Senior advocate Radheshyam Adhikari is a prominent public intellectual in Nepal who has spent nearly two decades in parliament. He has been a staunch advocate for the rule of law. The issues at the center of the national political debate in recent times include the accountability of political leadership, the process and subject of constitutional amendment, and the role of the court in balancing the powerful government. Tufan Neupane spoke to Kantipur: The morning after the new government was formed, former Prime Minister KP Sharma Oli and former Home Minister Ramesh Lekhak were arrested without a court warrant. As a senior advocate, what was your first reaction when you heard the news?

They were arrested in connection with the implementation of the Gauri Bahadur Karki Commission report, and it was said that an investigation would be conducted into the issues identified in it. At the same time, it was said that a committee would be formed to study the security forces related to it, and that they would not be immediately implemented. When politicians were surrounded at night and arrested in the morning, permission was not even obtained from the court.
In my view, if the person is in a state of escape or is in a state of destruction of evidence and cannot be arrested immediately, then he should be arrested in this way only. Urgent arrest warrants are issued for special, exceptional circumstances. In normal circumstances, permission is first obtained from the court. This was not done in their case (Oli and the writer). It is clear that the law used in exceptional circumstances was used there. 

What was the reason for doing so? To say that they can escape – the former Prime Minister and the former Home Minister are kept under security for their own protection. Wherever they go, they are under the control of the state security apparatus. The government was not in a position to prove in court that the former Prime Minister and the former Home Minister were in a position to escape in the middle of the night. Secondly, on the question of whether they would destroy evidence, they had already left power and new people had come to power. Therefore, they were not in a position to destroy evidence. There was no sign of such a thing. Therefore, the government was in a hurry in the way they were arrested using a warrant that did not work.

Why did the government act so 'hastily'?  The people in the government may have thought that they came from the Gen-G movement and that we will not be happy without arresting the leaders. That view must have led them to the situation where they had to be arrested. However, my view is that it was not legal. 
If it was not legal as you said, then who has the first responsibility to address it? The government, the court, the parliament or someone else? 

There is a fundamental question of who should establish the rule of law. I think that the people's elected government should establish the rule of law. If someone breaks the rule of law, it should only be a matter for the court to look into later. Therefore, the first responsibility belongs to the government. 
The government should accept that the people have sent it to say, 'You rule under the rule of law'. Therefore, if the people's elected government does not adopt the general principles of law and makes the exception into a rule, it cannot be considered a responsible government. An accountable government is when it follows the general law and clearly shows the exceptional situation. Otherwise, it seems that we are not a country operating under the rule of law. It seems that we are not under an accountable governance system. It seems that what kind of governance system is there in Nepal when it comes to abducting personal freedom. That is not a good thing. 

In the last 35 years, such movements have repeatedly taken place in our country, but those responsible for the loss of people and property have never been held accountable. The reports of the Mallik, Rayamajhi and Lal Commissions have not been made public or implemented. Due to which the question of political accountability has remained incomplete for three decades. Now the government has said that it is trying to hold the political leadership accountable for the loss of people and property in the Gen-G movement. However, if no one is always held accountable, won't impunity flourish?

There is always a limit to political leadership. Even if the political system changes due to the movement, the new government has to work together with the employees and security personnel who follow orders in the movement. That the battle had to be won, with all the mechanisms brought in new. Otherwise, whenever an agreement is reached and the orders are finalized, all the manpower working on the 'frontline' will be the same. The army is the same. The police is the same. The civil service is the same. The intelligence is the same. The political leadership that came with the 'Popular Movement' does not have any of these. The new government needs those bodies from the beginning. That is why the reports of yesterday's commissions could not be implemented. That does not mean that they should not be implemented today either, it can be. However, the method should not be violated while implementing it. 
Looking at the Karki Commission's report, there are many problems in it. The commission was given a mandate to look into the incidents of both Bhadra 23 and 24. The commission looked into the incident of the 23rd. However, they themselves admitted that they could not look into the incident of the 24th. Therefore, that report is incomplete, incomplete. If this is accepted, that report is unacceptable. 

