the CA. It seems to be a planned move. The fire in the belly is out again.

These new developments will continue to cast a shadow on the commitment of this nation to get back to constitutional democracy through the CA procedures. Cultures that build are being minimized. To borrow the late Harvard political scientist Samuel Huntington’s famous remark in his 2004 book, we will suffer the fate of Sparta and Rome, if we allow this culture to wane.
lawyers_inc_nepal@yahoo.com

 ”You say you’ll change the constitution; well, you know, we all want to change your head”

The worry of the Constitutional Committee, which has the responsibility of producing a draft of the new constitution for the purpose of plenary proceedings at the Constituent Assembly (CA), has now doubled.

As a wise policy, it has almost forced every political party to come up with their latest opinion on the sort of constitution they want. Almost half a dozen parties have already spoken to the committee, the rest are waiting to do so. They have their election manifestoes, but this is a document that each one of them prepared last year when the situation was fluid, and the way the mass moved dictated the terms rather than any thoughtful process of change. Supposed to continue till April 2, this exercise will help the committee leadership to finalize the basic principles on the basis of which they are to produce the first raw draft at the committee.

The committee leadership seems to be worried that the parties have not sorted out what form of government their consensual choice is. This must be the point of departure for the drafting work to start. Without taking this important decision, it is hard to think about the nature of executive power, its relationship with the legislature, the position of the judiciary and the work methodology and independence of constitutional watchdogs. Additionally, it will depend considerably on the form of government the sort of vertical or horizontal division of power that should be considered in the scheme of division of power among the constituents of the state. This concern of the CA must be addressed first. It is largely a political decision.

Another worry is about the outcome of the thematic committee processes. While the rest of the thematic committees will retire from the scene after they submit their concept papers, the Constitutional Committee will stay on to draft the new constitution, and get each of its draft articles and the preamble passed through the CA plenary procedures. Every committee can escape its responsibility; the Constitutional Committee cannot do so because the ultimate burden falls on its shoulders. It has to produce the draft constitution no matter how if the objective of the CA election is to be fulfilled.

Many Constitutional Committee members think that unless something is done on an urgent basis, the concept papers to be received from the committees are not going to be worth their name. These papers are not just policy statements, but also technical papers supposed to cover most of the constitutional nuances that a committee has to cover under the CA Rules. That means simply that before starting to draft the constitution, the Constitutional Committee will have to fill up the gaps in the concept papers first.

It is not clear how the thematic committees will produce their concept papers and primary drafts, as required under the CA Rules, without adding some features to their modus operandi. As of today, it is being done by the committee members with the support of government legal professionals who have been put at the disposal of these committees. While most of the committee secretaries and their support team members are legally experienced to do the job entrusted to them, it is difficult for them to cater to all the needs. This is not just because a significant part of their work is spent on coordinating the committee’s activities, but because there are other pressing needs too.

The reasons are apparent. The job involves not just legal professionals, but also subject matter experts and people with drafting abilities. Several inputs have been received, orally or in writing, by each committee; but they require a plethora of analysis and treatment before they can be used for the concept paper.

As far as the completed questionnaires are concerned, some random sampling would be necessary at this stage, and the secretariat needs expert hands to do the job. It is learnt that CA officials have been in touch with the Bureau of Statistics. They too would require outside experts to process the questionnaires and get meaningful statistics out of them. It is immaterial.

There is no alternative to outside experts. But thanks to the kind of politics there is in this country, there are two kinds of experts now — those who have attained professional excellence because they are qualified and those who are samabeshi selections as they do not fall under the BCN (Bahun-Chhetri and Newar) category, and are still experts within a manageable range. No matter who does the job, a second layer of samabeshi inputs cannot also be avoided as part of the legitimization procedure. This will take extra time.

As a point of reference, for example, the name of a noted constitutional lawyer was struck down from a committee list of experts because some members said he could not contribute to the shake-up and chhalang process. It is easy, as the committees have found, to get people to speak to the CA members in their area of interest as has been the practice. It is very hard to get people who can do the job professionally. Many high achievers in Nepal, and those who have contributed to this area in a very significant way, remain outside the process.

Handling a wide spectrum of politicians in each committee — including those who are ingrained with the concept of kramabhangata (wild shake-up of all traditional parameters) and chhalang (a leap forward), and moderates with a sense of history and heritage and what might work or not — is never an easy task. It is difficult to work out a common point on each and every issue. So the limitations of the CA process are very clear.

lawyers_inc_nepal@yahoo.com

 Those who have read Shakespeare’s classic Julius Caesar will time and again remember the famous expression of Cassius, a nobleman, speaking to his friend, Brutus, “The fault, dear Brutus, is not in our stars; But in ourselves, that we are underlings.”

