"The doctrine of necessity is vulnerable on any ground"

Source: CA Dialogue Bulletin (August 2011)

Dr. Bipin Adhikari is a legal scholar. His areas of special expertise include comparative constitutionalism, human rights and the rule of law and good governance. In addition to his opinions on constitution building, Adhikari has a number of other publications to his credit. He spoke to Constituent Assembly Dialogue team on the recent decision of the Supreme Court on the validity of the Interim Constitution (Ninth Amendment) Bill 2011. Citing the doctrine of necessity, the Supreme Court in this case declined to quash the controversial amendment bill on the ground of unconstitutionality, thereby permitting the extension of the tenure of the Constituent Assembly (CA) by three more months on May 28, 2011 . Excerpts:

We noted your comments in the media that the Supreme Court could have avoided relying on the doctrine of necessity in order to validate the Interim Constitution (Ninth Amendment) Bill 2011. What is your main argument?

Article 64 of the Interim Constitution is very clear. It clearly states that unless otherwise dissolved earlier by the Constituent Assembly (CA) itself, the term of the house shall be two years. There is only one exception to this rule. The term of the house may be extended for up to six months in the event that the task of drafting the constitution is not complete due to the proclamation of a state of emergency in the country. The court could have delivered its decision based on this clear-cut provision.

How do you read the court decision? Did it not base itself on Article 64 as you noted?

No, the Supreme Court tried this time to read the political situation in the country which was not necessary. It ignored the fact that the Constituent Assembly was a fixed term house, and there was no emergency in the country in May 2011 to allow it extension on exceptional ground.

When the constitutionality of the eighth amendment bill was challenged last year, the court agreed that there could be no extension beyond six month, whether there is an emergency or any other dire necessity. But it declined to declare the unconstitutional extension null and void at that time because it thought that would negatively affect the achievements of the CA made during this extended period. But the judgment of the court left little space for the CA to work on another extension after the completion of this unconstitutionally acquired one year additional term.

It is therefore natural that the issue was taken up once again by public interest litigants, when the house passed Interim Constitution (Ninth Amendment) Bill extending the term of the house for another three months. But the Supreme Court annulled the writ petition on the ground that despite the efforts of political parties, the twin tasks of peace building and constitution drafting processes remain incomplete and the extension of CA's tenure was necessary to complete these tasks. Apparently, it ignored the emergency clause, and in the absence of the enabling provision in the constitution, it relied on the doctrine of necessity to validate the extension.

This interpretation is not sound. The court has become unnecessarily generous. It has misread the political economy of the peace process and constitution building. There is a fear that the House may not complete the tasks for several reasons even though the court is prepared to give unlimited extension to the house.

What are these reasons?

I think there are ideological divides between the major political parties who control the two-third votes in the house. They differ with each other on both the peace process and constitution building themes. There are thematic differences on the basic issues of democracy, constitutionalism and the rule of law. There is also reluctance to handover the Maoist fighters to the state. There is little determination to compromise and find a way out to all controversial issues. Things might not change unless there is change in the strengths of the political parties, or current balance of power in the Constituent Assembly.

In fact, it is possible to agree on a framework constitution, and to leave many of these problems to the future parliament. It is also possible to create a small constitution drafting commission from the existing house and say good bye to the Constituent Assembly. In this case, the national parliament elected under the new constitution promulgated by the Commission could approve the new constitution by a two-third majority with or without amendment. But nobody wants to wait till next elections. The house has become lethargic. It does not have political drive. The extended period has not been used for constitution building as such. All options are there, but they have not been explored.

The decision of the court only gives continuity to this status quo on the strength of a doctrine which is controversial as far as the constitutional law is concerned. It does not help the process of change. The problem lies there.

Why do you think the doctrine is controversial in constitutional jurisprudence?

Let me tell you that the common law that we tend to look back on recognizes the existence of this doctrine. It was an English jurist, Henry de Bracton, who pleaded in the thirteenth century 'that which is otherwise not lawful is made lawful by necessity.' Another jurist William Blackstone of the eighteenth also recognized it as a matter of principle.

Alexander Hamilton, the constitutional expert of the United States, wrote that necessity is admitted in all moral reasoning as an exception to general rules.

In the 19th century, the doctrine was combined into a set of narrow exceptions to constitutional limitations, often under terms like "affected with public interest" or "public power." It was never invoked as a credible constitutional rule. The jurisprudential value of the doctrine of necessity has always been controversial in constitutional law. It hits at the heart of the concept of the supremacy of the constitution. It weakens the concept of limited government. It promotes judicial activism in an area where politicians have to take the lead and maintain their accountability to the voters.

Do you mean that the doctrine is not in use in other established constitutional democracies of the world?

I do not want to claim too much. As professionals we keep track of what is going on in the rest of the common law countries. We do not generally find constitutional courts relying on this doctrine as an established principle.

Never in the history of modern Europe, America, and Australia has the doctrine of necessity been effectively invoked to justify deviations from the written constitutional provisions.

The doctrine has not been used in any civilized country to give sustenance to a new extra-constitutional regime. It does not provide a valid basis for abrogating the constitution, or minimizing its significance. It is not intended to help the political vested interests in power. It is never used to check the options of the common people as to their political leadership. It does not authorize the executive to raise money for its operations without parliamentary approval, or to jail people without conviction by a court of law. It does not permit a constitutional coup. Necessity does not demand any of that.

What is supreme in a democracy is the constitution and what the constitution is informed by is the concept of the rule of law. The doctrine of necessity has the potential of affecting these values adversely in most of the cases.

What would be the genuine cases in which this doctrine could be invoked comfortably?

My point is that institutions like the Supreme Court should always be sensitive about invoking this doctrine. Restraint on the exercise of power, or the rule by convenience is what the concept of constitutionalism is all about. The doctrine should be invoked only after careful assessment of conditions for its application. The motives of the government in power must also be considered. The doctrine should not be applied where its effect is to compromise with the supremacy of the constitution and the rule of law. These parameters limit the operation of the doctrine in constitutional law.