Second, the report is flawed in another sense as well. They are suggesting that this or that issue should be addressed. It is not that the prosecution should use this section. It is not that action should be taken under this section. 

Another mistake this time is that the report of the Mallick Commission and others was given to the head of the body that decides to prosecute the case of the Government of Nepal (Attorney General), this time it was given to the Prime Minister. This time, the Attorney General has not been appointed. The office bearer under whose supervision the prosecution should have been carried out is not there. 

Therefore, when running a state, we should look at the whole picture. We should look at what the long-term impact will be. I do not know whether it was right yesterday or not, I will leave that for the future. However, the government at that time left it saying that it was not necessary to prosecute. Therefore, a national perspective should be formed on such issues. 

In the recent incident, Oli and the writer certainly did not want children to die from bullets when they were in power. However, those in power must take moral responsibility for what happens in the 'oppression'. Sometimes, some governments may have made a 'minute' decision and said 'no one should be released'. If such records exist, it is a different matter. If not, how can the issue of criminal liability be proven in court? That would be a daring act.

If there is a rule of law, such matters should be taken into account. If someone has given an order and acted beyond the limits, then action will be taken. But when working according to the law, the state cannot take a different approach.

Another issue, the Karki Commission report has not even been formally made public. The government has not even studied it. When the government suddenly talked about implementing it, the security personnel said that if they are going to prosecute according to the report, then they should be allowed to see the report, and only then did they ask for the report - in the middle of the night. Even after that, the government has not read the report in its entirety. No conclusion has been drawn. No political perspective has been formed. Therefore, the urgent letter that has been issued to arrest the Prime Minister and the Home Minister to immediately prosecute them is like a dictatorship. This is not in accordance with the rule of law. 

This government should answer why the then Home Secretary and CDO were released? In the case of security personnel, they had already said that they would only look into them by forming a committee. But why did they do the same thing in the case of civil servants unrelated to security personnel? Why were they only targeted politically?

What do you think? Why was that done? 

I had also said in the Supreme Court during the debate – 
This government was formed by gaining strength from the Gen-G movement. Therefore, it feels that if we fail to show respect for the mandate, there is a possibility that we will also be excluded, so the political view of arresting them has become. They want to create a situation where we started the work by arresting them, but the court stopped it. And, the court should help the government in that. I had said this in court. They also know that it is difficult to stand in court on these issues. However, even then, if we do not arrest them, the streets will heat up again. The support of the court is needed to cool the streets. I had argued that this court should provide that support to the government. That is what happened. 

When talking about political accountability in the past, we discussed the commissions formed in the context of the movement. However, no one has been held accountable for the human rights violations committed during the Maoist armed conflict. The victims have not received justice. The accountability of the administrative and political leadership has not been established even in the matter of corruption. When talking about the rule of law, the end of impunity also comes with it. How do you view that? 

There is a circumstantial reason for the non-completion of transitional justice. After joining the peace process, the Maoists became the first party to form the government. This was understood politically as the people's approval of them. The Prime Minister of the country became a Maoist. After that, the talk of transitional justice went on. Even after that, no single party got a majority. These issues did not get priority in the political game of forming a government together. 
Next, my view on corruption is a little different. What we all believe here is that the responsibility of reducing corruption lies with the authority. I have been saying for a long time that it is completely wrong to think that the authority alone is responsible for it. We, the citizens, are the ones who should hold the government accountable. If the government wants to reduce corruption, it can. After being in government, the leadership can do it. The Prime Minister will mainly work on it. After that, it is the responsibility of the ministers. The government will turn a blind eye to reducing corruption and create a separate island and hand over the responsibility to the authority.

Therefore, to reduce corruption, the government had to first change the policy, change the law, and then eliminate the errors in implementation. Corruption is not something that the authority can look at. The authority will only do whatever is left after the government has made all the efforts. However, what is stuck in everyone's minds is that the government has no responsibility in preventing corruption, it is the responsibility of the authority. The government also believes that it is not our responsibility but the work of the authority.