Cassius was trying to persuade Brutus, a friend of Julius Caesar, that Caesar must be stopped from becoming emperor of Rome in the best interests of the public. By this famous expression, Cassius meant that the reason they were underlings (not in a high position) was not because of their astrological charts, but it was their own fault.

This fault has relevance, no matter what the subsequent development in the story of Julius Caesar showed, in the ongoing political scenario of Nepal. Political leaders, civil society activists and induced intellectuals are at a dead end because the Constituent Assembly (CA) does not show any signs of a smooth delivery, while the slogans of Mass Movement II are disappearing fast.

It appears that the CA, which was supposed to produce the first constitutional draft by today, is also looking forward to see a “Quicksilver” typical of Greek mythology (and Nepal’s all political crises) to come around, define their inadequacies, sort out their perceived problems, and offer a draft constitution that satisfies him whether it solves Nepal’s problems or not. It needs no further elaboration why these actors are “underlings”.

All of a sudden, the government, which had been sleeping over the Interim Constitution as to the formation of the State Restructuring Commission for the last 11 months, has finally formed it without even discussing the matter with its coalition partners. It is not clear how it is going to make use of the commission now, if the purpose is not to disingenuously delay the ongoing CA proceedings, which is at a very critical point in time now. The Committee on State Restructuring and Allocation of State Power (CSRASP) is already in existence in the CA. It is under pressure to submit its concept on state restructuring which is already due.

Apparently, pending the commission’s report, the CSRASP cannot send its concept paper to the CA plenary discussion anymore. This also means that the concept papers to be submitted by all other thematic committees, including the Committee on the Determination of the Form of Government, are going to be a very procedural compliance because they cannot do the job meaningfully unless the State Restructuring Commission submits its report, and the CSRASP takes a position on it.

Meanwhile, the commission will have to work in a very hostile environment. The Nepali Congress has already questioned it as an attempt to sideline the partners of change. Besides, the credentials of the country, which was declared a federal state by means of a constitutional amendment alone, has been seriously challenged by a small communist party, which is said to have significant nationalist sympathizers to back it on this issue.

The National People’s Front led by Chitra Bahadur K.C. has submitted a memorandum to the president and street actions are being pursued throughout the country. He has opined that it would be better for Nepal to continue with the unitary structure but with devolution of state power to meet the aspirations of the people. Needless to say, the Maoist government is on “wait and see” before it responds to them. At the minimum, this group will create problems for the federal state if the issue is not put to a referendum. Additionally, if this issue qualifies for a referendum, then why not put the issue of the abolition of the monarchy and declaration of a republic to a vote too?

What has tortured the people of this ancient country is the inability of the leaders to reflect on the voice of the common people. It is definitely the right of the people of a certain nation to decide how they want to be governed, the nation also has reasons to maintain its integrity and react when ambitions run high on the chassis of the right to self-determination.

Constitutional concepts of democracy, constitutionalism and the rule of law, or of federalism, and protection for minorities are not just interrelated, but also balance each other. One should not ignore the fact that the various international documents that support the existence of a people’s right to self-determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to the existing state and the stability of relations between sovereign states in the region.

The circle apparently is vicious. A democratic constitution cannot be written for a nation, nor can one be written in haste. One has to go beyond to realize guarantees for a continuing, open and inclusive process. This is the time that leaders of the present generation understand it.

Prime Minister Prachanda must be reminded of his predecessor Prime Minister Jung Bahadur Rana who was on a tour to France about 30 years after the death of Napoleon Bonaparte who rose to prominence under the First French Republic, and later promulgated the Napoleonic Code. Contemptuous of both Roman law and customary French laws, Napoleon had appointed a consul to propose legislation, which in turn had appointed a commission to do the job. When Jung Bahadur visited Paris in 1850, the code had already passed 46 years.

Amazed by the codified law and its experiment in France, Jung Bahadur immediately formed a jumbo Kaushal (the corrupt form of the French term consul) to kick off a similar codification process. As a matter of fact, he was able to give the Muluki Ain to Nepal almost 46 years before the Germans adopted their civil code in 1900 following the wide impact of the Napoleonic Code on the rest of Europe. As in the case of the Napoleonic Code, the Muluki Ain also drew heavily on previous sources of law. It was intended that it should be interpreted in the light of its own provisions and definitions.

The Muluki Ain was the biggest of all the revolutions in Nepal in terms of constitutional jurisprudence — without causing any deaths or disappearances. Neither the content of the code or the Ain, nor the idea of codification itself, marked a total break with the past. The transition was, therefore, smooth and sustainable. As a source of law, both the code and the Muluki Ain became super eminent replacing the courts and the king with a concise body of rules and principles. Jung Bahadur was definitely a dictator, but he developed a taste for the rule of law, and practiced it based on the experiment of his generation. This is not happening in modern Nepal.