In Canada, some decades ago, the Supreme Court considered a series of decisions of courts in other jurisdictions within the Commonwealth of Nations in which this doctrine had been applied to validate acts which were strictly speaking unconstitutional. From these cases, it was concluded that the courts will recognize unconstitutional enactments as valid where a failure to do so would lead to legal chaos, and then violate the constitutional requirement of the rule of law. The court decision had helped the country emerge from the problem, and not to throw it in the trap of unrestrained powers.

What are the bad examples?

Most of the examples are bad examples. One could collect these examples from countries like Cyprus, Pakistan, Grenada, Nigeria, where the doctrine was haplessly or ineptly applied. In Pakistan, the imposition of martial law was validated on the doctrine of necessity in a case filed by Begum Nusrat Bhutto against Chief of the Army. In a 1985 judgment, in Grenada, the Chief Justice of the High Court invoked this doctrine to validate an illegally established court then trying for murder the persons who had conducted a coup against its former leader. It is just about one and half year before, the Nigerian parliament authorized the vice president to act as an acting president even though the president did not want to delegate his power to him on the strength of the doctrine of necessity. All these instances were deviation from strict compliance with constitutional provisions.

What is your advice for the future?

The doctrine of necessity is not the rule. It is an exceptional arrangement. Even though it has many uses for the legal system, its use in the domain of constitutional law is very difficult. It has many unseen side effects.

A court can invoke it to enable the national army to respond to the foreign aggressors, when one finds that the compliance with constitutional provisions might take time, and the country may remain undefended against such attack. It is possible to invoke it to allow the civil servants to respond to the situation of sudden and stark crisis affecting the life of thousands of people, or the government to deal with similar circumstances not provided for in the written constitution. These situations are not just excuses for the politicians. They are difficult situations requiring immediate interventions. Any such deviation must be essentially of a temporary character and it must cease to apply once the crisis has passed.

I am sure the doctrine of necessity cannot be an alibi for an inefficient government, or a house which does not find any reason to complete the constitution writing process.

Any last words …?

This issue is likely to come to the court again after the expiry of the three month extension. I do not think the CA will be able to draft a new constitution due to the reasons I highlighted. In such a scenario, it will be advisable for anybody to require the government, or the present generation of political parties, to work on affordable options, than extending the tenure of the house again on the basis of doctrine of necessity. There is no such necessity at all.

Agenda for peace - Bipin Adhikari

The Kathmandu Post

19 September, 2011

It is time for the Prime Minister to quell his internal irritations first. This will set the stage for negotiations with the Madhesi coalition partners.

There is again a new coalition in power. The coalition government of the Maoists and the Madhesi Morcha has superseded the coalition government led by Communist Party of Nepal - UML. While this change has put frontline parties seeking robust change in the country in the driver's seat, other mainstream parties including the Nepali Congress and the UML have refused to join the government. Meanwhile, the four-point understanding that the Maoists signed with the Madhesi parties to obtain their support has raised more issues rather than helped to settle the backlog of problems.

The four-point understanding, which was made public at a joint press conference at the International Convention Centre just before the prime ministerial polls on Aug 28, is not a surprise. It shows, in the context of the peace process, the determination of the government to settle the issue of integration of Maoist combatants by keeping the Madhesi parties in good faith. It announced the withdrawal of cases related to the movements of the Maoists and Madhesis, among others, and the commitment to begin the process of amnesty. Bringing an inclusive bill in parliament within 15 days and beginning the process of recruiting Madhesis in a separate unit in the Nepal Army are also included in the understanding. It noted that priority would be given to improve relations with the neighbouring countries (which, in the psyche of the signatories, basically means India).

It will not be out of place here to recall that sixteen years ago, on February 4 1996, Bhattarai— Chairman of Central Committee of the United People's Front Nepal at the time, had submitted a 40-point demand to the coalition government then, giving it a two-week ultimatum to take steps to fulfill the demands, or face what developed later as the Maoist People's War. The demands on the frontline were: abrogation of all discriminatory treaties, including the 1950 Nepal-India Treaty; cancellation of the Integrated Mahakali Treaty finalised with India in 1996, regulation of the open border between Nepal and India, closure of the Gorkha Recruitment Centres, and the introduction of a 'work permit' system for Indian immigrants. These priorities have not been heard of again since the Maoists joined mainstream politics. And even in the seven page speech that Bhattarai readout to the Constituent Assembly on September 16 a few days ago, there was no mention of these demands. Nepal has by now, already been restructured into a client state. The country will never be able to raise nationalist slogans in the foreseeable future, in its own capacity.

Even though the government has been quickly formed, the constitution-drafting process remains stalled after the opposition parties—the Nepali Congress (NC) and the UML— remained staunch on their stance that there can't be any progress on constitution writing until the peace process reaches an 'irreversible' point. During the meeting of the Constitutional Committee on September 13, for example, NC leader Ram Chandra Poudel and UML leader Agni Kharel states that momentum of the peace process is integral to the constitution-drafting process and the former said concrete steps would be necessary. Earlier this month, the NC and the UML decided that a package deal on the contentious issues regarding integration of Maoist fighters is a precondition for furthering constitution writing.

In the Constitutional Committee meeting, Maoist Chairman Pushpa Kamal Dahal, who also heads the sub-committee formed under the Constitutional Committee to resolve contentious issues, presented a report on the progress made by the sub-panel. In fact, no progress has really been made.

The Congress-UML perspective on the peace process looks something like this: Integration of Maoist fighters in the range of only four to five thousand at best; the leadership of the proposed army directorate to be given to the Nepal Army officers alone; integration should only be done on an individual basis; the Nepal Army standards can be relaxed only on education, marital status and age; those fighters qualifying on the basis of merit should also not be offered any position above 'Major'—the entry level officer rank; and training and deployment of the integrated fighters can only be in areas falling under civil-military or non-essential army functions. They aren't driving a hard bargain on resettlement and voluntary exit schemes. However, Bhattarai has already accused the Congress and UML of posturing, and displaying old parliamentary habits.

As it stands today, the parties seem closer to consensus on issues like the election system, forms of governance and state restructuring. NC has agreed, in principle, to form an expert panel instead of a State Restructuring Commission under Article 138 (1) of the Interim Constitution to resolve related disputes. NC has made it clear that recommendations by the CA Committee on State Restructuring and Division of Power is not acceptable. And it is not ready to form such a panel unless the peace process stands finished.

