Constitution-making is a continuous process. However making constitution through Constituent Assembly (CA) is qualitatively different as it has to incorporate the spirit of change brought by revolt, and in the case of Nepal it is the ten years of People´s War (PW) and successive people´s movement. At present we have the 1990 constitution from where we departed to have the 2007 interim constitution as a point of reference to go to make a new constitution through the CA. There is one section which wants to go back to the 1990 constitution with some cosmetic changes. This is represented by the Nepali Congress (NC) and United Marxist-Leninist (UML), the two parties that compromised with the then King Birendra to bring the 1990 constitution, which is based on Westminster practice with constitutional monarchy. The constitution was unitary and non-secular in nature. The present interim constitution, which clearly spells out federal democratic republic is a product of 12- point understanding between the then Communist Party of Nepal (Maoist), NC and UML. There is another section which wants to consolidate federal democratic republic state by making it pro-inclusive, pro-proportionate and pro-people; this force is being represented by Unified Communist Party of Nepal (Maoist). Hence they are for bringing new changes in all aspects of state functioning.
In this nascent federal democratic republic, state legislative body has to be made stronger than judiciary and executive bodies. Once this new state is stabilized then one can think of next higher stage whereby the chief justice can be directly elected by the people so that judiciary, legislature and executive can really become independent and there is check and balance to discourage misuse of power by any one of them.
While talking about change, it is important to note that expecting changes far ahead of objective reality may alienate people, while changes far below the objective condition may disappoint the people, while bringing changes for the sake of change may disillusion the people. Hence the correct position is to bring change which matches the changed objective reality.
The hallmark of the draft presented by the CA committee on judicial structure is that it has clearly spelt out judiciary functioning under federal system by making rules for future autonomous states. To accentuate this it has incorporated the spirit of inclusiveness, proportionate representation in electing judges as well as the chief justice. While choosing judges and chief justice it has expanded the area for nominating candidates as this until now is limited to the court and this new provision is an attempt to court competent legal personnel from outside courts. Secondly it has made judges and chief justice accountable to the legislature. Thirdly it has clearly spelt out that the final interpretation on issues related to political matters will be done by the legislative body. This particular point is important to note as it has been observed that judiciary has been an instrument of regressive forces in most of the Third World countries. During monarchical parliamentary system, the then judiciary favored NC which was seen close to monarchy as compared to UML which was comparatively more committed to change after the first people´s movement of 1990. The judiciary then gave clean chit to Girija P Koirala, the then prime minister representing NC on the issue of dissolution of parliament, while on the same issue Manmohan Adhikari, the then prime minister representing the UML, lost his case. Today the same history seems to be repeating. The judiciary has delayed giving judgment relating to cheating of age by the then army chief Rookmangud Katawal to allow him to serve full term. While the same judiciary went out of its way and gave judgment on the oath row concerning Vice President Paramananda Jha. It is interesting to note that while the former issue [Katawal´s] is technical and should have been promptly decided while the latter is a political issue but the court interfered unexpectedly quickly.
Those who have been crying hoarse that the judiciary will be robbed of its independence if the judges and chief justice are picked by legislative body should know that it is the highest people´s representative body. They should know that they are contradicting their own statement when they favor the Judicial Council, a nominated body, while they should know that repudiating legislative body would mean rejecting the elected body. Right now the judges and chief judge are not answerable to people because they are nominated by small clique within the judicial council, while the proposed draft clearly spells out that they will be elected by legislative body, thus they are forced to be accountable to the people. Hence this is more democratic. In this nascent federal democratic republic, state legislative body has to be made stronger than judiciary and executive bodies. Once this new state is stabilized then one can think of next higher stage whereby the chief justice can be directly elected by the people so that judiciary, legislature and executive can really become independent and there is check and balance to discourage misuse of power by any one of them.
What is interesting is that one section of CA members is opposing the clause on the basis that involving legislature will politicize judiciary. This means they are themselves not confident of the legislative body´s abilities. It is equally interesting to find lawyers and judges indulging in discussions related to legislative matters. By electing Nilamber Acharya, who was one of the members of the committee that drafted the 1990 constitution, as head of the Constitution Committee, the present NC-UML forces are indicating that they want the same old and outdated 1990 constitution with few cosmetic changes.
It is worth remembering that one of the reasons why People´s War was started was precisely because people got alienated since the judiciary was not delivering justice to the people. And one of the reasons why people´s war spread so fast and wide was chiefly because people´s court then was giving justice at door steps relieving people from the onslaught of delayed justice and corrupt justice system of the old state.
Let us hope that the would-be judiciary does not make the same mistakes.
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