Summary report on Constitutional and the Future
Organised by Administrative Court of Nepal
27 November 2009, Lalitpur
Report by Dhrubahari Adhikary, Senior Journalist
The Administrative Court of Nepal organized
a High-Level Dialogue in Kathmandu on 27 November 2009. The programme
was supported by F E S (Friedrich-Ebert-Stiftung), a German foundation,
through its office in Nepal. Venue was Himalaya Hotel.
"Constitutionalism and the future constitution" was
the main theme of interaction, inviting participants from various
walks of life such as judges, secretaries, Constituent Assembly
members, academics, journalists, security officials and members
of civil society to discuss issues related to the Constituent
Assembly (CA) and drawing up of a new constitution for the country.
It was a well-timed event which served as a wakeup call issued
exactly six months before the deadline.
The two year mandate the CA obtained through
April 2008 elections runs out at the end of May 2010. The first
session of assembly sat in May---about a month after the poll---which
made an historic proclamation to declare Nepal a republic, abolishing
the monarchy that remained at the centre of political landscape
for 240 years.
The first of the two-part interaction was
an inaugural session. In it, the audience listened to speakers
who represented four leading political parties from among 25
having representation in the assembly. The second phase ofthe
programme was allocated to four experts to make detailed presentations
to be followed by participation from the members of the audience.
Subjects dealt with were fundamental rights, judicial system,
form of governance and state restructuring-cum-sharing of resources.
These issues were seen in the context of the draft of the constitution
which was being worked out on the basis of recommendations presented
(and to be presented) from 11 thematic committees attached to
the constituent assembly.
Leaders of the political parties invited collectively
inaugurated the interaction by lighting an oil-fed lamp, called
Paanas in Nepali, expressing their commitments to the universally-accepted
principles of constitutionalism. Welcoming the guests that included
participants representing the civil society, chairman of the
Administrative Court Mr. Kashiraj Dahal made it clear that all
the people of Nepal were waiting for was a constitutional democracy.
That is why the proposed statute must be guided by universally-accepted
principles as well as commitments, he added. He drew the attention
of assembly members that the elected body's mandate is for two
years. Anything done beyond this time-frame would raise, according
to him, a valid question of legitimacy. Dahal said since the
elected assembly members themselves possess the wisdom and strength
required for the occasion, there was no need to look beyond
Nepal for prescriptions and solutions. ( The remark contained
a veiled criticism of politicians who have a habit of travelling
to countries like India and Singapore seeking external mediation).
He cited the example of musk deer the animal known for its ability
to generate fragrance from its own body but inability to identify
its source !
Mr. Khimlal Devkota, an assembly member, told
the audience that he had come to the programme at the direction
of his party boss, Maoist supremo Mr Prachanda. The organizers
said Prachanda, the chairman of the Unified Communist Party
of Nepal (Maoist), had promised to attend the programme personally.
But an urgent party meeting compelled him to cancel the initial
programme, and was hence sending Mr Devkota, also a lawyer,
to represent him. In Mr. Devkota's view, the new constitution
needed to be based on a new political philosophy. Although he
did not elaborate this point specifically, his other remarks
saw a need for drafting a document to reflect the contemporary
power balance. On the basis of experience gained in the preceding
20th century Nepal, he said, needed a constitution that can
institutionalize the newly-declared republic through inclusion
process. Mr. Devkota expressed concerns saying that even the
interim (present) constitution has not been safe because of
the (unconstitutional) action of the President. His remark on
this issue was indicative of the lack of belief in his party
about timely promulgation of new constitution. Mr. Devkota's
views also left the impression that his party might not accept
a constitution formulated to address the expectations of those
who believed in traditional form of democracy. (In other words,
anything less than a document upholding the principles of 'people's
democracy' would not be acceptable to them).
The next speaker, Mr Upendra Yadav, was visibly
sceptical. Mr. Yadav is the head of the Terai-based regional
party, Madhesi Janaadhikar Forum (MJF), although a section of
it earlier left to form a separate party, with identical name,
that joined the present interim government headed by Prime Minister
Madhav Kumar Nepal. The points Mr. Yadav made at the interaction
included : Will the constitution be will be drawn up ? The oversized
CA (consisting of 601 members) itself is a problem. The basic
principles have not been finalized. A suitable model is not
there in front of us. And the time is short. The thematic committee
reports presented thus far (7 of 11) lack the consensus, and
contain notes of dissent. Conflicts show no sign of abatement.
Concentration of most parties is for making and unmaking of
the government, and not on to the task of formulating the constitution.