The three month extension given to the Constituent Assembly this time falls in the festive season. This puts a significant limitation on the working days of the house. Tihaar will follow Dashain, and Chhath will follow afterwards. The indications are then, that the house will be given extension after extension, turning it into what came to be known as the Long Parliament of England in 1640. Through an Act of Parliament, the body could only be dissolved with the agreement of the members, and those members did not agree to its dissolution until after the English Civil War. It sat from 1640 until 1648. This is how the Interim Constitution is being interpreted in Nepal. On the top of all this, the Supreme Court has unnecessarily gratified the house by laying down the doctrine of necessity, which has the effect of minimising constitutional checks on the exercise of power by the functionaries of the state.

The situation of Prime Minister Bhattarai to lead the process is somewhat limited despite the popular support that he has in some corners of mainstream politics and society. The Prime Minister has avoided sounding harsh, and urged the NC, UML and other fringe parties not to place any precondition on constitution writing. While the row over the Maoist-Madhesi alliance has not been resolved, Bhattarai is under pressure from the hardliners (both hardcore Maoists and nationalists) of his party to further both the processes simultaneously. The undercurrents are no more secret.

It is time for the Prime Minister to quell his internal irritations first. This will set the stage for negotiations with the Madhesi coalition partners. What the opposition wants is very much clear by now. The Prime Minister needs to make clear what he can do now. This will also help the people at large to debate whether there is a necessity for a fresh mandate and elections, or not.

(Adhikari is a constitutional expert).

Have we acted in haste only to repent at leisure?

People's Weekly: Friday, 30 May 2008 By M.R. Josse


Penning this before yesterday’s scheduled opening of the Constituent Assembly (CA) when the ‘declaration of a republic’ was to be a done deed, the thought that arose in this commentator’s mind was whether in so doing we as a nation have not acted in reckless haste only to deeply repent at leisure later.

In fact, quite apart from the tearing haste that was exhibited in many political quarters on this score, myriad issues including those of external pressures, political probity and constitutional lacunae were linked to it.

EXTERNAL PRESSURE

Most galling, at least to people who consider themselves patriots, is that certain external forces – too well known to need any specific or special mention here – provided much of the driving force to attempt to do away by fiat the institution of the Monarchy in its most recent 240 year-old manifestation.

Irrespective of all other considerations, that pungent home truth should have caused all conscious citizens to ponder why such powers or foreign interests were so determined to uproot the very institution that was instrumental, along with the Army, in putting Nepal, as we know it today, on the map of the world.

What was it about the institution that stuck in their delicate gullets? Were they in fact against the very concept of Nepal as an independent, sovereign state? Was Nepal under the Monarchy too independent or nationalistic in her foreign policy projection? Was she a hurdle in the advancement of unspoken global geo-political goals and geo-strategic maneuvers using Nepalese territory as a convenient base? Or, was it merely that a Hindu Monarchy was considered completely unacceptable or anathema to them?

One doesn’t have to be a Kissinger or Muni to realise that there are umpteen Monarchies and Muslim Sheikhdoms, including those in Asia, that are still being robustly supported by the new ‘democratic’ messiahs rampaging across the globe in an evangelical fervour. The question is: why should only the Nepali Monarchy have been thus targeted?

At the very least, such disturbing questions ought to have caused a pause and stirred a thorough debate and discussion in the CA before the Rubicon was so recklessly crossed.

Yet, the unseemly haste is manifest in the domestic sphere as well. Thus the interim constitution that pledged a CA to the Nepalese people has, as noted constitutional lawyers have pertinently pointed out, been executed without even specifying its constituent powers.

As Bipin Adhikari argued and rued in a recent article in the Kathmandu Post: “The interim constitution does not guarantee that the sovereign house will have no limitations in its constituent powers or that it will not be constrained by the decisions of the interim legislature or the interim government on the basis of this constitution or by any executive agreement that it has signed with rebellious groups in the pre-election period.”

DUE PROCESS

Besides, the hurried or slapdash nature of the whole business has been poignantly reflected in that the Assembly did not provide the aggrieved party, or the King, the opportunity to contest the motion against him in the House where he should have been allowed to present his case before the die was cast.

As Adhikari bemoaned in an opinion piece also in the Kathmandu Post: “In (a) democracy it (providing such an opportunity) matters; and it matters in the most powerful sense. The King is not being toppled; he is being laid off. If this is the truth, then the process requires that he must be allowed an adequate opportunity to present his case.”

Quite aside from the miasma of subterfuge that wafted from the grotesque Alice in Wonderland-like ‘sentence first – verdict afterwards’ approach, there is the incontrovertible fact that in the end the seven super political parties that called the shots decided this cardinally important question for the entire population.

What, pray, is the meaning of ‘loktantra’ if the right of the ‘lok’ to pronounce on the key constitutional issue was so brazenly hijacked by a political cabal acting in the name of the people. If so, what we now have is not ‘loktantra’ but ‘partytantra’ – with the real decisions being made virtually by one party!

Furthermore, do universally accepted notions of political probity and norms of fair play and parliamentary ethics have absolutely no place in the new ‘loktantric’ order of ‘naya Nepal’? Else, why should the provision have been made to decide that fundamentally important issue by a simple majority – when every other decision on which there is no consensus needs a two-thirds majority?

Was the Monarchy vs. Republic issue a trivial one? Or, was the intention right from the start to bulldoze through regardless, comforted in the knowledge that, at least for now, there is no likelihood of effective opposition either from inside the Assembly or from without? Was all this merely, or mainly, to please unseen powers that be?

The less said about the double or even treble standards of the fabled ‘international community’ the better. As already noted, most members of that charmed circle had vested interests or hefty axes to grind in seeing that the institution of the Nepali Monarchy goes the way of the dodo.

LESSONS FROM HISTORY

If not the others, they surely should know from contemporary history that contentious issues that are not properly settled through legitimate legal means or due process and resolved instead through application of steamroller tactics, have an appalling tendency to return, sometimes with even greater ferocity, to right what is deemed as a historical wrong.

