Seminar Report on Constitutional Democracy & Rule of Law

Organised by Administrative Court of Nepal (ACN)

11 September, Kathmandu

By Yubaraj Ghimire

On September 11, the Administrative court with the support of the Friedrich Ebert Stiftung (FES), brought the 125 luminaries from the judiciary as well as the legislature together, during a day-long interaction on "Constitution Making and the Rule of Law." And the status of fate of the Judiciary in the future constitution dominated the theme with a lively and rich presentation of their views by the participants which included judges, legislators, constitutional experts, secretaries, academics and politicians.

What should the judiciary in the promised new constitution be like?, all of them had clear ideas, and at the same time worries, whether their concern will be addressed when the new constitution is prepared. The deadline set for promulgation of the new constitution is May 2010. Opinions were diverse, yet there was unity of approach and intent largely, that the judiciary should be both pro-people and independent, with the constitution incorporating all values and principles of democracy in it.

It was a rare occasion in the sense that the chief Justice of Nepal, Min Bahadur Rayamajhi, set the tone for larger debate with prescriptions-some of them of bitter-that politicians should curtail the time-span of and uncertainty of the transition 'since a longer transition will only complicate the problems that the nation faces today. "The new constitution should not only specify the basis of people's right to live in peace and pursue happiness, it should also guarantee freedom from absolutism, exploitation and injustice by incorporating the best qualities of democracy-the best political system in the world". Any talk or debate on pluralism, democracy, civil rights and liberty, fundamental rights, human rights, independent judiciary and rule of law would be futile if we forget to include in our constitution the principles of democracy, rule of law and values of independent of Judiciary, something that has been universally accepted.

There are visible efforts by some countries -not practicing democracy so far-to transform themselves into a state based on rule of law and then move to democratic system. But if we failed to concentrate on these issues and ended up establishing a system opposite to the values of democracy and rule of law, the country is sure to invite unfortunate disaster."

Chief Justice Rayamajhi's warning of course, was in response to the ongoing debate in favour of the Judiciary with Legislature's supremacy over it. "Let's all agree that the concept of constitutionalism and independence of Judiciary alone will protect democracy. Power intoxicated approach that demolishes the course of law will not protect democracy", he said. In fact, the Chief Justice appealed to all to make a sincere and objective evaluation of the role that Nepal's Judiciary has played in defense of fundamental rights of citizens, constitutionalism, rule of law and peaceful settlement of disputes. Let us all put our effort in making Judiciary more efficient and independent so that they provide solid corner-stone of democracy. Any attempt to weaken judiciary will be suicidal."

CJ Rayamajhi's opinion evoked intense discussion and worries, mostly in support. Justice Anup Raj Sharma, the senior most Judge of the Supreme court, said separation of power and balance between the executive, legislature and judiciary in a multi-party democracy will strengthen the system which will go a long way in protecting the rights of the citizens. "Any move against the independence of an empowered judiciary and freedom of the media would lead to erosion on the rights and liberty of citizens", he said.

Presenting a paper titled Constitution making and Judicial rights, Justice Sharma said , "In Nepal, a multi-cultural country with diverse language, ethnicity, religion , absence of an empowered judiciary may give rise to authoritarian or a dictatorial political system", he said, adding " only an independent, impartial, qualified judiciary can ensure that the government functions legitimately, honestly, transparently and with answerability".

He said as majority opinion seems to be in favour of federal political system, it is necessary to debate the future structure of judiciary in the federal set-up. In a guarded response to the Judicial committee's recommendation that not the supreme court, but legislature should be the final interpreter of the constitution, Justice Sharma said " it is generally believed that legislature normally does make laws that contravenes the (provisions of) the constitution, and that the court normally should refrain from questioning the wisdom of the legislature in its legislative rights. But as a matter of exception, the Judiciary reviews legislations if seen ultra virus of the constitution". "Yes, a prolonged or repeated confrontation between the judiciary and the legislature is not a healthy sign . But that can be best avoided not through the curtailment of the rights of the judiciary, but by appointing judges who are more efficient, capable, studious or knowledgeable, and the ones with high moral character", he summed up. Justice.

Kashiraj Dahal, Chairman of the tribunal cost and host of the interaction programme, said Nepal needs to be saved from the increasing list of states, failed and failing. It's high time that the actors demonstrated collective wisdom. "Curtailing the transition period and enforcement of the rule of law are something that we all are looking for".

In Dahal's analysis, Nepal has been witness to erosion of its sovereignty, Law and order has deteriorated and culture of impunity is on the rise. State Building needs to be taken up with urgency, and the state builders are expected to establish their monopoly on the coercive power of the state and on the capital. Besides, the country that has been passing through such an uncertain phase, also needs a charismatic leadership to steer the nation out of it.

