Nepali Times spoke with Pekka Hallberg, President of the Supreme Administrative Court of Finland and President of the Councils of State and Supreme Jurisdictions of the European Union, about constitution-writing.
Nepali Times: How important is the constitution-writing process?
Pekka Hallberg: The constitution is the basic law for all citizens. The citizen's point of view, therefore, is paramount. The modern constitution should guarantee basic political rights, and also economic, cultural and social rights, which are relevant to a country as diverse as Nepal. They should be written as clearly as possible but we should be realistic at the same time.
Constitutions should delineate a separation of power, and the appropriate relationship between legislative, executive and judicial powers.
We discussed presidential and parliamentarian models with Nepali legal experts. I can tell you Finland's experiences, but can't suggest what is suitable to Nepal.
In the beginning, Finland had a mixed parliamentary and presidential system. Nowadays, it is more of a more parliamentarian system: parliament elects the prime minister, but the president is fairly influential.
How was the constitution of Finland written?
First, the constitution was written by committees of experts and elected political representatives, which completed the task after decades of consultation. The parliament was quite unanimous in endorsing the constitution with only two votes against it.
How do you assess the direct involvement of political representatives, including nominated members, in the constitution-writing process in Nepal?
It is impressive to see active participation. It is very good to discuss differences of opinions before the final constitution is drafted. The constitution is legitimised by the people. Remember, the constitution is not a theoretical instrument but for the people. In Nepal, there have been open-minded discussions and active canvassing of public opinion. It's good to see what these opinions are.
The Maoists say parliament should control the judicial system, determine interpretations of the constitution, and that the chief justice needn't be a judge prior to his appointment. What is your take?
The independence of the judges and judiciary are not for the judges only but to guarantee the people's rights. An independent judiciary would be better able to interpret the laws of a country.
There are many models according to which judges are appointed. However, it's important that judges be able to remain in office without political pressure from the outside. Our constitution says that a judge shall not be suspended from office except by a charge by the court. Independence is not isolation but the integrity and the identity to make an impartial decision.
How can you ensure independence?
Transparency is the most important solution. Criminal procedures are not enough to ensure good governance. There should be boards which take the initiative to investigate cases of corruption. But there should be no political influence, and that the court must have the final say.
What kind of a judicial setup would suit a federal system?
There are different models. The general model is to have a general court at three levels. Europe does it differently: there is a general court for civilian criminal matter and administrative court for administrative matters. What matters most is that the system should work properly.
What about the constitutional court in federal system in the context of Nepal?
Federal countries often have constitutional courts. But in Finland we have a provision concerning primacy of constitution, which means that if ordinary laws with constitution, we give preference to constitutional provisions. I would say that constitutional court may do well in many countries but at the same time they isolate constitutional problems from people's daily lives.
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