That argument can perhaps be better understood if one recalls that peace agreements such as the Versailles Treaty of 1919, based on the principle that ‘might is right’ and driven by a spirit of diktat or revenge, led to the rise of Hitler with terrible consequences for the whole world.
Super Powers, or wannabee Super Powers, must in particular be reminded of the above realities of international relations, as also that a drastic change in Nepal’s strategic or geo-political status, or tilt in one particular direction – likely to follow the abolition of the Monarchy – must sooner rather than later, set in motion countervailing forces, including external ones.

In our case, it is not difficult to foresee a looming confrontation between opposing forces, including in what is shaping to be the battle for a ‘Free Tibet’ from Nepali soil. In short: instead of sustainable peace, stability and prosperity in the country, we could now jolly well be heading in the opposite direction. When the centre collapses, it is difficult to imagine the periphery holding!

IGNORING UNIVERSAL VALUES

But, to return to the arguments proffered earlier, this commentator can only endorse Adhikari’s concluding remarks: “Eventually, those who are said to be making history should make it on the strength of self-respect and certain universal values.

“Such values – justice, equality, the rule of law, to mention the most basic – need to be protected, no matter who gains from it. It might delay the process a little, but it can surely give a clear outlet to the problem and a firm footing to the democrats.”

Another illuminating perspective was offered by Trilochan Gautam, a well-known advocate, in a recent interview to this weekly. Among other things, he argued powerfully that a constitution may only be implemented after it is formulated.

He then rightly questions: “How can only one provision of the constitution be implemented. Declaring the country a republic is only one provision of the interim constitution. The new constitution can only be implemented after it is prepared fully and ratified by the constituent assembly. It cannot be implemented in part or in pieces. The issue of declaring (a) republic by the first meeting of the constituent assembly will be illegal. If they do it, it will be coercion and imposition.”

One doesn’t have to be a legal-eagle to point out that the assumption that the diktat of the interim constitution on the issue of the Monarchy has to be scrupulously obeyed by the CA seriously undermines the concept that the elected CA is a sovereign body, that is to say, the sole master of its own rules and procedures.

Even a political science neophyte who is still wet behind his/ears can easily figure out that an Assembly specifically elected to draft a new constitution cannot, in all legitimacy, be dictated to by a defunct interim assembly composed of unelected representatives of a seven-party oligarchy.

That apart, it is a gaucherie of the highest order that, two days before the CA was convoked, proposals were been forwarded by the Maoists at a three party meeting to ‘amend’ the preamble as well as Articles 1, 4, 38, 45, 46, 138, 158 and 159 as also to scrap Article 159 (5) which gives recognition to the King.

If there is so much homework that needed to be done from just the Maoists’ perspective where was the cyclonic hurry?

As the well-known adage goes: act in haste, repent at leisure!

Problems facing Constitutent Assembly

http://www.kantipuronline.com/kolnews.php?&nid=160296


By DR KHAGENDRA N SHARMA


It has been four months since the Constituent Assembly (CA) was formally announced. But not a single word of the constitution has been written yet. It is true that the country was declared a republic in the first session of the CA, but it was just a formalization of a decision already made by the Interim Legislative-Parliament. So, the CA cannot claim the credit for the termination of the monarchy. The CA has created the posts of president and vice-president of the republic, but it is still an interim arrangement and the powers and functions of these posts will have to be redefined in the context of the new constitution. Thus, the whole function of writing a new constitution remains unattended.

There are two different types of problems facing the CA and both of them are of a serious nature. The first problem consists of the processual aspects of the constitution making -- the how part of it. It is reported that some rules have been finalized regarding the processual aspects like forming different committees through which the ideas will filter culminating in the provisions of the constitution. Much time will be needed to pass through all the committees. Apart from that, ample field work will have to be done to ascertain and analyze the views of the people at the grassroots. These ideas will have to be articulated thoroughly in the CA and placed in the hands of skilful constitutional experts to convert into appropriate provisions of the constitution.


The CA has been too large and unwieldy a body to articulate issues effectively and make decisions collectively. This aside, the CA has also to function as the Legislative-Parliament. It is a pity that the legislative part will consume a significant portion of the two years time in which the constitution has to be completed. So, the CA will have only a small part of the allotted time.
Given the fractured coalition, there will be numerous differences of thoughts among the parties, both within and without the coalition partners. The incongruous make-up of the fractured coalition will be naturally reflected in the CA. The decisions are expected to be unanimous in an ideal situation, but it is very unlikely in the present situation, given the protracted bargaining in the whole political process. So, decisions are expected to be made, if at all, simply by the required two-thirds majority.


The second problem is substantive, subject-matter questions pertaining to the various aspects of the body of the proposed constitution. These problems are so serious that it is inconceivable that the constitution can be made in the limited given time. The most problematic and difficult issues are those regarding the restructuring of the state. It has been promised that Nepal will be a federal state. Sentimentally, it is a fine promise, but there is no uniform concept of the federation. Before and during the CA election, all the parties talked of the federal structure for future Nepal, but no party except the CPN (Maoist) had even a vague concept of the proposed federation. The Maoists had proposed a distinct federal structure, but it has raised more questions than probable answers and it will be difficult to sell the concept to all the parties for the following reasons.


The Maoists had raised a general awakening among the masses for the concept of the federation during the decade-long conflict, but the concept was understood, articulated and popularized by different communities very differently during the interim period leading to the CA election.
In most of the cases, there has been ethnic orientation, but language had also played a big part in sensitizing the people. If these two criteria are accepted as the basis of federalizing the state, then there will be more than a hundred units to be federated. That will be simply unimaginable. Then there is the bigger criterion of space or geographical divisions. But geography does not go by homogenous ethnicity, linguistics or cultural factors.


The tarai movement has strongly voiced the concept of one Madhes. It has raised several potentially dangerous issues. If the topography of the country is to be taken as the criterion of breaking the state, there will be three major types -- the flat plains, the high mountains and the moderate hills in the middle. Taking cue from the Madhes call, the communities in the high mountains have already started to make claims for a mountainous state all along the north. The mid-hills have not yet raised such a demand but given the logic, it is in the pipeline. Thus, physically there will be three units to be federated. But this logic will negate the other more applicable criteria of ethnicity and linguistics.


