It’s not that everything will be lost or won on May 27
Negotiations over the contentious issues in constitution-drafting are in full swing. But as the days go by without a compromise, the procedures of the drafting process have been shortened repeatedly. Meanwhile, it’s becoming evident that the major hurdle in reaching agreement among leaders and in parliament will be on the issue of state restructuring. This week, the Post’s Bidushi Dhungel and Gyanu Adhikari spoke to Purna Man Shakya, a constitutional expert and lawyer with 25 years of experience in the field, from his college days in Delhi examining the Indian constitution, to his Fulbright days at Columbia University, New York, analysing the American constitution. Shakya, having been a consulting lawyer in the constitution-drafting process from the beginning, provided insight into what federalism will mean to the average Nepali, what it will mean for the judiciary and the implications of cutting-down the drafting times. Excerpts:
The CA drafting procedures have been shortened. What are the implications?
The CA members squandered 3-4 years squabbling and fighting among themselves. So now we’re in a situation where they’re trying to cut out the involvement of people in the decision-making process so that they can meet the deadline. It is unfortunate that we don’t have time for the people to deliberate on the draft constitution. They won’t go for clause-wise discussion and voting process. And we won’t have recorded debates of the CA discussions, which are used as reference material for the interpretation of the constitution in the future, like in India. So our posterity will lose that.
How democratic, then, do you see the constitution-drafting process as being?
The people’s right to react on the draft is lost and the consequence will be that even after the promulgation, there will be a lot of areas where people will continue to debate. We then expect a series of amendments to come in the future for further streamlining processes.
Some of the decisions the CA’s thematic committees have passed unanimously are being revisited by the parties in their negotiations. For example, for central level parliament the CA committee agreed on 151 members, and now parties have agreed on 385. Why are the parties doing this?
The hidden story behind this is that when the thematic committee came up with their numbers for parliament, they really worked in the national interests. The top leaders are refocusing on these issues now, realising that things were decided which doesn’t suit them. So they are trying to redo all this with party interests in mind.
To change the topic, what changes in judiciary can we expect in a federal Nepal?
Ultimately, what matters to the people is the service delivery. We are going to create high courts in all the provinces and they are going to be the courts of recourse. They will have the power to issue writs for the enforcement of fundamental rights within their territory of jurisdiction.
The new constitution is likely to have a Constitutional Court, at least for five years. What is the rationale for this?
The concept of Constitutional Court has emerged as a compromise. Initially, the thematic committee on judicial system has proposed (not unanimously) to transfer the constitutional power to the parliament itself. But that was not acceptable to the NC and UML. They’re objection was that it violates separation of powers and it is against democratic norms. The Constitutional Court is thus a mid way compromise. The Maoists would not trust the existing Supreme Court while the NC and UML would not trust the parliament taking over that function. It’s a specialised court which will interpret disputes with regard to distribution of power.
Why are the Maoists insisting on the Constitutional Court?
To be frank, it’s a face-saving device. They say the existing SC is very conservative. They have lost major cases in the court so they want a change with a new court with new appointments for interpretation of the constitution with progressive values as they see it. But even if you create Constitutional Court, it has to be independent—more so than the SC even.
Do you think the Supreme Court in Nepal been conservative as the Maoists accuse?
It depends on the way you look at it. The Maoist party doesn’t like the way the constitution is being interpreted by the judges simply because their decisions were not endorsed by the Court. But the judges basically interpret the law as it is. If they (the Maoists) don’t agree with their interpretation, they must go for revision of the judgement or be able to produce arguments to overturn the decision. But once you create the court, you have to accept the verdict. That’s the rule of the game.
Theoretically, should the Court be allowed to strike down a law passed by the parliament?
Nepal’s been working hard on constitutionalism for the last 50 years. We have struggled to make the constitution the supreme law of the land. It’s the people who have given the power to the court to see that the government and the parliament do not overstep their limits as laid down by the people through the constitution. Because what they are doing is carrying out the command of the sovereign people.
Moving on to federalism, why is there so much fear surrounding federalism?
The fears have manifested because we have all been brought up in a unitary system of government where the centralised government decides for the people. Suddenly we are going for a federal system where there will be more than two tiers of government. Quite a lot of fears are baseless because federalism doesn’t enable the provinces to violate the rights of the people.
Exactly what is the right to self determination in the federal context? This right appears to give a lot of people much anxiety.
The issue of right to self determination came up because our ministers signed ILO 169. It just gives them the right to continue with their cultures, languages, religions and also carry out their way of life as handed down to them by their forefathers. It’s the preservation of identity, and access to resources. It’s advocating the cause of ethnic minorities. If they are not protected by these rights, their culture would eventually be wiped out by the mainstream culture(s). But this has been misinterpreted as the right to secede, which is wrong.
What are the practical implications, in Nepal’s federal structure, of the right to self determination?
It would mean that if the provincial government does not respect minority rights, then that community would have the right to say that they would not like to remain in that province, and create a separate province, or that we would like to merge with another province where they would be properly protected. But it doesn’t include the right to secession.
Would it include things like, for example, the right to make Tharu the official language in Tharuhat, if there is such a province?
Yes, it could exceed up to that.
What changes can the common man expect from Nepal going federal?
Kathmandu has always remained the centre of focus, but the focus will be the capital of all provinces in federalism. Federalism also ensures multilayer opportunities for people to pursue their political ambitions. People also will begin to receive different services from different levels of government.
Why is the issue of the number of federal states so contentious? What does it mean to have say, seven states, or 12 states?
The struggle is basically who will take the credit of restructuring Nepal. If NC accepts Maoist proposal, then Maoists get the credit and that will reflect at the polls and vice-versa. When parties and leaders propose models, they are lobbying their own voter constituencies. When you create federal units, it’s a political unit, not administrative units. When you define the territory of the province, you have to define it in such a way that the communities that live in the unit have at least some common shared aspirations. Regarding numbers, if you create fewer numbers of provinces, they are economically stronger. But that reduces access to the people to the government. You increase the number of states, and you increase access, but it becomes a costly affair. So you have to make a choice. Either way, it will not be a one-time game. I would plead for the people of Nepal not to be impatient. There will be opportunities to rectify the mistakes—it’s not that everything will be lost or won on May 27.
There is fear about ethnic states. Why the fear, particularly from Chhetri Samaj?
Well, the perspectives are different. The Chhetris think they have played a huge role in the unification of Nepal. And they see this as a positive thing. That’s probably why they don’t want to divide the country into ethnic provinces. The other groups however don’t see it as unification, but as colonialism. But now both these perspectives have to be shelved. We have to move forward as a nation.
How dangerous is ethnic federalism, if at all?
The kind of federalism we are slowly moving towards has nothing to do with ethnicism. Except the names, the provinces have nothing to do with ethnicity. All the provinces are going to be multi-racial states, none of the states have any ethnicity as a majority and none of the states will have priority rights. Everyone will have equal rights and whoever gets majority support in parliament will rule the state. So where’s the ethnic federalism? It’s like the bogeyman.