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ARTICLE

 
CA Does Need Time To Write Constitution

Abhishekh Adhikari

The controversy over the Supreme Court decision in the case of Bharat Mani Jungam vs Prime Minister et al (November 25, 2011) has not died down. The Constituent Assembly (CA) and the Office of the Prime Minister can still appeal against the rejection of the review petition by the Supreme Court.  The Supreme Court, in its verdict, had forbidden the Constituent Assembly from further extending its tenure. It also showed light as to what could be done to defuse the crisis, to maintain the rule of law, people's faith on judiciary and to produce a constitution. Rather than extending the CA tenure through repeated amendments of the constitution, the Supreme Court directed the CA to either complete the constitution drafting process and produce a constitution within the last extended period of six months or regain legitimacy for the Constituent Assembly through a referendum or go for a fresh election for the Constituent Assembly or follow any of the constitutional alternatives. It suggested the CA should proceed through any other constitutional means in line with the letter and spirit of the Interim Constitution.  The issue drew everyone's attention. The case has a serious implication for the constitutional law of Nepal.

More attention was drawn by the fact that the CA and the Office of the Prime Minister contemplated for a review of the decision of the Supreme Court. The CA members felt that the Supreme Court, through its decision, placed a hook on the unlimited powers thought to be enjoyed by the Constituent Assembly.  The CA felt fettered and wanted to explore its own possible avenues. This shows that the CA cannot produce the constitution even though there has been extension of the tenure for the fourth time. But this does not need to be a reason to panic. Like a constitutional expert, Louis Aucoin, put it, "building constitution through Constituent Assembly takes time."

There is no need to race against time and feel defeated. As it stands today, the review petition filed by the Constituent Assembly and the Office of the Prime Minister has been rejected by the Supreme Court. There are chances that the Constituent Assembly might appeal against the dirpit (rejection of the review petition by the court registrar).

Losses and gains: Implications of Review

CA Meeting

The Constituent Assembly is composed of diverse parties representing Nepali people. It's so diverse that it is not able to move forward in the constitution drafting process. There is little chance that it might turn authoritarian. However, extending its own life again and again sets a bad precedent. The path it shows for the future will be dreary and could lead to tyranny. Thus it is of concern for everyone.

The Constituent Assembly has also irritated the Supreme Court's authority and Supreme Court exercised its power checking the authority of the Assembly. It is an unusual circumstance but has been envisioned in checks and balances of doctrine of separation of powers. Leaving aside the legal implications, the monetary expenses and exhaustion of other resources in going to a referendum or electing a new Constituent Assembly must always be taken into consideration.

Is it a fight for already lost battle?

Though the Supreme Court, respecting its decorum, did not equate the competence of Constituent Assembly members with extension of time repeatedly, the big question is whether the Constituent Assembly is competent to draft the constitution or not? Should it be considered by the Supreme Court if there is faith on the Constituent Assembly members that they can produce a constitution? If the Supreme Court considers that the Constituent Assembly members incompetent to draft the constitution then it might be wise to go for fresh elections. But if the competency of the Constituent Assembly members is not questioned and it is just a time factor, then probably the Supreme Court could review the decision. People at large ought to know that drafting the constitution through constituent assembly takes time and the time ought to be given to the Constituent Assembly. If it is felt by the people that the Constituent Assembly members are incompetent to draft the constitution then we are fighting an already lost battle. It's just that we are yet to realize it. Hope is the only thing that we have and the flame of hope should not die out.

To Conclude

It will be wise to disseminate the idea that drafting constitution through Constituent Assembly takes time. Experts in the field who know it have the duty to make people aware of this fact. They have to speak rationally when their voices are being heard. This might help public come to realize the situation. A no constitution now means a tremendous loss to the nation in terms of trust, money and energy and to tag 601 creamy layer Constituent Assembly members incompetent is a loss unimaginable to Nepali society. Can Nepal live up to this? Will it not give space to undemocratic forces to spread their wings? Should Nepalese be not cautioned that foreign influences will be even more in Nepal? It's time for everyone to think rationally in their capacity and avoid petty interest and rise up to the national interest. Generations of Nepalese still have future to live and the future they envisioned must be guided by democratic principles, which tells us the story and makes us realize the value of individual liberty, rule of law and a competitive society.