Let Nepal’s leaders be reminded of what Napoleon said, “My true glory is not to have won 40 battles… Waterloo will erase the memory of so many victories. But… what will live forever is my civil code.” It has lived because his successors, as he himself, were not deeply into astrology as the ancient Romans were.

lawyers_inc_nepal@yahoo.com

One of the most sensitive issues before Nepal’s Constituent Assembly is the issue of restructuring the existing judiciary. Different options are being considered in this regard.

Some form of restructuring cannot be avoided in Nepal in view of the necessity of dividing judicial powers between the national government and provinces to be set up by the Constituent Assembly. A provincial government would certainly require a provincial judiciary as a part of its governmental system. But the challenge is to define its relationship with the national judicial framework — especially with the national Supreme Court, which will serve as the guardian of the fundamental rights of the Nepali people and uphold supremacy of the constitution.

The judicial structure that Nepal has till date, however, has not been a major problem. There are few questions or grievances attributed to the existing judicial structure of the country in the available official literature produced during the past eighteen years. The digests of the Nepal Bar Association, as well as the yearly reports of the existing Supreme Court have almost no references on this matter.

This is enough to counter many of the propositions in the civil society forums about the need for massive structural changes in the judiciary. These arguments have political linkages, and have purposes beyond professional interests.

The major problems of Nepal, which have almost become chronic, relate with access to justice, the availability of high quality legal services, the number, size and location of District (trial) Courts, their territorial and subject-matter jurisdiction, and political pressures on the justice administration. The list may include infrastructural inadequacies, which by no means are the characteristic of the justice sector alone.

At the district (or sub-district) level, many people cannot access justice because existing procedures make it difficult for litigants to act without the mediation of professional lawyers and in a participatory and transparent manner. Involvement of lawyers in many simple cases only complicates the dispute and delays justice delivery. Any alternative arrangement definitely requires redefining the number, size, and location of District Courts, remodelling their procedures, as well as reconsideration of their territorial and subject-matter jurisdiction.

The low visibility of the legal system and its weak presence in the countryside renders the law (its values and process) inaccessible and even irrelevant for many local people. Simplifying existing trial court procedures, making the judiciary more understandable to the public and user-friendly for self-represented litigants is always an aspect of judicial reform.

In fact, at the sub-district level throughout Nepal, most of the disputes are settled between villagers locally — especially at the courtesy of village elders or respected men and woman known for their integrity and honesty. They have been acting through the ages as effective instruments for dispute resolution at the grassroots level.

These informal rural forums settle disputes by the processes of mediation or conciliation, by acting as arbitrators or counselors for amicable settlement of disputes between parties through compromise or mutual understanding. If the disputes cannot be settled through mediation or conciliation, the forums then recommend parties to the dispute to settle them through the adjudication process at the district level. This is not always simple and fast, or free from technical procedures.

The formal judicial system is beyond the capacity of an average individual, especially those from rural areas. Therefore there is a need in a revised framework to spread out district court judges throughout the sub-district level to work with these forums. Together they can help institutionalizing justice at the doorsteps of the people of villages in an informal atmosphere free from complex procedures in regular courts and through recognition of local conditions, habits, customs and practices.

Several attempts made in the past, especially in the context of decentralization, to institutionalize the rural machinery have not been successful due to low level of political commitment. But it can certainly be achieved.

It is enough for the new constitution to provide for this system as a theoretical statement leaving the laws to elaborate details. These details could allow district judges at the sub-district level to work with local institutions, use theirs own transparent and simple systems, as many equity courts did in England in the past.
Additionally, the combined system should be free from the technical procedures and processes in regular courts of law. The procedural laws such as those in the Muluki Ain (National Civil Code) and other civil criminal statutes should not apply to proceedings before these forums. Further, the government can frame some legal guidelines, which should prescribe the methods of dealing with cases and procedures during hearings, and also methods for summoning witnesses and of the summons and examination process of witnesses and accused.

These district judges should be exclusively authorized to deal with certain types of cases, if they are to fulfill their role as effective justice delivery institutions. The law should clearly assign the nature of civil or criminal cases they can handle. Further they should be given adequate powers for implementation or execution of their orders or judgments through attachment of property or powers for imprisonment.

The local systems have certain advantages. The decisions are mostly judicious; it is never based on the winner-take-it-all principle of the adversarial system that we practice at law courts. The emphasis is on consensus and the victims do not have to run extra miles to the district headquarters to get justice (at the mercy of police, prosecutor and an advocate). The combined system can have common features of informality, flexibility, consensual and democratic decision-making. It can help institutionalize ethnic dispute resolution practices at remote areas — affording satisfaction and a sense of justice.

There are challenges as well. Ignorance about modern concepts of justice and punishment at the grassroots is just one example. There are dominant interests in the villages as they are in the towns and cities, which may influence decision making, causing injustice rather than justice. Many people think in terms of caste/ethnicity based biases, predominant social relations, patterns of power distribution and community cleavages. They make the job of rendering justice difficult.

