Saturday, June 20, 2009

INTERVIEW: "So when they part with [the model constitution], I believe they have reasons to do so"

Dr. Bipin Adhikari is a senior lawyer. The model constitution for Nepal that he drafted and submitted to the Constituent Assembly last month has become a point of reference for many members of the Constituent Assembly and its thematic committees. Dr.Adhikari spoke to NEW SPOTLIGHT about several aspects of his draft constitution, and any feedback that he might have received from the lawmakers in this regard. Excerpts:


Why a model constitution?

A model constitution is an important tool when there is no model on the table to start with. After all, writing a constitution is a tough task. It must respond to all the critical issues and needs that come up in the constitution writing process. A model constitution gives a basis to build on.
You said you are proposing it for discussion at the Constituent Assembly.

Does it mean you will not take a stand on any issue that you have proposed?

Yes, it will serve well if it becomes a basis to move on. I do not claim that what I have suggested as a response to many constitutional issues has all the right answers. There could be several other competing positions. If there are better resolutions, I encourage my friends in the Constituent Assembly to ignore my formulation. What is important to understand is that I am not a politician, and I do not have any constituency to maintain.

What are the strengths of your formulations?

My formulations are expert formulations, but we need to keep in mind that the new constitution has to be not only up to the modern constitutional values and procedures, but also respond to the concerns of our people. They need be workable in our socio-political environment, and the geostrategic position that Nepal is in. So when they part with it, I believe they have reasons to do so.

What are the major features of your draft?

It is a moderate document. It builds on Nepal's constitutional experiment with parliamentary democracy and public institutions. At the same time, it has tried to learn from recent practices in several other constitutional democracies, especially those modeled along the parliamentary system. It has continued to accept cabinet government and parliamentary democracy as the form of government under the new constitution. However, provinces will have a system of government with presidential features.

Why provinces should have a system of government with presidential features?

In the framework that has been suggested, a provincial government with presidential features can provide the required level of stability, and also give opportunity to appoint an expert government, which can cater to the development needs of the local people. A directly elected executive with a fixed tenure, who can appoint his cabinet colleagues according to his own policy choices, is the best answer to the question of self-government, development and accountability.

What do the indigenous people, dalits and other minorities get from your draft?

Their rights of non-discrimination, affirmative action, reservation policies and social inclusion have been guaranteed. Their language, religion and cultures have been protected. The state is secular.

What about the electoral system that you have proposed?

An electoral system employed at all levels ensures that they are inclusive in all their purposes and procedures. Especially, a system of group member constituencies employed for the election to the House of Representative at the center makes sure that elections produce not just a stable government, but also ensure proportionate representation in a competitive setting. Powers have been devolved to the provinces in a significant sense. What else you recommend, then?

Why there is no separate chapter on socio-economic and cultural rights?

I did not consider it necessary. I have re-phrased some existing rights, and added some new rights but all enforceable rights, whether they are civil or political, or economic, social or cultural, have been grouped together. Those which are not enforceable, they find their place in the Chapter on State Obligations, Directive Principles and policies. This is what has been done.

Do you think it has been in use at the Assembly?

I believe so. Several committees have discussed its formulations. For example, I myself was invited recently by the Committee on Fundamental Rights and Directive Principles to discuss my propositions under their terms of reference. They have found some provisions very helpful, and sought some clarifications as well. Some political parties have asked for extra copies. There is a lot of interest.

What about the bureaucrats at the Constituent Assembly Secretariat?

Some of the secretaries of the thematic committees are in touch with me regarding several provisions that I have recommended. The model constitution is in the hands of the members of the house. They are also making queries as to this with their in-house legal experts.

What negative comments you have received so far?

I have not received serious comments from any quarter so far. If you take it to radical communists, they are sure to describe it as a bourgeois document. If you take it to ethno-centric people, they are sure to say that this constitution is bad because it does not accept ethnicity-based provincial boundaries. It is natural. My formulations have democratic, liberal backgrounds. So I take these comments for granted.

What about the comments from your own professional circle?

I have not heard anything from the legal community. The model constitution is already in the hands where it should be. But nobody reads a constitution as a novel. People look at it when they try to find answers to the question in their mind. Comments will come with as people progress in their work.

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