SUNDAY EXCLUSIVE - Interview with Dr. Bipin Adhikari
"Local elections will transform Nepal"
Dr. Bipin Adhikari, who is a senior constitutional expert and commentator, specializes in constitutional law and theory, including comparative constitutional traditions and their relevance in Nepal. His area of interest also includes constitutional history, fundamental rights, judicial review, parliamentary practices, the rule of law reforms and democratization process.
Adhikari currently leads Kathmandu University School of Law as its Dean and academic leader. Even though his forte lies in constitutional law and legal reform issues, he keeps good interest in economic and political issues concerning Nepal, especially the prospect of its development.
Anna Note’s Arun Budhathoki and Saroj KC sat down with Dr. Adhikari to talk about the current political scenario of Nepal.
- How was your experience in constitution drafting process?
I am glad that the new constitution was finally drafted and adopted by the Constituent Assembly (CA) - II even though the first attempt failed. The effort to strike a compromise between different political parties, ethnic communities, minorities, regional groups and other forces, external and internal, was very difficult. It was an ambitious constitution drafting process - full of emotions, perceptions, ignorance and aspiration. The issues were not just based on constitutional norms and standards, but the thinking of the people about caste, ethnicity, culture, religion and other aspects of their identity.
I learned how not to draft a constitution, particularly when people around are potentially imperfect democrats.
- Is Nepal’s 2015 constitution really the best constitution in South Asia and the world as claimed by few politicians and analysts from Nepal?
It all depends on what you consider as the best in a constitution. Being a constitution recently drafted, it has many features that you do not find in the constitutions of our immediate neighbors, India and China, and also countries like Bangladesh, Pakistan and Sri Lanka, which were drafted and adopted before. Some features of the Constitution like the new makeup of the parliamentary system that has been adopted, the restructuring of the state, the right to proportional inclusion in the structure of the state, proportional electoral system, the three-tier federal arrangement, and effort to entrench many socio-economic and cultural rights, etc are definitely impressive. The new constitution recognizes secularism, protects diversity and ensures identity and needs of major socio-cultural groups of the country like Dalits, indigenous people, Madhesis, minorities, and Women. It also recognizes Khas people. If you think they make the constitution the best constitution, you have a ground.
- What do you think? Do you take it as a 'best' constitution?
I think it is a good constitution which, apart from ensuring democracy and the rule of law, gives many new norms, standards, and institutions to the Nepalese citizens that the rest of the South Asia and China do not have in their written constitution. Ultimately, not what is in the constitution, but how it is implemented, will speak about its quality. As far as the stakeholders are concerned, as Shakespeare quipped, "modest doubt is called the beacon of the wise." Good faith implementation is a must. With efforts of all, the new democratic and nationalist orientation to the state. Its evolution should not be shattered from any quarter.
- So why are there so many comments?
The CA has produced a document of many difficult compromises. None of the constituents in the Assembly would have accepted the document as a whole if they had the choice or discretion to adopt it on their own strength. The Assembly was too divided on significant constitutional and political issues. No single party had a required majority to pass the constitution. The number of provinces, their demarcation and naming invited difficult choices. The nature of the federal system, the abolition of the monarchy, the change into a secular republic, themselves were contentious issues. There is distrust between different groups. The natives are quite concerned. So comments on any compromise position are inevitable. Once its implementation starts and democracy contributes to nationalism, the process of evolution will also pick up.
- Why do you think the mainstream political parties have ignored the demands of indigenous groups?
It is too much to say that they ignored the demands of indigenous communities. The position of the Constitution on fundamental rights of language, religion, and culture, the concept of secularism, social justice, inclusion and proportional electoral system, etc and the federal framework in an otherwise conservative Unitarian state itself owe much to the demands of the indigenous communities. A Commission on Indigenous People has also been created. The Madhesis of the marginalized communities will be more benefitted by these changes. All political parties now have the obligation to maintain diversity and inclusion. You can say that extreme positioning on these issues was not possible for any side of the political or ethnopolitical axis.
- Are the claims of Madhesi Morcha valid? Do you think they are achievable?
I do not want to comment on whether their claims are valid or not. They have certain demands for which there is no required support in the parliament at present. Moreover, their effort is not on making a coalition in support of their demand. That requires re-orientation on what is being demanded and softening of existing position. You know that these demands are related with the boundary of seven provinces, proportional representation in the National Assembly, citizenship issues, language, and other things.
It is possible for the Morcha to contest election with their constitutional amendment plan and come back to the parliament with enhanced strength or create popular support for them.
- What is preventing the Morcha to pursue this path then?
They want the Constitution amended before elections - even the third tier elections. They have a declared policy that they will not allow the election to be held if their demands remain unfulfilled. They do not want elections to be the arbiter of political disputes among the political parties. The mainstream parties have also not been able to negotiate with them, and do some give and take. On the issue of representation, there is also a need to make sure that the deprived and less populated mountain and Himalayan regions get the representation by cutting seats of the heavily populated regions and Kathmandu valley.
- What will be the impact of the ongoing agitation, such as the one at Saptari, on the proposed local elections?
