Just a minute

"Everybody knows that the Maoists after spoiling many important months of parliament need a facelift to reach a compromise that does not create any political value except for their cadres sweating on the campaign for civilian supremacy."

The Kathmandu Post
http://www.kantipuronline.com/news/news-detail.php?news_id=300727

By Bipin Adhikari
lawyers_inc_nepal@yahoo.com

Sep 24, 2009 - While Nepal’s Constituent Assembly (CA) has only eight months left to finish its alleged historical mission of drafting a new constitution, certain forces seem to be trying desperately to make a case for a seventh amendment to the Interim Constitution. An enabling political environment is being created to table the seventh constitution amendment bill in parliament as soon as the Dashain-Tihar festive weeks end. The political exercises towards this end painfully remind critiques of what poet Bhupi Sherchan (1937-1990) so skilfully described in his poem “We” a few decades ago:

We are the Ekalabya in the tale of the Mahabharata
In every generation [or amendment?] a Dronacharya comes to us
And we gladly, at his signal,
Cut off our thumb and offer it to him as a preceptor’s fee,
Destroying our own existence we hand it over to him
And we are ecstatic about our devotion to our teacher
About the strength of our own souls.

This time around as well, the United Communist Party of Nepal (Maoist) is going to create a popular cause for such a move. It is basically the demand of this party that the constitution be amended once again. They have been insisting that the president, who had no power to ask the government to pursue the objective of dismissing the then chief of army staff Rookmangud Katawal according to the prescribed statutory procedures, and not to act on the decision made going beyond the standard traditions, was acting ultra vires. They interpreted it as an operation of the president with the assistance of the army, which led to the (enforced) resignation of their Prime Minister Pushpa Kamal Dahal.

With the alleged seventh amendment, the Maoists want to make sure that the president, a constitutional head, does not abuse his power once again. Everybody knows that the Maoists after spoiling many important months of parliament need a facelift to reach a compromise that does not create any political value except for their cadres sweating on the campaign for civilian supremacy. But their move has meaning for somebody else.

It is not a new phenomenon. It has been happening ever since April 2006, when King Gyanendra was forced to reinstate parliament and end his direct rule due to strikes and street protests in Kathmandu. The idea then was to restore the constitutional machinery that had become inoperative because the Maoists did not allow the government of the day to conduct elections to parliament whose term had already ended. On the contrary, as soon as the dead parliament was reinstated, it started acting against the very constitution which it wanted to restore.

The nine-point declaration unanimously passed by it aimed to keep the king out of the process while meeting many of the Maoist rebels’ conditions for taking part in the upcoming elections. Tabled by Prime Minister Girija Prasad Koirala, the resolution left the king with only a ceremonial role by ending his title of commander-in-chief of the army, declaring the king’s income and assets taxable, removing his power to select an heir and changing the name of the government from “His Majesty’s Government” to “Nepal Government.” The reinstated parliament also dissolved the king’s advisory council. The resolution also declared parliament the supreme legislator and nullified any current laws that contradicted these points. The political developments have gone far beyond the May 2006 parameters for the restoration of democracy under a road map which is not clear to anybody.

The trend continues even now, although an elected CA is already in place under the Interim Constitution, the source of most of the instabilities of this country. It has been subjected to six amendments since it came into existence. Each amendment was sought on certain legitimate grounds; but in the final act, it ended up severely circumscribing the legitimate powers of the CA to take decisions on all issues made controversial at the hands of the seven-party alliance and the CPN (Maoist).

Whether it is about the declaration of the abolition of the monarchy or the decision to kick off the CA process without adopting an objective resolution, the Interim Constitution was played out with deliberate efforts. Similarly, the concept of federalism was imposed on the country pre-empting the power of the CA to take an appropriate decision in this regard. The constitution was also ruthlessly amended to allow every willing Indian living in Nepal or abroad to acquire Nepali citizenship.

The people of this country still do not know who are the 5.2 million people who have been given citizenship by committing fraud against the CA. It all went on as all covert operations in Nepal have shown — changing the demographic structure of the country overnight without giving any opportunity to the CA to decide if there were any legitimate claims for such a move at all. There is no reason to believe that the impending constitutional amendment is going to be any different.

Despite all these manoeuvrings, the present composition of the CA cannot be changed; and certain proposals for the new constitution cannot be passed by a two-thirds majority of the house, no matter how covert the operations are. In a way, recent political controversies regarding Vice President Parmanand Jha’s refusal to comply with the court’s directive to retake the oath of office in Nepali has sufficiently educated the people of this country as to what their motherland has really become in the hands of forces who have neither loyalty to this country nor commitment to constitutional democracy or the rule of law. This education has come as a blessing in disguise.

Everybody wants peace in Nepal. It comes only when Nepalis are left to decide their destiny themselves. They understand what gives them the pride of a nation. The CA should be allowed to take decisions on all important matters inside the house itself. Any policy decisions by way of a new constitutional amendment evading CA procedures is not a proper course of action.

Such excessive interventions and enforced compulsions for the political parties in Nepal will only result in further erosion in their capacity to organize their people. The decreasing faith of the common people in their leaders is not good for anybody. Moreover, Nepalis are no longer interested in paying any gurudakshina (a preceptor’s fee) anymore. The alternative is another conflict and chaotic Nepal.

