Ganesh Datta Bhatta is an expert in constitutional law. An associate professor at Nepal Law Campus, Kathmandu, Bhatta has published many scholarly articles on laws, human rights, legal reforms, governance and democratisation process in different journals and newspapers. He has been involved in various organisations committed to promoting human rights and democracy. As a constitutional lawyer in the Supreme Court, Bhatta is known for his sharp and analytical comments on politics.
He talked to The Rising Nepal on contemporary issues related to the transitional politics, statute amendment and local polls, among others. Excerpts.
As a constitutional lawyer, how do you see the capacity of the state to enforce law and order as the nation continues to reel from transition?
Nepal has been in transition for many years owing to political and constitutional instability. The root cause of the prolonged transition and instability is the external forces rather than internal ones. The external forces are active ‘to fish in troubled waters’ with their strategy of keeping Nepal always under ‘controlled instability’. Knowingly or unknowingly, Nepalese politics is being operated as per this design of the external elements. Of course, Nepal is weak economically, but it is one of the oldest nations in the world, and its foundation is very strong. Nepal has a centuries-old tradition of bureaucracy, judicial and security system. Harmony among the Nepalese people is unique. Despite all these positive aspects, the Nepalese society has been rocked by identity politics, and the state organs and institutions have been paralysed by partisan politics. Likewise, corruption is rife, national interest has utterly been ignored, and garish nepotism has taken precedence over meritocracy. If there is political will and strong political leadership, the state organs, especially the security organs, will be able to maintain law and order. For this, they should be allowed to work freely and without political intervention.
Of late, the secessionist activities are openly taking place in the southern plains. Can there be a legal recourse to dealing with such a threat?
In a democratic system, everyone has the right to express his/her views, opinions and grievances in accordance with the spirit of the constitution and within the legal framework. It is the duty of a citizen to obey the constitution and abide by the law of the land. For a democracy to be functional, it needs law-abiding citizens. According to the constitution, no one is allowed to carry out secessionist activities, which are a crime against the nation. Any person who is involved in secessionist activities should be punished strictly. It is the prime duty of the state to preserve national unity and integrity. It is also the duty of the state to punish and crush the secessionist activities run by any person or group.
The disgruntled Madhesi parties have rejected some provisions of the new constitution and want to amend it to restructure the Terai belt as per their demand. What can be the constitutional and political remedy to address their demand?
Those political forces, which supported the Constituent Assembly (CA), have no political or moral right to speak against the constitution. Politics operates as per the rule of the game. The present constitution was promulgated with the consent of more than 90 per cent members of the CA. If any force works to allow the external forces to bring division in the internal affairs, this will bring disaster to the nation. Whoever talks about the Madhes and Madhesi people, we should not forget that Madhes is an integral part of Nepal and the Madhesis are Nepalese, so they too have the right to express their grievances. We should not forget that Madhes is a strategic land, and it has an important role in ensuring peace and prosperity for the country. Every citizen has the right to express disagreement on the constitution and its provisions. If the Madhesis are demanding equal rights and ownership of the constitution, this should be respected from the other side, too.
Yes, the Madhes-based political parties have reservations about some provisions of the constitution. The major political parties should address them politically. The Madhes-based parties have not gone out of the constitutional process. The present government was formed with the support of the Madhesi parties. They have been actively participating in the parliamentary process, too. The present constitution has institutionalised the major political agenda of the Madhes-based political parties. Regarding the geo-political situation of the country, the Madhes-based parties should adopt a pragmatic approach to resolve the issues pertaining to the federal units. ‘One Madhes, One province’ or ‘One Province, Two Madhes’ demand is not practical. We should not create federal units which can take the nation to territorial disintegration.
The constitution amendment proposal tabled in the parliament has met with stiff opposition from the opposition parties and the people from Province No. 5 which the amendment seeks to separate from the hills. How will this deadlock be sorted out?
