May 26, 2009
With all eyes on the newly appointed Prime Minister, the judiciary remains besieged. The foundation of law and order is grounded in a nation’s constitution; the writing of the constitution – the signal responsibility of the constituent assembly – has been put on hold yet again. The Supreme Court, which has several crucial decisions pending, continues to be attacked from various factions. And security continues to reveal its soft underbelly with such condemnable acts as last week’s bombing of Kathmandu’s catholic church, resulting in two deaths and fourteen injured, with little expectation that the culprits will be brought to justice.
The previous Maoist Prime Minister had his showdown with the judiciary and ended up tucking his tail and beating a hasty retreat. The Supreme Court remains a power to be reckoned with. But the fact remains that Nepal’s judiciary system – like every other public institution in Nepal -- faces an extremely precarious future until and unless the drafting of the new constitution becomes a reality.
About a month ago, I spoke with Bishwa Kanta Mainali, President of the Nepal Bar Association, about the importance (as well as the shortcomings) of Nepal’s judiciary system. (No one envisioned at the time of the interview that the Maoist government was about to implode.) He brought with him an impressive and sometimes controversial array of perspectives to the discussion – historical, cultural and ethnic observations -- that brought a multi-faceted overview very much worth considering: Now more than ever.
In addition to being President of the Nepal Bar Association, Bishwa Kanta Mainali serves as a Senior Advocate at the Supreme Court. Among other accomplishments, he advised the 1990 Constitution Drafting Commission and helped frame enactments such as the Consumer Protection Act, the Human Rights Commission Act as well as working on various amendments to the constitution. He also served as Publisher and Editor-in-Chief of "Jan Jagran", a vernacular weekly newspaper, is a founding member of Nepal Eye Hospital, Nepal Law Society and is affiliated with numerous other organizations. Mainali holds degrees in Economics and Law from Tribhuwan University and is currently a visiting faculty at Nepal Law Campus. He is also very proud of his Nepalese heritage, identifying himself as a member of the 19th generation of Mainali hailing from Nepal.
DUNHAM: Let’s begin by discussing your background and how you became a leading spokesman for Nepal’s judiciary system.
MAINALI: I have been a practicing lawyer in the judiciary for 37 years. Indirectly, I was also involved with bringing democracy to Nepal: supporting early on the political parties and defending their cases.
DUNHAM: What cases?
MAINALI: During the period of autocracy in Nepal, there were no lawyers who dared to take the cases of leaders in the political parties, who were charged on citizen, criminal, moral, arms and ammunitions cases.
Before I joined this profession, I was a lecturer of economics in Tribhuvan University. Some politicians came to me and requested that I enter law school so that there would be someone to defend their cases. Basically, that’s why I joined this profession. Prior to that, I had no interest in joining the judiciary because it was one of the most neglected organs of the State. I saw its deficiencies firsthand. There were already many of my family members who were in the judiciary: they were lawyers, judges of the District Courts and judges of the Supreme Court.
So I joined the judiciary on the understanding that my practice would be restricted to pro bono service – just to help the people restore democracy in Nepal. That was my ambition. I didn’t join the profession for money and certainly not for prestige! When I became a lawyer in Nepal there was no dignity associated with this profession. Society looked down on lawyers and characterized them as tricky, untrustworthy people.
But beginning with my generation, we helped to build the reputation of the judiciary. Today, society as a whole has grown to respect us. Today, both cadres and political party leaders are in need of our services and we have come to their aid while valuing and upholding the dignity of the profession. We really are trying our level best to uphold rule of law in this country.
But going back to the early days, in the 1960s, when there was a coup d’etat led by the king, and then the elected government was dissolved after 16 months, parliament was dissolved – I was a school student having just joined the law college and witnessed the upheaval, at least to some extent through my father’s eyes. My father was a freedom fighter in 1950. He was with the Nepali Congress and a friend of B.P. Koirala and that’s the kind of family I grew up in. He was against the Rana regime and the Panchayat system. And like B.P. Koirala, my father felt animosity for Nehru’s party and was in opposition to India’s control over Nepal.