Now let's talk about amending the constitution. The government has formed a committee under the leadership of the Prime Minister's chief political advisor. How do you view this process? 

The Prime Minister has formed that committee and is trying to start a debate. I have nothing to say about the person. We take the Prime Minister as someone he trusts. But, the question is, should the government say that we want to advance the perspective of the Rashtriya Swayamsevak Sangh (RSS) regarding the constitutional amendment, or should the government come up with its 'position' that we want amendments to this or that issue. If that is not the intention, then all the parties have already said in their manifestos that a constitutional amendment is needed. Therefore, an academic group should be formed and said, "You study, we are open." Doing so would have made it easier for the government. The government would not have been bound. That committee would have discussed with various parties. However, what is happening today is that the Prime Minister has appointed his political advisor and said that other parties should join the debate. This was not an appropriate process. 
Yesterday, immediately after the Congress-UML reached an agreement to amend the constitution, I had said - what kind of thing is this? The constitution is not just for UML and Congress. It is a constitution made by the Constituent Assembly. And even those who have only one seat in that Constituent Assembly can say that they will complete their agenda tomorrow. Do not prohibit anyone from implementing the constitution. If you two parties come together, will the amendments to the constitution be accepted by others? No. Therefore, that is not the way to get the work done. 

Even now, the process of forming a task force, committee or commission of experts and requesting a report would have been appropriate. Then, it would have been up to the government to accept or reject the ‘report’ given by them. If they had done so, their hands would have been open. But that is not the situation now.

One of the main issues seen in the discussions on amending the constitution is the electoral system. What is your view on the debate that is currently going on about electing the chief executive through direct elections and moving the parliament to full proportional representation? 

I am very afraid that if we go for a directly elected executive, we will be heading towards an ‘authoritarian rule’ in this country. I am not in favor of that. Why am I in favor of the parliamentary system? Despite its many shortcomings, it is ‘pro-people’.

What is the basis for your fear? 

America is where the directly elected executive has done the best job. We have seen what happened in Latin American countries when we followed America. In Asia, there have been attempts in the Philippines and in South Asia, in Sri Lanka. Nowhere has it set a good example. Now, problems are starting to appear in America too. However, it seems that America will still be able to cope because the institutions there are strong. 
Another issue is that we feel that we should be part of South Asia as a whole. For that, we should be connected to the governance systems of South Asian countries. It is not appropriate to remain separate from that. 

What about the fully proportional electoral system? 

I want to say this clearly – fully proportional is a system that strengthens the ‘authoritarianism’ of the party ‘bosses’. Because once they control the party, we have seen how they work. There is no change in leadership. Now the same person will always be in charge, he will choose the closed list for proportional representation, he will also decide who to put in what order. And the candidate will not have to ask for votes from the people, he will have to please the party chief. If the party chief chooses, no matter how unpopular the person is, he will be elected. If that is accepted, there will be a parliament that is far from the people.
The parliament should be proportionally inclusive but it should be directly elected. That can be done. In our context, even if a voter has to be hospitalized or the police unnecessarily detain him, the person who wins the election should be involved in the daily life of his constituents in some way or the other. By doing so, they will be freed from many 'genuine grievances'.

Therefore, this indirect election system should not be made. By doing so, we may have to pay a huge price from the elections. Republic, democracy (accountable governance), proportional inclusiveness and federalism are the cornerstones of this constitution. If one of these is removed, the constitution will collapse. The political representation that has been achieved through the current proportional system and the 'colorful' parliament that has been formed cannot be achieved otherwise. However, I think that it can be achieved through direct elections.

While discussing the amendment of the constitution, many have now raised questions about federalism. What is your view on that? 

