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Constitution cannot be implemented

JagdisgAdvocate Jagdish Dahal had come to Kathmandu from a village in Sankhuwasawa for his education. Dahal has been teaching in various collages in Kathmandu after receiving his degree in constitutional politics. Since the last two decades he has been practicing law at the Supreme Court. He is also working as a consultant for many banks like the Nepal Investment Bank, Himalayan Bank and Asia Development Bank. Dahal talked to People’s Review on some legal issues including the new constitution. Excerpts as given below:

Q. The court is in chaotic situation after the promulgation of the new constitution. The Supreme Court head is working at the capacity of an acting chief justice and the posts of other SC judges are yet to be filled. Has this situation arisen due to self-interest of the political parties?

A: It would not be wrong to say that this situation is due to the self-interest of the political parties. All the concerned people like the lawyers, parliamentarians and the leaders of different parties are trying to fulfil the vacant positions with their own party people. They even want to fill the position of chief justice in similar fashion and not in a free, fair and democratic manner where a capable candidate can be selected. Therefore this chaotic situation has been seen in the judiciary.

Q. Are the political parties politicizing the court?

A: One has to say yes looking at the recent activities in the judiciary. However this cannot be clearly seen in the speeches made by various parties but can be sensed. The parties fulfil the post in the judiciary and act according to their might which I believe is politicization.

Q. What about the role of Nepal Bar association?

A: The elected officials of the Association are also not neutral and not without vested interest. They all seem to have one or the other self-interests and make the association only a stepping stone to fulfil their political or selfish desires. Therefore the Bar seems to be inactive and looks very weak.

Q. What is your opinion regarding the verbal battle going on between Bar Association and the Supreme Court at present?

A: This is, but natural. In this present day everyone can speak. If a person speaks it becomes a statement. The basic question is why the Supreme Court should have brought out a statement in the first place. After the statement of the Supreme Court it is but natural for the Bar Association to come out with a statement.

Q. It has already been eight months since promulgation of the constitution. Yet, there have been seen different hurdles in implementation of the constitution. What could be the reason?

A: I had spoken on this issue when the constitution has just been promulgated. At that time too, I had stated that the constitution has not been promulgated appropriately as proper homework had not been done and it had not been able to address the voice of all concerned sectors. This constitution cannot be implemented long as the majority of the people do not agree to it and according to me this constitution will not be implemented. Even the so-called experts of the constitution and law did not give a thought as to what should be done after promulgation of the constitution. Therefore we are facing a lot of difficulties and obstruction in the implementation of the constitution. Looking at the activities of different political parties, it seems like the constitution will not be implemented in the right manner and therefore the constitution may become inactive.

Q: Let us talk about the courts. What is the reason for the citizens not getting justice in a quick and efficient way?

A: I feel that there has to be a positive change in the methodology of functioning of the judiciary to about a change in the implementation of the activities of the judiciary. We are still running our courts according to the “Muluki Ain” and due to this it takes time for proper justice and there is space for middlemen to be active. Therefore it natural for us to hear from the Nepali citizens regarding the delay in justice. We have to change the structure and the methodology of the present day judiciary. The present day Judiciary system is an obstruction for progress in the judiciary system.

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