During the 1990 democratic movement, I took a leading role as a civil rights activist and human right’s lawyer. I was imprisoned at that time. By then I had adopted some leftist inclinations. I was disenchanted with Nepali Congress because of their rules and behavior and their dependence on Indian politics. I still don’t like that aspect of Nepali Congress. I accept all of their principles, but I oppose their dependence on Indian politics. And even though I come from a landlord family – a wealthy, upper-middle class family, my leftist inclinations stem from the fact that I live in a country that is very poor. When I see the future of so many poor, marginalized people in Nepal -- all the people who are excluded from mainstream politics on the basis of caste, gender, ethnicity and region – I find it insupportable. I take objection to the injustice that arises from that discrimination. Everyone must have equal rights in the political power. Otherwise the country cannot develop. And in that sense, to some extent, Marxist ideology interests me. Although we must follow the independent line of freedom of thought, expression and rule of law, we must also follow the socialistic pattern of economy. This is my view: The two lines must be followed. At the cost of economic development, we cannot sacrifice our personal freedom; at the cost of personal freedom, we cannot allow the people to be deprived and marginalized forever and ever.
DUNHAM: So you began your career as a human rights activist lawyer?
MAINALI: Actually I was a founding member and president of the Forum for Human Rights, which is one of the first such organizations, initiated during the Panchayat-autocratic regime. And based on my experiences, the political and civil rights and the economic and social and cultural rights are indivisible.
DUNHAM: And you have been jailed a half dozen times over the course of your career because of your views?
MAINALI: That’s correct.
DUNHAM: As a president of the Nepal Bar Association, what is your assessment of the health of the judiciary system in Nepal? How does Rule of Law play out against a persistent disregard for the written law, for instance? Has this been a pervasive problem regardless of which political party is in power? And if so, how can the trend be reversed?
MAINALI: In a nascent or fragile democracy such as Nepal’s, the judiciary is very weak – especially if the ruler feels that he is above the law. Rule of law must be inclusive. By that I mean that everyone should have to answer to the rule of law. No one should be above the law.
But I would like to begin by placing your question in an historical context.
250 years ago, before Prithvi Narayan Shah united this kingdom, this country was divided into many principalities – more than 100 tribal groups and small isolated states -- -- very underdeveloped. Feudal lords ruled over these various ethnic communities. It was an extremely crude form of rule of law.
Prithvi Narayan Shah, the direct ancestor of the recently deposed king, initially ruled the small state of Gorkha. He was young, bright and proved capable of uniting all the principalities. And after his death, Prithvi’s brother and son continued his work by adding additional principalities in what was then regarded as part of northern India. Nepal became much bigger than it is today. The border of Nepal abutted the area of Kalimpong to the east, Kashmir to the west, the Himalaya to the north and the Ganges River to the south.
But at the same time Britain was expanding its control over India. In terms of Nepali boundaries, this culminated in the Anglo-Nepal War of 1814-16, when the British forced Nepal into the Treaty of Sagauli. There were both positive and negative aspects to that treaty. Positive: Britain recognized Nepal as an independent state. Negative: We lost many territories in the bargain.
Now let’s jump ahead to the post World War II era, which had a huge impact on India and Nepal. India gained independence from the British Empire, profoundly impacting Rana rule in Nepal. Up until that time, the Ranas had been able to enjoy good relations with British rule, but now they were left out in the cold. Suddenly the Indian political landscape was completely new. It forced Nepal into thinking differently about itself. And this was what made possible the dramatic changes that occurred in Nepal in the early 1950s.
Nepal wanted to have independence from Rana rule and tried to have a multi-party system. But it was too fragile to really take hold; it could not be sustained under the major changes that had taken place in the Nepal government. Prior to 1950, the monarchy was very weak. Suddenly, there was a reverse in fortunes and the king became very strong and popular. Also, the leaders of the political parties were immature and made the mistakes of newcomers. They lacked vision and they were not fully committed to the huge task at hand. To begin with, they were fighting and uphill battle in a profoundly feudal country that had very little idea what a democracy was all about.
In 1960, democracy again looked like a possibility. We had a multi-party election and Nepali Congress party received a sweeping two-thirds majority. The leader of Nepali Congress, B.P. Koirala was very charismatic – huge character. Still people remember him, myself included, as a man with vision. But the main stumbling block of his career was that he had a conflict of interest with India. As I said before, B.P. and Nehru did not get along at all. And that’s a good thing. If B.P Koirala had allowed himself to become the stooge of India, the sovereignty of Nepal would have been over.
Still, Nepali Congress rule was not very acceptable to the Nepali people. There was unrest and insecurity. Civil unrest grew. The people still had great faith in the monarchy. And King Mahendra took advantage of the frailties and failures of the political parties and ultimately introduced the one-party system [Panchayat], which was operational for the next thirty years. Once again, democracy was foiled.
