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.

राजनीतिक घेरामा न्यायालय - बालकृष्ण बस्नेत

'जसले शासन चलाउँछ, कानुन बनाउँछ । उसैलाई संविधान व्याख्या गर्न दिनु स्वेच्छाचारिताको पराकाष्ठा हो,' युवा संविधानविद् बिपिन अधिकारी न्यायिक समितिले पारित गरेका प्रावधानले मुलुकमा ठूलो दुर्घटना निम्त्याउनसक्ने औंल्याउँछन् । बाहिरबाट प्रधानन्यायाधीश नियुक्त गर्ने प्रावधान पनि एकलौटी शासन सञ्चालनको हतियार बन्ने उनको तर्क छ ।

Kantipur Daily, August 29, 2009 (13 Bhadau 2066)

काठमाडौं, लोकतान्त्रिक पद्धतिमा जसले कानुन बनाउँछ उसैलाई व्याख्याको अधिकार कहीँ छ ? संविधानसभा न्यायिक समितिले शुक्रबार पारित गरेको प्रस्ताव जस्ताको तस्तै नयाँ संविधानमा लेखियो भने त्यो नेपालमा हुनेछ । 'दुर्भाग्यबस त्यसो भयो भने' कानुनमै कपाल फुलाएका मोतीकाजी स्थापितका शब्दमा 'नयाँ संविधान मात्र बन्दैन, साथमा नयाँ खालको निरंकुशतासमेत आउनेछ ।'

एकीकृत माओवादीको अगुवाइमा संविधानसभा अन्तर्गतको न्यायिक समितिले न्यायालयको क्षेत्राधिकार एकपछि अर्को कटौती गरेको छ । 'यथास्थितिवाद हटाउन र न्यायालयका समस्यालाई जरैबाट उखेल्न' नयाँ मोडलको न्यायपालिकाको खाका माओवादीले कोरेको छ । त्यसमा मधेसी जनअधिकार फोरमलगायत मधेसवादी दलले साथ दिएका छन् । कांग्रेस, एमाले सहित दल भने समितिमा अल्पमतमा परे ।

न्यायाधीशको नियुक्ति र कारबाहीको अधिकार केन्द्रीय व्यवस्थापिकाअन्तर्गत गठन हुने समितिलाई दिने प्रस्ताव पारित भएको हो । त्यतिमात्र होइन, संविधान व्याख्याको अधिकारसमेत सोही समितिलाई दिएपछि माओवादी प्रस्ताव शंकाको घेरामा
परेको छ । अहिले नियुक्ति र कारबाही अधिकार न्यायपरिषद् र संविधानको सम्पूर्ण व्याख्याको अधिकार सर्वोच्च अदालतलाई छ । एकात्मक र शक्तिशाली व्यवस्थापिकाको अडान राख्दै आएको माओवादीले त्यही निकायलाई न्यायालयको अधिकार दिनुपर्ने तर्क गरेपछि विवाद चुलिएको हो ।

'लिखित संविधान भएका, झन् संघीय प्रणाली अवलम्बन भएका कुनै देशमा पनि संविधान व्याख्याको अधिकार संसदलाई हुँदैन,' वरिष्ठ अधिवक्ता स्थापितले कान्तिपुरसँग भने । धेरै संघ/राज्यहरू भएपछि अधिकार बाँडफाँडलगायत ठूला विवादमा स्वतन्त्र निकायको खाँचो हुन्छ । त्यस्ता विवाद स्वतन्त्र र सक्षम न्यायालयबाटै समाधान गर्नुपर्ने विश्वव्यापी मान्यता र अनुभव छन् ।

तर न्यायिक समितिले राष्ट्राध्यक्ष, कार्यकारी प्रमुख वा व्यवस्थापिकाद्वारा निर्वाचित पद र अधिकारसँग सम्बन्धित प्रश्न, राजनीतिक विषयसँग प्रत्यक्ष सरोकार राख्ने विषय र संविधानसँग कानुन बाझिएका विषयमा व्याख्याको अधिकार व्यवस्थापिकालाई हुने निर्णय गरेको छ । यसअघि बिहीबार न्यायाधीशको नियुक्ति, कारबाहीको अधिकार सोही समितिलाई हुने र प्रधानन्यायाधीश पदमा न्याय सेवा बाहिरबाट समेत नियुक्त गर्नसक्ने व्यवस्था पारित भएका थिए ।

