Dinesh Tripathi Appearance in Baltimore

AMNESTY TALK ON NEW CONSTTUTION MAKING PROCESS OF NEPAL

May 24, 2006,

Amnesty International, University of Baltimore, USA Organize talk program on “ Challenges of new Constitution making in Nepal.” Advocate Dinesh Tripathi, Supreme Court Nepal was invited to speak on the occasion. Tripathi Spoke on the occasion-Nepali people has shown enormous courage and bravery. Under the massive pressure of mass movement authoritarian king is forced to step-down. King and his army are responsible for gross violation of human rights and fundamental freedom. King has committed a crime against people and democracy. But now Nepal has entered into new era of democracy building. Parliament has taken a drastic step to curtail the power of king. People are aspiring for republican set up and full and genuine democracy. Now Nepal is in new Constitution making process. Now Constitution is going to make by “We the people.” Nepali people no more want a given Constitution, given by king or somebody else. Nepali people want to be full sovereign and want to exercise full sovereignty. New Constitution is going to ordain and establish by “We the people” of Nepal. People are the source of ultimate power and authority. Constitution is the _expression of sovereign will of the people and people are aspiring to exercise its sovereign will. Nepali people want a total democracy, rule of law and full guarantee of the fundamental rights. New Constitution should be the charter of the full sovereignty of the people. People’s aspiration of the genuine, parcipatory and inclusive democracy must be addressed by the new constitution. “All power to the people” should be the motto of new constitution. It must transform a bureaucratic and police state into fully democratic, responsive and accountable state. Kingship must be totally abolished because it always became the threat for people’s rights and liberty. Now it is proven fact of the Nepali history is that monarchy and democracy cannot go together. We need to build a grassroots democratic structure. Total power to the local body and institution. To address an aspiration of people we need to build a federal structure. Army must be put under the parliamentary control and need to incorporate instition and mechanism to ensure accountability and control the abuse of the power by any state authority and institution.

But complex challenges are ahead to making a new constitution. King is down but not out. No action has been taken against any army personal. Entire democratization process is weak and fragile and it is full of the uncertainty. We have yet to start credible peace process. We have to start the process of transitional justice. Impunity must not allow. All the violator of human rights should bring to justice who committed a crime against people. King should also make liable about his act and he is also need to bring to the justice. No one allow getting immunity and impunity for the crime he is committed. Equality before the law is important aspect of justice. Nepal must immediately ratify the Rome Statute Of International Criminal Court so all the perpetrator can bring to justice and held accountable for their action. Without successful management of the transitional justice it is very difficult to move for full democratization of the polity and the state. There must be free, fair and conducive environment so people can freely vote for constituent l assembly. People must allow to exercising their free will. International community must be a watchful toward peace process and new constitutional making process in Nepal. There is clear need to closely monitor the peace process in Nepal. Credible International organization like UN must come forward to monitor peace process and hold both side accountable. International community must support Nepali people’s aspiration of full democracy without king. Maoist should also accept the democratic aspiration of people. They should behave as a responsible political force and stop abduction and extortion and participate in the new constitution making and democracy building process peacefully. There is no alternative to the democracy and rule of law.

Prof. Dr. Jason Trumpbour introduced the Speaker and also said that- there is exciting development is taking place in the Nepal. People are aspiring for democracy and rule of law. International community must support the democracy building process in Nepal. We should provide our helping hand to Nepali people and must support their endeavor to establishing polity based on the rule of law.

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In The News

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नौलो संवैधानिक प्रयोग

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Prof. Yash Ghai On Constituent Assembly

(emailed by Shobhakar Budhathoki from Kathmandu)
Shobhakar Budhathoki: Transitioning The “Royal” Nepal Army

Notes from the Talk Program on

Constituent Assembly and Transitional Arrangement

Key speaker: Prof. Yash Ghai

OHCHR

16 May 2006

Interim arrangement

• A focus on ensuring that interim arrangements pave the way to holding constituent assembly elections with meaningful participation during constitution-making process is important.
• There is a threat that there might be a lack of transparency in a process controlled by political parties.
• The plan for arms management must be addressed, particularly the issues of timeline, arms ceasefire, etc.
• Interim arrangements are essential, while the whole process might take a long time. They can be introduced through “revolutionary legality” (as opposed to strict legality) which is a fairly well established doctrine. Alternatively, interim arrangements can be done by continuing the existing system, but the issue of exclusion should be seriously considered.
• Basic principles of interim arrangements should be figured out, for instance, the state structure could be monolithic or multilingual or multicultural, etc,
• Binding frameworks should be introduced to make fruitful interim period.

