Thursday, January 28, 2010

Forms of government

Many opinions of Benjamin Franklin (1706-90), one of the enlightened American constitution builders, are credited as being foundational to the roots of American values and character. At the close of the Constitutional Convention of 1787, Franklin was asked by a lady as he was leaving Independence Hall on the final day of constitutional deliberation, “Well, doctor, what have we got — a republic or a monarchy?” His answer was brief, but full of meaning for all generations to come, “A republic, if you can keep it.”

Bipin Adhikari
The Kathmandu Post
January 28, 2010

Many opinions of Benjamin Franklin (1706-90), one of the enlightened American constitution builders, are credited as being foundational to the roots of American values and character. At the close of the Constitutional Convention of 1787, Franklin was asked by a lady as he was leaving Independence Hall on the final day of constitutional deliberation, “Well, doctor, what have we got — a republic or a monarchy?” His answer was brief, but full of meaning for all generations to come, “A republic, if you can keep it.”

There are very few educated people in Nepal who are not aware by now of how and why the institution of the monarchy was terminated last year. But the right question for the Nepali partners of the change introducing process is whether they can keep Nepal a republic, or whether there is something different being planned following the abolition of the monarchy.

The Constituent Assembly (CA) Committee on Determination of the Form of Government has surprised everybody. Its report comes as a compilation of the official positions of the major parties rather than as a concurrence of all of them. The stand of the UCPN (Maoist) in favour of a “consensual presidential system and multi-member direct proportional election system” comes as the first among them. The Nepali Congress has voted for continuity to the parliamentary system with constitutional presidency and executive prime minister, and mixed-member proportional electoral system. Similarly, the CPN (UML) has opted for a presidential form of government elected by the legislature and mixed electoral system.

In the background of the Maoist position is an ardent desire to maintain the party politburo culture, and ventilate the power of the party through the executive president, keeping the legislature on the sidelines. The position of the Congress is aimed at making sure that the multiparty democratic system and pluralist polity remains operative even if it is not in power, or the communist forces continue to prevail in the state apparatus. The UML thinks it can solve the problems of instability by choosing a system which it has advocated. Except for the position taken by the Congress, the rest of the approaches have not been properly studied, and far or less look utopian.

There is a fourth opinion (counter-position) from CA member Pradeep Giri (Nepali Congress) who has ventilated the proposal of 25 NC legislators last year pleading for a directly elected prime minister and ceremonial president elected by provincial and federal legislatures. This proposal more or less is along the Israeli experiment in the 1990s, which they have already moved away from because of systemic contradictions that emerged in the implementation process.

The only good thing (good in the sense that it has been settled) about the committee report is the unanimity among all the committee members on the constitution and operation system of government services, grounds of good governance, constitution of provincial and local governments, and local electoral system. This unanimity in the approach also needs to be studied on the basis of whether these provisions accurately reflect the requirements of Nepal’s grassroots people, who remain more or less confused about the changes being introduced.

Three important guests of the Nepal Constitution Foundation — former premier of Ontario Bob Rae, Australian professor Cheryl Saunders and Sri Lankan academic Dr. Rohan Edrisinha — who presented papers in Kathmandu recently on the ongoing controversies regarding the forms of government in Nepal, however, had very strong messages for the Nepali political elite who remains divided on the form of government.

Prof. Cheryl Saunders of Australia, for example, had the following comments on the ongoing controversies in Nepal in her own words:

“There is no perfect form of government; to a degree, each system relies for its effectiveness on the quality and integrity of those entrusted with public power and on the vigilance of civil society.

“Each of the three principal options has its strengths but also potential weaknesses from the standpoint of Nepal.

“The parliamentary system has the advantages of familiarity and the consequential disadvantages of having been proved by experience to be unsatisfactory in some respects in the circumstances of Nepal.

“One question for the CA is whether these flaws could be overcome, in the light of that experience, in the design of a new parliamentary system. In considering this question, it is necessary to take account of the very significant change effected in Nepal through abolition of the monarchy, enabling the CA to rethink the structure of the office of head of state and the powers vested in it in a republican Nepal.

“Both the presidential and semi-presidential systems have the attraction of offering a new start. On the other hand, their unfamiliarity in the distinctive circumstances of Nepal makes their operation less predictable in practice. A key question for the CA, drawing on its understanding of the political culture of Nepal, is the extent to which their potential disadvantages can be sufficiently neutralised through institutional design.”