Chinese PM in Nepal: A short visit but a long trail?

By Nihar Nayak

Prime Minister Wen Jiabao of China paid a short visit to Nepal (lasting four and a half hours) on January 14, 2012, stopping over on his way to the Persian Gulf. During the visit China announced an RMB 750 million (US $ 120 million or Nepalese Rs 9.7 billion) grant to Nepal. The amount will be spent on mutually identified projects under a new bilateral Agreement on Economic and Technical Cooperation . China also announced a one-time grant of $20 million, to be spent on the rehabilitation of former Maoist combatants. It also increased its annual assistance to Nepal from RMB 150 million to RMB 200 million. An eight-point joint statement was also issued during the visit. The statement notes that the two countries agreed to “further promote Nepal-China friendly relations of comprehensive partnership of cooperation featuring everlasting friendship on the basis of the five principles of peaceful Coexistence”.

The visit came about at a time when China is concerned about the ongoing political instability in Nepal and is looking for new political partners after the fall of the monarchy. The last Chinese Premier to visit Nepal was Zhu Rongji in May 2001, while Nepal was witnessing an armed struggle by the Maoists and the King was ruling the state. China is apprehensive that the Tibetan refugees may take advantage of Nepal’s instability and strengthen their position within the country. Moreover, the Chinese are not comfortable with the multiparty system of Nepal, with the parties numbering around 32, and would like to have an abiding relationship with any force eager to work with them. India’s successful engagement with the latest Maoist-led government has added to Chinese concerns leading it to cultivate Nepal even more proactively.

This has also led China to realign its foreign policy towards Nepal. It has increased the number of its political, economic, military and academic delegations to Nepal since 2008, posted one of its better diplomats as Ambassador to Kathmandu, increased people-to-people contacts, opened more customs posts at the borders, increased annual grant assistance and, most importantly, strengthened its engagements at the institutional level leading to greater interaction with the Nepalese army, bureaucracy, police and armed police (mostly deployed along the borders). During Wen Jiabao’s visit, the Chinese side pledged RMB 10 million for strengthening the Nepal Police and RMB four million for an Armed Police Force college. According to Xinhua, in 2010, the number of bilateral personnel exchanges with Nepal reached 74,000.

Nepal occupies a special position in Chinese foreign policy, even if it is depicted as a country of ‘peripheral’ concern by Chinese sources. First, because, among the South Asian states, Nepal shares the longest border with China after India and a large part of this border is inadequately guarded due to the nature of the terrain (mountainous). Not surprisingly, the joint statement re-emphasizes strengthening ‘border area management’. Second, geographically, Nepal has remained the southern gateway for Tibet. Since time immemorial, Nepal has been maintaining closer economic and cultural linkages with Tibet than China. Third, India has maintained a strong historical, geographic, cultural and economic relationship with Nepal and both countries share an open and peaceful border.

 Therefore, China’s policy towards Nepal has been different from its policies towards the rest of the South Asian countries. China also has three major strategic interests in Nepal: firstly, containing Tibetan refugees south of the Himalayas and stopping their anti-China activities; second, neutralising India’s influence in Nepal and setting up a pro-China regime in Kathmandu, for which China has scaled up its policy of engagement in recent years and adopted even soft diplomatic measures, i.e., people-to-people contacts, cultural relations, scholarships to students, economic aid and spreading of Chinese Buddhism in Nepal; and third, investing in strategically important infrastructure like airports and important highways. Chinese investments in Lumbini, and Pokhara airports are a point of reference in this regard. The Chinese must be happy that they have finally got the Government of Nepal to agree to Chinese investment in the Pokhara airport during Wen Jiabao’s visit.

Strangely, the visit by the Chinese Prime Minster was shrouded in secrecy. The visit was not mentioned by China’s Ministry of Foreign Affairs till the evening of January 15, 2012, while his five-day visit to three Gulf countries – Qatar, Saudi Arabia and United Arab Emirates – was announced earlier. The Foreign Ministry did not also mention the eight-point joint statement even two days after the agreement was signed. The Embassy of China in Kathmandu also chose not to post anything about the visit or this agreement on its website even 48 hours after the visit: it only cited a news report by Xinhua.