There is no unanimity of opinion regarding the model to be adopted
: Westminster, American, Korean or Chinese ? Since majority
of the assembly members are those having left-leaning, there
is a suspicion that there could be an attempt to turn the new
constitution on the Communist model. There has been a tradition
of making a new constitution after each political movement.
We have set up a republic, but it is difficult to manage that.
The case of Afghanistan is there for everyone to see: first
it was occupied by the Soviet forces. Now it is under a US-led
army. The republic has not succeeded. We have also decided to
go for a federation. Previous constitutions could not be inclusive;
not even the present (interim) one is without criticism. We
need to address the people's demand. Basic principles of constitutionalism
must be applied. Constitutional supremacy must be established.
All kinds of discriminations should end, and make the statute
inclusive. The new age is the age of democracy, no room should
be left for dictatorship of any
kind. Despite hurdles on the way, efforts must be made to issue
the constitution by this coming May. Any attempt to allow the
present assembly to lapse, and set up a commission to do the
job may create a basis of new round of conflict.
Laxman Prasad Ghimire, Chief whip of Nepali
Congress at CA : The peace process sneeds to be taken to its
logical conclusion. Resolution of the problem regarding rehabilitation
of ex-Maoist combatants [who are now in cantonments]. And we
have only six months to complete the job of drawing up the constitution.
Is this time adequate ? Maoists say the President's action [of
retaining the then army chief dismissed by Maoist government,
last May] was unconstitutional. If they are convinced about
that there is a provision to move a motion of impeachment against
him. The other available course is to move a motion of no-confidence
against the Madhav Nepal government which was formed in the
aftermath of President's action. In the meantime, Maoists have
added another controversy by an announcement to prematurely
declare some areas as ethnicity-based republic ( without and
legal basis for that ). This announcement yesterday shows lack
of mutual trust among parties; their action is bound to take
the country to another phase of conflict. But I hope this uncertainty
will end soon. And a wayout will be found before long.
Ishwar Pokharel, general secretary of UML
: Everyone talks about consensus and constitutionalism. But
are our expressions and behaviour in the real world confirm
to our utterances ? One thing is certain : constitution cannot
be written unless there is consensus [ interim constitution
stipulates that each of the provisions/articles in the constitution
has to be passed either through consensus or through a 2/3majority.
And 2/3 majority is not possible without Maoist support ] There
are speculations of a "red constitution" is in the
offing. All of us know that we have made a long journey of consensus
from the 12-point agreement. And have reached the present point.
We need to harmonize our position till we draw up the constitution.
The alternative is to break the consensus and start working
separately. This is going to be more harmful to those who are
supporting the idea of going separately. We will not be getting
constitution of any kind. The model of federation is yet be
made. Maoists have already declared their federation. Will each
one of our parties have its own type of federal structure ?
Ram Chandra Paudel, vice-president Nepali
Congress who is also the leader of the assembly members belonging
to the Congress party : As I repeatedly said before, the basic
understanding should be for a basic set of principles then only
the process will proceed. The main point is : what kind of constitution
are we contemplating---a democratic one or a 'people's democratic'
one ? Initially, Maoists said that their goal is to go for an
improved form of capitalist system. Now the voice is being changed.
And declaring ethnicity-based republic, while sharing seats
in the CA with members of other parties. Can one do it simultaneously
? Nepal's villages have mixed populations. How can one community
have special privileges against other communities---on natural
resources such as water, forest and lands ? Ordinary people
are being misled through irrelevant slogan of right to self-determination.
[Maoist leader Baburam's recent interview contains Utopian ideas.
The people are supreme, and that was the demand of the April
uprising of 2006.
Anup Raj Sharma, senior judge of the Supreme
Court [ he is now nominated to be the next chief justice] :
I do not represent the Court here; am offering my opinion as
a citizen of this country. The new constitution has to be a
fully political document. It has to be inclusive. Perhaps the
1990 constitution did not succeed because of the lack of inclusive
character. Political parties are the guardians of the ordinary
people. So their plans and actions have to conform to the needs
of the people. Vision and wisdom are essential or else we have
seen what happened in Tito's Yugoslavia---break up into five
pieces. Our efforts should also be to discourage the tendency
among the youths to leave the country; and encourage them to
raise confidence that they can prosper by staying back in our
The first presentation was from Mr. Surya
Nath Upadhyaya, an expert on natural resources and their equitable
distribution. He is a former secretary in Water Resources Ministry,
and also a former chief commission of anticorruption agency
called, CIAA :
We are familiar with media reports that refer
to local level rivalry and conflicts over the issue of access
to natural resources like water, minerals and forest products.
