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Summary report on Constitutional and the Future Constitution

Organised by Administrative Court of Nepal (ACN)

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.

Inaugural Session

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
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 own homeland.


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 conditions.

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!

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