Similarly, Bob Rae pointed out, “Successful constitutional politics transcends partisanship, and looks ahead instead of attempting to redress old grievances. It is not afraid to draw on international experience, but refuses to follow slavishly any foreign model. My principal advice would be that of warning. Don’t govern in the name of a theory. Make the changes that are ‘sufficient unto the day’ — it is a framework you are seeking, not a detailed blueprint for every detail of decision making. Constitutional politics is about making the foundation and the framework, setting out basic principles, the underlying values as well as the essential institutions. By contrast, real politics and events are about building the walls and ceilings, the furniture and, above all, the spirit that makes a home.”

The comments of the Sri Lankan expert were also very straightforward. He did not hesitate to explain the vagaries of the presidential system in terms of his own country’s real life experience over many decades.

On top of this, the report of the Committee on Determination of the Form of Government has come with little debate on executive authority, the position of the prime minister and his/her cabinet, their relationship with the legislature, and potential dismissal procedures.

As of now, the conclusion that could be made is only that the committee has cracked the nut, but only to find a worm in it. They have not grasped the significance of the huge task to which they should devote themselves.

Secretary of the committee Mukunda Sharma, however, has proved his smartness finally. He has thrown his problem — both the ball and the players — to the full house liberating himself from the never-ending game of the foul players. This is a republic with no clear idea about how to govern oneself.

Thursday, January 14, 2010

Picking their brains

We could learn much from the international constitutional experts meeting this week.

Bipin Adhikari The Kathmandu Post, January 13, 2010

Nepal is on the last leg of the timeframe of writing a new constitution. The unfinished work of the Constituent Assembly needs to be completed very soon. It is also a time for self-analysis and national introspection of what has been achieved to this day. This helps to strengthen the prospects of devising a constitution that Nepal deserves. Simple facts are often in danger of being overlooked in all the angst and analysis of our partisan politics. One cryptic example of this situation is the debate on whether the judiciary should remain independent or be brought under legislative oversight. A quick but impartial process of looking into what has been done so far is certainly a welcome step for this country.

To a realist, the constitution building process is not just about sorting out universal values and principles and expressing commitment to them through a carefully designed framework. It is also about the narrow material concerns of the people who are bringing changes. There are such material interests when they vote on specific mechanisms for implementing various aspects of the constitutional design. Participants in this process refer to distinctly different sources of knowledge and information to reach a judgement. There are more frequent movements back and forth from philosophical principles to narrow material interests. Even the mass communication media who report on these patterns of relationship are not immune to these shifting positions. There is no secret about this aspect of making the constitution.

A vigilant process is without doubt a major concern. It needs not be overemphasised that every democratic constitution is the result of compromises and adjustment and accommodation. It cannot represent the complete supremacy of the views of any particular group, or of any community or region. Everybody is obliged to yield. But in the final analysis, it must be able to establish the lasting principles that give meaning to human society.

It is essential to review the constitution making process being implemented through a little different way. It is in this direction that the Nepal Constitution Foundation in cooperation with other partner organisations including the Tribhuvan University Faculty of Law and the Supreme Court Bar Association is organising a three-day International Conference on Dynamics of Constitution Making in Nepal in Post-Conflict Scenario in Kathmandu this weekend.

Taken as a very high-profile conference, its main objective is to get international inputs from mature constitution builders from around the world on what has so far been achieved by Nepal in its bid to draft a post-modern constitution for itself. This input in the form of comments, suggestions and ideas will follow the keynote speech to be delivered by the chairman of the Constituent Assembly who is giving leadership to the nation in its constitution making business.

This conference is unique in several senses. In fact, many experts have come to Nepal from abroad, talked with a limited range of local stakeholders, given their advice on important constitutional issues, some times in a very diplomatic language, and have left the scene. Many sincere donors have assisted this process. But this has happened without the necessary backup and further engagement plan. This conference is probably the first organised effort to get established international constitution builders together for their input in the constitution making process based on certain tangible materials.

In other words, these experts are not commenting on abstract issues anymore. By now, the Constituent Assembly has produced many thematic reports on the draft constitution. Not only are the issues confronting Nepal clear, the organised response of the Constituent Assembly is also more than straightforward. Even issues in which the assembly has been far behind its schedule are as clear as the cleavages behind them. This is the moment that the process of constitution making needs international expertise. This will help the stakeholders to know where they stand — and how the people who have little political interest in Nepal evaluate the norms and procedures, and systems and institutions — solely on the strength of this expertise.