'जसले शासन चलाउँछ, कानुन बनाउँछ । उसैलाई संविधान व्याख्या गर्न दिनु स्वेच्छाचारिताको पराकाष्ठा हो,' युवा संविधानविद् बिपिन अधिकारी न्यायिक समितिले पारित गरेका प्रावधानले मुलुकमा ठूलो दुर्घटना निम्त्याउनसक्ने औंल्याउँछन् । बाहिरबाट प्रधानन्यायाधीश नियुक्त गर्ने प्रावधान पनि एकलौटी शासन सञ्चालनको हतियार बन्ने उनको तर्क छ ।

न्यायपालिकासम्बन्धी माओवादी अवधारणा विवादास्पद र विरोधाभासपूर्ण छन् । एकातिर उसले न्यायसम्बन्धी सम्पूर्ण अधिकार अदालतमा निहित हुने प्रस्तावमा सहमति जनाएको छ । त्यसैलाई खण्डन हुने गरी नियुक्ति, कारबाही र व्याख्यामा नयाँ व्यवस्था छ । न्यायालयलाई सत्ताको प्रत्यक्ष नियन्त्रणमा राखी माओवादीले जनवादी शासन व्यवस्था स्थापित गर्न खोजेको भनी यस्ता प्रस्तावको विरोध भएको हो ।

न्यायालयसम्बन्धी आफ्नो अवधारणाको गलत बुझाइरहेको माओवादी तर्क छ । 'व्यवस्थापिकालाई अधिकार थप्नु जनप्रतिनिधिलाई बलियो बनाउनु हो । सत्ता कब्जा होइन' माओवादी सभासद एकराज भण्डारीले कान्तिपुरसँग भने ।

यथास्थितिवाद, संसदीय गलत परम्परा र शक्ति सन्तुलनको दुरुपयोगमा रमाइरहेकाहरूले मात्र आफ्नो प्रस्ताव विरोध गरेको माओवादी तर्क छ ।

'पुराना खराब संरचनालाई हटाई नयाँ व्यवस्थामा जाँदा स्वाभाविक विरोध हुन्छ । तर परिवर्तनका लागि हिजोका संरचनामा फेरबदल अनिवार्य छ,' उनले भने । माओवादीको अगुवाइमा पारित प्रस्तावमा केन्द्रमा संघीय व्यवस्थापिका न्यायसमिति, राज्यमा राज्य व्यवस्थापिका न्यायसमिति र जिल्लामा प्रतिनिधिसभा न्यायसमितिलाई प्रधानन्यायाधीश सहित सबै तहका न्यायाधीशको नियुक्ति, कारबाही र न्याय प्रशासनसम्बन्धी अन्य कुराहरूको सिफारिस अधिकार दिइएको छ । त्यसका लागि सम्बन्धित व्यवस्थापिका उपाध्यक्षको अध्यक्षतामा एक कानुनमन्त्री र बाँकी सबै संसद सदस्य हुनेगरी ११ सदस्यीय समिति गठन हुने उल्लेख छ ।

न्यायाधीशको कारबाहीका लागि संसदीय समिति आफैंले गठन गरेको विशेष अदालतमा मुद्दा दायर हुने र उक्त अदालतले गरेको फैसला नै अन्तिम हुने 'जबर्जस्त' व्यवस्था पनि प्रस्तावमा छ ।

व्यवस्थापिका, कार्यपालिका र न्यायपालिका एक अर्कामा सन्तुलित हुने शक्ति पृथकीकरण सिद्धान्तको व्यापक दुरुपयोग गरिएको, न्यायालयमा चरम भ्रष्टाचार हुँदा अहिलेको संरचनाले काम नगरेको अधिवक्ता भण्डारीको ठम्याइ छ ।

'शक्ति पृथकीकरणको व्यावहारिक कार्यान्वयन अहिले पनि कहाँ भएको छ ? सबै दलले राजनीतिक हस्तक्षेप गरेकै छन् । अदालत झन् गैरजिम्मेवार र अनुत्तरदायी छ,' उनले भने ।

Restructuring Nepal's Judiciary - Few changes needed to add constituent unit dimension to court system - Bipin Adhikari

http://www.forumfed.org/en/products/magazine/Nepal2009/Nepal-judiciary.php

One of the major issues before the Constituent Assembly of Nepal is deciding on the mechanics of devolving judicial power to the far-flung villages in the new state structure.

