Inquiry Commission and socio-political questions

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To,

Honorable Justice Girish Chandra Lal

President, High- Level Inquiry Commission, 2016

Hon. Justice, as a student of law and active reader of your obiter dictum, I respect your unique social-constitutional competence to actively resolve the constitutional issues. The ameliorative judicial activism that you evinced while deciding on 16-Point Agreement is historic in the judicial history of the nation.

Hon. Justice, a constitution establishes the ideology of the existing power in the rule. By inflicting their derivative power in the constituent assembly, the four major parties attempted to whip their political orientation of pushing the marginalized voice to the periphery and centralizing the same exclusionary structure of the nation. The 16-Point Agreement was an attempt to bring the basics of federalism into the gray area, so that they could shape it later as per their favorability. When you defined the Article 82 and Article 137 of the Interim Constitution in reference to the 16-Point Agreement, you upheld the fundamentals of constitutionalism. But even after the decision by the apex court, the constitutional provision on federal demarcation and citizenship remains controversial.

Hon. Justice, a constitution is not the act of a government, but of a people constituting a government. Hon. Justice, the Inquiry Commission is to investigate the cases registered in the backdrop of the government’s action which delegitimized the people of their proximity with the constitution. At the time of constitution-making, the political elites refused to acknowledge the basic premise of representative democracy which requires that all those subject to policy should have a voice in its making.

Hughes once said" the constitution is what the judges say it is". Hon. Justice in the decision you extended the constitutional supremacy by quoting Article 1(1) of the Interim Constitution which stipulates that this constitution is the fundamental law of the land and Article 2 of the constitution which states that it will be the duty of every individual to uphold this constitution.” The major political parties overshadowed the constitutional basics and its supremacy.   

 Hon. Justice, government’s defiance to the basic constitutional norms and values resulted on a large-scale protest in the country. The protests were organized against the majoritarianism categorized by religion, language, social class, or some other identifying factor. I request you to address the insufficient loyalty of the government to the prevailing constitution and people’s aspiration. Because of the failure of the political parties to represent in entirety, majoritarian possessiveness on the constitution and use of errant power by the governing authority, made people come on the road and manifest their grievances.

Hon. Justice, you cautioned the government by stating that, if attempts are made to frame the new constitution by bypassing the existing constitutional provisions, the new constitution could be controversial, country’s peace and order could be threatened and doubts about another conflict could be created. The inquiry commission is in steps to deal with the cases of irreparable loss to the nation, outlined in the judgment you delivered.

 Hon. Justice, the struggle of the peripherals was to establish their sense of belongingness with the constitution. Even after the decision passed from your bench, the constitutional provision remained detached from the people. Still no attempts have been made by the government to remedy the deficiencies of the constitution raised by the movement of the people. The government’s announcement of the fresh polls has further polarized the political sphere.  

Hon. Justice, the recommendations passed by the commission should not mitigate the political and ideological assails that triggered the movement. Simple objectiveness will only devolve the social and political variances into consensual technical solutions. The commission should deal with the political disagreements hidden in the deep structure of the populace in grudge. In its concluding report, the commission must not confine itself in lexical neosis of “the rule of law”, “political questions” and “peace and stability, because that would obscure the political and ideological assails that gave rise to the events.

Hon. Justice, I don’t intend to question on the capacity of the commission to recommend the government on its action, but fear the political environment that has made the quondam commission ambivalent in its actions.

Hon. Justice, the government under obligation constituted the high-level inquiry commission to probe the mishaps that took place in immeditely before and after promulgation of constitution. I humbly express to you the need to be at variance with politics-driven stereotype investigations, which has been within the realm of legal, administrational, and good-governance discourse, redefining these political movements as dysfunctional problems and has recommended the technical solutions.

Hon Justice, the commission holds the charged mandate to probe the cases by free, fair and reasonable manner. In its course of work, it must have to move ahead by realizing the principle of equality, justice and human dignity. Hon. Justice, you have exhibited your social-constitutional competencies while dispensing justice in the court and now under the capacity of a president for the high-level inquiry commission, we await to see your socio-political intelligence on handling the politics-driven events.  

Hon. Justice, in an attempt to extend the judicial discourse in the social and political issues, other commissions in the world has been expressing a similar pattern of “judicial activism”, as in courts. The Commission of Inquiry on the Matter of the Massacre in the Tomb of the Patriarchs in Hebron (Jerusalem, 1994) in its report concluded that, “. . . The commission’s view is that great caution should be exercised in drawing conclusions post factum . . . The courts often engage in reviews of this kind in deciding the reasonableness—at the time—of an action or a blunder . . . There is no reason why a commission of inquiry cannot conduct itself in a similar fashion . . .” The commission must base its activism on the reasonability test recommend for the fair justice on all side. If the commission falls short to evaluate the events in the entireness of judicial scrutiny, administrative scrutiny and publicly scrutiny, the essence of “rule of law” and “democracy” will be eclipsed.

Sincerely,

Abhishek Jha

Student of Law at Kathmandu University School of Law, Dhulikhel

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