Perhaps, the Chinese establishment was apprehensive of protests/demonstrations by Tibetan refuges in Nepal during the Premier’s visit. An earlier scheduled visit, which was to take place on December 20, 2011, was reportedly cancelled because China was not impressed with the security arrangements in Nepal. Chinese intelligence reportedly came up with information that there could be some demonstrations with black flags and attempts at self-immolation by some Tibetan refugees.

Following the cancellation of the earlier visit, the Deputy Prime Minister and Home Minister of Nepal, Bijaya Gachhadar, had visited China to reassure the Chinese establishment that there would be no disturbance by Tibetan refugees during the Chinese Premier’s visit. Special instructions were given by China to the Prime Minister’s Office and the Foreign Ministry of Nepal not to disclose news of the intended visit. China also asked Nepal to allow only a limited numbers of journalists to cover the visit once the visit was announced.

Surprisingly, no media house in Nepal reacted to the decision. There were instructions from the Chinese embassy not to discuss the visit in the media in advance. There was no mention even about the financial and development aid that China was going to give to Nepal. Since the Nepalese government had sent in a request for a credit line of $5 billion (over Rs. 400 billion) from China prior to the scheduled visit in December, China did not perhaps want much discussion on this subject, lest it aroused public expectations and forced China to commit more than it decided to offer. This, in a way, indicates the indifferent and condescending manner in which China wants to behave with its small neighbours like Nepal. All the arrangements for the visit were dictated by China.

Historically, China has behaved as a bully in its dealings with its neighbours, especially when it felt that it cannot actively control developments in its periphery and that this could lead to an eventual reduction of its sphere of influence in the neighbourhood. At present, apart from the election of a pro-China leader in Taiwan, China is not quite comfortable with the developments in its immediate periphery. It is not very happy about political developments in Myanmar. Its assertive policy vis-à-vis India has also not been effective. Moreover, Tibet remains China’s soft underbelly, and of late, it has been feeling insecure due to the absence of a credible political partner in Nepal. To add to the Chinese worries, the Tibetan refugees have taken advantage of the situation in Nepal and have undertaken several protests against China in recent years. If the Nepalese political instability prolongs, Chinese micromanagement and intervention in Nepal will increase in future.

(Courtesy IDSA)


On Wen’s hug-and-fly visit, China draws Nepal closer

By B Raman

Chinese Premier  Wen Jiabao, who had cancelled a scheduled visit to Nepal in December for unexplained reasons, stopped over in Kathmandu for a little more than four hours late last week on his way from Beijing to Saudi Arabia for an official visit.

This is the first time a Chinese Premier has visited Nepal since 2001, when the then Chinese Premier Zhu Rongji went over. There have been a number of high-level visits of political and military figures from Nepal to China since the Nepalese Maoists came overground, suspended their insurgency and joined the power structure in Nepal, but there were few reciprocal visits from the Chinese side to Nepal.

The Chinese have stepped up assistance to the Nepalese since the end of the monarchy in 2008; in 2009, they even established a “comprehensive and cooperative partnership” with Nepal.

China has strong security concerns in Nepal due to the presence of about 20,000 Tibetan refugees in Nepalese territory and their support to the Dalai Lama and the radical Tibetan Youth Congress (TYC).

These concerns have been magnified by fresh indicators of unrest in the Tibetan community of China, particularly in western Sichuan, Gansu and Qinghai regions. There have been 16 self-immolation attempts since the beginning of last year by pro-Dalai Lama monks and others. Twelve of them were reported last year and four in the first 15 days of this year. Fourteen of these attempts were in western Sichuan and one each in Tibet and Qinghai.

The large-scale round-up and detention in a special military camp of suspected pro-Dalai Lama monks of the Kirti monastery in Sichuan last year aggravated the situation, leading to frequent public demonstrations in support of those attempting self-immolation. The public demonstrations remained largely non-violent last year, but since the beginning of this year there have been two violent attacks on police stations by enraged Tibetans.
In the latest such attack reported on 14 January, a crowd of about 1,000 Tibetans, who were demanding the body of a Tibetan who had committed self-immolation earlier in the day, attacked a police station where they suspected the body was kept. The police reportedly opened fire to disperse the protesters killing two of them, one of them a woman.

