Current political crisis is not crated by the constitution nor does it have capability to solve them. Nepal’s five decades long experiences have shown that constitutional process remains victim of political crisis. Four constitutions have already abrogated and the fifth constitution is now at the cross roads as a group of intellectuals are pressing to replace it in the name of a finding a way out to the on-going political impasse
By KESHAB POUDEL
“However good constitution may be, it is sure to turn out bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work happen to be a good lot. The working of a constitution does not depend wholly upon the nature of the constitution. The constitution can provide only the organs of state such as the Legislature, the Executive and the Judiciary. The factors on which the working of these organs of the state depends are the people and their political parties they will set up as their instruments to carry out their wishes and their policies…. Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them? If they adopt the revolutionary methods, however good the constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgment upon the constitution without reference to the part which the people and their parties are likely to play.” B.R. Ambedkar, eminent constitutionalist and framer of the Constitution of India.
Although Ambedkar wrote these words in the context of India, it is also valid in the context of Nepal where intellectuals blame the present constitution as the ‘mother of all political ills.’ Over the last five decades, Nepali intellectuals, legal luminaries and politicians have seen the country’s main document as an escape goat for their own inactions and incapability. Their mind is so unstable that they often drum up demanding for replacement of the present constitution.
The political circumstances in which all constitutional accidents occur have nothing to do with the constitution. House of Representatives was dissolved in 2002 as per the recommendation of the Prime Minister, Sher Bahadur Deuba, in accordance with the constitution.
Of course, the scenario for the dissolution had developed due to seen and unseen activities of the internal and external forces. The Constitution of the Kingdom of Nepal, 1990—promulgated in the aftermath of the peaceful ‘jana andolan’—has overcome major political crisis over the last twelve years. The constitution helped for smooth transition in line of accession following mysterious royal massacre on June 1, 2001, among others. Then what may have prompted the so-called intelligentsia to demand the abrogation of the constitution remains a million-dollar question.
Change of Status
Since the dissolution of the House of Representatives two years ago and his reappointment of Prime Minister Sher Bahadur Deuba (in June this year), King Gyanendra has chosen three prime ministers, which experts argue is in contravention of the constitutional norms.
By reappointing Deuba, who was dismissed by the King himself accusing him of being ‘incompetent,’ King Gyanendra has indicated that certain person has nothing to do with the present crisis. Actually, his displeasure seems to be towards the system of an `accountable government,’ say analysts. Deuba was seen as ‘incompetent’ as long as he was accountable to the parliament and but dramatically Deuba was re-incarnated as a ‘competent’ prime minister as soon as he had no obligation to remain accountable to parliament, which he himself had dissolved.
This is the third consecutive year when the country is celebrating the constitution day with uncertainty over the exercise of sovereign rights of the people to elect their representatives for the lower house of parliament. Only small groups of people are demanding that the elected House of Representatives (that remains dissolved) be reinstated.
Prime minister Sher Bahadur Deuba declared a few weeks ago that he would hold fresh elections for the House of Representatives but members of his own coalition are yet to believe him. “How could elections be held without first reaching into agreement with the Maoists? It is just a personal remark of prime minister,” said deputy Prime Minister Bharat Mohan Adhikari.
Despite their many differences with Adhikary, Nepali Congress and other political parties too hold the view that there is no possibility to hold the elections in the country at present. Nepali Congress leader Girija Prasad Koirala has been demanding the revival of the House of Representatives in circumstances when elections cannot be held.
Prime minister Deuba and his ruling coalition partner are against the reinstatement of the House of Representatives though their differences over the issue of holding elections are already public. Reports say there is a strong group within the Palace, which also opposes the idea. Analysts, however, say mere reinstatement of the dissolved House of Representatives would solve half of the country’s problems now. From appointing prime minister to passing laws, the House of Representatives would take change. Elected people’s representatives then could also work towards developing a national consensus to bring the rebels back to the political mainstream.
Although Constitution of the Kingdom of Nepal, 1990, guarantees rights of the people to choose their representatives through elections, there is no immediate sign of fresh elections for the parliament. When the elections cannot be held, revival of dissolved House can be another option. In absence of an elected parliament, the constitution is functioning in an extraordinary situation. In the last 55-year-long history of constitutional development in Nepal, this is the fifth constitution that has found itself trapped in a vicious cycle of political crisis.
