NC convention and more

The countdown has begun. On the eve of its general convention, excitement, anticipation and tension have gripped the ruling party. Excitement, because after a lot of din and fury, the controversial convention has been finally fixed for Friday until Monday in Pokhara. Anticipation, because the race is set to be quite unprecedented in the Nepali Congress Party’s (NC) history. Tension, because intra-party wrangling has distinctly widened the chasm between the two camps - Koirala and Bhattarai-Deuba, and the drive towards reconciliation seems to be in low gear. In a nutshell, the much-awaited convention will play a decisive role in designing the shape and size of the party.

It was during the 1992 NC general convention, when former prime minister Krishna Prasad Bhattarai was elected party president unopposed, the late Ganesh Man Singh reprimanded Girija Prasad Koirala publicly for the first time. His remarks signalled the beginning of unrest within the NC. During the second convention, after the reinstallation of democracy, Koirala fought for party presidency and was able to garner about 80 per cent of the votes. This time around, the battle for power and the aftermath of the election is bound to be dramatic. Former Prime Minister Sher Bahadur Deuba, who has been vehemently condemning massive irregularities in issuing the active membership list, will give the septuagenarian leader a run for his money. Though the Deuba camp is in a shaky position as is reflected in its poor political scores during the recently-concluded local level party polls, it is expected to snatch away a considerable number of votes from the Koirala camp.

Conflict and dissidence within NC is not new. However, the ongoing intra-party squabbles picked up a tempo after an unexpected political episode in which Koirala compelled Krishana Prasad Bhattarai to renounce his premiership last year. Once a president always a president, seems to be the belief of Koirala. His obstinate stand has proven quite costly. His loyal lieutenants such as Khum Bahadur Khadka and Bijajya Gachchedahar switched sides, leaving him on a tight rope. It was Koirala who preached the "one person one post" principle but failed to do good on his much-hyped promise. His stubbornness has aroused apprehensions that Koirala is adhering to the unwanted South Asian political culture of establishing dynastic rule in Nepal.

Although Deuba has come up as a distinct alternative to Koirala, many party members say he lacks political charisma, which is in fact an asset of Koirala. Given his poor performance on major fronts and his seven long years at the helm of state affairs, Koirala is a hopeless and disappointing leader. On this score, Deuba too is no better than his former mentor. His stint as a prime minister in the 1996 coalition government exposed his weaknesses and lacklustre performance. This naturally raises the question : Is there not a single competent leader in NC, the country’s largest party? Whatever the eventuality, one thing is clear: NC has failed to groom any second-generation leaders. Surprisingly, neither the president nor the aspiring leaders seem to have realized this.

As things stand now, the convention scene will be dominated more by the threat of split in the party, and countermoves by the disgruntled politicians. That Koirala will win the party presidency, despite his eroding popularity, is almost a forgone conclusion. However, whether it unleashes political instability remains to be seen.

Practice and judicial review

By Kedar Nath Sharma

In a written constitution, the legislature is empowered to enact the law, the executive is to enforce it and the judiciary is to interpret or scrutinize its legality. Judicial review is the constitutional power of judiciary to declare null and void, all laws inconsistent with constitution and all action of executive inconsistent with general or fundamental law. Constitution is the supreme law of the land and the power of judicial review is vested in the apex court. The power of judicial review is the backbone, that is, the theory of rule of law and the cornerstone of constitutionalism. It is a legal limitation on government, antithesis of arbitrary rule and opposite of despotic government. A written constitution cannot be dynamic without the power of judicial review. Judiciary has its own power, hence it is a non-political entity. This is what one knows. So, it can supervise and scrutinize the action of other two organs of the state. Judiciary is the protector of the fundamental rights of the citizen and guardian of the constitution. If any apex court lacks power of judicial review, constitution may not survive. The courts are the ultimate interpreters of the constitution. For the effective exercise of the power of judicial review, independence of judiciary is a must.

