Reclaimed Dasein
16th July 2009, 10:07
As some of you may know, I went to Nepal to document the Maoist Revolution there. I interviewed members from all of the main 5 parties excluding the Tarai-Madhesh Loktantrik Party which only won 9 Seats. To that end, I'm transcribing our interviews for public consumption before we put out the documentary. I'll be releasing them periodically as I finish them. I am G. We have an interpreter who was wonderful, but I shall not name. Any time you see (cross talk) or the like it was because the interviewee decided to talk to the translator. I've tried to faithfully reproduce these as closely as possible.
Also, I would remind you that our project was to create an accessible documentary for American consumption. Thus, our methodological question was "who is the rightful ruler of Nepal?" We asked questions along these lines. I did not get into the value of the RIM or the RCP's critique of the People's War. Nevertheless, I hope you find this valuable. It is only a rough draft, but it provides an insight into the Nepali situation.
This was by far my favorite interview. Mr. Bhandari's responses were all in english (despite the fact he initially intended to use a translator) and showed an incredible level of sophistication and general knowledge. Please keep in mind these are essentially unedited transcripts and that English is not his first language. If anything seems awkward or poorly transcribed, the fault is mine not his.
Part 1 The New Judiciary
G
Could you please tell use your name, organization, and position.
YAKRAJ BHANDARI
My name is Yakraj Bhandari. And I'm involved the united CPN Maoists. And now, I'm a member of the constitute assembly of Nepal. Especially, I'm involved in the committee of the judicial system of the constituent assembly. It is because my background is the lawyer. I'm a lawyer I work in the judicial system.
G
How will the Judiciary system of the New Nepal work? What is the functioning of democracy in Nepal?
YAKRAJ BHANDARI
I use Nepali Language yes?
(Nepali)
INTERPRETER
The judiciary is the main sectors to making the democracy of the country.
YAKRAJ BHANDARI
And... In the past in Nepal, there was a feudalism system. So the judiciary was not free and not capable. It was dominated by the feudalism society. And the leader of the feudalist system was the monarchy, it was the king.
Now, you have forty years, now we are in the transitional phase, not of just the judiciary system, but the entire Nepali politics, the Nepali system. The Nepali people, we want change. First of all, the whole system changes, especially in the judiciary system.
So, we are making a new constitution and we are discussing also, especially how the judiciary system should be in Nepal. Some say say the judiciary should be like the past. We are saying the judiciary system should be new. What is the new? It should be under the control and it should be monitored by the people.
First of all, people are all. The sovereignty should be based on the people. People should control the judiciary. The judiciary should be responsible, accountable, to the people.
So one thing is this, the separation of power in Montesquieu, but in the whole I saw no separation of power in the world. In the French system, there is no separation power like Montesquieu. I think obviously, there is no separation of power UK also. And so,we want in the context of Nepal. What type of judiciary we need. So we are discussing how can responsibility and accountability with the people we need.
G
What ways, mechanisms or means do you see as necessary to make the judiciary to accountable to the people.
YAKRAJ BHANDARI
Ah, yes. People sovereignty should exercise from the people's congress, peoples representative in system, we can say anything congress, parliamentary, legislature, or people's congress, everything we can say from anywhere. It doesn't matter, but legislative power should be
(interpret talk)
People supremacy should be in parliament and legislature.
And so, legislature should make the appointment of judges, federal judges. Legislature should appoint the federal judges and judiciary and parliament also. So, first of all, in the parliament there should be a formational committee. Any type of the name, we can say, but one committee should be formed in the legislature, the subcommittee should appoint the judges and terminate
(cross talk)
Recall, ah yes.
G
So in this case, do you think that the judiciary should just be an extension of the legislative branch?
YAKRAJ BHANDARI
The judiciary system should be connected to the legislature. The legislature is an institution where all representatives are there, all people's representatives. So, in the legislature there should be a subcommittee. First of all, the committee collected the names of the judges, candidates of the judges. And the sub-committee, first of all, should prepare
(cross talk)
Name list. And the name list of the subcommittee with the whole legislature, the full house, and the house should pass the proposal. After that, the judges for the appointment should go with the president and the appointment letter should be given by the state chief.
G
Do you see any dangers arising from not having an independent judiciary?
YAKRAJ BHANDARI
No, "in this system the judiciary not having independence" I don't agree with this argument. Actually, the judiciary becomes free from this system.
(cross talk)
Please
INTERPRETER
He means to say that if we implement this system the parliament will choose the judges and pass them with the full house. And if that system will be implemented, then in that case the system will be fully independent.
YAKRAJ BHANDARI
It is because, I'm a representative of the people. When I go to the people for vote and I commit to them "Yeah please give me your vote. I will protect your sovereignty: your government right, your education right, your employment right, and your peace and helpful life. In every sector, I commit for you." And people agree, and people give me a vote. After that, when one judge is corrupt. In that situation, again, when I go to the people and people can ask me, "Oh what about it did you do? I gave you the vote." But I could not get the peace and I could not get the justice. People can say in that situation, "what can I do?" If I don't have any right to the parliament and the appointment of judges, how could the people's sovereignty exercise. Actually people's sovereign. How to exercise? So, in this principle, soldier and judge should have accountability to the people.
