5 Questions The Telegraph - Weekly (Nepal)

5 Q U E S T I O N S

Solution to Maoist issue needs a sincere, pragmatic and pro-active approach

-Dinesh Tripathi, Senior advocate, Supreme Court, Nepal

He is admired for his openness and frankness among his professional colleagues. He is modest but yet remains informed.

Mr. Dinesh Tripathi, basically a Teraian, has earned name by his courageous stances taken in certain court cases that had national importance.

Basically he is a constitutional expert who has provided through his debates the constitution a new dimension.

Tripathi remained instrumental in quashing the very appeal of ex-parliamentarians who sought court ruling for enjoying pensions upon retiring as a parliamentarian.

Tripathi is the one who believes that the moment article 127 is resorted to, parliament must come in existence. He then quotes the provisions laid down in the article 127 which reads in full "if any difficulty arises in connection with the implementation of the constitution His majesty may issue necessary orders to remove such difficulty and such orders shall be laid before parliament.

Mr. Tripathi has several books to his credit. He has written scores of articles on Nepal’s judicial system.

Last week, we approached this modest constitutional expert for an exclusive interview to which he provided his assent. Below the results-chief editor.

TGQ1: As a senior Law practicing professional how you Mr. Tripathi and your colleagues have taken the political scenario that have developed since October 4, 2002?

Is the King still a constitutional monarch as he claims or is an active monarch as the agitating political parties’ assert? What would be your comment in this regard?

Tripathi: October 4 move was a big setback for country's democratization process. It undermines the constitution and goes against the very tenets of constitutional monarchy. Constitutional monarch can do no wrong because constitutional monarch plays only a ceremonial role and does not exercise the real executive power, in such a case the government of the day is equipped with defacto executive power vested in the council of ministers. It is the council of ministers, the cabinet in fact, which is responsible for policy decision and its implementation. Party in power has to be answerable for it's policy and actions and have to face the electorate in periodic elections. After all it is the electorate of the country who can judge the performance of the politicians and give reward or punishment for their actions. Ultimately it is a people's verdict which is the final truth in a democratic governance. So everybody has to accept the people’s verdict. Democracy is the system, which keeps faith in the decision making power and wisdom of the people. In a Democracy nobody has power to rule without people’s mandate and consent. These basic Democratic value's and norms are woven into our constitution. In the light of above mentioned facts to my mind, October move was the attack on the very heart and soul of constitution.

TGQ2: UML leader Madhav Nepal went to Lucknow. He saw the King at Nagarjun. Then came the UML’s roadmap. Do you see any connection in between Mr. Nepal’s trip to Lucknow and Nagarjun? Is it a conspiracy or a positive step initiative taken up by the communists? How you take UML’s roadmap finally?

Tripathi: It is difficult to say whether there is connection between Lucknow or Nagarjun? Only time will tell what is truth about it But to my mind, Madhav Nepal’s over activism showed that he is very much eager to come into power at any cost. It seems that to acquire power he is looking for new allies and alliances, through which he can pave the way for power. The Road map produced by UML should be seen in this perspective. UML’s 'Road map' is virtually going to weaken the unity among the five pro-parliamentary parties. Beforehand, the five agitating parties have/had common National agenda but without consulting other agitating parties, the UML came up with its new 'Road Map'. To my mind at this present critical juncture all the Major Political parties should build common minimum program to solve present national crisis and protect core values of constitutionalism and restore derailed democratic processes. No political actor or parties can end the national crisis alone. There must be a broader consensus among the parties about the core issues. This is a high time to rise above narrow personal or partisan interests. Political parties are the chief actors in democratic governance so they have to act responsibly for larger interest of people and nation.

TGQ3: How you see Girija insisting for the restoration of the now dissolved parliament? Constitutional experts say that if the King acted on Koirala’s advice would set a bad precedence and time permitting the King can use his power again and again as and when it suited him most. How you as an expert on such technical issues view Girija’s insistence and the King’s reluctance to act as desired by Koirala?

Tripathi: Our constitution envisages parliamentary form of governance. Parliamentary form of government is the basic feature of constitution and according to Art.116; it cannot take away even by constitutional amendment. Parliament is Key institution in our constitutional scheme, which represents the sovereign will of the people. But unfortunately parliament suddenly disappeared from our polity. As a matter of fact without the presence of parliament constitutional process can not revive. Art 127 clearly stipulates that' If any difficulty arises in connection with the implementation of the constitution His majesty may issue necessary orders to remove such difficulty and such orders shall be laid before parliament.

But despite of this clear constitutional provision Art 127 has been activated in the obscene of parliament Art 127-requires parliamentary backing to be functional. Any order issued under Art.127 is subject to parliamentary 'scrutiny without parliamentary sanction no order can get validity under article 127. It is the clear command of the constitution. To my mind by implication parliament gets automatic revival when the Art 127 was resorted to, because in the obscene of parliament Article 127 can not be functional according to the present constitution. Smooth functioning of any constitution needs healthy tradition and convention. This is the high time to build healthy constitutional convention to protect the constitutional democracy. There are several instances in many countries where parliament was revived to tackle national emergency and crises. We should not forget that path of democracy is not always smooth. A time comes in the history of nation when extraordinary situation demand extraordinary measures.

TGQ4: Fortunately or unfortunately, India got exposed this time when Madhav Nepal went to Lucknow to see Prachanda. In this changed context, do you believe that unless India in the whole affair, the Maoists issue would remain intact? Should it be India or the UN as demanded by the Maoists come to the scene? Or is it that we on our own able to take up the issue for its happy landing?

Tripathi To Solve Maoist issue, sincere, pragmatic and pro- active approach is needed from each and every quarters. Enough courage, wisdom and political will and Statesmanship is required from our Political Actors. If we lack necessary political will and courage no outside help would be helpful. We must not forget that outside help might be useful

but not sufficient. In this regard, first we should build Positive political environment and political consensus. Without our own homework and plan of action I don't feel only outside help will produce desirable results.

TGQ5: The judiciary is no less corrupt, it is being openly said and at times admitted by top-hats in the Nepali judiciary. On top of this, our case is like "justice delayed is justice denied". How you as a personality involved in this sector for long take up these two issues? Do you agree that we have expensive judicial system?

Tripathi: Constitution envisages competent and independent system of justice but to my mind this constitutional vision is yet to be materialized. We have long way to go to translate this constitutional vision into a reality. Transparent, competent and bold judiciary is essential to ensure rule of law and protect our personal liberty. Art 88 provides with wide, expansive and extraordinary power to judiciary to ensure complete justice as well as ensure fundamental rights of the people. But an institution, which is not corruption free, can not meet these challenges and ensure justice to the masses. To my mind, chief justice should show a courage and strong will to combat corruption, judicial council must be well equipped to monitor the behavior of judges and take necessary actions. Judicial accountability must be ensured. We should not forget that judiciary is not for the judges and lawyers but to deliver justice for the common men. But unfortunately our justice system is inclined towards process rather than substance. Some times justice became first victim of procedural technicalities. Dilatory procedure breeds corruption so in order to avoid acts of corruption, procedural rules must be simplified.