The concept of judicial review has not developed at once. It has a long history of ebbs and flows. The general concept of this doctrine dates back to Plato and Cicero. In recent times, the judicial review has become, though basically a concept of the US Constitutional Law, the genesis is to be found in England. In theory, the UN has not accepted it but it has practised frequently. For the first time, chief justice Sir Edward Coke tried to assert the concept of the supremacy of law in Bonham’s case in 1610. Justice Coke asserted that when an Act of parliament is against the common law, right and reason or repugnant or impossible to perform, the common law would control it and adjudge such an Act to be void. There has been parliamentary sovereignty in England so that indicated indirectly the judicial review. Later John Marshall, the chief justice of the US supreme court became a pioneer of this doctrine. Chief justice Marshall delivered the opinion of the Supreme Court (SC) in Marbury versus Madison holding that SC had the power to declare any law null and void found to the contrary with the constitution or violation of the constitution. Therefore, SC declared that Art 13 of Federal Judiciary Act 1789 was null and void because of its inconsistency with the constitution. Similarly, in India, this concept came in existence only after the commencement of the present constitution. Art 13 and 32 of the Indian constitution gives the exclusive jurisdiction to SC. SC in the case of the Province of Bombay versus Kushaldas Adwin in 1950 applied this doctrine for the first time in India. But the courts in India could not play the role of reviewing legislation in such a way as in the US. In the subsequent years SC in India struck down various Acts, which were repugnant with the constitution. Later on, this doctrine was applied in the A K Gopalan’s case, Golak Nath’s case, Keshavananda Bharati’s case, Indira Gandhi’s case, etc.

In the context of Nepal, after the Nepal Interim Government Act 2007 came in existence, the Pradhan Nyayalaya was accepted to exercise the power of judicial creativity for the first time. In the case of B K Shrestha, chief justice Hari Prasad Pradhan had declared that SC was the "guardian of the constitution" and that the king was "under the law". In B P Koirala versus Commissioner Magistrate, SC declared the section 1 (sa) of Commissioner Magistrate void being contrary to the section 30 of the Pradhan Nyayalaya Act 2008. The landmark decision was, in our judicial history, Sarvanjyaratna Tuladhar versus chairman Rastriya Panchayat where SC strongly asserted that it had the power of judicial review. The court explained the theory of separation of power and it also held that judicial power or power to interpret statute is ultimately vested in judiciary. Similarly, the restoration of democracy which brought new democratic constitution underlines the constitution as a fundamental law of the land and all laws inconsistent with it shall, to the extent of such inconsistency, be void. Article 1 says: "All the fundamental rights and independence of judiciary have been explicitly mentioned in the constitution". It states that the power of judicial review of legislative enactment is vested upon the supreme court of Nepal under the extraordinary jurisdiction in Art 88.1 of the constitution. It says that, "Any Nepali citizen may file a petition in the Supreme Court to have any law or any part there of declared void on the ground of inconsistency with this constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this constitution or on any other ground and extraordinary power shall rest with the Supreme Court to declare that law as void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with the constitution." SC has exercised the power of judicial review in dozens of cases. The court has strongly protected the fundamental rights of citizen through this power in the case of Iman Singh Gurung. In this case, Supreme Court declared the section 1.3 (b) of the Military Act 2016 void from the date of decision as being a contrary to Art 11.1 of the constitution. Likewise, the court declared that the explanatory clause of 10 (a) of Adalko Mahal of Muluki Ain ultra-virus as being inconsistent with Art 11.4 of the constitution in the case of Man Bahadur Bishokarma. Similarly, second statement of section 4.1 states "Priority should be given to the Nepalese citizen" of the Labour Act 2048, section 2, 4.5, provisory note of 12, 19. 12 of CIAA (first amendment) Act 2048 were declared void as being contrary to the constitution by the court in the case of Bal Krishna Neupane.

For the effective enforcement of judicial review, the case of PIL, and Judicial Activism is very important. For that purpose, our constitution says in Art 88.2: "The Supreme Court shall, for the enforcement of the fundamental rights conferred by this constitution, for the enforcement of any other legal right for which the remedy even though provided appears to be inadequate or ineffective, or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern have the extraordinary power to issue necessary and appropriate orders to enforce such rights or settle the dispute, for these purpose, the supreme court may with a view to imparting full justice and providing the appropriate remedy issue appropriate order and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warrant." But while exercising its jurisdiction under PIL and Judicial Activism, courts are not spared from being criticized. In some of the serious matters, Supreme Court has dismissed the cases on the ground of locus standi, as in the case of Sushil Pyakurel versus HMG et al. The case is known as "bonded labour case" existing problem in the western part of Nepal. Likewise in the case of Humla starvation, where about 170 people died due to lack of food and staples, then, a write petition was filed before the court by Madhav Basnet. SC protected the personal liberty of Annapurna Rana but failed to protect the rights of thousands of bonded Nepali people. In Arun III case, court played the legislative role to make a guideline, but it failed to play similar role to protect the rights of bonded labour. Why have thousands of people been detained without evidences but it failed to punish Khovari Ray by showing a technical cause? Why is the court’s door and jurisdiction limited to protect the nation from corruption by showing the narrow, conservative and traditional way in the case of Lokman Singh Karki? This was popularly known as gold and silver case. Why has the court given immunity to the Surya Tobacco Company to pay taxes? These are a few questions which remain unanswered.

