Senior advocate RAJEEV DHAVAN does not need any introduction. Renowned constitutional lawyer of India, Dhavavn was recently in Kathmandu. DHAVAN spoke to KESHAB POUDEL on various issues related to constitution making in Nepal.
How do you view the debate on constitution writing in Nepal?
I would like to go for a simpler system. I personally think experts have given you a complicated federalism, a very complicated electoral system and a judiciary which may find it in a great difficulty.
What about the governance?
Make the government accountable to the people. I prefer parliamentary system and prime minister to be accountable to it. This kind of government is less likely to turn into dictatorship than the directly elected president with concentration of power.
What are your views on federalism then?
Before answering your question, I would like to know some basic information about your country and some basic information about various zones like Mahakali, Karnali, Koshi, Bheri and Naryanai. For example, what is the number of population of Mahakali and what is the geographical area it has? When you look at federalism, the first question you need to ask is a very simple question of fact, that is the population of the area and resources, which include natural resources, other resources and resources of the future. Take an example, Manipal has decided to invest in Pokhara but it does not matter to center what it wants is the basic fact of the province. When you look at the map of Nepal, these seem fundamental questions.
Do you mean there is no sense to talk on federalism?
Until I find answers to these basic questions, which I could not find, I cannot say anything about federalism in Nepal. The map before me poses fundamental questions: Can you create a state out of village or large towns? Can they sustain it? These questions are more important than the questions that foreign experts planted you on your mind about ethnicity. It is so fundamental that you may ask the right question or may be wrong. I cannot say because I am an outsider. When I went to Iraq on behalf of Forum of Federation, the questions I was asked by the Shia were about who will control the oil and who can have oil. Now Shia has oil first the Sunni has oils and Kurds. Now they don't bother about ethnicity and federalism. They took the provinces under Saddam and they said it is fine.
Does making administrative units solve the problems?
Making administrative units is not the answer of federalism. The answer of the question was you design the federalism according to your need. Alberto is the richest province of Canada because it has oil. In Canada, the natural resources belong to the center and other provinces share the revenue from the oil. The fundamental question is about what is the cost of the government in particular areas including governor, judiciary, government, legislature, Police and so on. Will the state degenerate the resources enough to sustain these institutions? Viability becomes a very important issue. So the first is viability and second is the basic fact.
How do you see the current electoral system?
I don't understand why you have multi-party system and proportional representative system? They are inexplicable, totally inexplicable. A new Royalist party which won no seats in first-the-past elections is the fourth largest party in Nepal. Now obviously, everybody has vested interest on this. And the vested interest is that even if we will not win the seats but get something there. Forgive me for saying this; it is laughable in some stage. Because this proportional representation is designed for a two-party system. Germany adopted it because they have a two-party system. In your country, the parties are here and there. There is no democratic accountability in your present electoral system and you are accountable to your party and with nobody else. You don't rise above the party. When I met some prominent persons, they said the new constitution will have 50 percent directly elected and 50 percent are nominated. How ridiculous is this.
However, our experts have been saying that this is most the inclusive system?
But this anomaly you have got which is there of proportional representation will cast enormous problems. You are facing the situation which India faced right from 1991-1992 till the last government, a government of coalition. However, it has changed in the last elections. It is very rare to have a majority government in India. You are confined to coalition governments. Given the present electoral system, it is impossible to see the majority government in Nepal for a long time to come. I cannot say that it is a dead issue. I know that the CA is putting closure on this issue 50-50 and this closure is bad. You have to think far ahead as to what you are going to do for the governance in Nepal after this assembly finishes its job. You will have a coalition governments and 90 defection laws. It will be an enormous mess.
How do you see the role of civil society?
When I talked to civil society leaders, I found them fractured. However, they still have a role. As the people are not voicing anything, papers are biased; it is time for the civil society to put pressure. Things don't come from the experts, they might from elsewhere, too. The solution comes from the common sense of the people to desire something workable. I have great doubt that a nation contained to coalition governments can bring stability.
How do you see the present state of nomination?
According the present system, you have 26 nominees at the Constituent Assembly but nobody knows who they represent. If you don't have criteria, the selection process will always be haphazard. The parties nominate the persons on the basis of their personal linkages. If there are no criteria, parties may use their discretionary power to nominate shopkeeper, wrestlers, poet or anybody else.
Why are you stressing stability?
If there is instability, federalism will not sustain. A nation contained to unstable governments is not a stable nation. It will go to the root of federalism. The Part 17 and the article 138 of the present interim constitution clearly stipulates the way to create the federalism. The article 138 says "the progressive restructuring of the state and local government”. Strengthen the local government goes half way down. How do we divide these?
How do you see the judiciary?
As far as the judiciary is concerned, India took the view that there should be a unified judiciary. You have district court and appellate court in each of these states. Separating the civilian and criminal case is a very good idea because every person is entitled to appeal in civil cases. Civil and appellate courts are more manageable than the constitutional court. This is one failure in our system. You must have two appellate courts. Our experiences with Indian high court are very terrible. You and we are litigious people. You cannot divide politics on the basis of ethnicity. Don't embarrass the judges in cross examining.
How do you see the idea of making judicial council broad based?
The issue of Judicial Council is a good idea but it should not be politicized. If you have transparency, there is no controversy over accountability. The kind of transparency needs to be retained. Don't try to indulge the judiciary in controversy. In the name of inclusion don't spoil the competitiveness in judiciary. Whether you have people of ethnic variety or whether you have people from the region, this is something you need to work out during the nominations. In India, we have never left Muslims the appointment of our judiciary. We have always made sure that there has been Muslim in the appointment because we are the third largest Muslim country in the world. There is also a tendency now to have a Christian in the judiciary. This is worked out in an informal manner. You can say some Madheshi judges are require. You cannot make quota system in the judiciary.
As federalism is one of the tricky issues, how can we solve it now?
Don't go for number. First, you need to carve the provinces in as small a number as possible. In 1947, India too had fewer provinces. However, it changed later. In 1966, Punjab was divided into three Himanchal, Haryana and Punjab. Similarly, Maharashtra got divided into two. Why do you want many states now? You can decide now on few states and later you can carve them on the basis of economic viability. The question of statehood is different as all the areas have possibility to form the state.