National Assembly member Radheshyam Adhikari, who represents the Nepali Congress in the Upper House, is well versed in lawmaking and parliamentary process. He says the KP Sharma Oli-led government has failed to live up to the expectations of people and there is a danger that the public could rise in revolt against the government. Ram Kumar Kamat of The Himalayan Times sat with him to know his views on some legal, parliamentary and political issues. Excerpts:
Enactment of civil and penal codes was a result of long discussion and debates in the Parliament and outside, and yet critics are saying that there are many flaws in the penal code. You are both a lawyer and a lawmaker. What do you say?
There is no major controversy over the civil code. As per the new civil code, both sons and daughters are entitled to parental property, but there may arise a question as to which date should this provision be implemented from. As this law does not have retroactive effect, it should apply from the date the new constitution that guarantees women’s equal right in parental share and right of lineage came into force. Another issue of this code that the public should discuss is whether we consider marriage as a social contract or a religious act. We have given legitimacy to court marriage and accepted marriage as a social contract. This provision requires recognition of non-compatibility as a ground for divorce. We also need to discuss whether it is necessary to grant women the right of share in husband’s property.
As far as the penal code is concerned, some concerns were expressed by the press, contractors, medical doctors and drivers of public vehicles. Penal code is an ordinary law and if we think its provisions are restrictive against press or any group of professionals, and then we can rectify it by inserting a suitable provision. Civil and penal codes are soft laws as they have not been interpreted by the courts yet. The courts will interpret the true meanings of these laws. If mistakes have been made in these two laws, then the lawmakers should also be ready to amend them. We have new laws and the constitution and we should be ready to amend laws, rules and the constitution. I do not think that we as lawmakers made any mistake while drafting these laws, but if there is any gap in them then that can be rectified.
Media professionals have opposed invocation of Electronic Transaction Act against them. What is your reaction on this?
Current trends show that the government is becoming intolerant towards the press. I do not think that the government should prosecute anybody for criticising through writing and cartoons because such actions are not justified unless somebody indulges in hate crime and take up arms to commit violence. Portraying somebody as donkey to carry the meaning of him/her being a fool should be tolerated although animal rights activists may oppose such thing for a different reason. Portraying somebody as Durvasa — a symbol of anger — should also be tolerated or else we cannot be a democratic society.
If anybody thinks that certain criticism of the president or the prime minister is unfair, then let the public denounce those critics. State should not do moral policing. Take the recent case of the government ban on pornographic sites. I have no objection to that, but if we look at the issue from artists’ points of view, then we find it objectionable because when we look at our temples, we find pornography being linked to our way of life. We need to control vulgarity, but we should also recognise the fact that these things also educate people on sexual issues. There are writers who write freely on sex. Shouldn’t they be allowed to write on sex? In sex literature those materials are called bold writings and they are tolerated. The government should not do moral policing in literature and art. We must be mindful that other civilised states have also tolerated pornographic contents with some limitations. They allow people to watch pornographic contents at certain time of the day and they ban under-age people from watching such contents. Blanket ban is against the way of life and creativity. The statute has guaranteed freedom of expression and press freedom. Electronic Transaction Act should not be invoked against journalists.
I was member of a commission which had submitted its report in 2006 to the government, saying that the government should not own any media house and if it wants to then it should ensure that such media houses are accountable to the Parliament. I read in the news reports that the Minister of Communications and Information Technology Gokul Prasad Baskota told media houses not to run certain types of news. If this is true, then the state should not control any media outlets. If taxpayers’ money is given to the public media, then those media outlets should raise all the issues that concern the public.
How do you comment on the government’s decision to withhold Cabinet decisions?
In the past, British rulers tended to hide information from the public but these days transparency is the basic norm everywhere and we need embrace it shedding old archaic views. People have the right to know government decisions immediately. The irony is that the government cannot prove rationale for certain decisions, and therefore, it wants to keep public in the dark.
Critics say that in recent months, the courts have issued interim order to give advantage to one party to the case. What do you say?
I have a different view on this. No other institution is as transparent as the courts are. Courts offer reasons for any order and verdict they pass and when there are stated reasons the affected parties can always challenge the courts’ verdicts and orders. When a trader files an appeal against the Large Taxpayers Office, then it may intimidate that person for filing case against it, but no judge takes the litigant’s right to file an appeal in the higher court negatively.