In the US, also, some judges, I have heard are appointed by the election system. In China, judges are appointed by the People's Congress. And in the UK, judges are appointed by a mechanism with the house of lords. In India, in the past, with the election system in Nepal, it has one committee has power, said the judiciary council, but on the judiciary council there are other people out of the parliament, so actually in this system. The judges they do account to the people. What type of mechanism should have power? So actually, people's judges should do for the people. They must realize, but now there is no people's justice.
It's a big problem in Nepal's past. There was one constitution that was made by the king. At that time, in the parliament. The prime minister dissolved the parliament and one people went to the court. And the court gave the verdict "Oh, it is right. Yes, it is right. It is because the prime minister dissolved the parliament, it was right.” After one year, again, the next prime minister dissolved the parliament. At that time, the same question arises, but the court gives a verdict differently. “Oh it is wrong. The prime minister doesn't have this type of right. It is wrong. Two types of verdicts were given. At that time, in that constitution there was no accountability to the people. People could not do anything.
So we
(cross talk)
INTERPRETER
We have experience those incidences and at the same time the court gave the decision that the prime minister could dissolve the parliament and after one year the same court gave the decision that, “No, no. No prime minister could dissolve the government.” So why doesn't the judicial system have any accountability to the people? And the people can't do anything.
YAKRAJ BHANDARI
Now also, there is one big problem coming now, I think. You have also heard in the parliament, all day there is an objection...
INTERPRETER
These days the parliament is on strike. The parliamentary meeting is not going smoothly.
YAKARAJ BHANDARI
The question is that the president who with the constitution- one party, my party raised, “this is a coup of the constitution by the president.” So, the president should
(cross talk)
INTERPRETER
take his decision back.
YAKARAJ BHANDARI
Yeah, but the president is not ready, and the government is not ready. So, in compulsion, we are striking. Now in this case, now it is in the court, but we don't have any trust with the judges. They are not actual people's representatives.
Maybe they are scholars, they are experts, ok, but the question is political and ideological. And the question is, “people's rights, how to resolve it and how to secure it. But in the people's side, the judges do not know only they are experts. An expert is one thing, and politics is the next thing, and the people's representatives the next thing. So, I know the judges should be experts, but the expert is not the big thing. The big thing is people's opinion, people's desires, people's supremacy. But they do not know this because they are coming from the caste group and bureaucrats and
(cross talk)
civil service. They are no people's representatives. They don't have accountability to the people. So it is a problem. So, I say, in our opinion, the judges should be accountable to the people. So we are discussing, very seriously discussing, how the type of judiciary with the Nepali people is formed.
Also, I would remind you that our project was to create an accessible documentary for American consumption. Thus, our methodological question was "who is the rightful ruler of Nepal?" We asked questions along these lines. I did not get into the value of the RIM or the RCP's critique of the People's War. Nevertheless, I hope you find this valuable. It is only a rough draft, but it provides an insight into the Nepali situation.
This was by far my favorite interview. Mr. Bhandari's responses were all in english (despite the fact he initially intended to use a translator) and showed an incredible level of sophistication and general knowledge. Please keep in mind these are essentially unedited transcripts and that English is not his first language. If anything seems awkward or poorly transcribed, the fault is mine not his.
Part 1 The New Judiciary
G
Could you please tell use your name, organization, and position.
YAKRAJ BHANDARI
My name is Yakraj Bhandari. And I'm involved the united CPN Maoists. And now, I'm a member of the constitute assembly of Nepal. Especially, I'm involved in the committee of the judicial system of the constituent assembly. It is because my background is the lawyer. I'm a lawyer I work in the judicial system.
G
How will the Judiciary system of the New Nepal work? What is the functioning of democracy in Nepal?
YAKRAJ BHANDARI
I use Nepali Language yes?
(Nepali)
INTERPRETER
The judiciary is the main sectors to making the democracy of the country.
YAKRAJ BHANDARI
And... In the past in Nepal, there was a feudalism system. So the judiciary was not free and not capable. It was dominated by the feudalism society. And the leader of the feudalist system was the monarchy, it was the king.
Now, you have forty years, now we are in the transitional phase, not of just the judiciary system, but the entire Nepali politics, the Nepali system. The Nepali people, we want change. First of all, the whole system changes, especially in the judiciary system.
So, we are making a new constitution and we are discussing also, especially how the judiciary system should be in Nepal. Some say say the judiciary should be like the past. We are saying the judiciary system should be new. What is the new? It should be under the control and it should be monitored by the people.
First of all, people are all. The sovereignty should be based on the people. People should control the judiciary. The judiciary should be responsible, accountable, to the people.
So one thing is this, the separation of power in Montesquieu, but in the whole I saw no separation of power in the world. In the French system, there is no separation power like Montesquieu. I think obviously, there is no separation of power UK also. And so,we want in the context of Nepal. What type of judiciary we need. So we are discussing how can responsibility and accountability with the people we need.