The conference also gives international experts coming from diverse regions including India and China an opportunity to give their opinions on several issues that are considered contentious in this country. Again, the discussions that are to be organised are not among “internationals” only, it will be an interaction with leading Nepali constitutional experts and many important members of the Constituent Assembly, lawyers, civil society members and so on. Whatever inputs are received will be taken to the Constituent Assembly, especially its Constitutional Committee, after they have been processed.

Some of the expert participants are people who have worked with the Nepali people in the past. Others have strong academic or professional interests in emerging constitutional systems. The organisers of the conference plan to remain in touch with all these experts, engage them in the area they have so kindly agreed to contribute, and work with the Constituent Assembly until the draft Nepal constitution is adopted and promulgated.

This conference is a national initiative in every sense. It is demand driven. They have decided on not just the experts who have been invited to take part in the conference but the papers that they have contributed were sought from them in view of their special expertise. This is also a form of public participation (in fact, “international public participation”) in the constitution drafting process. Such an exercise will definitely make the people look back, review their achievements and help enhance the perceived legitimacy and acceptance of the resulting document based on the shared knowledge of humanity.

Saturday, January 2, 2010

More later

These are the times, as Thomas Paine once said about the American crisis in the 1770s, that try men’s souls. Nepal is also in that trying phase. The idea of a constituent assembly to draft a new constitution was a luxury for this country, and remains so even today. But with all these vicissitudes that this country has passed through, there is no escape from it. This country cannot walk away from this experiment anymore. There is no choice but to adopt a constitution that reflects the current balance of power, leaving the rest to the processes to be followed later according to the new constitution.

Bipin Adhikari

JAN 01 - Nepal’s Constituent Assembly (CA) is in the 20th month of its existence. It has less than five months now to complete its task of writing a new constitution for the country. If the calendar of its operation, revised for the seventh time, is vigorously pursued in the next few weeks, it would be possible to adopt a new constitution, as expected, by May 28, 2010.

These are the times, as Thomas Paine once said about the American crisis in the 1770s, that try men’s souls. Nepal is also in that trying phase. The idea of a constituent assembly to draft a new constitution was a luxury for this country, and remains so even today. But with all these vicissitudes that this country has passed through, there is no escape from it. This country cannot walk away from this experiment anymore. There is no choice but to adopt a constitution that reflects the current balance of power, leaving the rest to the processes to be followed later according to the new constitution.

The ongoing debate about how to go ahead if the CA is not able to produce a constitution by the appointed timeframe is really unfortunate. Rather, based on an assessment of the CA’s performance so far, this debate should have been geared towards how to create a viable constitution within the limits of what is possible. The debate should not just have been on the right process but also, as is equally important, on the right content of the final document.

Nepal’s civil society is full of “summer soldiers” and “sunshine patriots”. It has already started looking beyond what is on their plates. Quite the contrary, when the Interim Constitution (that sets out the rules of transition) was drafted, it was not just intended that the new constitution would be promulgated on time, but also that it would be a democratic constitution. Again, the written provisions of the constitution devised no contingency plan for an alternative situation. It is sad that efforts are being made to find an outlet that was not conceived in explicit language well in advance. This is shocking.

Except for two thematic committees, all the committees in the CA have already produced their preliminary drafts. True, there are dissenting opinions -- here and there. They are there at the heart of every democracy. What is lacking in Nepal’s context is the role of some political stalwarts who can forge unanimity and give an exit to the larger issues of the number of provinces, the nature of devolution of power and the form of government. The rest of the issues have been mostly settled. There is no reason why Nepal cannot forge a written constitution based on the issues that have been settled, or might be settled amicably in the next couple of months.

There are several countries in the world which were able to draft their constitution in just five months. However, they were wise to craft a framework constitution, quickly and efficiently, instead of lengthy ones. A Constituent National Assembly, for example, was elected only five days after the conclusion of the independence agreements of March 20, 1956 between France and Tunisia to draft a new constitution.

This Assembly is known for its slow progress. The hopes of party leaders who fought during the independence movement that the Assembly would quickly draft a constitution and give way to a freshly elected parliament were submerged in interminable constitutional deliberations, interrupted by a national crisis whenever they seemed on the verge of success. When they found that they could not really produce a constitution that settles everything, they produced a framework constitution, ending the long transition of almost three years.