The Constituent Assembly (CA), a body of 601 members formed in the election held on 10 April 2008, is tasked with writing a new constitution for Nepal within two years under the authority of the interim constitution.

The history of the modern independent judiciary in Nepal dates back to 1950, when a revolution overthrew the hereditary and despotic prime ministerial system, a system in which the post of prime minister was passed from one member to another member in the same family. It was replaced by an interim constitutional regime meant to be a modern constitutional democracy. Different forms of judiciary have been in place during the last 58 years within the framework of Nepal’s unitary state. Thus, one of the key subjects of national debate in modern Nepal is restructuring the judiciary – in particular, devolving judicial power to the autonomous constituent units, according to the aspiration of the people of Nepal.

How Nepal's judiciary works today

Nepal’s judiciary operates within the framework of its parliamentary democracy. All powers relating to justice in the country are exercised by courts and other judicial institutions in accordance with the constitution, the laws and the recognized principles of justice. Judicial procedures are adversarial, largely based on common-law principles and lawyers play a key role in the process of judicial decision making.

Nepal has a National Code which deals with traditionally important:

• civil laws
• penal laws, and
• court procedures

Many of the modern areas of criminal and civil laws are not covered by the National Code as such. They were dealt with by special statutes enacted by the legislature after 1962 on different dates.

The judicial branch is led by the Supreme Court, the highest court in the judicial hierarchy of the land. In this capacity, the constitution confers upon the Supreme Court not only original and appellate jurisdiction, but also extraordinary constitutional jurisdiction. This includes the authority of the Supreme Court to hear petitions challenging the constitutionality of any law, and declare such law or any part of it void in order to ensure that justice is done. It can also, when convinced, respond to public-interest litigation involving constitutional issues regarding the rights of the marginalized.

As the guardian of the constitution, the Supreme Court has all the requisite powers and status that such responsibilities call for. All other courts in the country -- that is Appellate Courts (of which there are currently 16), and District Courts (of which there is one for each of the 75 administrative districts in Nepal) -- are subordinate courts and are administered by the Supreme Court.

Based on constitutional prescriptions, the Administration of Justice Act of 1991 has empowered the Supreme Court to inspect and supervise its inferior courts, and give them directives, which are obliged to implement them. The Supreme Court is a court of record -- its decisions are accepted to be of evolutionary value and are not to be challenged when produced before any court. They are binding on all and the Court has the power to mete out punishment to anyone it holds in contempt of court.

Moving towards a devolved system

In addition to Nepal’s three-tier unitary judiciary, there are several tribunals and specific types of courts established by parliamentary statutes. They are meant to hear special types of applications, claims and controversies.

There is one Administrative Court, two public-debts courts, four revenue tribunals, one Town Development Committee Court, one Military Court, one Labour Court and one Constituent Assembly Court.

The Constituent Assembly Court has been functioning since early this year. It deals exclusively with complaints regarding CA elections.

Except for the CA Court, all these special courts and tribunals are created and regulated under the terms of their enabling parliamentary statute. These statutes define the number, size and location of courts, as well as their territorial and subject-matter jurisdiction. Where there are complicated questions of law, or issues of fundamental rights and constitutional interpretation, cases decided by these courts or tribunals may be referred to the appellate courts, or the Supreme Court, according to the terms of the enabling law.

The structure of Nepal’s court system is one of the simplest in the region. It is constitutionally defined in substance, and statutorily elaborated in detail.