Every political party must behave according to the law of the land. They have the freedom to express opinion and expression the way as individual citizens. As the local elections have already been declared, they also have the right to go to the people, no matter where they want and mobilize them in their favor. Similarly, the party or the coalition calling agitation has the right to do so. But they should not come on the way in breach of the law and order.
- What about the standards in the use of force by the security agencies?
Generally, the use of force by law enforcement officers becomes necessary and is permitted under specific circumstances, such as in self-defense or in defense of another individual or group. The excessive use of force must be checked, and those responsible must be subjected to appropriate action.
However, there is no constitutional right to pelt stone or petrol bomb or aim catapult against security people doing their duty. The parties should warn their cadres to not to attack them, their security posts and riot vehicles mobilized by the local administration.
In recent years, as has happened in the present case, parties of Nepal call agitation, provoke police and create a situation that results in the death of youths and minors, that helps them by arousing the sentiment of the common folks. This must be stopped. Criminal activities, vandalism, and arson must not be accepted in the name of political opposition. There is no reason why elections should be called off or amendment of the constitution be pursued on the force of such agitation.
- Do you think the third-tier local level elections will occur in Nepal by Jan 2018? If so, will we have a stable government lasting for 4-5 years?
I think the people of Nepal will not be able to see and feel the new constitution graphically until you hold the three-tier elections as planned.
The election is not the choice of the government or the registered political parties. It is a constitutional compulsion. It must be done.
This will bring a sea change in the status quo or the existing balance of power in Nepalese society.
New coalitions will come up. All women, Dalits, indigenous people, Madhesis and other minorities will find themselves in decision-making structures. There will be a new sort of unity in the country. If there are complications in the Constitution, the newly established parliament will have necessary enthusiasm to propose changes as necessary. So the cutoff date of January 22, 2018, must be complied with. I am sure, left to themselves, the people of Nepal will achieve stability under the new Constitution.
- If constitution implementation fails, what will be the political scenario in Nepal? Will the constitution amendment bill go through?
You cannot implement the constitution substantially without holding elections. If there are no elections, and subsequent transfer of power to the newly elected representatives, the new constitution will start losing its relevance. Of course, as we have seen, the politicians will try to amend the constitution through the existing parliament and push the cutoff date for the election to a new date. This amendment will be for the change in the cutoff date for a new regime, not to accommodate the Morcha. This means that Nepal will not be able to leave the existing scenario behind through a fresh mandate.
- Why do you think governments in Nepal last only for few months? What can be done to change this?
I think there are internal as well as external reasons for the instability in Nepal. The change that Nepal has been through was not a thoughtful and planned change led by nationalist people. Once changes were achieved, the politicians who led them became ineffective and irrelevant, as if they have lost that power. Leadership gaps have been painful. National interests have been compromised. Leaders have not been able to look back to the people. Rather, they want to build on the strength of the outsiders.
The role of illegal money in politics must be checked and duly responded through the rule of law. This is how the change will come.
- What about the role of geopolitics in Nepal's contemporary constitutional problems?
As a matter of principle, even the geopolitics in the context of Nepal, India and China relationships, or political behavior based on real or perceived geographical variables, could be mutually beneficial and reassuring. But I do not see any encouraging scenario in this regard. Nepal is being affected in several ways. I do not think it has helped to build relations with co-existence and mutual trust.
Should I remind you of the blockade last year as the latest example affecting constitution building in Nepal?
- What about China's role? Can China overturn India’s geopolitical game in Nepal?
Ideally, Nepal does not want its neighbors to have opinion or maneuverings on its internal affairs. The first principle is that Nepal should remain a safe country and a country of Nepalese people. It should continue to challenge the role of any other country in its territory whatever is the logic. As for the relationship, Nepal needs to cultivate a relationship of trust with both India and China, and the western countries including the United States. We should not accept either a foreign game plan or a game changer. This should be true in the matter of constitution and democratic processes as well.
- Do you think China has changed its tactics towards Nepal, especially regarding their OBOR initiative? How can India regain its footing in Nepal?
I do not know what are the Chinese tactics. They have their plan and strategies, and they remain stable. The Indian response is also as good. As an ordinary Nepalese, I think the OBOR initiative has significant positive implications for all the neighbors of China. We have been starving of development and infrastructure for long. There is an opportunity now at our doorstep. To make it mutually effective, a warm relationship between China and India and mutual understanding between them is very helpful. Nepal needs Chinese investments as much as it needs Indian investments. But there is no point in accepting the hegemony of any country, whatever the grounds for it.
- Can Nepal safeguard its sovereignty in coming days?
No worry about sovereignty. Nepal will survive as it has survived throughout its history. There are internal strengths of Nepal - ancient people, language, religion, culture, and independent orientation, which will make Nepal impossible to anybody. It is not a new country. It has legacies that can never be washed away. Nepal has neighborhood strengths as well - any neighbor no matter how strong it is cannot make advances in Nepal without agitating another neighbor. That creates sufficient balance in our favor. The western countries which have an interest in Nepal have been our strengths. All Nepal needs is to be a little smart and careful about its changing requirements through effective diplomacy.
What we are suffering from today is basically the inability of our leaders to speak the conscience of Nepali people.