Erosion in sovereignty lead to many crises including decline in the efficiency of the organs of the state which further brings the legitimacy of the political system into question. Lack of honesty and efficiency on the part of security agencies and civil bureaucracy, absence of an independent judiciary and an answerable government together may lead the country to failure. In a failed state, the local actors will lose their role and outside or international actors inference will increase. Giving various examples world over, Dahal
said, even today, the imperialism is alive on one or the other form. Their quest to rule the world has not ended, and therefore, many conspiracies are being hatched. Quoting American Political scientist Fukoyama, he said West Felia convention may have made it mandatory for all the countries to recognize all other countries sovereignty and independence, there has been visible erosion in the sovereignty and independence of the weaker countries.

In Nepal's context, Dahal said the country has been experiencing various conflict as it goes through the process of writing the constitution. While Political parties are ideologically divided, different ethnic groups have differences on the issue of their ethnic rights and identities. As a result, there has been visible erosion in the level of peoples loyalty to the state. The state's authority has been adversely affected because of that. National interest has suffered and unity weakened. Social harmony is no more Nepal's strong point. And all put together, the rule of law , democratic values and principle of good governance are facing hostile circumstances, he said.

There were definitely less hopes, and more frustration over the pace of constitution writing process. There was visible anger over the possibility of the independence of judiciary being stifled. And clearly, it was not easy for Nilambar Acharya, the man who heads the most important House committee-constitutional committee-to address all those. Yet, he gave a clear message that the future constitution will not compromise with the basic values a democracy brings with it. In essence, it will have independent judiciary and all the fundamental rights universally accepted. But he said to be able to finish writing the constitution within the May 2010 deadline, the committee will need the cooperation from all sides, all parties, including the government and the opposition.

"The constitution can not go outside the values and principles of democracy. Rule of law, independent judiciary, periodic election to parliament through adult franchise, etc are the uncompromisable values that have to be incorporated in the constitution", he said. He was clear, and positive about the need of demands like the constitution having to be accommodative and inclusion on ethnic , geographical, social, cultural and gender honoured. "But for that the conflict must end. Ongoing culture of strikes and agitation has
hampered the constitution writing process. If we do not stop it, we can not establish peace".

He was critical of the Maoist sponsored agitation and its declaration that it would set up a parallel government. "Parallel phenomenon poses challenge to the government's exclusive domain. "We can write the constitution of the nation is paralysed. The blockade or obstruction of the Legislature parliament will only derail the constitution making process as it can not proceed in isolation".

Dispelling the oft raised fear from the audience about the independence of the judiciary, Acharya epmphasised that the Judiciary will be independent, and the new constitution will honour the principle of separation of power. "A recommendation submitted by one committee of the constituent assembly is not the final form of the constitution that we are writing", he said, amidst cheers, in the audience.

Only speaker who looked at odd with the majority opinion expressed there was Ekraj Bhandari, a Maoist leader, and member of the House committee on Judiciary. Bhandari was however, articulate and rigid in his view that the Judiciary has to be answerable to the legislature. "We are clear that the country's politics today is divided in two clear groups with two distinct political philosophy. There are two distinct outlooks or world view on the state, judiciary and word affairs. Clearly, it is the Maoists versus the rest".

Justifying the Maoist concept of Judiciary, Bhandari who is also the authentic voice of the party on judiciary related issues, said People have no faith in the current judicial system . "We two groups may try to bridge our differences, but we are not going to accept the one in the current form". He however, did not elaborate if the Maoist party has any alternative or compromise model in mind. He said Judiciary needs to be made accountable. May be we need independent judiciary, but that independence should not be absolute, he said . But he insisted that the legislature parliament should have the right to interpret the constitution. "May be we can take the help of the supreme court in the process". But Bhandari was clearly alone in advocating that the principle of the separation of power and independence of judiciary should be done away with.

There were more explicitly clearer arguments that experts views that demolished Bhandari's antipathy to the judicial independence. "Today's self-serving politics and lack of farsightedness is posing the biggest ever threat to the unity and integrity of the country", said Bishwakanta Mainali, President of the Nepal Bar Association and a senior advocate.

"I can not defend this constituent assembly any more when my fellow citizens and advocates say it's a criminal assembly. Neither it is moving in the desired pace to make the constitution, nor has it been able to show clarity on fundamental ingredients of the constitution in a democracy", he said leaving the participants stunned. "We, the people reposed our faith on the constituent assembly, in the hope that every citizen will have a sense of ownership on that. But developments so far make it clear that we have been proved wrong".

