Seminar Report on State Structure and Judicial Rights

Organised by Nepal Administrative Court (NAC) and Friedrich-Ebert-Stiftung (FES)

23-24 November 2007

By Yuba Raj Ghimire
Email: ghimire.yubaraj@gmail.com

Apart from the Chief Justice and almost all the judges of the supreme court, senior officials from the Nepal Army, Armed Police Force, Civil Police and secretaries, joint secretaries and directors from Civil administration on one hand, representatives of the political parties, from Maoists to pro-monarchy parties as well as those from the bar, human rights, civil society and the media participated in the event where experts presented their views with focus on the theme of the workshop.

What should be the role of the state in implementation of the judicial verdicts and what are the obstacles that government faces in their implementation?, senior judge of the supreme court, Justice Min Bahadur Rayamajhi, and Yubaraj Pandey, Secretary in the Ministry of Communication, Government of Nepal, presented their papers for discussion on the occasion. Kashiraj Dahal who heads the Administrative Court presented the paper on 'Judicial Rights within the State Structure" while Devraj Dahal, a noted political analyst, dealt with the issue of formation of a modern state in the context of Nepal's current perspective. Active participation by more than three dozen people in the discussion over two days not only demonstrated the level of concern over not so optimistic transitional scenario, but it also provided rich input to the policy makers on various issues covered by the theme of the discussion. Participants were divided on whether a Federal Nepal was in the best interest of the country or whether some other model of devolution should be devised.

Justice Rayamajhi's paper that dealt with evolution of judicial system in the country emphasized that an independent judiciary was the corner stone of a democratic structure. He asserted that the interim constitution some how appeared compromising on the issue as it gave an increased say of the executive over the appointment of judges which he said was an aberration from the previous system where the apex judiciary would have a larger say. He also expressed concern that the principle of separation of powers for an effective check and balance was not being honored in the interim constitution. Justice Rayamajhi was equally candid when he disapproved of the system of the Supreme Court having to submit its annual report to the Prime Minister or the Executive Head that can be clearly interpreted as supremacy of the executive over judiciary.

In fact, many lawyers who spoke asserted that the judiciary must preserve its independence. They were also critical of what they said certain lapses on the part of the judiciary in the past while delivering judgment on cases related with the executive encroachment over constitution. They expressed grievances that Nepal's apex court had some times erred in justice delivery. Instead of going by what the constitution said, the court at times went by political environment at the time of delivery of the judgment. Kumar Regmi, Chairman of the Constitutional Lawyers Forum said the supreme court failed to protect the constitution of Nepal 1991, when the palace misused its provisions explicitly on October 4, 2002.

Communication Secretary Pandey said the apex judiciary had been able to give a message that it took in stride the criticism made by the media and general public on what they thought were the court's shortcomings. This was a welcome tendency, and will go a long way in rectification of the judicial process , and enhancing the quality of its delivery.

Presenting executive's perspective, Secretary Pandey said quite often courts issue stay order against the routine transfer of government officials which in effect hampers the normal working of the government. He also said at times, in cases related with drug trafficking, murder and corruption, the courts do take a lenient views citing technical reasons . This, he said, may encourage those indulging in such crimes on one hand, and it also might create an impression among the people that the court protects the right of the criminals caring little for its impact on the society.

Kashiraj Dahal's paper-state and the judicial rights-stressed that countries with constitution not confirming with constitutional and democratic parameters are prone to revolt, movements and resultant absence of peace. Instances across the world indicate that constitutions which incorporate democratic values, human rights, social justice, separation of powers coupled with check and balances, recognition of people as source of all rights, accountability of the government , press freedom , independent judiciary in it have proved to be more dynamic guaranteeing political stability, peace and service delivery.

Talking about the ongoing debate about holding polls to the constituent assembly in Nepal, he said a process of addressing people's problems by the representatives of the people through their participation is what constitutes a constituent assembly. For its success, the Constituent assembly should be inclusive, and it should also contain a clear road map of political forces which are pro-change and dynamic.

He said although the interim constitution favored a federal Nepal, there can not be one model of it for different countries. Social, geographical equality , people's aspiration, resource mobilization and national unity or integration are the factors that come into play while determining the type of federalism. He also emphasized that a multi-layer judicial system that should confirm with the new state structure should get equal importance. He also made it a point that the new constitution should rectify the mistakes that the interim constitution has committed, especially on issues related with the principle of separation of powers.

Dev Raj Dahal's paper "Formation of a modern state in the context of Nepal's current perspective," invited some fury and anger by a small minority from among the participants, but drew much appreciation from the rest. At a time when the generally accepted monopoly domain of the state in enactment of laws, their implementation, awarding punishment to those who violate it and mobilizing the resources are being challenged, defining state has itself become a difficult job for political scientists. But a state surrendering these rights to non-state groups is a weak state, and Nepal can easily be listed as one. He said the state is also an institution that gives its citizen an identity. "But in principle, Nepal as a state has also been abdicating its sovereignty before the international regime", he said. Noted Human Right leader Krishna Pahari took strong objection to this particular comment of Mr. Dahal and also criticized judges of the Supreme Court being present in a function where controversial opinion on the functioning of the state and that on the constitution making were being expressed. But as the fear of this kind is something that has found place in the Nepali media with a number of political scientists and media people writing it, Pahadi's contention did not find much support among the audience.

Dahal said while the doctrine of state's monopoly on above mentioned issues was being diluted in the context of Nepal, he also quoted various research documents, including the one published by Carnegie Endowment for International Peace (2007) which stated that excessive corruption, absence of rule of law, monopoly of ruling class on power on one hand, and society's division on language, religion, ethnicity and faith posed a threat to make Nepal a failed state. As a result, competing groups were indulging in more violence while the principle of the supremacy of policies was fast becoming a casualty.

Dahal's paper said internal democracy among the political parties and the civil society goes a long way towards minimizing personal interest of the leaders implying Nepal was not lucky enough to have such parties and the civil society. In democratic system, legitimacy is acquired only through people's mandate and election. He said conflict can be turned into an engine of change and forward movement, but it needs to be converted into a planned process. In this context, the comprehensive peace agreement that followed the people's movement and promulgation of the interim constitution, contributed enormously in various spheres. Debate on democracy has taken a new shape as its protagonists are talking in terms of people's democracy, republicanism, federal democratic republican etc while in political term, left alliance has come in the centre stage of politics compared to the active monarchy earlier.

However, extra-judicial actors role is expanding in absence of the political stability. But political parties convenient way of going for amendment to the interim constitution has made the transition more complicated. Dahal also warns that erosion in interim parliament's autonomy and its having to depend on extra-parliamentary source may lead to new areas of compromises. Given Nepal's unique character, unity in diversity culturewise, conciliatory politics and sustainable economic growth oriented policies alone could unite and take the Nepali society further. And going by the mood, representation and participation in it, it set a welcome tone in the debate on issues that would continue to dominate in the country. Altogether 160 participants took part in the meeting. FES also distributed its four publications on democracy, constituent assembly, political party and compromise to the participants.