Implementation of the constitution should be the main national agenda of all. If we want to implement the constitution in a proper way, there should be elections according to the constitutional provisions. The constitution can be amended only for the purpose of holding the elections. The Supreme Court has given its verdict regarding the amendment of the constitution. The Supreme Court has said that constitution amendment is the jurisdiction of the parliament. Yes, if the amendment is approved by violating the constitutional provisions, the Supreme Court can review and ultravate it. Therefore, it is the duty of all the political parties in the parliament to respect the decision of the Supreme Court and move ahead. Certainly, the parties have been divided over whether the constitution should be implemented through the elections or the amendment should come before the election. The present political dreadlock should be sorted out on the basis of political consensus. For the implementation of the constitution, the political parties, especially the Madhes-based ones, should be more responsible.
Do you think that Nepali nationalism is now in serious jeopardy owing to the demands and postures of various political and ethnic forces?
The diversity of the Nepali society is its beauty and strength as well. Unity in diversity should be our motto as well the ultimate goal. Diversity should be the foundation of Nepali nationalism. Without respecting the diversity of the society, we cannot preserve national unity or Nepali nationality. If we want to strengthen Nepali nationalism, all the Nepalese should have a sense of ownership of the state. The politics of identity based on caste, ethnicity and regionalism has weakened the Nepali nationalism. We should be more conscious of national identity, integrity and harmony among the people so as to consolidate nationalism. Without Nepal, there won’t be any identity of the Nepali people. Populist, radical and region-based politics will always enervate Nepali nationalism. We should work together for the preservation of the base of nationalism. Prolonged transition and instability have created a breeding ground for the external forces to debilitate our nationalism. The present constitution has judiciously recognised the diversity of the Nepali society. It has put emphasis on running the state based on participation and consent of the Nepali people.
The three-tier elections – local, provincial and federal – must be conducted within Magh 7, 2074 BS as per the new statute. Is this possible given the ongoing impasse?
The people perform their political role through elections. It is also the means through which the legitimacy of a political system is established. Free, fair, impartial and periodic elections based on adult franchise are a pre-requisite for functional democracy. If there is strong political will and determination, elections to the local, provincial and federal units are possible, but the existing reality points otherwise. It is the duty of all the constitutional forces to create a political environment conducive to holding the elections as spelt out in the constitution. Holding the polls within the given timeframe is the key to implementing the national charter. Mainly, it is the duty of the parties in the government to create favourable political situation for the election to happen in time. The Madhes-based political parties should be responsible for holding the elections before Magh 7, 2074. If the date of the election is announced, I think all the parties represented in the parliament will take part in the election with their reservations about the constitution’s provisions.
The other day, the government decided to write to the Election Commission to make preparations to hold the local polls from the end of Baisakh to Jestha 10, 2074 BS. But the fate of this election seems to be uncertain with the Madhesi parties threatening to boycott it.
The Madhes-based parties have issued threats against the elections if they are held without addressing their demands, but we should not forget they are also partners of the present coalition government. In my opinion, if the date of poll is declared, the Madhesi parties will also join the election. They should go to the people with their reservations about the constitution.
Some important bills related to the local polls have been approved from the House. Are these laws sufficient to ensure fair and free polls?
Major laws related to the election have already been passed by the parliament. If a favourable political environment is created and institutional arrangements are made, the new electoral laws are sufficient to conduct free, fair and impartial elections.
The number of local units as proposed by the Local Level Restructuring Commission has come into controversy. How can it be resolved?
If the Commission’s recommendations are not reasonable or appropriate, the government can further work on them to make them more acceptable to all political forces.
Would you like to add anything?
Framing of the constitution, contents of the constitution and implementation of the constitution are vital aspects of any democratic constitution. In this context, the present constitution, written by the elected CA, is a democratic charter that has institutionalised all the prerequisites of a democratic system even though it is an ambitious and populist. Now it is the responsibility of all the political forces to implement it effectively and appropriately. Elections are the only means to enforce it.
coppied from The Rising Nepal