With this in mind, we should pause for a moment to discuss Nepal’s political, social and judiciary cultures.
First, as I indicated previously, Nepal’s political culture has always been a very autocratic on. What needs to be said is that, even today, nothing has changed. Nepal still has an autocratic culture. Second, Nepal still doesn’t have political stability. It continues to be in a state of flux, which has, in turn, made it impossible for true democracy to function here.
People try to put an optimistic spin on political stability in Nepal. Most of the donor agencies -- NGOs and INGOs – seem to have come to the conclusion that Nepal is in a post-conflict situation. But personally I don’t agree with that view. We are still in a conflict situation.
DUNHAM: Why do you come to that conclusion?
MAINALI: Because, according to Foreign Minister Yadav, 42 small-armed groups are operational in Terai, using hit-and-run methods. They take shelter across the border in India. Most of these groups have criminal backgrounds and strike out at the Nepalis like criminals: Kidnapping, asking ransom money, looting and extortion in the name of politics. In addition, various ethnic groups in the Terai and eastern hilly regions are preparing for independent states. And these groups are also armed.
So this criminalization of politics is the most dangerous thing. I already mentioned to you that the politics of Nepal is not free from the impact of Indian politics. Indian politics is so much criminalized. And in Nepal, now, also it is very much criminalized. It’s very difficult to separate between the criminals and the politicians. So many people agree about this that it’s as if the criminalization of Nepali politics is taken for granted. That’s the political culture we are living in.
DUNHAM: You also mentioned that Nepal’s social culture compromised the judiciary. Why?
MAINALI: Because our social culture is basically feudal.
DUNHAM: Even today?
MAINALI: Even today -- a fusion of autocratic and feudal cultures. This fusion is the biggest hindrance for rule of law. This fusion is the main enemy of development in Nepal.
DUNHAM: Could you explain?
MAINALI: In the first place, autocratic and feudal attitudes have prevailed in the minds of the rulers -- but not just the rulers. The various political parties must be included. It doesn’t matter if they advertise “democracy” or “social democrat” in their party names; the autocratic and feudal attitudes within the parties have prevailed. In addition, there is an identical attitude among the individual citizens of Nepal. Even among the poorest people in Nepal – who have no political clout -- they have this tendency to think autocratically and feudally.
Rulers, political parties and individuals – none of us have been able to change our feudal attitude. And until we free ourselves from this attitude, we will never be able to have rule of law in Nepal.
DUNHAM: Is this what feeds the prevalence of impunity in Nepal?
MAINALI: Absolutely. Our attitude prohibits a law-abiding culture. We actually feel proud if we can break the law. We feel glory, breaking the law. And none are more proud of this that our political leaders and their cadres.
But again, let’s step back for a moment and look at the history of the judiciary.
Before 1950, we had a family autocratic rule. It wasn’t until 1952-3, that we established an independent judiciary. Before that, the judiciary was merged with the executive – the Chief Justice and the Prime Minister. That’s a very brief history, if you think about it. We have had a very short history of an operational judiciary with the law profession serving as the manpower behind that organization.
People speak of the revolution of the early 1950s. The change was not revolutionary. It may have looked like that to the people but it was merely a political transference of power from one family, the Ranas, to another, the Shahs. In fact the people’s movement joined with the autocratic government, preventing it from becoming a true revolution. Nepali Congress was the party that led the people’s movement at that time, and it was made supportable by the Peace and Friendship Treaty signed with India.
And it did nothing to clarify the rule of law in a modern state.
This is a serious challenge not only to Nepal, but all to all developing countries around the world as well. To have a truly modern State, a country must understand the importance of maintaining separation of powers – separation of the judiciary from the executive branch – and the mutual respect that goes with that.
This kind of understanding and respect is not present in Nepali leadership. When the Supreme Court comes down with a decision, it is the executive branch’s duty to respect that decision. The decisions inform the government as to what they can and cannot do. Instead, in this country, we see constant examples of the executive branch trying to inform the Supreme Court what it can and cannot do.
Nor are the decisions upheld. For instance, the Court has imposed many fines on politically connected men. Based on those judgments, millions and millions of rupees are supposed to be collected in fines. But do the convicted pay? No. The fined people ignore the decisions. They know they don’t have to pay. If the court passes sentence on a man for murder – let’s say life imprisonment – if that man belongs to a political party, not only will he not serve time, he will be seen traveling in a minister’s car or even finding shelter in a political leader’s home.
