“For The Political Purpose, We Are Violating The Rule Of Law And Constitutionalism”
Radheshyam Adhikari
Senior advocate and Member of Legislative Parliament RADHESHYAM ADHIKARI is a well known person in legal sector. Adhikari - who also led Nepal Bar Association, an apex body of lawyers, recently, fought tooth and nail to bring changes in amendment clause of constitution and Constituent Assembly Member Elections Act. Although his views have been rejected by the parliamentary sub-committee, senior advocate still holds the view that some of the clauses in the act and interim constitution are not at par with the concept of rule of law. Adhikari spoke to KESHAB POUDEL on various issues regarding the amendment. Excerpts:
Despite you and your colleague Harihar Dahal's vehement opposition on certain clauses of the Constituent Assembly Elections Bill and Constitution Amendment bill, the parliament passed both without accommodating your views. How do you look at is?
Yes, we were unable to convince other members regarding legality of those clauses. So far as our roles were concerned, we recorded our dissenting views in the parliament committee. As a legal practitioner, I always oppose violation of the rule of law, constitutionalism, and supremacy of law. Even if I have to compromise for political reasons, I still hold the view that certain clauses included in the Act and article in Interim Constitution violates the rule of law and constitutionalism.
Which were the clauses in the acts and articles in the constitution you opposed?
We opposed the inclusion of clause 19 (h) in the CA Election bill. According to the clause, a person shall be disqualified to contest the elections in case he/ she is indicted by the (Rayamajhi) commission report. Interestingly, nobody knows what is in the report. The point of disagreement in the amendment of interim constitution was the inclusion of clause stating that Supreme Court judges should go through parliament hearing.
When you voted in the parliament, didn't it mean your justification to the act which disqualifies a person who is indicted in an inquiry commission report?
There is no question to justify it. We vehemently opposed the inclusion of that clause in the parliamentary committee saying that it has no political justification as well as no legal basis. Whatever views I hold, as a member of Nepali Congress which is the main constituent of the government and parliament, I was also a part of my party. Of course, in political compromise, our party sacrificed it and issued the whip which compelled me to vote. So, I am part of the act now.
Have you changed your opinion, then?
I am still saying that this is against the rule of law and constitutionalism. We have added in the act that the person indicted by the commission should be disqualified to contest the elections. I am very afraid how people will judge us in the history when they will see we had included the clause on the basis of a report which nobody knows about.
People including the members of commission are arguing that people can be prosecuted on the basis of their report as the commission had mandate to indict anybody?
First of all, we must be clear that Rayamajhi Commission is just a fact finding commission constituted under Inquiry Commission Act. The report of fact finding commission is just a narrative of reports. We can’t indict a person on the basis of such fact finding commission report. This report may be taken as a basis for further investigation. It is only through the judgment of the court, one can be indicted.
How do you see the report itself, then?
I have already said that it is just a repot of fact finding commission. If that report was alone enough to indict someone, why the government needed to send it to the Commission for Investigation of Abuse of Authority (CIAA) for further investigation? If those former ministers were really culprit, why is the CIAA investigating them now? We opposed the Royal Commission on Corruption Control on the ground that the commission was given right to investigate, prosecute and punishment. Do we mean the status of Rayamajhi Commission was like that of Royal Commission? If that is not so, we have to see Rayamajhi Commission report just as a document of history.
How can you say that?
If you study the Inquiry Commission Act, it is clear that such commission report needs to be put in secret. Only in case of appropriate situation, the government makes such report public. It is up to the government to decide whether is appropriate to make it public or not. Even the members of commission who were qualified, know about this legal provision. I don't see any justification that people of some quarters are pressing the government to make it public. It is ridiculous to see members of the commission demand the same. If you want to be popular in streets, everything can be justified. In legal terms, it is for the government to decide the fate of the report.
At a time when there are so many practicing lawyers in seats of power including Speaker Subas Nemwang, Harihar Dahal, yourself and home minister Krishna Prasad Sitaula, what compelled all of you to vote in favor of a law, which is against the basic rule of law?
In private conversations, all of them agree with the position taken by me and Hariharji. Since they are politicians, they are unable to go against populism. For the political purpose, we are violating the rule of law and constitutionalism. Everyone knows that the act is against the spirit of rule of law and constitutional amendment is not at par with the parliamentary democracy. It is unfortunate to say that nobody is out there who is willing to take risk of political backlash by opposing these things.
How do you see the present constitutional provision to appoint the judges of Supreme Court after hearing by a committee in parliament?
It is very unfortunate to include the judges under the hearing of parliamentary committee. First of all, we have to make clear whether the appointment of judges is executive power or legislative power. We are now mixing both. It is the practice of presidential system like in the United States where president appoints judges after a public hearing in the Senate. However, our system is a parliamentary system where prime minister is accountable to the parliament and the prime minister needs to prove vote of confidence. Every minister is accountable to the parliament. In this case, parliament controls all the appointment of executive. The present system is theoretically wrong.
Some of your party leaders in the government and opposition members are saying that there is no question to follow constitutionalism and rule of law to deal with political problems. What are your views?
That is a wrong perception. If that is the case, then why do they need to bring constitution amendment bills twice in the parliament when eight parties are united and have consensus. By bringing these two amendments in a short span of time of 58 days they have shown that political consensus is not enough to govern the country and run the administration. There is a need of constitution to govern the country and constitution should be based on constitutionalism. There requires political consensus but it must be based on rule of law and constitution. Even during the period of making the interim constitution, I requested to then members to follow the constitutionalism. My views were ignored then.
As a member of liberal democratic party, how can you justify the violation of rule of law and breaking of conventions and practices evolved in the practice of more than five decades?
There is no question of justifying all these acts. There are still possibilities to correct the mistakes through judicial review. As a lawyer who has spent almost all my career pleading the rule of law upholding the spirit of constitutionalism, it is very painful situation to be a part of all these nasty developments.
How does your party leadership react to your assertions?
Party leadership listens to us. Had our views been totally ignored, we would not have been sent to take part in discussions in those committee meetings. Our party never said that the views which were taken by us were against the party policy. Otherwise, we would have been asked for explanation. But the situation is such that our party is not in majority in the legislative parliament. Majority of the party in the current parliament do not believe in rule of law and constitutionalism. Our liberal views were discarded by them. It is a reality that Nepali Congress also is making political compromise sacrificing some ideals. If we had taken the stand firmly, the bill would not have passed and the elections for CA would have been further delayed.
At a time when the law and order situation is deteriorating and various rebel groups in Terai are threatening, how do you see the prospects of holding the elections for Constituent Assembly?
There is no alternative other than holding the elections for Constituent Assembly as we have already scrapped the previous constitution and interim constitution cannot last long. In this context, we must hold the elections for CA. If we are unable to hold the elections, our whole political position will be derailed. This is a very dangerous thing.
How do you see current attacks against Judiciary?
In other countries, people make effort to strengthen their institutions by defending them. In our case, it is different. We always criticize the institution to the extent that they are destroyed. Of course, we have lacunae and weaknesses. We have been making all our institutions as laughing stocks. I am not saying that there are no lacunae in the judiciary but the judiciary is the only institution which is transparent and open. Because of openness and transparency, the corruption in the court is comparatively lower than other institutions of the state. A lot of hard works have been done to bring the judiciary in its present shape. Discrediting and scandalizing the institution of judiciary is not going to serve anybody’s interest.