Ethnically, too, there have been various claims, with the Limbuwan claim being the loudest. It has even started to have a parallel government in the east. In the name of ethnicity, it has overstepped into another ethnic jurisdiction in the south.


Similarly, the call for one Madhes oversteps several ethnic communities with distinctly different cultural, linguistic and other forms of identities inside the flat tarai itself. One basic flaw of the ethnic or linguistic logic is that several communities have no specific territorial base and are spread throughout the country. The basic flaw of the geographic logic is that it ignores the other vital social criteria of ethnicity, linguistics and cultural identity.


If the issue of an acceptable federal structure is arrived at, there will be several issues of distribution of power and resources. Too much of power in the centre will be resented by the units and too much of power in the units will result either in a weak nation state or it may lead to tendencies in the units to secede from the nation state. Making adequate safeguards will require great national perseverance before the constitution is finalized.


Another major issue to be resolved in the new constitution is the question of fair representation. There are over a hundred different communities -- large or small in size -- but with distinct identity all the same. All will have to be satisfactorily accommodated. This issue is different from the ethnic or geographic issue: it refers to issues of gender, minority, marginalized groups, under-representation and so on. These issues have been voiced very vociferously, without arriving at a suitable solution during the interim period.


Apart from the division between the units and the central state, there are serious issues regarding the form of government: whether Nepal should adopt a parliamentary or presidential form of government both at the central and at the unit levels. If it prefers to have the parliamentary form, should the parliament retain control over the executive or should the PM have the power to dissolve the parliament and hold fresh election as in the past? If Nepal should have a presidential form of government, how will the president remain accountable to the parliament?


The above is not an exhaustive list of serious issues, but the purpose of this writer is to indicate how serious is the work ahead. From the way the CA has been moving, one can suspect that a wholesome product of a constitution can be accomplished in the given timeframe of two years out of which more than four months have already elapsed without framing a single article of the constitution.


Time is an important factor, but even more important factor is the seriousness in the leadership of the big parties which are still struggling to establish supremacy over each other. If this wrangling is not stopped, the sovereign people may again give a clarion call for another political uprising.

Controversies at Constituent Assembly

By DR BIPIN ADHIKARI
http://www.kantipuronline.com/kolnews.php?&nid=160183

The Kathmandu Post, September 11, 2008

Disagreements over two major issues are said to be obstructing the passage of the draft Constituent Assembly Rules of Procedure. The first relates with the appropriate size of the proposed Constitution Drafting Committee and the second with the issues that might be subjected to conscience vote during the constitution making process.

Both these issues are significant concerns today. The experts of the Constituent Assembly Secretariat, who helped devise the draft Rules of Procedure, provided that the size of the Constitution Drafting Committee shall be limited to only fifteen members in order to make sure that this small and competent group fulfils its responsibility efficiently in a small core group in the house.

Similarly, they also provided that the Chairman of the Constituent Assembly may allow conscience votes to the members during the constitution making process when he finds in consultation with the members of the House Steering Committee that the issues before them involve very contentious moral dilemma. In such a situation, political parties were supposed to keep off from taking positions or issuing whips on these issues, and members were allowed to cast their vote according to their individual conscience.

The message that has come out of the row is loud and clear. All twenty-five parties in the Constituent Assembly, irrespective of their strength in the House, want to be represented in the Constitution Drafting Committee in view of its final and crucial role in the constitution drafting business. In other words, they hate the idea of building coalitions within the House to get represented in the 15-member Constitution Drafting Committee. Even a party which has only one member in the House wants to see its member doing the job of the constitutional draftsman sitting along with the representatives of the other major parties.

Apparently, what they are demanding comes out of the accommodative jurisprudence of 'consensus,' which has been overemphasized over the last two years, but which, if accepted at this juncture, has the potential of weakening the electoral mandate of the major parties in the government and the opposition. But what is more important is the fact that it is highly inconceivable that a large Committee which gives individual representation to each small party in the unicameral House, and then allows additional members on the proportional strength of each major party can write any meaningful Constitution. This will make the job of writing the Constitution messy and fatalistic.

The second thorny issue involves the vote of conscience. It is learnt that some minor party representatives, especially the Madhesi and Janjati groups, want to mould the draft provision as to the vote of conscience in a way that allows them more political maneuverings against the party whips of the major national parties -- Maoists, Nepali Congress and CPN (UML). These representatives want conscience vote to be offered to all Madhesis and Janjatis in the issues that involve them. That virtually means releasing the Madhesis and Janjatis of the major parties from the control of their party high command. Obviously, the party system may face a major challenge from within.

In a parliamentary system like ours, the elected members of a House who belong to a political party are usually required to toe the party line on significant political issues for fear of censure or expulsion from the party. Whether it is the United Kingdom, New Zealand or Australia, parties exercise this control over the votes of individual members of the House as a rule. This becomes necessary to make sure that the party manifesto on the basis of which they have won the elections is implemented honestly.

Conscience votes are given on exceptional basis on non-political issues. They are usually quite rare. Very often they are about an issue which is very contentious, or a matter on which the members of any single party differ in their opinions, thus making it difficult for parties to formulate official policies. Usually, a conscience vote will be about religious, moral or ethical issues rather than about administrative, political or financial ones. Once conscience votes are allowed, parties do not exercise control over the votes of individual legislators. They can vote as their conscience dictates and even oppose their party position without consequence. These events are rare and are never on matters of confidence.

Issues such as the death penalty, the prohibition of alcohol, homosexual law, same sex marriage, and the legality of prostitution are often subject to conscience votes. Rules concerning protection of pregnancy or abortion have usually been subjected to a free vote. In such cases, a party declines to dictate an official party line to follow, and members may vote as they please. But there is more to it than that.

As an example, early this year, British Prime Minister Gordon Brown bowed to pressure from pro-life groups and Catholic Church leaders to allow a conscience vote on a bill that would allow human cloning. The British Parliament will vote on the Human Fertilisation and Embryology Bill sometime next month that allows the cloning of human-animal hybrids. The Bill is now in the committee stage at the House of Commons. The conscience votes will apply to three clauses, governing human admixed embryos, saviour siblings, and the need for a father during fertility treatment. If passed, the Bill would allow scientists to create human-animal hybrid embryos for 14 days. Anything other than a conscience vote on this issue would have been a travesty. It is a rare sort of issue that must always lay outside the simple notion of party political belief in broad principles.