So you see, if the political parties – especially the leaders of the political parties – don’t respect the law or the constitution, how can one expect the common man to respect the law and the constitution? There is a famous saying in Nepal: “The law is a privilege for the people who are rich and have the power, but the law is a curse for the people who are poor and helpless.” Unless and until the government respects the law and the judgments of the court, unless the government respects the judiciary, there will be no real rule of law in Nepal.
DUNHAM: So the politicians are to blame?
MAINALI: The kingpin of every State is the politics. The political parties control the political workers. If political parties refuse to instruct their followers to respect rule of law, what can the rest of society do?
DUNHAM: Let’s cite specific examples: I’m thinking about Dr. Bhattarai, when he lambasted the Supreme Court recently about the ruling on General Katawal. Apart from it being non-productive, it’s also duplicitous. When Dr. Bhattarai and Prachanda recently visited foreign countries, they promulgated the notion that they supported democracy. And yet when they return to Nepal, they immediately tear into the judiciary or, in Prachanda’s case, the media by calling them “smugglers”, etc.
MAINALI: That was very hurtful, all of that. I immediately called a Nepal Bar Association executive committee meeting. I condemned this kind of governmental reactions to Supreme Court decisions. There is such a thing as due process of law, which the government seemed to have forgotten. If you disagree with rulings, you go through the legal system to change the existing laws. If a person, who is dissatisfied with a court decisions, he has the right to appeal.
On the other hand, if you simply go to the street and authorize the parading of effigies, if you disrespect the authority of the judiciary, then how can you follow the rule of law? What you have done is to exemplify an extremely anti-rule-of law posture. And if you happen to also be a leader within the government, then how can you claim that you want a democratic constitution?
The Bar Association condemned the remarks you are referring to. Many political parties also condemned those comments, including Nepali Congress and UML.
But we also have to take into account the background of the Maoists.
It is my observation that the Maoist party has not yet fully accepted the Western idea of democracy. Remember that they embodied an insurgency for 12 years in the name of a very dogmatic, classical communism. The leaders were brought up with that kind of communism. But not all of them are such hard-line communists, in my opinion. So some of the leaders, when I have talked to them, I have found some changes in them. They have come to understand the ground reality that classic Stalin-like communism simply cannot prevail in a country like Nepal and that, at some point, rule of law must be address.
DUNHAM: How have the ethnic communities played their part in the fragility of rule of law?
MAINALI: In a way, all groups in Nepal are ethnic. No civilization was created in Nepal. The Burma-Tibetan tribal culture seeped down from the north, while Aryans, like my forefathers, migrated up from the subcontinent long before the British Empire came and placed the “India” stamp on what was really a conglomerate of separate independent states.
Nepal has always been a fusion of different cultures – never its own unique culture. So the basic problem for us is in defining “ethnicity”. Who is really indigenous in Nepal? Who is ethnic? It’s very confusing. We lack a scientific formula to make these calculations and deductions.
Take the Sherpas, for example. History tells us that they didn’t arrive in Nepal until the 16th-17th century. They have not been residents of Nepal for more than three or four centuries. Originally, the Sherpas were a Khampa tribe from southeaster Tibet. They moved south into what is now Nepal. There was no border system at that time, of course. People could migrate wherever they liked. So the Tibetan Sherpas came down from Kham. Even the Tibetan language defines them as migrants: Sher means “south” and pa means “residence” – in other words, “Tibetans who moved south”. And yet here in Nepal they are widely regarded as an indigenous people! The Sherpas are just one example.
Conversely, while tribes were moving into Nepal, other tribes were moving out of Nepal. Take the migrants who moved to Assam, for instance.
This coming and going of communities is nothing new nor is it unique to Nepal. It happens in many places where there is a no concept of “State”, or at best a disregard of “State”. If you visit the Afghan-Pakistani border, there are many places that are still under the control of tribal rulers. They don’t follow the rules of Pakistan. They have their own rules and sense of national boundaries means nothing to them in their daily lives.
But in Nepal, the most pressing ethnic problem in the 21st century is the ethnic problem arising in the south, in Madhes. The Madhes have been excluded from the Nepali power structure, no doubt about it. The question is: Why?
