Making of a Constitution

Report of the two day program organised by Administrative Court of Nepal (ACN)

28-29 November 2008, Kathmandu

by Yubaraj Ghimire, Chief Editor, Newsfront Weekly

There are however, some exercises going on outside the legislature which may provide rich input to the future constitution. One such exercise, mainly on the kind of judiciary that the new constitution should adopt, took place on November 28 and 29 in Kathmandu at the initiative of Administrative Court of Nepal with the assistance from Friedrich-Ebert -Stiftung (FES). While The views expressed were varied, and some of them radical, there were also some meeting of minds.

According to Prime Minister Pushpa Kamal Dahal Prachanda, this was the first and a very welcome exercise that he was participating in with judicial reform in its focus. "The ongoing peace process, constitution making process and country's prosperity are interlinked and the government is determined to finish the task within the stipulated two years period", he said but Judiciary's reform posed a major challenge in the process. "The feudal political system and its machinery during the past two years had their roots deeply spread in judiciary as well. Removing them will be much more difficult than our launching the people's movement for ten years or political parties taking to the street agitation now". Prime Minister's frank admission exhibited his fear that the judicial reform may not take place in the desired degree , but at the same time the message that he is aware of the enormous challenge that the constitution making process faces. He said the judiciary is like a cobweb of manipulators and liars, and they fleece the people who want justice. In fact, access to judiciary is still a far cry in this country. He also revealed that the Maoist cadres used to dispose cases in their kangaroo courts during days of insurgency . "People used to feel happy about quick disposal of cases on the basis of available evidences". "The lesson I have learnt is you can involve people in the justice delivery system in a lawful manner".

The Prime Minister said that 'formal democracy' across the world has not been able to address people's aspiration , and one way of ensuring that is by giving access to judiciary, people's last hope for justice, and for that it must have people's participation, control and monitoring right ensured. That alone will institutionalize and ensure rule of law. "If we do not introduce reforms to suit the aspiration of time, revolts can not be prevented anywhere", he said, adding " judiciary and entire judicial sector should be more devoted to the people so that people have a sense of ownership'.

Touching briefly on the other aspect of constitution making, the prime minister said there are always chances of revival of the traditional forces . "History's rule suggest if the changes can not be institutionalized, counter revolutionaries may take the advantage'. "We also have to be cautious that our commitment for decentralization and formation autonomous provinces, if applied wrongly, may also lead to disintegration of the nation'. "However, the best way to avert any accident or disaster is for the people to make their own constitution and own it, and that is the exercise we are engaged in".

Prachanda, as leader of a political party that does not have majority of its own in the constitution may not dictate the content and type of constitution future Nepal will have, but as leader of the organization that launched the armed insurgency , arguable is the single biggest factor, that caused the election to the constituent assembly. That way his thoughts and political line will have much bigger impact on the constitution making process. Almost exactly echoing Prachanda's line was Law Minister Deb Gurung who also happens to the member of the central committee of the Maoist Party. He stressed the need for both short term and long term initiatives for judicial reforms as the judicial sector needs to be thoroughly democratized . "For 250 years of monarchy, it was totally centralized and feudal and now people must have easy and simple way of getting access to justice", he said adding, money plays a big role on justice dispensation system. He said with the change in political system, judges must be -reappointed'. There is equal need to decentralize, democratize and modernize the judiciary.

Along with this major political inputs, other high level stake holders and experts also contributed in the focused dialogue. Chief Justice Kedar Prasad Giri emphasized on ensuring people's partnership in the judiciary's reform process. "A good, pro-people and effective as well as Independent judicial system alone could contribute to political stability". In his brief intervention in the program, he said the ongoing political process for preparing the new constitution must ensure that qualified, efficient, honest and independent people could get berth in the benches.

Justice Min Bahadur Raymajhi who is in the line of succession for the post of Chief Justice when Giri retires in a couple of months, was however, more forthright, precise and frank in opposing a controlled judiciary, a fear that sweeps across the country, given the visible servility that the apex court has shown in some disposing some cases of political importance in recent days. "The controlled and weak judiciary can not protect the rights of the people. Their safety, security, property and the issues related with their rights and interest can only be protected by an independent judiciary', he said while presenting the key note address "Justice dispensation: credibility, responsibility and transparency'.

Some one who has been able to call a spade a spade publicly, he reiterated that "greed , interference, influence, fear and threats are the biggest enemies of free, fair and independent judiciary system and ' a judiciary free from all these vices is what the people want to be our justice system. ' "While executive has arms under it and powerful and legislature has control over financial mechanism and therefore more powerful compared to judiciary, yet people have more faith in independent judiciary. Judiciary's strength is people's faith. Therefore, judiciary can not afford to ignore the people's right and wish to secure justice through an independent and efficient court.'

In a note of caution for those involved in the constitution making process, he said independent judiciary is the essential component of judiciary administration in a democratic system. In absence of independence, courts can not dispense justice system fairly. "Law alone is not enough to guarantee such freedom, but it should be exhibited in practice also," he said asserting that the principle of separation of power-executive, legislative and judiciary-must be maintained.

Giving a brief history of evolution of justice system in Nepal, he however, said there have been attempts to snatch its independence at times. "There are many things that are included in the interim constitution which adversely affect the independent judiciary in Nepal. A 14-point suggestion given by the supreme court to the government were not taken into account. "Not to hold even casual discussion on suggestions given by one of the three important organs of the state is definitely not a happy situation", he said hoping this will not be repeated in future.