The unified and unitary judiciary makes it easy to administer and to ensure necessary quality control. All judges are appointed on the recommendation of the Judicial Council led by the Chief Justice who, in turn, is appointed and supervised by a high-profile constitutional body. A flourishing law profession, a legally qualified judicial bureaucracy and an independent judiciary complement each other. This does not mean that the present three-tier structure and the workings of the judiciary are not in need of reform. But, to effect change, it may not be necessary to start from a blank slate and create everything anew.

There are many issues that could be reopened to ensure devolution of judicial power to the newly formed constituent units. It is important that the political issues are settled first -- including the degree of internal autonomy of these constituent units and their law-making powers. Establishing the number of constituent units and their territorial limits is also a substantial part of the job.

Options for change

However, there are feasible options. A four-tier judiciary is one option, with a National Supreme Court at the top, almost as it exists today, including a National Court of Appeal in each devolved territory, acting under national laws. The court of appeal would have appellate jurisdiction over the lower courts and tribunals. No doubt, in such a changed context, the National Supreme Court should be looked at more as a constitutional court.

Apart from carrying out its normal duties as guardian of the fundamental rights of Nepalese citizens, it would deal with inter-constituent unit as well as national-constituent unit issues. Similarly, the National Courts of Appeal, replacing the existing Appellate Courts, may well have to serve as the top courts in each constituent unit, assuming some additional constitutional jurisdiction, and in effect become the local arm of the National Supreme Court.

Again, if the current 75 administrative districts are divided into some workable constituent unit set-up of eight or 10 constituent units, with a national government at the top, it will be necessary to provide for a locally recruited and operated court of the constituent unit in each constituent unit. There would also be a locally recruited and operated district court in each district within the constituent unit.

As such, the existing district courts could continue working as the court of first instance for cases coming under laws and institutions of constituent units. Each constituent unit court in its area would not only enjoy the status of appellate court over all district courts, but also serve as trial court for all cases falling under the laws and institutions under the national jurisdiction. As such a court of the constituent unit, locally recruited and operated, would function not only for the constituent unit; but also as the court of first instance for the centre.

It is at the constituent unit level that access to justice in Nepal must be ensured first. At this level, there is a need for an approachable judiciary. It must be simple enough to be accessed without the mediation of lawyers and must function in a participatory and transparent manner. Such an achievement would definitely require redefining the number, size and location of district courts, as well as their territorial and subject-matter jurisdiction.

For example, each district court (as suggested above) could have three or four separate one-member benches, according to the subject specificity, such as a family bench (dealing with marriage, divorce, domestic violence and women's rights), civil bench, criminal bench and small business bench. Simplifying existing trial-court procedures should encourage greater respect for the law, making the judiciary more accessible to the public and self-represented litigants. Such restructuring at the district-court and constituent unit court level could provide greater uniformity in rules and procedures — simplifying the tasks of lawyers, clerical personnel and judges, and cutting the costs of litigation.

There have been principles established and lessons learned in the restructuring of many other smaller democracies, especially in budgeting, planning and personnel administration, integration and standardization of the judiciary's information-management systems, judicial compensation and access to justice. These may be applicable in a wide variety of court-reform contexts, whether to justify a court’s existence or its closure, or to accommodate political sensitivities. The CA must also be mindful of serious flaws in the current judicial system, that it is not accessible to most people in the countryside. Even worse, it is increasingly acquiring an elitist character. The problems start right there.

Bipin Adhikari is a constitutional expert based in Kathmandu.

CA panel votes to pick judges from parliament - Provision draws mixed reactions

http://www.kantipuronline.com/kolnews.php?&nid=211737

KATHMANDU, Aug 27 - Legal experts have shown mixed reactions to the vote at the Constitutional Committee to Determine the Judicial System.

Nepal Bar Association Chairman Bishwo Kant Mainali said the provision would pose multiple risks to the judiciary. “First, the system will politicise the judiciary, and second, a chief justice from outside the apex court will not be able to lead the judiciary because judges and administrative staff there would not accept such a leader.” He also said the system would invite political intervention in the judiciary and corrode its values.

“This is a regressive development. The concern is the system may be abused,” said Bipin Adhikari, a constitutional expert.