It must be noted that a long transition is not in the interest of democratic forces of the country. The salient characteristic of the transition period in Tunisia as well was the concentration of power in the hands of the president and his cabinet. In June 1959, Tunisia adopted a constitution modelled on the French system, which established the basic outline of the highly centralised presidential system that continues today. The delay was definitely costly, especially in a country where mediocrity prevails in decision making everywhere.

A framework constitution is not necessarily bad. The U.S. constitution is the briefest constitution which any modern state has today. This is due to the fact that the framers of the U.S. constitution merely laid down the fundamentals and did not enter into details. It consists of just seven articles to which have been added, to this day, only 27 amendments, made in more than 200 years of its life. Even with all the amendments, the total number of words is just around 6,000. There are countries like Iceland, Romania, Indonesia and Kosovo, which relied on framework constitutions to go ahead and end the transition.

The inability of Nepal’s Constituent Assembly to produce a new constitution will affect the democratic faith of the people. It will also put a severe question on the ability of the present generation of Nepal’s leaders to sustain democracy. It does not help Nepal as a nation. A constitution, even though it is skeleton, will help people to be futuristic in their orientation. Issues settled will take a back seat. There will be a new environment for discussion on the remaining issues. It will allow the emergence of a new batch of leaders after a fresh election under the new constitution. These leaders will again have the opportunity to build consensus on issues that remain unsettled, and give an outlet to the nation; that is the most crucial issue for modern Nepal.

The only thorny issue that remains on the way to a new constitution is the subject of integration of Maoist combatants. It has not been given the emphasis it deserves in the transition process. This subject has been pushed to the corner in the vicissitudes of power politics. The combatants are definitely a Maoist creation, but the problem of the combatants must not be reduced to a Maoist problem alone. The government must deal with this issue with some sense of urgency.

Even if the Constituent Assembly tries to hurry things that are still lagging behind, it is so important to settle this issue amicably so that when the new constitution is promulgated, there are no combatants speculating on the new situation. This must be done within the next five months, and on a priority basis. It requires remarkable seriousness and intelligence to bring the Maoists on board on this matter.

If the Maoists are sharp, they will definitely not agree to any constitutional draft, leaving their crusaders in limbo. Even to go for a framework constitution, as stated above, the government should not just consider this issue in terms of its survival arguments alone.

Bipin Adhikari

Towards the New Constitution

Bipin Adhikari

The year 2010 is going to be a crucial one for Nepal. This is the year Nepal is expected to have its sixth constitution, a new constitution. There is a point.

January 1, 2010

The year 2010 is going to be a crucial one for Nepal. This is the year Nepal is expected to have its sixth constitution, a new constitution. There is a point.

What is remarkable about the new constitution is not actually that it is the sixth one. It is the first constitution being written by the sovereign people themselves through their elected representatives assembled at the Constituent Assembly. This is all happening for the first time in Nepal´s history. It is also the first constitution that Nepal is venturing into in the twenty-first century - wherein virtues of democracy, rule of law and limited government are no longer contested as a weapon of cold war.

As this constitution, being drafted and finalised by the Constituent Assembly is to be adopted and promulgated by May 29, many assume that it will end all the political problems and the transition that we are in. The constitutional democracy in Nepal started to derail after the Communist Party of Nepal (Maoist), conceived as a terrorist outfit at one point, threatened the then prime minister Sher Bahadur Deuba in 2002 not to hold parliamentary elections, which was already due, or face physical action against the electoral candidates.

Many things have changed ever since. The rift between the monarch and the mainstream political parties has led to the closer alliance between the parties and the Maoists. The traditional state was dismantled. It was an accepted fact that the democracy Nepal was ushering in, was no longer a credible one.

The new constitution is being drafted to solve so many issues apart from further democratizing the constitutional polity. The details are not very clear. What is clear is that these issues are coming up directly or from the sidelines since 2002.

The apparent goal, as the interim constitution has proclaimed is to achieve progressive restructuring of the state in order to resolve the existing problems of the country relating to class, caste, region and gender. The country is also to be federalized although without any white paper in the hand. New institutions are to be created to make Nepal an inclusive state, although here are so much of differences in the basic understanding about what inclusion really is. This is being done after the change in the balance of power in the country, and in the environment of a fragile state. Anything seems to be possible. The institution of monarchy that formed this country and gave it an identity in the historical process is no longer on the scene. It is up to the people to decide what they want. This is true at least in principle.