At least in theory, this country is reconsidering so many issues about its constitutional laws and practices. To some Constituent Assembly members, many matters central to the political system and the major constitutional policies might look like issues of conscience (or abstention). One side might say something is a conscience issue for him to oppose. Another side might declare that for them, it is not conscience matter at all. As far as the concept is concerned, one cannot imagine a conscience vote on sending troops to war, or the nature of the federal system that Nepal needs, or the type of secularism that might satisfy the urge of the Nepali people.

Is anybody serious? If a political party is not to have a line on such political matters, what do political parties exist for at all?

[lawyers_inc_nepal@yahoo.com]
Posted on: 2008-09-10 21:14:44 (Server Time)

India and Nepal’s Constituent Assembly

Kanak Mani Dixit

http://www.hindu.com/2008/03/07/stories/2008030755531000.htm

The Indian government is duty-bound to prevent the criminal-militant nexus from using Bihar and Uttar Pradesh as a base from which to threaten the Constituent Assembly process in Nepal.
The citizens of Nepal go in for Constituent Assembly elections on April 10, to put in place a 601-member House that has the dual responsibility of drafting a new constitution and serving as Parliament during the interim. The Constituent Assembly is a necessary condition for the country to achieve political stability, sustainable peace and a return to pluralism, nine years after the last general elections. In between, the population has suffered the Maoist “people 217;s war,” a dirty reaction by the state, the autocracy of Gyanendra, an unprecedented people’s movement that rejected royal autocracy and Maoist violence, and heightened identity-based assertions that continue to this day. The hope is that the Constituent Assembly will define a democratic constitution that will simultaneously address the many conflicting and complementary demands of marginalised minorities and, at long last, provide stable politics as a platform for economic progress.

India too seeks stability in this country that runs along the northern frontier of Uttar Pradesh and Bihar, and it has done its bit as an interlocutor in the recent past. Having facilitated the discussions in New Delhi in the autumn of 2005 that brought the Maoists to an understanding with the parliamentary parties, New Delhi is now asked, specifically, to rein in militants who have been engaged in bombings and targeted killings in Nepal’s Tarai plains while taking refuge across the open border. These militants — most importantly the one known as the Janatantrik Mukti Morcha-Jwala Singh — hold the ability to destabilise the country as it goes in for elections.
Meanwhile, the Indian intelligentsia should be alert to attempts by Hindutva forces, especially political elements along the borderland, to force their agenda on the Nepali people. This January, L.K. Advani of the Bharatiya Janata Party launched a blistering attack on the UPA’s Nepal policy and advocated a Hindu monarchy, while exaggerating links between Nepal’s Maoists and Indian naxalites.

To be sure, there are more than enough extremist threats to the polls from within Nepal. Having come to open politics barely two years ago, the Communist Party of Nepal (Maoist) is capable of widespread intimidation during its first electoral exercise, to try to stave off humiliation at the ballot box. The polls could also be destabilised by a welter of violent newborn groups. Many of these are receiving encouragement, if not support, from the royalists, who believe (correctly) that the political parties will use the Constituent Assembly to do away with the monarchy once and for all.

While the Maoists, militants and arch-conservatives within Nepal are to be tackled domestically, it is the responsibility of the Indian authorities to halt the ongoing activities of the JTMM-JS, which over the past two years have operated with impunity from Indian towns such as Sitamarhi, Raxaul, Darbhanga and Gorakhpur. The State governments in Patna and Lucknow must not allow local politics to wreck Nepal’s return to normalcy. It must also insist that the Madhesi militants lay down arms and talk to Kathmandu, or at the very least submit to a ceasefire. New Delhi has the clout, and should put it to good use when so much is at stake.Madhes rises

The mass upsurge of the People’s Movement of April 2006 sought peace and pluralism, and mandated the writing of a new constitution to redraw state-society relations. What is known as the Madhes Movement of last winter was a spontaneous uprising by the people of Tarai-plains origin who have long felt excluded amidst the highlander identification of the nation-state. ‘Madhesi’ is an amorphous term referring to caste categories of the eastern Tarai in particular, but the movement represented a historic demand of plains people for inclusion in the national mainstream. And indeed, the mass mobilisation of the Madhes Movement has changed the face of Nepali society, and new political forces have emerged to take advantage of the space that has opened up.

Prime Minister Girija Prasad Koirala was unable to countenance the identity-led nature of the agitation in the Tarai, heretofore a docile vote bank for his Nepali Congress party. He was therefore slow in addressing the Madhesi demands, which referred to recognition and compensation of those killed during the previous year’s agitation, proportional representation in state organs (including the army), changes in electoral laws to enhance Madhesi participation, and so on. As the government procrastinated, the demands became more strident and even unrealistic, including self-determination and the declaration of the 500-by-20 mile Tarai plains as a single province — “Ek Madhes, ek Pradesh.”

Though riding a wave of anti-Kathmandu sentiment across the Tarai, the most critical weakness of the Madhesi leadership was perhaps that it tended to represent the eastern-Tarai caste categories. It would be difficult to maintain the pan-Tarai momentum for long, because, like the country taken as a whole, the plains too are divided by language, faith, caste, class, religion, indigenity and point of origin.

As time went on, it became clear that quite a few among the Madhesi leadership were seeking consortium with the royalists of Kathmandu, as well as the Hindutva forces across the border. Hindu-right organisations in Nepal have a limited base, and for long drew their influence and power by proximity to the royal palace. But combine the Indian fundamentalists, sections of Madhesi militants, royalist politicians and the criminal gangs of Bihar and Uttar Pradesh acting in loose concert, and you suddenly have quite a vicious brew to upset the election cart.