There are many flaws in our judicial system. The problem can be solved if we have strong commitment to do so. The court Management Committee Report of 2055 refers some solution to reduce existing legal problems. Likewise, every annual report of SC identifies its problems and makes recommendation for the improvement of its functioning. But the government has given no importance to basic infrastructure for the judiciary and politicians lack respect to judiciary and its decisions.

They have interfered the judicial system to fulfil their vested interest. Constitutionally, our judiciary is independent. The intention of the Constitution is that judiciary should be the protector of fundamental rights of the people and guardian and custodian of the constitution. For this purpose, every organ of the state and civil society should contribute to fulfil this obligation and judiciary should remain alert. Unfortunately, this is not happening in the country.

RNA invites tender for helicopters

By Raj Man

On behalf of His Majesty’s Government, Royal Nepalese Army (RNA) invites sealed tenders for the purchase of two medium sized twin engined helicopters.

The army is in dire need of two modern helicopters to protect Tundikhel. It is the nation’s pride that those Gurkhas, who set world records during the wars have shuddered its responsibility into protecting of the cement-fenced territory, which is the only big open ground left in the metropolis. The twenty million population of the country must be happy that the military force at least can save the one and only Tundikhel, by leasing it to exhibition organisers and constructing buildings without proper notifications to relevant institutions.

Damn it, if the southern border is shrinking in, or the rivers play a villain’s role in Eastern and Western boarders against the god-saved sovereignty of this county. It is not the Nepali army’s responsibility to keep all unwanted activities going around the southern border at bay.

We don’t care if a handful of journalists spread wrong information that our far-east border area has been under the India’s occupation. At least we can expect that the world famous Gurkhas today save its headquarters territory from invaders.

So, Gurkhas are committed to protect Tundikhel at any cost. In this modern world, the military force of the most critical country from the safety-angle must be equipped with the most modern armaments to execute its duty. In this connection, two modern helicopters are essential for RNA to keep borders safe from the foreign intrusion.

We assure that no media cry will come up to spoil our plan this time. There will not be anything like what it had when we took steps to buy a RJ 100 airplane. It was our immature step and meantime, we have leaned a lot to keep such hurdles away from our sleek business of buying aircraft we need, to shoot at grasshoppers sunbathing around Tundikhel.

We are actually going to set a national record that while, Nepal Police, the section which is enjoying the most frequent helicopter flights (thanks to the commanders of Maoist movement) are using the leased aircraft, we are going to buy two brand new choppers. We also wanted to lease helicopters instead of buying them. But, in these days, leasing aircraft is full of troubles. Even the brazen officers of RNAC, who did record breaking dealings with the Lauda Air can’t handle the public...So we decided to buy it instead and end up the whole possibility in one blow.

The tender documents can be obtained from the addresses as given below on any working day during working hours within 30 days from the first date of publication in national dailies by depositing non-refundable amount of NRs 4,000 (four thousand).

Master General of Ordinance, RNA reserves rights to reject all tenders or accept any tender thereof without assigning any reason whatsoever.

Learning from history

By M R Josse

On 10 January, the 279th Prithvi Jayanti and National Unity Day was observed with public speakers showering verbal tributes on Nepal’s unifier, King Prithvi Narayan Shah the Great.

Ritualistic: However, its observance was merely, or mostly, ritualistic with politicians of diverse colours paying only lip service to Prithvi Narayan’s protean contributions to the nation that he forged out of over fifty small principalities in the heyday of British imperialism.

Predictably, statements and speeches spewed forth from sundry worthies stressing, inter alia, that Prithvi Narayan’s Dibya Upadesh (Divine Counsel) — a sermon believed to have been written and delivered by him to his courtiers from his death-bed at Nuwakot Durbar in 1774 — was "as relevant as ever".

Coming as the event did on the heels of the as-yet not fully explained spasm of violence and its after-shocks that exploited existing communal divergencies, National Unity Day took on enhanced significance. Repeatedly underlined was Prithvi Narayan’s Dibya Upadesh description of Nepal as a rainbow-hued garden or mosaic of diverse ethnic groups and castes.