G
What ways, mechanisms or means do you see as necessary to make the judiciary to accountable to the people.
YAKRAJ BHANDARI
Ah, yes. People sovereignty should exercise from the people's congress, peoples representative in system, we can say anything congress, parliamentary, legislature, or people's congress, everything we can say from anywhere. It doesn't matter, but legislative power should be
(interpret talk)
People supremacy should be in parliament and legislature.
And so, legislature should make the appointment of judges, federal judges. Legislature should appoint the federal judges and judiciary and parliament also. So, first of all, in the parliament there should be a formational committee. Any type of the name, we can say, but one committee should be formed in the legislature, the subcommittee should appoint the judges and terminate
(cross talk)
Recall, ah yes.
G
So in this case, do you think that the judiciary should just be an extension of the legislative branch?
YAKRAJ BHANDARI
The judiciary system should be connected to the legislature. The legislature is an institution where all representatives are there, all people's representatives. So, in the legislature there should be a subcommittee. First of all, the committee collected the names of the judges, candidates of the judges. And the sub-committee, first of all, should prepare
(cross talk)
Name list. And the name list of the subcommittee with the whole legislature, the full house, and the house should pass the proposal. After that, the judges for the appointment should go with the president and the appointment letter should be given by the state chief.
G
Do you see any dangers arising from not having an independent judiciary?
YAKRAJ BHANDARI
No, "in this system the judiciary not having independence" I don't agree with this argument. Actually, the judiciary becomes free from this system.
(cross talk)
Please
INTERPRETER
He means to say that if we implement this system the parliament will choose the judges and pass them with the full house. And if that system will be implemented, then in that case the system will be fully independent.
YAKRAJ BHANDARI
It is because, I'm a representative of the people. When I go to the people for vote and I commit to them "Yeah please give me your vote. I will protect your sovereignty: your government right, your education right, your employment right, and your peace and helpful life. In every sector, I commit for you." And people agree, and people give me a vote. After that, when one judge is corrupt. In that situation, again, when I go to the people and people can ask me, "Oh what about it did you do? I gave you the vote." But I could not get the peace and I could not get the justice. People can say in that situation, "what can I do?" If I don't have any right to the parliament and the appointment of judges, how could the people's sovereignty exercise. Actually people's sovereign. How to exercise? So, in this principle, soldier and judge should have accountability to the people.
In the US, also, some judges, I have heard are appointed by the election system. In China, judges are appointed by the People's Congress. And in the UK, judges are appointed by a mechanism with the house of lords. In India, in the past, with the election system in Nepal, it has one committee has power, said the judiciary council, but on the judiciary council there are other people out of the parliament, so actually in this system. The judges they do account to the people. What type of mechanism should have power? So actually, people's judges should do for the people. They must realize, but now there is no people's justice.
It's a big problem in Nepal's past. There was one constitution that was made by the king. At that time, in the parliament. The prime minister dissolved the parliament and one people went to the court. And the court gave the verdict "Oh, it is right. Yes, it is right. It is because the prime minister dissolved the parliament, it was right.” After one year, again, the next prime minister dissolved the parliament. At that time, the same question arises, but the court gives a verdict differently. “Oh it is wrong. The prime minister doesn't have this type of right. It is wrong. Two types of verdicts were given. At that time, in that constitution there was no accountability to the people. People could not do anything.
So we
(cross talk)
INTERPRETER
We have experience those incidences and at the same time the court gave the decision that the prime minister could dissolve the parliament and after one year the same court gave the decision that, “No, no. No prime minister could dissolve the government.” So why doesn't the judicial system have any accountability to the people? And the people can't do anything.
YAKRAJ BHANDARI
Now also, there is one big problem coming now, I think. You have also heard in the parliament, all day there is an objection...
INTERPRETER
These days the parliament is on strike. The parliamentary meeting is not going smoothly.
YAKARAJ BHANDARI
The question is that the president who with the constitution- one party, my party raised, “this is a coup of the constitution by the president.” So, the president should
(cross talk)
INTERPRETER
take his decision back.
YAKARAJ BHANDARI
Yeah, but the president is not ready, and the government is not ready. So, in compulsion, we are striking. Now in this case, now it is in the court, but we don't have any trust with the judges. They are not actual people's representatives.
Maybe they are scholars, they are experts, ok, but the question is political and ideological. And the question is, “people's rights, how to resolve it and how to secure it. But in the people's side, the judges do not know only they are experts. An expert is one thing, and politics is the next thing, and the people's representatives the next thing. So, I know the judges should be experts, but the expert is not the big thing. The big thing is people's opinion, people's desires, people's supremacy. But they do not know this because they are coming from the caste group and bureaucrats and
(cross talk)
civil service. They are no people's representatives. They don't have accountability to the people. So it is a problem. So, I say, in our opinion, the judges should be accountable to the people. So we are discussing, very seriously discussing, how the type of judiciary with the Nepali people is formed.