The affected areas are far away from the Nepal border. The fact that the Tibet Autonomous Region (TAR) itself has remained relatively calm, with only one incident last year, would indicate that these self-immolations and the subsequent protest demonstrations were largely spontaneous due to local anger against the Chinese security forces and not inspired or instigated by the Tibetan refugees in Nepal.

 The Chinese are worried about the danger of a recrudescence of unrest and violence in Tibet, particularly Lhasa, similar to the violent outbreak of 2008. They have stepped up pressure on the Nepalese authorities to tighten controls over the refugees and to allow the Chinese Ministries of Public and State Security to post more intelligence officers in the Chinese embassy in Kathmandu.

During his brief visit to Kathmandu, Wen met with, among others, Nepalese President Ram Baran Yadav and Prime Minister Baburam Bhattarai. He was quoted by the local media as saying: “My trip is aimed at consolidating good-neighbourly friendship, deepening cooperation and boosting the joint development of China and Nepal.”

A joint statement issued at the end of his visit said: “As a close neighbour of Nepal, the Chinese side is pleased to see the progress in the peace process in Nepal and sincerely hopes that Nepal will realise peace, stability and prosperity, including the drafting of a new constitution in the near future. Nepal firmly supports the efforts of the Chinese side to safeguard its sovereignty and territorial integrity and will not allow any force to engage in anti-China activities by using Nepali territory.”

Wen was further quoted as saying: “China and Nepal are good neighbours, good friends and good partners. China supports Nepal’s peace and constitutional process, and its efforts to safeguard independence, sovereignty, territorial integration and national unification. China is ready to provide, within its capacity, assistance to Nepal for economic and social development and believes that Nepal can overcome difficulties to realise the goal of building a new Nepal.”

Wen reportedly pledged $140 million in aid to Nepal, of which $20 million will be spent on consolidating the peace process and $2 million on strengthening the police. Nepal has reportedly sought Chinese assistance for a modern airport at Pokhara, for the development of its railway network and for the construction of three hydel power stations.

B Raman is Additional Secretary (Retired) in the Cabinet Secretariat, Government of India. He is currently Director of the Institute for Topical Studies, Chennai; and Associate of the Chennai Centre for China Studies. http://www.firstpost.com


China and Nepal should develop bilateral relations from an overall strategic perspective: Xinhua

Chinese Premier Wen Jiabao's just-concluded visit has promoted friendly cooperation with Nepal, Saudi Arabia, the United Arab Emirates (UAE) and Qatar, Chinese Foreign Minister Yang Jiechi said Thursday.

Chinese and Nepalese Minister Signing Agreement

During his four-nation tour in the past six days, Wen attended more than 40 bilateral and multilateral activities and delivered important speeches at the opening of the Fifth World Future Energy Summit in Abu Dhabi and the Fourth China-Arab Business Conference, Yang said.
 
Wen's activities have demonstrated China's sincere wish and firm resolve to enhance political trust and strategic cooperation with Arab nations and highlighted China's notion and policy measures to follow a path of green and sustainable development, he said.
 
And the Chinese premier's active engagement with people from various circles of the countries that he has visited has been warmly and greatly appreciated, Yang said.
 
Despite its tight schedule, the visit has produced fruitful resutls and is thus a complete success, he said.
 
Wen's visit to Nepal, the first by a Chinese premier to the south Asian nation over the past 10 years, is aimed at further consolidating China-Nepal friendship, boosting mutual support, promoting cooperation in economy and trade, and expanding people-to-people exchanges, Yang said.
 
During his talks with Nepalese President Ram Baran Yadav, Prime Minister Baburam Bhattarai and leaders of major Nepalese political parties, Wen noted that China and Nepal should handle and develop bilateral relations from an overall strategic perspective.

The two sides need to expand practical cooperation on an equal and mutually beneficial basis and to steadily advance the implementation of related cooperative projects, the Chinese premier said.
 