"The interim constitution has propounded a new principle that the agreements reached among the political parties in the past also will be accepted as part of the constitution. Look at the constitution it has invited now", he said, warning that failure on the part of the constituent assembly to come out with the new constitution by 2010-a deadline that can be extended by a maximum of six months beyond that---will bring the legitimacy of the constituent assembly as well as that of the government into question.

He was also perturbed over, the strident demands like creation of states based on ethnicity, language and faith-all emotive issues-with the right to self-determination is likely to create more chaos. Each group is trying to fish in troubled waters. " The report of the CA's thematic committee on judiciary will politicise judiciary. Independent Judiciary, human rights and rule of law are the basic values of a democracy which can not be given up if democracy is to be established in the country", Mainali said. "One Single party's faith or belief can not dictate what could be the polity , political system and the type of judiciary that the country would be adopting in future."

Purna Kumari Subedi , Deputy Speaker of the Constituent Assembly said the country must have a balanced approach on making the constitution. While the past mistakes and deficiencies could provide could input on how to avoid repeating them, we also need to study three general ways of charting constitution making process and practices. "We need to gather experts opinion, study international practices and also ensure that the fundamentals values and specialty of the country are taken note of", she said. "We must fulfill the responsibilities that the people have entrusted us with".

She was very guarded in her approach on the future of judiciary. "we need to make it pro-people, and present inadequacies should be addressed. We are in favour of more progressive legal system". Subedi, although a Maoist leader, kept quiet , or significantly, did not defend the report of the CA's thematic committee on judiciary. Sarbagya Ratna Tuladhar, another noted senior advocate and former Attorney General said parallel government and challenge to the legitimate authority of the state will not only weaken the country, but also weaken the constitutionalism. He said the judiciary in the past has played vital role-despite all its shortcomings-in defense of democracy, civil rights and human rights. Tuladhar suggested the current structural layer of judiciary-supreme court, appellate court and district court-should be retained even when the country's goes federal.

Homnath Dahal, a former law maker, and Nepali congress leader said that the constitution writing is unlikely to be finished during the remaining 8 months of the deadline. He said Maoists have challenged the very concept of democracy and pluralism. "On one hand, they said pro-imperialist political parties should not be allowed to exist , on the other they are also trying to give a blow to the independence of judiciary". "Who is going to define which are the pro-imperialist parties". "The country is not going to accept any imposed' constitution with curtailment of democratic rights and values", he said. And definitely, that reflects worries of average Nepalis. It is not 'any type of constitution' that they want. They want a fully democratic constitution, and at the same time they want an assurance that all actors and political parties are sincere and honest about it. The papers were also commented by Prof. Ganga B. Thapa, Dr. Sri Krishna Yadav, Associate Professor Lal Babu Yadav, Judge Mira Khandka, journalist Hasta Gurung, chairman of Supreme Court Bar Association Indra Prasad Kharel, Secretary of the Ministry of General Administration Balananda Paudel, etc. The recommendations of the seminar stressed on:

• Consensus building among the political parties on major political questions before the drafting of the constitution.
  
• Constitution should be designed to provide the basis of national unity and safeguard country's vital interests.
  
• The constitution should fully adhere to the principles of constitutionalism and aim towards the supremacy of constitution and rule of law.
  
• It should establish the sovereignty of people and facilitate the full exercise of their fundamental rights.
  
• To facilitate the speedy making of the constitution timely consensus among the stakeholders on the bases of Nepal's sovereignty and territorial integrity, institutionalization of republic, guarantee of inclusion and proportionality in governance and defining the foundation of national interest and social amity are essential.
  
• The bedrock of multi-party democracy stands on separation and checks and balances of power among legislative, executive and judicial branches of governance. Fundamental rights of citizens cannot be secured in the absence of independent and competent judiciary and free and responsible press.
  
• The constitution should establish effective mechanism to guarantee the participation of all stakeholders in the establishment of rule of law, security of citizens and the state, accountability and transparency of governing institutions and timely auditing of the performance of public institutions.
  
• To consolidate democracy and to protect fundamental rights of citizens, there is no alternative to independent, competent and accountable judiciary. Judiciary equipped with judicial rights can become truly independent and free.
  
• The solution of the weaknesses of judiciary lies not in cutting its prerogatives but by recruiting able, skilled and experienced judges with high moral character. The recruiting body of judges should also include representatives of legislature and civil society.
  
• Timely promulgation and implementation of constitution requires effective watchdog function of civil society. Similarly, this kind of expert dialogue should be given continuity to prepare, amend and refine the draft of constitution.
  

This is the third follow-up of the high-level dialogue initiated three years ago by Administrative Court of Nepal in cooperation with FES.