Seminar Report on Constitutional Democracy
& Rule of Law
Organised by Administrative Court of Nepal
11 September, Kathmandu
By Yubaraj Ghimire
Independence of Judiciary in the promised
New constitution of Nepal remains an issue of utmost concern and
speculation. The issue is now at the centre stage of the debate
as the Constituent Assembly's Judicial committee has favoured
sort of a controlled judiciary in which the Legislature will have
the monopoly say not only in the appointment judges of the Supreme
court, but also in interpreting the constitution.
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
"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
"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
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
- Constitution should be designed to provide
the basis of national unity and safeguard country's vital
- 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
- 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
- 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
- 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
This is the third follow-up of the high-level
dialogue initiated three years ago by Administrative Court of
Nepal in cooperation with FES.