Maoist lawmaker Ek Raj Bhandari ruled out the possibility of the election system politicising the judiciary. “This system will keep the judiciary out of politics and political influence because iy makes the chief justice accountable to the people,” he said.

Same old thing - Bipin Adhikari

British Prime Minister Gordon Brown, for example, has recently put forward changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of the House of Commons procedures. His plans to introduce legislation that could see a shift from self-regulation of the House of Commons — and subsequently the House of Lords — to independent, statutory regulation has been a subject of rigorous debate in the United Kingdom. A new Parliamentary Standards Authority is supposed to be given the power to regulate legislators’ allowances and the Commons would be asked to agree on a code of conduct for legislators in order to increase accountability.
Source: http://www.kantipuronline.com/kolnews.php?&nid=211661(The Kathmandu Post, August 27, 2009)

The Constituent Assembly (CA) Committee on the Determination of the Form of Legislative Organ (CDFLO) has finally presented its concept paper and preliminary constitutional draft in the CA for further discussion. It, however, deals only a bare minimum with the form of legislature that a majority of its members want. Why the CDFLO had a very small breathing space is very clear. It was supposed to build on the report of the Committee on the Determination of the Form of Government as to whether this country was picking up a new governmental system or continuing with the parliamentary form with necessary reform.

In the same vein, the report of the Committee on State Restructuring and Allocation of State Powers was necessary for it to plan the form of legislature in Kathmandu and the provinces as well as the ambit of their powers and relationship. The CDFLO concept paper and preliminary constitutional draft have been produced without basic policy support from the two important thematic committees, which had more say on the form of the legislature than the CDFLO itself in some important sense.

Nepal has a long experience of practicing elected legislatures in some form. There have been good days and bad days; but it would not have been out of context to discuss a variety of proposals and changes keeping in view the country’s past experience. Alterations to the composition, powers, procedure and structure of the legislature, elected or notional, have continued since 1950-51. The Constitution of 1990 had tried much to push ahead sustainable efforts to ensure a functioning legislature. That process has now been discredited already. But it is very clear that the committee has not been able to show a better regime for the prospective legislature to regain the country’s trust.

As one goes through the CDFLO report, one finds few new features in the scheme except for the change in the number of members of the House of Representatives and the National Assembly, the system of mixed representation, which is without rightful prescriptions, and provisions for provincial legislatures. The system of proportional representation as it applies to the House of Representatives at the centre really surprises many.

The committee proposals do not state how the legislatures that they have proposed for the centre and the provinces are more representative and responsive in their legislative and policy making activities. They do not explain how they are going to be more efficient and effective, or more accountable and accessible than their predecessor under the 1990 constitution. It is not clear in what ways they are more legitimate and linked to the people than before. In a great many cases, institutional changes influence legislative behaviour and leads to tangible outcomes in legislative settings. The presence of new institutions leads to new patterns of legislative behaviour, and institutions matter in predictable ways. But those providing prescriptions must know in advance what the problem areas are.

British Prime Minister Gordon Brown, for example, has recently put forward changes on a range of subjects including expenses of the members of parliament, freedom of information and modernisation of the House of Commons procedures. His plans to introduce legislation that could see a shift from self-regulation of the House of Commons — and subsequently the House of Lords — to independent, statutory regulation has been a subject of rigorous debate in the United Kingdom. A new Parliamentary Standards Authority is supposed to be given the power to regulate legislators’ allowances and the Commons would be asked to agree on a code of conduct for legislators in order to increase accountability.

Additionally, they are also thinking of coming forward with new proposals for dealing effectively with inappropriate behaviour, including potentially the options of effective exclusion and recall for gross financial misconduct identified by the new independent regulator and the House itself. These proposals have come forward in addition to those already with cross-party agreement, such as the requirement for all spending to be receipted and incomes from second jobs to be fully accounted for.

Prime Minister Brown also intends to set out proposals for public debate on five major issues in the coming months: Reform of the House of Lords to an elected House, introduction of a written constitution, devolution of power away from Westminster, reform of the electoral system and increased public participation through electoral registration and greater engagement of young people, including a potential lowering of the voting age. There is also a proposal to progressively reduce the time taken to release official documents from 30 to 20 years and to broaden the terms of application of the Freedom of Information Act to include a wider range of organisations.

