Thursday, July 30, 2009
The draft model constitution that this author suggested to the Constituent Assembly for their discussion in May this year also provided one human rights commission dealing with all human rights issues, whether they relate with caste, ethnicity or people from remote (backward) areas. An additional commission was recommended for Adivasis/Janajatis, minorities and communities depreciated as smaller castes.
Without an all-embracing theory, the process of drafting the constitution continues to be piecemeal, and both the need and calls for further reform will continue to rumble on for this very reason.
The report produced by the Constituent Assembly (CA) Committee on Determination of the Structure of Constitutional Bodies (CDSCB), which includes the preliminary draft and its concept paper, has surprised many critiques in the country by proposing creation of 11 commissions under the constitution in the making. This is the fourth committee submitting its report to the full house for further discussion and comments. As in the case of the last three reports, it appears the CDSCB committee members tend to see constitutional reform as part of pragmatic politics with no clear vision of the final product. They have created more problems than what they presume to have solved.
The principal objective of this report, as any other committee report on the given constitutional themes, is to act as a working document for the Constitutional Committee in light of the perceived shortfalls identified through deliberations, expert consultations, written submissions and from views expressed to the CA members in the field in respect of constitutional and other oversight bodies. This should have been done making the (questionable?) provisions of the earlier constitutions as a point of departure.
The major questions before the CDSCB should have been, one, what are the areas in which Nepal needs independent constitutional bodies or watchdogs; two, how these independent constitutional bodies or watchdogs should have been provided for in the changed context (it definitely involved decisions regarding their jurisdiction, power and modus operandi); and how these independent bodies were to maintain public accountability. The concept of independence without accountability neither bears any fruit nor protects any constitutional value.
As one expected, the committee has chosen to continue with all independent constitutional commissions under the Interim Constitution like the Commission on the Investigation of Abuse of Authority (CIAA), Audit Commission (as of now, the Office of the Auditor General of Nepal), Public Service Commission, Election Commission and Human Rights Commission. It is, however, not clear in what areas involving these constitutional bodies there has been an attempt on the part of the committee to reform these institutions, make them more independent, and as a corollary, accountable to the constitution and the general public.
There were some issues to be addressed. In professional circles, many human rights practitioners wanted the chapter on National Human Rights Commission (NHRC) to have a clear-cut reference on the 1993 Paris Principles relating to the status and functioning of national institutions for protection and promotion of human rights. It is not just about making this commission financially independent through the constitution, but also about linking the NHRC with developing international system and practices.
Similarly, some people had the opinion that there should be a rethink on the mandate of the CIAA. It needs to capture all areas of maladministration and good governance issues. Many new provisions were suggested to make the Election Commission smarter and more efficient, including vesting power in it whereby it could outsource some of its electoral tasks to private entities who could do the job more professionally under its general supervision.
Most of the commissioners or members in the existing bodies do think that they have not been given enough access to parliament to speak about their activities, and relate their mandate with the direct representatives of the people. Even now the government acts as a bridge, and that entails a lot of consequences. Unfortunately, the report of the committee does not deal with these issues.
Amazing more than this though is the proposal of the CDSCB to create six additional commissions to protect the interests of (a) Women (b) Dalits (c) Adivasis/Janajatis (d) Disabled people, minorities, marginalised communities, backward classes and areas (e) Madhesia and (f) Muslims. All these proposed commissions deal with the right to equality, non-discrimination and other human rights issues. While attempts have been made to lay down their powers and functions separately, no effort has been made to sort out conceptual cleavages on the constitutional arrangements and jurisdictional overlap between these commissions.
The issue of jurisdictional overlap is most prominent. There is no reason why an integrated national human rights commission cannot deal with all the components above — clubbing them together. The draft model constitution that this author suggested to the Constituent Assembly for their discussion in May this year also provided one human rights commission dealing with all human rights issues, whether they relate with caste, ethnicity or people from remote (backward) areas. An additional commission was recommended for Adivasis/Janajatis, minorities and communities depreciated as smaller castes.
While the first commission had the power to receive complaints of human rights violations, investigative powers regarding them and the power to award compensation to victims of human rights violations, the latter had to rely on the former as to all these things. But then the latter commission had all other powers and responsibilities regarding most of the issues that have a bearing on specific communities. This arrangement not only avoided jurisdictional overlap, but also allowed enough working space to the second commission and the elected government.
The committee concept paper has a serious flaw. If Muslims deserve an independent commission to protect their community interests in the state system, why not Kirants; and if Kirants, why not Christians? If Madhesis think they have a cause to protect through the new commission, what prevents Himalis (the high mountain dwellers) from claiming a similar commission on the same grounds? What type of justice is it? Should some people be left behind because they do not have enough heads in the Constituent Assembly? This type of proposal hardly makes any sense.