The days ahead, however, are not that rosy. The Constituent Assembly is still without any compromise scheme about the form of government that will suit this country. It is still without a workable scheme on how the concept of devolution of power has to be implemented in a society which has already been torn apart by internal challenges of extra-constitutional strengths.

The recently released exhaustive list of fundamental rights and directive principles of state policy by the CA Committee on Fundamental Rights and Directive Principles is not going to impress the country’s lawyers and many other critical thinkers here. The list is not without its built-in problems, but even assuming that the problems will be sorted out at a later stage, there are other crucial issues still unattended to. One such problem is that the list is without judicial sanction.

The report of the Committee on Judicial System is one of the issues here. It recommends many infamous provisions in the new constitution which belittles the parameters of the Supreme Court as the guardian of the constitution. It robs the power of judicial review from the Supreme Court in significant sense. It can neither interpret the constitution in important sense, nor can it judge upon the constitutionality of any law where it matters the most. The report also makes sure that the Supreme Court and its judges are under parliamentary control in all matters relating to their appointment, dismissal and the job of judicial decision making. A Supreme Court which lacks independence, which has to be accountable to a legislative committee, and which is always under the threat and duress of a legislative majority cannot protect any fundamental rights whatsoever.

Again, the CA Committee on the Determination of Legislative Organ has produced its report based on the parameters of the parliamentary system because the committee leadership belongs to the Nepali Congress. In the same vein, the Committee on the Judicial System produced its report proposing a judiciary almost committed to the government because its chairperson belongs to the UCPN (Maoist), which does not believe in the independence of the judiciary and its power of judicial review of issues of unconstitutionality. The values that both these parties have built are almost irreconcilable on fundamental grounds.

Some outfits are strongly advocating the right to self-determination of the indigenous people. Some others fear about its extra-constitutional proportions. Although a sub-committee constituted to advise the Constituent Assembly Committee on Restructuring of State and Distribution of State Powers on the very issue has already submitted its report, it does not in any significant sense address the magnitude of the issue, and its complexity and implication in a constitutional framework which is to be based on democracy and constitutionalism. It offers little in the way of concrete suggestions or strategies for realising the claim for indigenous self-determination in Nepal. The issues like federalisation of the country based on ethnicity and grounding of rights jurisprudence on the concept of "agradhikar" put additional dimensions of the unresolved controversies. The road ahead is not clear.

A credible defence force remains one of the best means by which to guarantee security to the nation in a variety of ways. It must be kept outside the day-to-day politics, and attempts to bring abrupt change in the institution must also be resisted. However, the attempt to establish a national defence council where there is no representation of the chief of army staff is a very wild arrangement. It neither serves democracy nor any national interest. The provision of compulsory military training to youths without the leadership and support of a disciplined army is not a viable concept. All of the successful small states practice this to some extent. The provision serves well only when there is explicit determination to keep the army out of any military alliance, soft or hard, and its politicization thoroughly prevented. The interests of each regional power can also be preserved only by preventing the domination of the country´s force by one of them, or any other outside the region.

It is in Nepal´s enlightened national interest to make herself a neutral centre of trade, commerce, communications and finance, useful to all powers, and capable of absorbing and integrating their presence and influence. Unfortunately, the committee report is without any direction in this area. It does not even consider and take a position on how to preserve access to reasonably priced and secure supply of oil in place of the current India guarded supply system. There is no direction about the national food security strategy, an all time crucial issue. It is surprising how a country can preserve its national interest without a clear concept of internal security challenges like climate change and floods and natural disasters affecting a large segment of the people, like earthquakes.

The world has never been a safe place for small states. And Nepal is no exception. It has become even less so with the advent of regional rivalry, economic conflict, scramble for energy and mineral wealth and terrorism. One does not have to be Sam Huntington or Donald Nuechterlein or Alexander George or Robert Keohane to understand these basic survival issues. The point is why are these issues being ignored?

All this shows that Nepal is still in a very difficult phase. It must go ahead, keeping these issues in mind. At the moment, the only sustainable way for Nepal is to go for a framework constitution that represents the existing consensus in our political society, leaving the rest of the issues for the future. It is possible to solve all these issues over time. It is, however, not a viable option for us to solve everything now. Nepal´s geopolitical situation is not in its favour. But, we can certainly wait and see for a favourable environment as we go along.

Bipin Adhikari is a constitutional expert and writes for different vernaculars on constituent assembly.)

Published on 2010-01-02 00:57:32