The history behind this exclusion is that there was never a recognized state of Terai. There was never a Terai king, or any sort of Terai ruler, for that matter. It was always the hilly people to the north of Terai who ruled the various communities in Terai.
In short, Madhes, as a concept, lacks an historical premise. Actually, the meaning of Madhesi is “those people who came from Madhya Pradhes – the middle province -- of India”. The word indicates Indian origin. It’s not dissimilar to your country’s usage of compound nouns to identify groups who have migrated to the United States: You have African Americans, German Americans, Irish Americans, Nepali Americans and the list goes on and on.
The usage of “Madhes” is a fairly new phenomenon. According to Nepalese historical documents, you will see that the southern area of Nepal was referred to as “Terai” – a word of Tharu origin.
So the question arises: What constitutes authentic ethnic identity?
In March, the Nepal Bar Association’s held an historical conference, which was inaugurated by the President; the [then] Prime Minister and all main political leaders were speakers. The association’s intention was to bring the leaders together in a spirit of unity for framing the constitution within the designated timeframe.
And I asked the leaders, “When you just talk about ethnic identity, what exactly to you mean? Do you want to recognize these various groups, as they were 300 years ago, or 500 years ago? The Raos, for instance: Do you want them to return to the jungle life the led 100 years ago? Or do you want to bring them downtown and develop them into civilized people? What do you want to do with these recognized ethnic communities? If you intend to support the ethnic people, then you have to help them define themselves, but also allow room for the creation of a modern identity.”
Likewise, here in Nepal, we need to define “indigenous”. Yes, there is a universal definition, but for Nepal, we have to redefine the term. The government can easily declare some 60-65 indigenous groups but the identification must be scientific, not emotional, which is often the case in Nepal. We are easily drawn into to provocative stances that are not based on research. Provocation leads to disaster.
We have seen what happened in South Africa, Rwanda, and the Congo -- how ethnic disputes turned into genocide. In South Africa, they handled the problem very wisely. In 1993, I was an international observer for the South African elections. I visited some of the tribal communities and they were seething with vengeance. You could see it in their faces and hear it in their voices. There was an appetite for white massacre. And it could have easily taken place. But with the help of international groups and the wise leadership of Nelson Mandela, the crisis was averted.
During that conference, we also talked about federalism. How did the notion of federalism get introduced to the Nepalis? Out of 200 plus countries, there are only 25 countries that have federalism. United States, Canada, Australia, Germany, Switzerland – these countries and others have managed to combine small states to become a perfect union for development. The holding-together concept can backfire, however. Just look at the former Soviet Union: A powerful empire conquered all the different states but when the central power grew weak, the states wanted to peel away and go on their own.
For Nepal, I hope that we can “hold together” as much and as long as we can. We can separate and every group can have self-determination anytime you like. So you have two things going on in Nepal: One is combining smaller states to make a more perfect union and the other is the separation of groups. If we are dragged into the separation of groups, it will be because of Maoist and Indian influence. That’s why there is rampant confusion about ethnicity in Nepal.
Federalism doesn’t mean ethnic-based states. The supremacy of any ethnic community is abhorrent to the Nepal Bar Association. We, therefore, advocate any ethnic supremacy because Nepal is a multi-ethnic, cultured country. That is the beauty of Nepal. We have a mosaic culture. Furthermore, more than 80 of the listed ethnic groups have a population of less than 100,000 members. Only 10-15 ethnic groups have more than 1,000,000 populations. So what that means, if we have an ethnic-based federation, the larger ethnic groups will profit while the majority of the ethnic groups will suffer.
During the time of insurgency, when the Maoists talked about class struggle, it really didn’t take hold among the people. So what they did was they took the class struggle issue and mixed in the ethnic, regional and language issues – the three most sensitive aspects of any society. And it caught on with the ethnic communities. The Maoists promised all the ethnic groups that they, the Maoists, would in effect return the control of ancient principalities to the original ethnic groups that had been conquered by Prithvi Narayan Shah 250 years ago. The restructuring would take on a modern form, but it was still a return to old ways. This was the Maoist promise.
So how can they withdraw that promise now? Within the rank and file of Maoist supporters, they still cling to that promise. Many of the cadres have criminal backgrounds, were neglected by society and family, were vagabonds or street people –a disadvantaged group that can easily be worked into frenzy and persuaded to commit all sorts of inhumane acts.
But civilized, intellectual leaders know that they cannot simply get by with a force of guns – certainly not in the 21st century.
