Restructuring of state and judiciary

Restructuring of state and judiciary


Khimlal Devkota












We are in constitution writing process which is an important part of the peace process. Peace, constitution and socio-economic transformation are main tasks of the nation. Proper management of the transitional peroid is main duty of the major political parties. Peace process can’t be concluded without new constitution and army integration. The main objective of new constitution is to ensure restructuring of the state. Restructuring of the state doesn’t only mean federal structure of the nation or territorial division of the state but it also means territorial division of the state including restructuring of the security forces, judiciary and bureaucracy and other state organs.

State restructuring

The popular mandate of the great Peoples' War, April Movement and Madhesh Movement is state restructuring. We all are convinced that our assets are diversity but unfortunetly we have failed to manage it properly. Due to our inability to manage our resources, diversity has become the main problem of the society.

Our country is full of resources. Though we have a huge potential, we have failed to utilize those resources in an optimal level. That is why we are facings various problems. But among those problems, first of all we must find out major problem. So, the major problem is our structure of the state. Old and conservative idea of feudal mind set has created such problems. Our existing structure is based on unitary model while the nation is full of diversity. Without addressing the diversities, the people's aspirations cannot be satisfied with present structure. A central capital rules the whole country and all the resources are exploited by the center itself. Distribution of all avilable resources is unjust.

We have agreed to end old unitary structure of the country and set up a new federal model. The interim constitution has already decleared and guaranteed, Nepal as a federal democratic republican nation.

Basis of the federal structure

We have already identified major problems of the Nepalese society. Those are class, nationality, region and gender. If we are going to accept the federal model, all our problems must be addressed. Our new federal model must be a better solution of all these problems.

Federal structure should be on the basis of diseggregation. Federal unit by diseggregation are only few more examples which cannot be copied as it is. Our problems of the society is identity which is mainly based on nationality. Nationality must be differentiated from ethnicity and castes.

Our federal structure must ensure regional disparity. We must address our regional imbalance in development, access to the ruling sector and justifiable representation in every level and structure of the state and others.

Gender equality is another factor but it is limited only in slogans. Fifty per cent of the population are women. Women representation is not encouraging in every sector. Women lag behind in the society so balance of the society is not proper. Federal unit cannot be made on the basis of gender. So how to make it reverent federalism in gender perspective is a major question. Same questions applies for the Dalits as well.

Can the problem of class, another major issue of the Nepalese society, be addressed through federal structure or federalism is a big question. If we are not able to manage class problems, we can’t solve the problems of the society. We too must have take in account the big gap between haves and haves not.

Actual problem of the society is to solve the contradictions of the society. If contradictions of the society remains unchanged, only making a federal structure will not have any sense. So democracy, federalism, forms of governance, electoral system, inclusiveness all are appropriate tools of the solution of the problems.

Proposed federal

structure

Federal structure of the country must be made on the basis of the identity and ability. When the country was in conflict , there were nine autonomous regions. It was practiced also as a parallel power. After the negotiation we are in great debate whether the federal structure should be done on the basis of nationality or geography. Some are trying to make it on the basis of ethnicity so ethnic federalism others are entails against it. Some are in favor of north south division and others are against it. So, we are in a deadlock in this issue so it is needed to make proper balance and make it practical.

Now, CA state restructuring committee has proposed 14 federal units but in terms of size and capacity it is criticized from some corner. From the identity corner it is accepted but it is still not sufficient for other identities in a sizable number. So we can make it scientific and practical. But we debated on size and shape and boundaries only and focused less on jurisdiction and power.

Best option for federal unit

Federal structure is not a final solution for all types of problems. It is only a tool of the solution of the different kinds of problems.

We have bitter experiences of the unitary state monarchy and exclusion culture in the past. So let’s agree on identity and capacity. If identity is fully recognized then we must focus on its capacity. Identity and capacity make proper balance in federal structure. Balance can be made from power and jurisdiction not only in identity.

Basic feature of the federal units

• All demerits created by the past unitary state must be removed.

• Isolation feelings of the different parts of the people and community must be addressed.

• Service delivery to the people must be guranted.

• Gap between people and leader must be minimized.

• Rule and development by their own real represented must be visible.

• Inclusion of all the communities in policy making level and decision making level must be guaranteed.

• Basic elements of the federal units.

• Power and jurisdiction must be defined. Center province and concurrent list must be clear.

• Dispute settlement mechanism is needed in a professional manner.

• Financial commission and equal distribution of power and resources must be ensured.

• Collaboration and cooperation between and among the provinces and center must be clear.

• Autonomous and right to self determination must be on clear understanding.

• Core value of federal system

• National unity, Integrity and sovereignty are a common and core values of the nations.

• Cooperative and coordination each other is a prerequisite.

Judiciary and its restructuring

We fought against feudalism and established a republican system. Still there are many forms of feudalism prevailing in the Nepalese society which is urgently needs removed. Those organs where feudal forms are still remaining is judiciary. So, regarding judicial restructuring it is needed to remove its feudal forms in structure functions and functionaries.

For the restructuring of the judiciary we should do as following:

• Need to change unitary to federal mode

• Inclusive appointment

• Old mindset with feudal forms

• Approach of justice delivery

• Accountable to the people

• Appointment removal and interpretation of the political matters

Before talking about judiciary we should first determine the forms of governance. Presidential forms, parliamentary forms and direct elected prime minister which different modalities on forms of governance. If we fixed on executive president then we need to make is presidential proposal and senate approval if we accept parliamentary system then we can make it others one. If we need parliamentary supremacy then supreme can be only parliament peoples representative. Then interpretation of the law and constitution and which is related with political and policy matters it must be given to the democratically elected representative. If presidential system is choosen then questions of seperation of power is in existence if parliamentry system is taken then seperation of power does not comes.

According to our Interim Constitution we must have made our judiciary compatable with spirit of the peoples movement. In a New constitution we need to address inclusion,accountable to the people and structure as a federal setup and new mind set.

Selection of the judges must be taken as an opprotunity to make them familiar and accountable to the people. Election could be fine if it is no possible we can make it gureented right person right place. Judges must be in touch with people. Judges must be accountable to the people through their representatives.Appointment and removal process involvement of elected representative must be insured.For this purpose we can accept name proposed by president confirmed by parliament in appointment and for removal parliament must be responsible .

If state restructuring is done properly, the people can see new features in a political system and culture. It makes proper sense of new Nepal. Judiciary is needed to make it proper correction if we able to make sure appointment removal and interpretation regarding political and policy matters Constitution has got new features.

New set of state structure after forward looking restructuring is a main agenda of the peoples war at a same time judiciary is a vital player. till now judiciary is not affected by political revolution it is still in evolutionary process. When politics is in revolutionary and judiciary is in evolutionary process then difference between evolution and revolution can be contradictory. It can be creats others contradictions. let taking this fact in mind lets make restructuring of the state and judiciary.

In conclusion we are facing the problems of federalization of the country. We have to address liberation movement and nationality movement. In this concern castism and ethnicity can be in hihenderedness insted of nationalities liberation movement. Recationary camp is fully concentrated on ethnic clash . Therefore, we marxist must be careful on it and focused on liberation. This is a high time and approperiate topic to state restructuring agenda. Anti federalist idea is taking place to make it faliuer by ethnic clash and we marxist must have a careful on it and have to play vital role to make it federal units in success. •