Some British experts have argued the case for parliament’s deliberations to be spread more evenly over the year. They consider that members of parliament are not on holiday for the period of the recess. Committee-level activities in parliament continue even then. But with a more sensible organisation of parliamentary oversight, many critiques believe that parliament might avoid the sense that the entire government is on holiday. A combination of these changes could be considered in Nepal as well, which would enable the new legislature to do its work more efficiently, and to be seen to do so.

A clear code of conduct for all legislators and stringent action against those violating it has certainly become essential in Nepal. A legislator should lose his membership and be expelled from the house if he conducts himself in a manner that results in gross violation of basic democratic norms and/or misuse of office. The constitution needs clear guidelines to ensure strict time limits for assembly sessions and speeches of its members. The new constitution should also expressly prohibit any development towards a constituency development fund for the members. It should also restrict the tendency of the members to exercise executive powers on whatever pretext. Even the oversight functions of the committees in the legislature should understand this limitation.

Not only is a clear delineation between executive and legislative functions necessary, the constitution should also expressly state that members of the legislature will not have any role regarding local governments and administrative institutions. These provisions are necessary to make sure that legislators focus on what they have been elected for instead of intruding into the sphere of activities meant for the government of the day. It is apparent that the CDFLO concept paper and preliminary draft have ignored many aspects of the reforms that should have been discussed and carefully proposed for further discussion. As they exist today, they do not propose anything other than business as usual. This is, no doubt, another point of worry.

lawyers_inc_nepal@yahoo.com

Gouvernement népalais

"While discussing France as a model, one also needs to consider the fortune of a legislature in the new (non-parliamentary) set up. Some additional questions are: Can a president who wields power in the area of “high” politics give the feeling of an emotionally united head of state? Is it possible for a directly elected head of state to remain non-partisan in a country with so many socio-political and ethnic cleavages? These questions come up unhesitatingly in a country whose parliamentary template has already grown discernible patterns over the last six decades" - BIPIN ADHIKARI

http://www.kantipuronline.com/kolnews.php?&nid=209306
The Kathmandu Post, August 13, 2009

While a debate on the best form of government for Nepal is going on, senior political scientist Prof. Lok Raj Baral has proposed that the French system of government could be discussed as a suitable model. A recent paper prepared by Baral — and discussed at a combined forum of the Society for Constitutional and Parliamentary Exercises (SCOPE) and the Constituent Assembly (CA) Committee on the Determination of the Form of Government — explores what Nepal needs after democratic experiments through all these years in the parliamentary form of government.

Discussing some key characteristics of the French system as developed under the Constitution of the Fifth Republic, Baral suggests that the model has potential to address Nepal’s recurring problem of instability and that it also seems to be compatible with Nepal’s other on-the-ground situations. Also described as being midway between the American presidential government and the British cabinet system, the most distinctive feature of the French model is the division of executive power between the president and the government headed by the prime minister. In this system, the president is directly elected by the people, but the prime minister comes from the majority party in parliament. The issue here is whether the model proposed by Baral could be a viable model

As one can see, the French model insists on the parliamentary character of the system, but does not make secret its determination to check abuse of parliamentary democracy, generally keeping the president out of parliament’s clutches, which had cursed republican France with dictatorship and/or chronic governmental instability for many decades before the promulgation of the present constitution. For example, under the Constitution of the Fourth Republic (1946-1948) governments had lasted an average of six months only.

Many analysts and leaders including General Charles de Gaulle, who ruled France from 1959 to 1969, agreed that their governments before the promulgation of the present constitution were overthrown with distressing regularity mostly because they were accountable to a fickle parliament. Under the present arrangement, political parties holding sway in parliament, who by their very nature represent particular interests rather than the general interest of the country, cannot destabilise the president — the number one executive — who is said to be responsible for making decisions in the area of “high” politics, such as foreign affairs, defence, statecraft and crisis decision-making.