The Nepal Bar Association wants the nation to tread very carefully with the ethnic issue. We want a very democratic, pluralistic, and inclusive nation, which we believe will lead to a permanently peaceful and developing nation. The reason why we support federalism is so that those were historically excluded by the power structure in Kathmandu can now be included -- not marginalized as in the past – equality for the poor and ethnic communities so that they can see their quality of life improve from now on. We want a nation in which all people can enjoy a prosperous future.
DUNHAM: You spoke of the criminal element existing in the Maoist rank and file. Would you care to amplify on that?
MAINALI: Criminality has always been an element within the Maoist rank and file. During the time of the insurgency, the Maoists fueled their hatred and recruited criminals, frustrated youths, disenfranchised ethnic groups and religious extremists – as a means of strengthening their ability to eliminate the despised monarchy and feudalist State.
The king is gone. But once you have fomented this kind of emotion, it is difficult to reverse the process as well as ceasing to utilize criminal modes as a mean of getting what you want. It takes time. It is their dilemma.
DUNHAM: But it’s not just the Maoists’ dilemma, is it? A remarkable number of politicians, regardless of the party to which they belong, have, or have had criminal charges leveled against them. You yourself have represented an astounding number of political leaders in court cases.
MAINALI: True. Any time you bring about changes in a country, there is someone who is breaking the law. If you succeed in bringing about changes, you are labeled a hero. If you fail, you are labeled a criminal. This is the history of the world.
Nepal was a feudal country. Nepal is still a feudal country. To bring about changes, evolutionary changes are not possible. Only when there is political stability is evolutionary change possible. When there is no political stability and you have to change one system to another, you need force. Force means struggle. You can give it any name you like. In a struggle, you use arms, muscle, money, power -- anything you can get your hands on.
Nepali Congress, in 1950, used guns to change things in Nepal. The Panchayat used guns to change things in Nepal. The Maoists used guns to change things in Nepal.
Even in European and American history, guns were used during the process of major political change.
The more important question is: What is your motivation for using force and power to change society? If you are struggling for the good of the people and nation, if you are a leader who has a vision and if you are broadminded, then that country will develop and make a new and better nation. But if you are political leader who is self-centered and selfish and motivated by your own interests, your country will surely continue to suffer.
DUNHAM: Let’s move on to another question. How good are the odds that the Constituent Assembly will frame the constitution in the allotted time?
MAINALI: There’s no easy answer. Nepalis never follow the process. And Nepalis are always compromised in their actions by India and China.
India always wants an independent Nepal, as long as they have control of security and water resources. They don’t want to grab Nepal like they did to other principalities in the 1950s. Even then, the nearby presence inhibited India’s advance on Nepal. And anyway, today in the 21st century, it’s not so easy to just grab a country and call it your own. But India continues to expect Nepal to serve India’s security interests. And they do want to have control over our water. In the 21st century, water will be like a blue diamond. The scarcity of water will increase until it is more valuable that petrol.
As for China: The most unstable area within China is Tibet. The Western world, with the help of India, wants to use Nepal to support the efforts of Tibetans. So China is very much careful about this matter. Besides, China now has multiple interests in Nepal.
So these two regional powers have conflicting interests in Nepal.
To make the matter more complicated, the international community tends to see Nepal through a New Delhi window. American ambassadors, UN representatives like Ian Martin and others -- all of these leaders seem to have to go have consultations with Delhi.
Regional and international interests are very much here in Nepal.
Second, the political parties who are in CA have various philosophical and historical backgrounds. Their interests clash with each other. These conflicts may prolong the actual writing of the constitution. If the conflicts aren’t solved, it is not possible for the constitution to be written on time. But if the CA can unify, and if the regional and international interest permits us to make the constitution, the members of the CA can write the constitution overnight.
With that in mind, there are still three main problems facing the Constituent Assembly in framing the constitution:
1. Identity. Each ethnic community wants recognition of their identity in the constitution – their language, their culture. The leaders of the ethnic communities are demanding this.
2. Development and quality of life. A man cannot survive on ethnic identity alone. He needs a good quality of life, a means of bettering himself and his family, a way of improving his economic conditions. How should this be written into the constitution?
3. Devolution of Power. Every citizen must feel he or she has equal power, dignity of life, no matter what part of Nepal he or she lives in. He or she must have full right to explore his potential. Equal opportunity.