At the Narayanhiti royal palace, Gyanendra seemed energised by the turn of events, which included strikes across the plains over the month of February and what amounted to an economic blockade of Kathmandu Valley by the Madhesi activists. He sent emissaries to meet with Hindutva and BJP stalwarts in India in a bid to revive the flagging fortunes of the monarchy. For a while, a couple of weeks ago, it suddenly looked as if the Constituent Assembly would be held hostage by the BJP-Congress rivalry within India, with the former all set to loudly proclaim the restoration of the Hindu monarchy in Nepal as a political plank.

Fortunately, while the role of other Indian entities and organisations cannot be vouched for, at this stage the Foreign Ministry in South Block played its card in favour of a pluralistic, representative evolution in Nepal. By extending the tenure of Indian Ambassador Shiv Shankar Mukherjee until after the April elections, the Manmohan Singh government also sent a message committing its own agenda and standing to the holding of elections on schedule in Nepal.

The polls having already been rescheduled twice before, the polity would have been unable to sustain another postponement, which would in all likelihood have led to a right-wing, militarist shift in government. With the Koirala government becoming suddenly flexible in negotiations, the Madhesi leadership known to favour a poll postponement had no option but to call off the agitations in the Tarai. By the end of February, all the credible political forces had been dragged and cajoled into election mode, and the people of hill and plain alike were finally certain of being able to exercise their franchise.Towards April 10

The sovereign, elected Constituent Assembly is as close to a magic wand as the Nepali people can hope for. It is certainly one that they deserve, to deliver them from the extreme instability, political violence and the democracy deficit of the last decade. The economy is currently at a standstill, even while the northern and southern neighbours grow at near double-digit rates. The people of Nepal have not had a whiff of the so-called peace dividend, nor any post-conflict rehabilitation to speak of, almost two years after the “people’s war” ended.

For the 601-member House, the challenges of constitution-writing, as well as government formation, will be enormous. To begin with, the legislators must rise above the extreme populism that has gripped Nepali politics like a malignancy over the last two years, and the lists of party candidates are not inspiring. Besides, the modalities of the Constituent Assembly’s functioning have not been discussed and there is the possibility of great confusion and anarchy immediately after the elections. That is clearly an urgent matter to be discussed in the days ahead, but for the moment the job is to protect the elections from two quarters: those parties inclined to participate but influence the polls through fear and intimidation, and those forces within and without who will try to disrupt the elections through killings, kidnappings and bombings.

Fortunately, we know the potential spoilers. The Nepali intelligentsia and civil society must keep an eye on the domestic forces — royalist politicians, militants, criminals as well as the unruly ranks of the CPN (Maoist) — to prevent an election derailment. India’s opinion-makers can help Nepal in its return to normalcy by watchdogging the Hindutva-inclined monarchists so that they have no scope to interfere in the affairs of a neighbour. The Indian government, meanwhile, is duty-bound to prevent the criminal-militant nexus from using Bihar and Uttar Pradesh as a base from which to threaten the Constituent Assembly process. A peaceful, prosperous Nepal will reverberate in the Ganga plains as well.

The President of Nepal: Constitutional Role and Responsibilities

By BIPIN ADHIKARI
http://www.nepalnews.com.np/archive/2008/others/guestcolumn/sep/guest_columns_02.php

The President of Nepal is the head of the newly established republic. In this capacity, he replaces the King who has been dethroned by the Constituent Assembly elected to draft a new constitution for Nepal. Like the King, he has been given enormous powers by the Interim Constitution. For example, he has powers in the judicial (Articles 103 and 117), legislative (Articles 87-88), and executive (Articles 36A and 51-52) fields. He has also military powers (Article 144), diplomatic powers (Article 150) and powers of emergency (Art 143). However, his capacity as the head of the executive branch of government is largely a legal fiction. The reason is - the President exercises most of his powers upon the recommendation and advice of the Council of Ministers accountable to the parliament, or other constitutional entities like the Constitutional Council, which has the responsibility for major political appointments for the constitutional functionaries created under the Constitution.

The Nature of Presidency : In a typical Westminster tradition, the powers of the head of the state under the Interim Constitution implies that he can do no wrong. The President, like the former constitutional monarch of Nepal, is incapable of authorizing wrong to be done, because where he acts with the cooperation of others, those who cooperate with him are responsible for his acts. Clearly, the position of the head of the state is not intended to be a controversial position. This does not mean that the function to be exercised by the President on the advice of the Prime Minister or any other constitutional entity is just formal or mechanical. The Constitution does not reject the power of the President to provide creative assistance to the government in his bid to safeguard the Constitution and help its enforcement. He can always advise the Prime Minister on any issue of governmental importance, share his point of view with him on a particular issue, and let the Prime Minister know what he thinks is in the best interest of the country. The head of the state can provide all his comments on any proposed course of action and ask the Prime Minister, if necessary, to reconcile the matter in a particular way. It is only in the last resort that the President should accept the final advice of the Prime Minister. In the ultimate sense, the Prime Minister has the right to have his way no matter what the President thinks about it. This is the nature of the presidency that the Interim Constitution has embarked on.

Some contradictions : While making it obvious, that this is a system based in the doctrine of ministerial responsibility, the Interim Constitution does not state that "the executive power of the state, pursuant to this Constitution and other laws, be vested in the President and the Council of Ministers." After sharing most of these executive powers with the President, including the power of declaring emergency, the Interim Constitution states that "the executive power of Nepal shall, pursuant to this Constitution and other laws, be vested in the Council of Ministers." (Article 37(1) In this formulation, the Interim Constitution ignores altogether the role of the President in the exercise of key constitutional powers that it has elaborated under different Articles. It also does not give him the power to warn or alert the government in express words. Similarly, the Interim Constitution does not acknowledge that just as the activities of the head of the state and internal business of parliament are to be immune from challenge in the court, so the business of government, as it takes place between the Council of Ministers and the President must not be the subject of scrutiny. Additionally, the present Constitution has also dropped the earlier parliamentary rule that the head of the state can send back a bill to the parliament asking it to reconsider the instrument on certain grounds. The new arrangement now is that the President only has to certify the bill as passed by the legislature; he cannot have any opinion on it.