The role of the prime minister, who is accountable to parliament, is not that crucial because he is responsible for making decisions in the area of “low” politics only, such as domestic policy, the budget and routine decision-making. His power is carefully hedged with a number of constitutional provisions intended to protect governmental stability and thereby to ensure the capacity of the government to act when action — especially unpopular action — is called for. Arguably, any instability (in France) at this stage cannot affect the overall issue of governmental firmness and efficiency.

This arrangement brought together a compelling presidential position with manifold executive powers and a parliamentary executive (prime minister) responsible before the elected house. The president’s task was primarily to end any deadlock and act decisively to avoid the stagnation prevalent under the Constitution of the Fourth Republic. The prime minister, similarly, was to direct the work of the government, providing a strong leadership to the legislative branch and help overcome partisan squabbles.

The scheme also had the potential to produce some unintended relationships, usually described as “cohabitation” in government. It occurs when the president is from a different party than the majority party in parliament. It comes about because such a system forces the president to name a prime minister acceptable to the majority within parliament. Such cohabitation is supposed to prevent the stagnation of split majorities that can frequently occur in presidential systems.

There are important implications of this model in the typical Nepalese context. Even in France, from charismatic General Charles de Gaulle to the current President Nicolas Sarkozy, who was elected two years ago on a very divisive political platform, neither the patterns of power relationships that are being described nor the political impact of the sort have been consistent. This was true during the tenure of all the eight presidents who ruled France with their prime ministers approved by the house.

During the last 50 years, France experimented with different types of governments, although theoretically the constitutional form was the same. There is hardly any disagreement on the analysis that there was a shift from, say, segmented government from 1959 to 1962 to monocratic presidential government from 1962 to 1976. The first situation demonstrates sectoral division of labour within the executive in which responsibility for one set of matters is incumbent upon one person and responsibility for another set of matters is incumbent upon another person. The second situation is all about the exercise of personal leadership by a single individual.

This is not all. A further shift to shared government from 1976 to 1981 was also noted. Then a shift back to monocratic presidential government from 1981 to 1984, to a return to segmented government from 1986 and then a further shift to monocratic prime ministerial government from 1986 to 1988 was also noted. It goes on. These shifts are remarkable by any standard but bizarre and heretical in Nepal’s political scenario. There are administrative implications of this strange constitutional “hybrid” or “duarchy”. Besides, this model has different implications for the first executive (the president) in his relations with parliament.

This major issue apart, the cohabitation experience in 1986 during the tenure of President Francois Mitterrand (1981-95), for example, and similar other experiences have led many to argue that a majority opposed to the president is somehow contrary to the spirit of the Fifth Republic. Mitterrand worked with seven prime ministers with a variety of experiences. The two further “cohabitations” of 1993 and 1995 and 1997-2002 also suggested that the primacy of the president, or what some French political analysts describe as “republican monarchy”, could no longer be taken on the normal institutional practice.

In 1964, Francois Mitterrand launched a famous denunciation against General de Gaulle called the permanent coup d’état. After 42 years, during the electoral campaign in 2006, Nicolas Sarkozy, at that time the interior minister, was quoted for his commitment against the unitary executive, and his intention to expand the powers of the French president, were he to occupy that office. There are many positions. But the possibility of cohabitation in the future is said to be remote.

While discussing France as a model, one also needs to consider the fortune of a legislature in the new (non-parliamentary) set up. Some additional questions are: Can a president who wields power in the area of “high” politics give the feeling of an emotionally united head of state? Is it possible for a directly elected head of state to remain non-partisan in a country with so many socio-political and ethnic cleavages? These questions come up unhesitatingly in a country whose parliamentary template has already grown discernible patterns over the last six decades.

Apparently, this critique has not focussed on the strengths of Prof. Baral’s propositions. This must be done both within and without the CA at a more serious level. In that case, one must also consider how a decision about the choice of the form of government can be made in a country where constitutions come and go, not in the exercise of legitimate process but enforced hiatus and geopolitical machinations. This aspect of Nepal’s democratic experiment is definitely not a secret anymore.

lawyers_inc_nepal@yahoo.com