It is for this reason that this author suggests that the district court should be enabled to show its presence not just on behalf of the formal judiciary, but also as the guard of the rule of law and basics of the justice delivery process. This type of combined system can not only ensure access to justice, but also its quality.
lawyers_inc_nepal@yahoo.com

 How to achieve a multi-ethnic legislature almost reflecting the national ethnic composition is one of the major issues before the Constituent Assembly (CA) Committee on Determination of the Form of Legislature. Though the committee has held 20 meetings till Feb. 24 covering different themes under its terms of reference, there has not been any specific focus on this issue.

The committee is aware that attempts to achieve diversity and pluralism in politics without an effective electoral system have been a dismal failure in many developing countries, and in most of them, an uphill battle. The challenge is not just to give effect to the aspirations of a multicultural society, but also to make sure that basic democratic values do not run off in a bid to meet these aspirations.

At times, even if the electoral and spatial integration policies are driven by the objective of enhancing multiracialism, their actual workings may not adequately advance the development of norms and values that would be truly supportive of the need for a multiracial legislature and an abiding commitment to multiracialism.

The Interim Constitution of Nepal adopted both the first past the post (FPP) system based on single member constituency and the proportional system of representation to elect the CA members to draft a new constitution for the country. The FPP system applied only to 240 out of the total 361 members. The later system, adopted at the insistence of the Maoists and the Madheshi parties, was quite one-dimensional.

The reason is electors were allowed to vote for a political party, which came out with their list of candidates, rather than voting in a single member constituency for a specific candidate. All the votes were counted and each party received seats in the same proportion as the votes it won throughout the country. Many of these parties were able to send their men and women to the CA, but the people who were so keen about proportionality had very few representatives in them.

In the system that was adopted, voters had little effective choice over candidates. Many of the candidates were first timers with little political experience, and some of them had no local connections even if they liked politics. Many women who were elected were not born in this country, and lacked enough motivation for the great job they were supposed to perform. These lists did little to ensure fair representation for traditionally under-represented groups in society. Even if proportionality had been maintained, the system apparently kept power out of the hands of voters and firmly in the hands of the party leadership.

If this system is allowed to remain for another term as well, it is possible that political parties will be formed along ethnic or religious lines to incite tribalism, communalism or religious bigotry to get votes. The system will not be able to stop such parties to appeal to their own ethnic groups, religious slogans, and parochial interests and that eventually will make democracy a hostage of extremist parties: each race or religion pushing for its own space till they collide. It has also been argued that this type of proportional representation does not tend to produce stable majorities, thereby making effective government difficult.

The available models of electoral systems for the people who want a change can be very puzzling, not least because there are so many varieties with some of them involving complicated procedures. But nobody can dispute the fact that whatever happened with the CA elections, the voting system that the new constitution is going to adopt must not be of the same type.

Nepal may consider adopting a dual system of single member constituency (SMC) and group representation constituency (GRC) for its parliamentary election. The first system, as usual, can be applied in some hill and mountain districts which are small and have limited populations. The second system can be applied in the remaining multi-member districts.

In the SMC system, a voter simply puts an “X” next to the name of the candidate he or she supports. The candidate who gets the most votes wins, regardless of whether he or she has polled more than 50 percent of the vote. Once the members have been elected individually, the party with the most seats in parliament, regardless of whether or not it has a majority across the country, normally forms the next government. Nepal has been familiar with the SMC system from a long time. This system is the easiest to practice and is very democratic in its operation.

As far as the GRC system is concerned, it is designed to improve the poor performance of the proportional electoral system under the Interim Constitution. GRCs are large enough to choose several members of the legislature for each constituency to represent them proportionally. The justification for GRCs is that they allow contesting political parties to field multi-ethnic candidates for each constituency. A GRC must reflect the ethnic composition of the local population in each electoral district besides dividing the available seats between men and women.

The GRC system is politically neutral because whichever political party fields a strong team will have a good chance of winning. If party leaders offer poor candidates, they fail squarely. The group succeeds or fails, but always as a mixed ethnic group contesting the elections together. They operate with a plurality voting system, meaning that the party with the largest share of the votes wins all the seats in the GRC. It maintains the requirements of competitive politics.

The GRC is a simple system to understand. Voters get to say which party should form the next government. It tends to lead to a two-party system. The system tends to produce single party governments, which are strong enough to create legislation and tackle the country’s problems without relying on the support of any other party.

Nepal may adopt the SMC or GRC systems with the necessary adjustments for the election to the House of Representatives. It can then restore the single transferable voting system for the election to the Upper House, which Nepal had been practicing under the 1990 Constitution. Together, they can meet Nepal’s urgent requirements of democracy and multiculturalism.

lawyers_inc_nepal@yahoo.com