Process of the constituent assembly

• There is no one best model. Better to focus on identify clear objectives, the model will then have to be designed accordingly.
• Basic principles of new constitution must be agreed and endorsed by key actors of the country, such as the framework of transition (roadmap, timeline, etc), constitution making process, bill of rights, independent judiciary, etc. The process of constituent assembly should be operated under those guidelines.
• Inclusiveness and participation of underrepresented communities are basic components of constituent assembly election.
• Process dominated by political parties have less chances of meaningful participation. The political parties may not be best placed to represent the diversity of constituencies.
• If the political parties only play an architect role, the composition of constituent assembly becomes urban centers and could be elite’s bargaining tool.
• Representation of marginalized communities remains important factor in constituent assembly election that helps to kill wounds of past, dissolve the differences and seek truth and justice.
• Participatory approach introduces the active form of engagement rather than limiting to an observer role during the process; brings wealth of ideas; creates awareness of the issues; and narrates the daily life of ordinary people.
• Process is itself key element of the constituent assembly election that requires deliberate measures; information dissemination; and initiates the discussion on the issues of devolution, federalism, etc. It is also a source of scrutiny for the key actors and are forms of transparency, accountability and responsiveness.
• Identifying guidelines to oversee the process of constituent assembly elections remains important element, such as the continuation of restored parliament through amendment, or manage transitional arrangement under 1990 constitution, or continue working through revolutionary legitimacy.

Character of constituent assembly

• The objectives and proper models/rules of constituent assembly election must be clear. However, there is not a single model or mechanism available regarding the constituent assembly election.
• The constituent assembly must have complete authority and must accept the principles of democracy, human rights, etc. The division of responsibility is necessary in constituent assembly (will the CA draft a constitution or will it study papers submitted by a separate body formed for drafting the new constitution, which goes around the country and consults widely with people before drafting plus also disseminates the draft to the people for consultation before it goes to the CA).
• The drafting could be done with the representatives of economists, political scientists, lawyers, etc.
• Objectivity of constituent assembly and understanding in national perspectives must be clear.
• A CA can be seen as a “gathering of the nation” which increases ownership of the new constitution.
• The question of when to have elections need to be addressed. Elections are divisive exercises. They should be timely and cannot be conducted while guns are around.

Examples

• In South Africa, the pro-apartheid laws and other existing mechanisms were repealed as a part of confidence building between the apartheid regime and the African National Congress during the interim period. Initially, for about two years, the ANC accepted the Constitution and the National Party agreed to check all decisions with the ANC before taking them to cabinet.
• Then, interim constitution was introduced for two years period with interim authority.
• Then only South Africa moved to Constituent Assembly.
• In Kenya, the constituent assembly was composed with the representation of one third parliamentarians, one third of regional representatives and other one third from civil society with special reservation for women and disables.
• In Kenya, a total of 80 offices were opened throughout the country by a different body set up to go around the country to hold consultation with the people and disseminate the information. Special program were aired from National Television and Radio. Official website was launched and all public inputs were frequently updated.

Research/Education activities

• Civic education should be organized to discuss on critical issues and figure out the options.
• Research must be done to analyse the public response after the dissemination of draft copies of new constitution

Conclusions:

• During the drafting and finalizing of the new constitution, an undemocratic process bring sometimes democratic results. Total transparency and close meetings are equally important to achieve the goal.
• Recognizing group rights and individual rights always remain very important.
• In Nepalese context, the timing for constituent assembly election plays important role. The election can be delayed to avoid polarization and driven campaign. The whole process might take minimum of nine months period.
• Civil society could play important role to carry out unofficial process during the transition such as setting the agenda of constituent assembly and make recommendations for the process and increase the representation. Civil society can also mediate to achieve the goal of the constituent assembly.