Judge for yourself

In fact, the CA Committee on Judicial System has not spent its energy on how justice can be made accessible to all the deprived and downtrodden people of this country, which is the major issue of the day. It has rather focused on how judicial power can be belittled, and the doctrine of the separation of powers to protect the liberty of the common people be kept at the mercy of the majority party in the legislature.

Bipin Adhikari
lawyers_inc_nepal@yahoo.com

Source: The Kathmandu Post, September 10, 2009)
http://www.ekantipur.com/news/news-detail.php?news_id=300076

While the Constituent Assembly (CA) is losing its sense of direction, the Committee on Judicial System (CJS) has now proposed a strange concept paper and preliminary draft on the form and nature of the judiciary under the new constitution.

Submitted for discussion in the full house, this proposal is yet another example of how vulnerable Nepal has become as a country adhering to the principles of the rule of law and independence of the judiciary in the hands of illiberal constitution makers.

Although the committee proposal has not been unanimously decided, and the full house of the CA can still reshape it, the fact that some political forces at the committee level can go to this extent is ever disturbing. Led by a Maoist member, Prabhu Shah, the Committee on Judicial System enables the appointment of the chief justice who is not a sitting Supreme Court (SC) justice. Even knowing that this provision could have lethal use in the prevailing political culture, some Madhesi parties have joined the Maoists to allow them to form a majority. This provision has been introduced undoubtedly to break with the past, resize the concept of the independence of the judiciary, and create a judiciary committed to the government.

The provision of direct appointment of the chief justice from outside the Supreme Court is not problematic per se, but it must be seen among other changes to be put in place. The proposal also provides for a committee within the legislature to appoint judges and take action against them when they breach justice.

Details are not provided, but it is this committee which will have the power to interpret the constitution, where necessary, thereby stripping the Supreme Court of its role as the guardian of the constitution. Once passed, it will no longer be the Supreme Court which will have the final word on what the constitution says, or does not say, on a particular constitutional issue, and leave the responsibility to the legislature.

But that does not seem to be enough, though. Reforms being contemplated by the Committee on Judicial System make explicit that the legislature will have complete jurisdiction to decide issues involving the position and powers of the head of state, the chief executive of the country, and officials to be elected by the legislature (like the speaker, deputy speaker, committee chairs and so on).

All political issues, even if they involve legal constitutional questions, and issues of laws contradicting the constitution, will be taken care of by the legislature itself in the future. Besides, a special court could be created by the legislature, whenever there is a vacancy, to take action against judges (should they breach the trust of the legislature), and give the final verdict, with no scope for an independent judicial review.

These changes are coming against a background of Maoist allegations that the judiciary and the Nepal Army, two stable state apparatus in Nepal still not shattered by belligerent winds, must be overcome to establish a genuine “people’s democracy” in the country. An independent judiciary, which does not want to be guided by the government, and the national army, which is said to be firm on certain national security issues, do not help the transition towards an authoritarian regime.

In fact, the committee has not spent its energy on how justice can be made accessible to all the deprived and downtrodden people of this country, which is the major issue of the day. It has rather focused on how judicial power can be belittled, and the doctrine of the separation of powers to protect the liberty of the common people be kept at the mercy of the majority party in the legislature.

The template for this change is without doubt not democratic. Even in China, wherefrom these constitutional arrangements are said to have been imitated, things have been changing. In the past 30 years, owing to the tragic experience of the Cultural Revolution and the urge for economic development, China attached great importance to the independence of the judiciary and reform of its legal system. It is trying to catch up with other technically advanced nations in the world and has begun to actively co-exist in the global economic system.

Every modern Chinese believes that a credible judiciary and legal system can provide a solid base for developing a market economy. Economic construction replaced class struggle as the basic task of the Chinese Communist Party. Its growing legal system has quickly become a new means relied on both by this party for its governance and by Chinese citizens as a safeguard for their increasing individual rights.

Under economic reform and an open-door policy, an increase in individual autonomy and contacts with the outside world has further raised the expectations of the people for more protection of their basic rights. As a result, legal reform has become an urgent task to resolve the rising conflicts and expectations in society. To meet these expectations of the citizenry, China has even started ushering in periodic plans to modernize the judiciary, comply with international standards and rationalize the legal system.

Much of the study of their legal reform efforts concerns the struggle to adapt international norms to local conditions. As a huge country with a fast growing economy and fears of internal instability and external security threats, Chinese policymakers are careful not to jump on everywhere without stabilizing changes. Although not without limitations, the direction is certainly positive.

Even now, the structure of China’s government, especially the judiciary, is very peculiar. It is one of the five organs of the National People’s Congress. There is no special status given to it by the constitution. The other four organs are the president of China, the State Council, the Central Military Commission and the Supreme People’s “Procuratorate”. The Communist Party of China still prevails everywhere. In this environment, the judiciary is yet to emerge as a fully independent institution — based on the doctrine of separation of powers.

Yet, China is certainly trying to emerge from the rubbish of the past. It is so strange that the Maoists of Nepal are still attracted to people’s courts which existed in China from 1949-78 as component parts of the corresponding government.