Yet, despite the fact that various national unity and reconciliation marches were organised in the kingdom in the aftermath of the riots referred to above, the Nepal Sadbhavana Party wilfully chose to ignore multiple pleas, including one by the Prime Minister, to call off its Terai-bandh on 12 January.

Recalling that one striking consequence of the year-end explosion of violence was the chilling alacrity with which extraneous forces inimical to Nepal’s sovereignty stepped in to fish in muddy waters, going full steam ahead with such a bandh in those adverse circumstances was hardly in keeping with the spirit of the Dibya Upadesh or its king-warrior-administrator author.

Therefore, while on the theme of Prithvi Narayan and the Dibya Upadesh which, as one is repeatedly reminded, is "as relevant as ever", one must ask what the status is today of the sagacious foreign policy injunction of the Great King to pay equal heed to Nepal’s northern and southern neighbours.

Although that piece of sound geopolitical advice is "as relevant as ever" in today’s nuclearised neighbourhood around Nepal, can anyone even faintly cognizant with the thrust of Nepal’s foreign policy over the past decade legitimately assert that the movers and shakers of today have not flushed it down the tube?

Similarly, one is constrained to question why the democratic souls who hurriedly crafted the 1990 Constitution were so keen to throw out the lovely Peace Zone proposal baby along with the grimy bath water of the authoritarian Panchayat order.

Nepal’s ZOP: Was Nepal’s Zone of Peace (ZOP) initiative — a timely, modern-day policy adaptation of Prithvi Narayan’s sage counsel on foreign/security policy management by a "yam" caught uncomfortably between two giant "boulders" — not in keeping with the ethos of the Dibya Upadesh?

If not, why all this organised fuss and hypocrisy about Prithvi Narayan’s visionary guidelines being "as relevant as ever"?

While still on the lessons of history and not forgetting BJP politico K R Malkani’s recent public assertion that Nepal should have gone the way of Sikkim, shouldn’t our children be taught about the Vidkun Quislings and Lhendup Dorjis of our age — and of Trojan Horses and Fifth Columnists, for that matter?

Also, isn’t it high time to educate one and all about some salutary work that the Ranas did for the country, pre-1951, from the point of view of the national interest?

Surely lessons from history would be incomplete and totally skewed if the collective focus were to be directly solely on their misdeeds, of which, sadly, there was no conspicuous dearth.

In fact, in the context of the stir cooked up by Malkani over Nepal’s independent status, it would be in the fitness of things if our history books were to take adequate note of the contributions of two Ranas — Jang Bahadur and Chandra Shumshere — to the consolidation of Nepal as a sovereign nation-state.

Indeed, in the words of Leo Rose, America’s South Asian guru: "Junga Bahadur and Chandra Shumshere deserve recognition as two of the great nationalistic heros of Nepal. Whether they were acting in the interests of the nation or of the Rana family is incidental from the historical perspective.

"The fact is that they devised policies suitable for the period in which they lived and implemented these policies with considerable sophistication and skill. In the process, they made possaible the emergence of Nepal as an independent state after the demise of the British Raj in India."

Jang Bahadur, as Percival Landon recounts, when in England as "Ambassador of Nepal" in 1850, "would urge as a reason for the fullest recognition of his position the fact that he had been received by the great Duke of Wellington as an equal."

"Queen Victoria arranged for a reception in Jang’s honour" and "in Paris he was received by Prince Louis Napoleon, President of the Republic, afterwards Napoleon 111." In Bombay, on his way back home, Jang Bahadur was "received with full ceremony."

Fully sovereign: Coming to Chandra Shumshere’s contribution, one must not fail to mention that it was during his premiership that the 1923 Anglo-Nepal Treaty was formalised where the two countries agreed mutually "to acknowledge and respect each other’s independence, both internal and external."

It is thus crystal clear that Nepal’s sovereign status was not a gift from Nehru, as Malkani had the gall to suggest. On the other hand, it is well-documented that Nehru’s deputy Sardar Vallahbhai Patel had entertained designs to annex Nepal, a la the then extant 565 princely states, including Kashmir and Hyderabad.

As such, one can only hope that history lessons are properly imbibed not only by the salt of the earth but specially by those who would like to be addressed as "neta". Clearly, there is much to learn from history.