These constitutional loopholes cannot belittle the fact that the President heads the state in a parliamentary form of government; and is expected to facilitate the business of the executive as a 'constitutional' as opposed to 'ceremonial' president. Apparently, his role in the constitutional system is more than receiving and sending envoys to foreign countries and hosting state visits. Therefore, the argument that Nepal has moved from 'constitutional monarchy' to 'ceremonial presidency' is factually wrong.

Constitutional Role on the appointment of the Prime Minister: In this background, the status of the presidency in the future depends on how President Dr Ram Baran Yadav, who is the first elected head of the state, and bears principal responsibility to uphold the Constitution under Article 36A(3) implements the parliamentary spirit in it.
The recent move of the President asking the Constituent Assembly (acting as the legislature) to elect a new prime minister for the country according to the electoral process specified in Article 38 (2) of the Interim Constitution is an important issue in this context. Following the failure of the political parties to forge a consensus government, which Article 38(1) of the Interim Constitution required as the first intended move, President Yadav had advised the assembly to go for this second option.

The move of the president certainly surprised many critiques, who have different understanding of how a parliamentary system of government works, or should work in an ideal case. In fact, the Interim Constitution spared no clear guidelines on the role of the President about the formation of the government. Even the five piecemeal amendments on this document -- just over a period of seventeen months -- left no clue to the President how he should exercise his discretion on the electoral positions of different parties in the newly elected Constituent Assembly, and find a prime minister for the country from within the House.

As a matter of parliamentary tradition that Nepal has practiced over more than a decade, it is the responsibility of the President to find and appoint a prime minister for the country from the Constituent Assembly. Such a prime minister could be a consensus Prime Minister, or a prime minister with simple majority support, but in any case, he/she must be appointed first by the President to go through Clause (1) or (2) of Article 38. The President cannot delegate this responsibility to any A, B or C cutting unnecessary procedural corners. In a parliamentary system, this is probably the only executive act, which the President is supposed to do himself, on his own discretion and best judgment, and without any persuasion from the existing government. The Interim Constitution does not deny this power of the President (or the earlier traditions in this regard) either by express words, or by necessary implications. For the great faith reposed on him, it is the newly appointed prime minister who in turn is expected to prove his new credential before the House by securing a vote of confidence within a specified time. Apparently, by not doing so, the President not only ignored the applicable constitutional conventions, but also abdicated his constitutional powers to those people who were not entitled to this.

In other words, if the President authentically believed that the Communist party of Nepal (Maoist) had the fresh electoral mandate -- at least more than the rest of the minor parties in the House, Maoist chairman Puspa Kamal Dahal should have been quickly appointed as the prime minister (recognizing that he is a cut above others in this regard). It would have been logical for the President, in such a situation, to ask Dahal either to form a consensus government, or failing it, go for a government with simple majority -- in each case giving primacy to his first right to form the government. Article 55A of the Constitution, which provides for the vote of confidence, would have served as an important institution to oust the new prime minister, had he failed to muster necessary support. Apparently, the Maoists were not allowed to negotiate with the minor parties based on their newfound status in the House.

No doubt, both the President and the Maoist leaders were misguided about the applicable constitutional process. The President was advised to ask the CPN (Maoist) chairman -- the leader of the largest party in the Constituent Assembly -- to form a consensus within seven days to provide a new government to the people. Later, this one week bizarre timeframe was extended to another three days. The CPN (Maoist) chairman was then advised to go around seeking support of the other minor parties -- without first asking the President to appoint him as the Prime Minister before he really started embarking on this process.

There was almost no difference of opinion among the major parties at that point that the CPN (Maoist) should be allowed to lead the new government by virtue of its status as the largest party in the Assembly. That was enough for the Maoist Chairman to make a claim, and the President to appoint him as the Prime Minister. Otherwise, how a party, which lacked simple majority in the House, could go on forming a consensus without getting an opportunity to deal with the rest of the minor parties from the position of power. Unfortunately, the Maoists, too, instead of going for matured legal advice, were persuaded to question the power of the President to consult lawyers and leaders of the parliamentary parties, and appoint the most feasible person as the next prime minister, at his personal discretion.

Ordinarily, in a parliamentary system which follows the Westminster practices, it is the power of the President to summon the leader of the majority party to form the government as soon as the results of the elections to the House of Representatives are declared. If a particular party is in majority in the new House, the President has no discretion in the matter. However, if no political party has clear majority in the House, the President can exercise his discretion in such a situation. In other words, it is his responsibility to invite that member of the House to form the government, who seems to be able to do it with a reasonable prospect of maintaining a government in office.

It is for the President to think how he can identify that person who might command a majority in the House of all these minority parties that we see in the Constituent Assembly. The President should of course take all relevant considerations into account and be at great pains not only to be constitutionally correct, but make every effort to see that the correctness is likely to be generally recognized. It is not binding for the President to consult the outgoing prime minister, or the Attorney General under his functional control. In any sense, he must appoint the man or woman who can form a government which will have the confidence of the House within a specified period.

Conclusion: A general election might produce a result allowing of either a single-party minority government or a government formed from any of various combinations of parties under one or other of a number of party leaders. Hung assemblies, with no party enjoying an overall majority, will doubtless continue to recur if the system of proportional representation that has been adopted becomes the rule in the future as well. This only means that the President has to recognize the first among the minor parties. The leader of the largest party could only be avoided as prime minister if it were clearly demonstrated to the President that a 'copper-bottomed coalition government' had been reached between other parties, and that their chosen leader was assured of majority support in the House. When there is no such situation, the President need not be constrained in appointing the leader of the largest party in the Assembly as the prime minister of the country. Unfortunately, it did not happen the way it should have happened.

(Excerpts of a paper presented at a forum jointly organized by the Consortium of Constitutional Experts (CONCOE) and Tribhuvan University Faculty of Law, Kathmandu, August 25, 2008. The author, a constitutional expert, can be reached at lawyers_inc_nepal@yahoo.com )

(Editor’s Note: Nepalis, wherever they live, as well as friends of Nepal around the globe are requested to contribute their views/opinions/recollections etc. on issues concerning present day Nepal to the Guest Column of Nepalnews. Length of the article should not be more than 1,000 words and may be edited for the purpose of clarity and space. Relevant photos as well as photo of the author may also be sent along with the article. Please send your write-ups to editors@mos.com.np)