Almost joining issue with politicians, especially the Prime Minister and the law minister, Justice Raymajhi said the best way to protect the principle of independent judiciary is to ensure that judges are appointed through an independent procedure, with no interference from the government or the political parties. His other prescriptions for independent judiciary included: review of judicial verdicts only through judicial bodies, security of judges through out their tenure with the guarantee that any action against the judges have to be only the on the basis of established constitutional norms and standard and periodic training opportunities to enhance quality of judges. He also suggested that implementation of judicial verdicts and decisions add up to the effectiveness of the judiciary. Any compromise on any of these prescriptions, he said, will result in the erosion of the quality of justice. Judiciary, at the same time, must act in a responsible and transparent manner so that it enjoys public faith. Judiciary is not above the system of accountability towards the sovereign people, but the way to demonstrate that is through display of fair conduct with a high moral content, impartiality and openness in dispensing cases an ability to ward off any influence.

He said a democracy without independent judiciary is something that can not be imagined. Getting qualified judges was becoming increasingly difficult everywhere, and attractive salaries and incentives are necessary for that. Appointment in the judicial system for various posts must be done through judicial bodies instead of getting outside agencies to do the job. He felt that the government should not indulge in assigning the chief justice or other judges into any other job as that may amount to interference in the judiciary. Kashiraj Dahal, Chairman of the Administrative Court, in his paper" Constitution making and Justice system: challenge and reforms', said, generally the democratic system are either Consociational based on power sharing , consensus based and majority rule based. But as Nepal is going through the constitution making process, it will be helpful if a consensus is formed on issues the state's legislative power, executive power, judicial power, electoral power, citizen's power , framework of the state, model of democracy and that of inclusion, electoral system and that of representation, issue of national integration and tolerance much before the constituent assembly gets down to prepare the draft for the new constitution.

He however, emphasized that an independent judiciary is the corner-stone of the democratic state system in which the right to give last decision on life , freedom and rights of the citizens along with that on property , rests solely on the judiciary. And the freedom of the judiciary must be guaranteed through constitution. Dahal concurred with Justice Raymajhi on what constitutes independence of judiciary, with added emphasis on 'corporate independence ' as well. To infer, he cited a statement that 'any democracy worth the name must provide for adequate and effective means of conflict-resolution at a reasonable cost: otherwise, the rule of law becomes of platitude and people may take law into their own hands, disrupting peace, order and good government…". Obviously, the underlying suggestion was the need for an effective judiciary with its independence guaranteed and its principles clearly laid out.

But there were lot of skepticism about the political system the future constitution should be adopting. Former Speaker of the House of Representatives and a votary of 'Liberal Democracy', Damannath Dhungana said 'parliamentary democracy' has failed in Nepal and it should not be revived. He advocated that Nepal should go for electing an Executive President who could truly act as a symbol of hope and identity of the people of diverse cultural, religion and geographical backgrounds. He also felt that the 'proportional representation system' -a component of the mixed electoral system that Nepal adopted during the April election-was misused by the leaders to choose their loyalists as members of the constituent assembly. Political leaders behaved more like 'bosses' and dispensed with minimum transparency needed.

He was , however, supportive of the way monarchy was abolished by the first meeting of the constituent assembly without following due process. 'Let's thank the king for having given up, and close the chapter'. However, Dhungana's statement faced probing questions. Senior journalist and columnist Dhruba Hari Adhikary asked him if due process can be de-linked from democracy, almost representing many votaries of liberal democracy in the country. Dhungana who is also a senior advocate said the new constitution must guarantee independence of judiciary and the current system of justice and judiciary must not be disturbed. "After all a judiciary is a conservative institution, and let it remain so'. Bishwakanta Mainali, Chairman of the Nepal Bar Association (NBA) said the justice system must encompass in it all the universal values and principles of judiciary. The state must provide justice to those who are helpless and unable to afford for the justice. He however felt that there should much more stringent measures to contain corruption in the judiciary. 'The provision of impeachment by the legislature is not enough'. Mainali's suggestion triggers a fear that this is a way of somehow creating a mechanism 'above judges' in the name of policing them. In what appeared like an expansion of what King Mahendra said way back in sixties, Mainail also said that the list of fundamental rights should be appended with the fundamental duties of citizens, with the provision that its violation should be a punishable act under law.

In his brief presentation, Dr. Surya Dhungel, a constitutional lawyer and advisor to President, said the process of constitution making needs to guarantee people's participation which will lead to their owning it. It also must uphold the principle of the supremacy of law and rule of law. 'Given the context of conflict, the process also must ensure that there armed insurgents come to agree on the need to eradicate culture of impunity'. One only hopes that similar exercises are followed so that the constitution making process gets a rich input. Madhav Ghimire, Secretary of the Ministry of Peace and Reconstruction in his paper explained multiple transitions, initiatives of the government and challenges in establishing post-conflict stabilization measures.

The reporter of the seminar, Joint Secretary of CA prepared the main points discussed, such as ownership in the constitution, institutionalization of federal democratic republic, independent, transparent and accountable judiciary, state restructuring along inclusive lines, coordinating mechanism between federal states and peace building measures, etc. 150 high level government secretaries, lawyers, civil society members and journalists participated the meeting. Participants demanded to give continuity to the constitutional talk like this one in various parts of the country. The elaborated finding will be disseminated among CA members.