Above all, it should be remembered that the constitution is the fundamental law of the land. I want to see a nation that realizes the importance of the supremacy of the constitution -- not the supremacy of any particular party or individual or ethnic community.
First, we must adopt certain constitutional principles seen around the world. Universal rules. The United Nations has declared many common principles -- political, social, cultural, economic, human rights issues – that Nepal should adopt. Second, we need to look to our neighbors India and China: We must learn from the economic success of China and the civic and political rights successes of India. We have to adapt the best qualities of both nations.
Representing the Nepal Bar Association, I have visited many districts in Nepal for in an effort to collect the aspirations of the people. The Association also had the help of the Canadian Bar Association; we had a joint project regarding the making of the new constitution. What the Association discovered was that there are 99 challenges the CA has to resolve in order to write a new constitution. We counted 106 ethnic communities in Nepal. Now, even I’m getting information that there are 111-113 ethnic communities. There are 155 languages, dialects, and sub-dialects. The Association, after gathering this information, submitted the 99 challenges to the CA, with the request that the members think over our report and come to a consensus over the numerous challenges.
The dialogue within the CA must go something like this: How many issues are we already in agreement of? How many differences do we have? How can resolve these differences? This kind of dialogue would significantly shorten the process and would make it much easier to frame the constitution in the given time.
And if some of the differences are not possible to resolve amicably, then the only democratic process, which is mentioned in the constitution also, is to go to a referendum – the people’s verdict. That is the only solution. That is the most democratic process. Or the CA needs a 2/3 majority for each article, to pass the constitution. Try to use the democratic process. Above all, don’t resort to guns, muscles, money and power.
If you try that method again, there will be a big conflict in society.
Let me go back a little. The 1990 constitution was one of the best. There were some problems. It lacked the devolution of power to the individuals. That was not written in. Inclusion of the excluded Nepali groups was not written in. These were shortcomings. But we could have incorporated the omissions, over the course of time, through the process of amendment making. Instead, the people weren’t allowed to feel ownership of their own constitution. They didn’t see their aspirations reflected in that constitution. So the constitution ultimately failed because our rulers were self-centered and never practiced democracy within their own parties, they were not broadminded, they were haughty, they didn’t take the advice of experts, they never thought that perhaps others possessed wisdom, that they knew best for everyone.
Unfortunately, there is no such thing as a think-tank mentality in Nepal.
Conceptually, one of the most beautiful aspects of a constitution is that it is understood that no constitution can be a perfect document as it is passed down from generation to generation. That’s what amendments are for. You amend a constitution according to the time and need.
But our leaders in the 1990s failed to listen to the people’s aspirations and to amend the constitution accordingly.
Let me ask you this: Why has the United States’ constitution prevailed for 250 years? Because it is one of the shortest constitutions in the world. In its brevity, it neither bars, protects nor imposes the values of the previous society. And the values are allowed to shine through according to the generations.
In contrast, the Indian constitution is one of the lengthiest in the world. And it has been amended more than a 100 times! Granted: India is constantly swamped with big problems, but it does become clear that a big constitution such as India’s doesn’t automatically mean a better constitution.
The bottom line is this: A constitution doesn’t lie in the statutes. A constitution lies in the hearts of the people.
DUNHAM: But my concern is about over-optimism. If leaders insist that the constitution will be written on time, over and over again, and if they fail in their promise -- what about the impatience of the people, the people who put their trust in these politicians? What’s the fallout?
MAINALI: This is a very serious question.
The interim constitution has clearly mentioned that the present CA can extend the time of writing up to six months. Beyond that, the very legality of the Constituent Assembly will come into question.
Suppose some of the political parties agreed to frame the constitution within the given time, but unseen and unhappy forces chose to intervene: There will be 60 armed insurgency groups that will appear inside Nepal – not only the 42 already identifies within Nepal – the unseen power will support the insurgency groups, which will disturb the whole nation. Nowadays, the 42 groups in Terai are silent. They have been advised to be quite for the time being. But that could change.
The basic security problem for Nepal is it’s open border with India. The hit-and-run methods of these groups – after they cause problems here, they know that they will find safety on the other side of the border. And the truth is that if India wished to control this movement, they could. During the time of the 2008 elections, the border was effectively sealed off and it was completely under control.
Frankly, the current scenario for the constitution is very unpredictable. The Nepalis are not the masters. Seeds of conflict are still sprouting up in many direction. Some of these conflicts are arising for the single purpose of destroying the harmony of Nepalese society.