Courts give adequate time to both parties to the case to present their arguments. There are checks and balances within the court system. But if any error has been committed in any case, although such a possibility may exist in a very few cases — say two to three out of 100. Then there are chances of rectifying such mistakes. Courts often have to adjudicate cases that have already been tried by media and politicians, so if the courts have issued interim orders in such cases, then the most important thing is that such cases should be given due priority and should be adjudicated soon. If the courts have not been able to do this, then the management of the court is responsible. Chief justice, chief judge of the high courts and registrar of courts may be responsible for the delay. I do not rule out possibilities of deliberate attempts by certain persons to delay certain cases. There may be a few such cases, but we should not criticise the whole structure of the judiciary just because of a few such cases.
Provinces have complained that they have not been able to deliver services to the public because the federal government has not created favourable environment for them and formulated umbrella laws. What is your take on this?
It is true that the provincial governments have not been able to do their job properly because the federal government is not willing to help them. Federal government has not accepted federalism. Federal government has a wrong notion that provinces and local levels are under it. One cannot go beyond what the constitution has said. All three tiers of government should join hands to work on the issues listed as concurrent powers, but they are free to run their affairs on issues under their exclusive powers. We need to be mindful that we adopted federalism to ensure representation of those who did not have a fair share of representation in the state organs. We did not propose in the constitution to form provincial chapter of other commissions such as Election Commission or Janajati Commission but we proposed to create provincial Public Service Commission because that was necessary. Proponents of federalism demanded that provinces should have the powers to recruit civil servants needed for their provinces, and therefore, that power was ensured in the constitution. Federal government should have enacted umbrella law on this in the budget session of the Parliament. Internal security is province’s jurisdiction. When we were discussing about Nepal Police during the constitution making process, we decided that Nepal Police should be with the federal government because there should be one small unit in the NP which can develop criteria for recruitment and training in provincial police units. NP Unit in the federal government may also have role in coordinating with the provinces on law and order issues and in running the forensic lab. All other things are under provincial governments’ jurisdiction.
Interior ministers of provinces have not been able to work due to lack of umbrella laws. At the centre, ministers and bureaucrats are not ready to lose their control over Nepal Police. Federal government is deliberately making things difficult for provinces.
The prime minister should have convened a meeting of Inter-provincial Council meeting immediately after he became the PM and should have sought to know what problems chief ministers were facing. The PM went to the provinces to address provincial assemblies, but he did not bother to address their problems. National Natural Resources and Fiscal Commission was also not formed.
What prevented the federal government from forming National Natural Resources and Fiscal Commission?
It is a deliberate attempt of the federal government to not address these issues.
Do you think it was the right move on the part of the government to bring ordinance to facilitate adjustment of civil servants in the three tiers of government? Why didn’t the government summon the new session of the House and try to enact this law through the parliamentary process?
The government could have enacted this law in the budget session of the Parliament, but it did not do so. Had the government been sincere, it could have called the new session of the Parliament to enact this law, but it chose to bring ordinance because it does not want to discuss the issue in the Parliament. The government knows that its proposals will be criticised in the Parliament. Government wants to bypass the Parliament. If the House is called, the government will have to respond to all the issues that could be raised by the lawmakers, including police’s failure to nab the perpetrator(s) of Nirmala Panta and the government decision to acquire Police Academy in Maharajgunj to build helipad for the president. The government made another unwise decision to relocate ministers’ quarters and to build state guest houses there and controversy surrounding the recently concluded Asia Pacific Summit. Government does not have any bill ready and therefore it does not want to call the new session of the Parliament.
How do you view the government’s nine months in officef?
The government appears to have given due consideration to the task of building airports in Pokhara, Lumbini and Kathmandu-Nijgadh Road Project, although we will have to wait to see the results of these projects. Babai Bheri Irrigation Project also appears to be moving in the right direction. However, if we look at things in Kathmandu, we can easily conclude that the government has not done anything here. A few days ago, I went to Nagdhunga and saw only five people working to build the road project there. If the government continues to work at the current pace, then Kathmandu residents will not have respite from dust and mud the next rainy season as well. Our Tamakoshi project is quite behind schedule.
In republic, people’s son and daughter become the president and prime minister and they should not show their greed for luxury. Why should the president seek to vacate Nepal Police Academy to build helipad there? The PM threatens to expose the intellectuals. This is cheap comment. The economy is in disarray. Share market is not doing good.
The government’s decision to allow people to carry only Rs 1,500 on their foreign visits indicates that the reserve of US dollars is depleting. The ruling Nepal Communist Party (NCP) had said that it would increase the growth of agriculture fivefold, but this year the growth may not be higher than two per cent. The government has not opened fertiliser factory. The government will spend five years talking about constructing railway and sailing ships in the waterways. I see a danger of growing discontent among and a danger of people resorting to revolt against the government.