The demand for federalism has been with us since 2007. The Nepal Terai Congress led by Vedananda Jha had demanded federalism. Since he himself entered the panchayat, that agenda was lost. During the reign of King Mahendra, 75 districts and 14 zones were created. Later, during the reign of King Birendra, we went to 5 development zones. This was done because it was believed that economic and social imbalance would not be good for the country, and the aim was to restore regional balance. 
Then, immediately after the referendum, Gajendra Narayan Singh opened the Nepal Sadbhavana Council and demanded federalism. Even though the Maoists had created a caste-based state, they fought for 10 years to restructure the state. Then the Madhesh movement happened. Everyone knows that. However, we forget the background of the past seven years and understand federalism as a demand of Madhesh only. It is not only needed by Madhesh. Today, the Far West also needs it, and the Koshi Province also needs it. 

Federalism means that we make our own decisions. We develop ourselves, let us do that. Now many say that federalism has become corrupt, costly, and burdensome. I want to tell them that we have to accept that there are diverse castes, diverse religions, and diverse languages ​​in the country. Therefore, keeping this issue in the background, abolishing federalism is not good for the country. Moreover, it is not right to take away rights that have already been given. In fact, dishonesty in federalism is being committed by the federation itself. An attempt is being made to make federalism a failure through the alliance of the political and administrative leadership of the federation. That should not be allowed to happen. 

What are the other issues of constitutional amendment? 

There are many other issues. For example, is the Constitutional Council necessary? The appointment work it does is mainly the work of the executive. We gave it to the council, but was it successful? We created the Judicial Council. How has it worked? Has it been successful? What does our experience say? Let's look at the example of parliament itself, if a bill sent from the House of Representatives to the National Assembly is not sent back within 60 days, the House of Representatives can immediately pass it. However, the House of Representatives can keep the bills sent by the National Assembly for 5 years. Many such bills are still sitting there. Such shortcomings exist in the legislature, judiciary, and executive. 
In the context of the executive, when there is no majority, should the opportunity to form a government not be given to the largest party first? Similarly, it was said that a no-confidence motion should not be held for two years, which is correct. However, the budget will not be passed for two years. What happens if the policies and programs are not passed? Will the government remain in place for two years?

Another issue, have we become too ‘rigid’ in referendums? Why is there a system that requires two-thirds of both houses to go to a referendum on all issues? While keeping the system that requires two-thirds on certain issues of national importance, referendums can be held on many other general issues by a majority decision of the parliament. We have been very stingy. We can distinguish which issues require a simple majority and which issues require a mandatory two-thirds. The same can be done in amending the constitution. 

Let’s change the context, the government has become powerful. The opposition in the parliament is weak. The role of civil society and the media is also shrinking. What impact can it have on democracy in such a situation? 

Parliament is an institution that comes from the results of periodic elections. Therefore, the number of people there is not a big issue. The current fear is about ‘self-censorship’. If citizens stop speaking out because of the ‘trolling’ that is happening on the basis of expressing their opinions, democracy will be in danger. 
I am not too concerned about the number of members of the parliament. Because, before, the Congress and UML governments also had almost two-thirds, how did the Rashtriya Swayamsevak Sangh (RSS) sweep it? That is why the parliament is an institution formed only for a period of time. If we do not keep in mind the reality that if we act beyond the feelings of the people, it will be reversed, then it will be a danger to them. Therefore, this right to speak should not be stopped. That is why I do not know about the number of members of the parliament. 275 people is not a large number, they are the 'trustees' who are sitting to make laws. The main number is in the millions beyond that. The main question is whether the opposition listens to its voice and represents it or not. It should be heard and represented. There is 'space' for the opposition there. 

Finally, an important part of balancing the government is the judiciary. How can the judiciary protect itself from being overshadowed by a strong government? 

It does not have a shadow in other 'cases', it can fall in 'politico-legal' cases. That happens all over the world. The court always looks at the path that ‘popular’ opinion is taking in a situation. The same can be seen in the example of Al Gore and Bush in the 2000 election in the US. The role of the US court was discussed all over the world. In a discussion held when an appellate judge came to Nepal, we asked, ‘How has the US judiciary maintained its sanctity for more than 200 years?’ He said, ‘We are not far from public opinion.’
The law should also be taken along with public opinion. For example, the US court initially accepted slavery. However, after the abolition of slavery, it said, ‘We are all equal citizens.’