And China supports Nepal in seeking reconciliation, stability and development and establishing friendly relations with neighboring countries, Wen said.
 
It is the common aspiration of all South Asian nations to seek peace, stability and development, said Wen, pledging that China is committed to developing friendly cooperative relations with all the South Asian nations on the basis of the Five Principles of Peaceful Coexistence.
 
Wen's remarks were widely echoed by Nepalese leaders, who lauded his visit as a milestone one bearing vital significance.
 
Voicing their thanks to China's long-term firm support and generous aid, they stressed that Nepal attaches great importance to China's core interests, firmly adheres to the one-China policy and deems Taiwan and Tibet as an integral part of China.
 
They vowed that the Nepalese government will never allow any anti-China activities on its territory.
 
The two sides signed eight cooperative documents and issued a joint statement.
 
The international community has paid close attention to Wen's visit to Nepal and hailed it as an enormous support for Nepal given by a friendly neighbor through concrete actions, which is of great importance to Nepal's drive for economic development and the improvement of people's livelihood.
 
The Nepalese government, political parties and all social sectors have demonstrated a strong consensus on the China-Nepal ties and offered unflagging support for China's core concerns, said Yang, predicting a new leap forward in the development of the bilateral relations.
Xinhua

Wen's Visit Promotes Friendly Co-op with Nepal

Chinese Premier Wen Jiabao's just-concluded visit has promoted friendly cooperation with Nepal, Saudi Arabia, the United Arab Emirates (UAE) and Qatar, Chinese Foreign Minister Yang Jiechi said Thursday.

During his four-nation tour in the past six days, Wen attended more than 40 bilateral and multilateral activities and delivered important speeches at the opening of the Fifth World Future Energy Summit in Abu Dhabi and the Fourth China-Arab Business Conference, Yang said.

Wen's activities have demonstrated China's sincere wish and firm resolve to enhance political trust and strategic cooperation with Arab nations and highlighted China's notion and policy measures to follow a path of green and sustainable development, he said.

And the Chinese premier's active engagement with people from various circles of the countries that he has visited has been warmly and greatly appreciated, Yang said.

Despite its tight schedule, the visit has produced fruitful resutls and is thus a complete success, he said.

DEEPENING CHINA-NEPAL COMPREHENSIVE PARTNERSHIP

Wen's visit to Nepal, the first by a Chinese premier to the south Asian nation over the past 10 years, is aimed at further consolidating China-Nepal friendship, boosting mutual support, promoting cooperation in economy and trade, and expanding people-to-people exchanges, Yang said.

During his talks with Nepalese President Ram Baran Yadav, Prime Minister Baburam Bhattarai and leaders of major Nepalese political parties, Wen noted that China and Nepal should handle and develop bilateral relations from an overall strategic perspective.

The two sides need to expand practical cooperation on an equal and mutually beneficial basis and to steadily advance the implementation of related cooperative projects, the Chinese premier said.

And China supports Nepal in seeking reconciliation, stability and development and establishing friendly relations with neighboring countries, Wen said.

It is the common aspiration of all South Asian nations to seek peace, stability and development, said Wen, pledging that China is committed to developing friendly cooperative relations with all the South Asian nations on the basis of the Five Principles of Peaceful Coexistence.

Wen's remarks were widely echoed by Nepalese leaders, who lauded his visit as a milestone one bearing vital significance.

Voicing their thanks to China's long-term firm support and generous aid, they stressed that Nepal attaches great importance to China's core interests, firmly adheres to the one-China policy and deems Taiwan and Tibet as an integral part of China.

They vowed that the Nepalese government will never allow any anti-China activities on its territory.

The two sides signed eight cooperative documents and issued a joint statement.

The international community has paid close attention to Wen's visit to Nepal and hailed it as an enormous support for Nepal given by a friendly neighbor through concrete actions, which is of great importance to Nepal's drive for economic development and the improvement of people's livelihood.

The Nepalese government, political parties and all social sectors have demonstrated a strong consensus on the China-Nepal ties and offered unflagging support for China's core concerns, said Yang, predicting a new leap forward in the development of the bilateral relations.

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