If there are already such cases, we cannot rule out possibility
of an increase in such cases after the planned restructuring
of the state---creating provinces or self-ruled areas within
a federal system. Sharing of benefits from natural resources
is an obviously sensitive issue. Existing laws say that water
is owned by the state. What happens once this state is divided
to several provinces or local states? And water is not something
that remains at one place for ever. While public wells, roads,
resting places are meant for common use, there are other resources
which are allowed to be utilized by licence-holders under stipulated
Practices and traditions vary from country
to country. We know about inter-state disputes over river water
in some countries. The constitution, therefore, makes provisions
so that central government's jurisdiction and provincial claims
do not clash with each other. Since Nepal does not have experience
of federal system, legal room for improvement and amendments
to address potential challenges must be created right in the
beginning. And a policy should be made that sharing of benefits
should be based on the basis of participation. Or else our resources
might turn into a curse for us.
Dr Haribamsha Tripathy, a sitting judge of
a court of appeals, in Kathmandu. The working paper he presented
was on fundamental rights and draft of the new constitution.
In Tripathy's opinion, the very preliminary [ and incomplete
] draft of the proposed constitution gives an appearance that,
as in the past, it is also being developed only as " a
crisis management tool". He also mentioned that six constitutions
were tried in the 60 years, each issued to manage the crisis
of that particular period. The one being drawn up is going to
be the 7th one.
On fundamental rights, Tripathy noted that
the proposed statute has listed 31 fundamental rights which
is a jump of 10 from the existing interim constitution. The
increase may have been made to make it more inclusive and broad-based,
but some of the provisions give the constitution an "over
ambitious" look. Not all of them appear feasible or manageable.
Rights which cannot be enforceable or are not justiciable do
not mean much for the people We must not ignore ground realities.
Right to employment is an example. This is not something that
can be guaranteed by the state to each of its citizen. Another
related point---inconsistent point---is the promise to offer
unemployment allowance. Right to property is a fundamental right,
but its sanctity has not been secured. If a citizen's property
is to be taken by the state, proper compensation should be paid.
The word compensation alone might not be sufficient. In the
US, fifth amendment added a word to make the expression "just
compensation". Eradication of social evils like untouchability,
discrimination in social sphere are matters which can be dealt
with by enacting separate, specific laws. These matters do not
need to be inserted in the constitution which has to remain
a concise document. He suggested for a refinement before the
constitution is formally issued.
Balaram KC, the sitting judge of Supreme Court.
His discussion paper was on judicial system in the new constitution.
Copies of his nine-page note, in Nepali, were distributed among
the participants----made up of lawyers, journalists, analysts
and administrators, among others. Due to sudden illness, Mr.
KC could not come to the programme to personally present his
paper. But his observations, suggestions and contentions printed
on the paper aimed at obtaining a firm commitment for an independent
judiciary which is required for every democratic set-up. Since
Nepal has endorsed international covenant on civil and political
rights, it has the obligation to enact legislations including
constitution that conform to the norms and standards required.
And the covenant makes it explicitly clear that each country
should have a competent, independent and impartial judiciary.
On the structure of judiciary, Mr. KC has referred to the US
and India both of which have a federal political structure.
In the US, there is a parallel system of courts having three-tier
model: district, court of appeals and Supreme Court. India has
a different model, largely based on a unitary pattern. Nepal
can make a suitable choice, but there can't be any compromise
on the basic minimum requirements. Besides, he suggested that
there should be separate courts to deal with criminal cases,
civil cases, trade cases, traffic case and revenue-related cases.
He, however, did not explain whether such a proposition would
not entail hefty increase in public expenditures. Rules and
practices relating to appointment of judges need, Mr KC said,
to be observed to safeguard the independence of the judicial
system. He did not like the practice of deputing judges for
investigation panels. In his view, the retirement age for judges
should be a uniform one : 65 years. And a retired judge must
not be considered eligible for another appointment afterwards.
Presentations were followed by a lively discussion
on points relating to citizenship, right to education, right
to get minimum wage, rights of tribal communities and right
to get constitutional remedies. Education, health and justice
were singled out as areas where the chapter on fundamental rights
needed to give additional emphasis and focus.
Experts responded to clarify some of the points raised during
the floor discussion.
Citizen's rights drew adequate attention,
but, ironically, citizen's responsibility could not become a
serious subject of discussion!