One of the consequences of changes in the process of appointment of the prime minister is the status of prime ministers themselves. Before his dismissal on October 4, 2002, Prime Minister Deuba was accountable to the sovereign people and was appointed to the post on the strength of elected representatives. Despite retaining his position, Deuba’s status is that of an appointed prime minister now and nobody knows towards him is accountable.
While recommending to dissolve the House of Representatives and call fresh polls in early 2002, Prime Minister Deuba had completely abided by the constitution. According to Article 53.4 of the constitution, His Majesty may dissolve the House of Representatives on the recommendation of the prime minister. His Majesty shall when so dissolving the House of Representatives, specify a date, to be within six months, for new elections to the House of Representatives. The constitution has clearly stated that the country needs to have a parliament to replace the dissolved one within six months.
While suggesting postponing the elections for certain period, no politicians realized what the constitution says for the elections. Article 45.3 says provided that the term of the House of Representatives may be extended by an Act for a period not exceeding one year during the operation of a proclamation of state of Emergency.
Had political actors shown some accommodations and flexibility, the country would not have to face the present political crisis. From issuing 24-hour-long ultimatum by NC leader Girija Prasad Koirala to the decision of dissolving the House of Representatives by prime minister Sher Bahadur Deuba and later the consensus among five political parties for the recommendation to postpone the elections and sacking of elected prime minister by King Gyanendra, all those actions were political and the constitution had nothing do with it.
“The constitution has to function today in the absence of an elected house. The constitution has never obstructed political, economic or social development in the country,” said senior advocate and eminent constitutional lawyer Kusum Shrestha. “Those who are blaming the constitution for the present political crisis must show where the constitutional process has gone wrong.”
Wherever it may be, open and democratic system always stands against the hegemonies. In open and democratic system, a politician has to be responsible and accountable to the people. If politicians undermine the interest of the people, people will reject them. National interest is safe only when there is a large participation of people.
With the restoration of multi-party democracy in Nepal, the country has seen three national elections and two elections of local bodies like village development committees, municipalities and district development committees. Unlike the Panchayat system, Nepal’s democratic system has helped expose all kinds of dark room maneuvering.
According to a report published by the Election Commission, more than 50 percent of the old faces were defeated in every other election since 1991. From majority governments to the minority and coalitions, there were experiments of all kinds of governments in 12 years. The constitution seems to have come under all-out assault since it guarantees an open government accountable to the people.
Wave Against Constitution
As with all other constitutions, the Constitution of Kingdom of Nepal 1990 is a set of laws and rules setting up the machinery of the government of a state. It defines and determines relations between different institutions and areas of government– the executive, the legislature and the judiciary.
From former Speaker of the House of Representatives to two senior retired judges of Supreme Court and many other intellectuals, there remain strong opponents of the present constitution. Besides those holding the gun, people who put signature in the constitution and took oath under it are demanding the abrogation of the present constitution. They don’t have any valid reasons to show which articles of the constitutions have obstructed the constitutional process.
On the question of sovereignty, Article 3 of the constitution says the sovereignty of Nepal is vested in the Nepalese people and shall be exercised in accordance with the provisions of the constitution.
“There are no flaws in the constitution and the constitution is still the best document for the country,” said senior advocate Mukunda Regmi, who is the only member of the Constitution Recommendation Commission (CRC) who is still defending the constitution. “There are adequate provisions for the amendment in the constitution as per the need.”
Others have different opinions. “The time has come to frame the new constitution,” said former justice of Supreme Court and member of the CRC Laxman Prasad Aryal. “This constitution cannot solve the present political problems,” he added.
With the proclamation of the present constitution, one can see enormous changes in different areas. From economy to infrastructures like roads, irrigation, power and telecommunications, social sectors to institution building, tremendous progress has been made. “The constitution is never obstructed the pace of economic development,” said an analyst.
Role of Political Actors
Political actors have failed to show the kind of maturity required to run the system. From disrupting parliament for 64 days to calling frequent strikes, main opposition party CPN-UML and other opposition parties have shown that they can go to any extent for their political cause. The successful working of a democratic constitution requires in those who work it, or a willingness to respect the viewpoints of others, a capacity to compromise and accommodation and a real feeling for forbearance.
“A democratic system can endure only when citizens as a whole hold work in accordance to constitutional methods for achieving their social and economic objectives. Even the constitutional methods are open and available, political parties choose bloody and coercive methods,” said a constitutional lawyer.
Despite such deficits, politicians successfully demonstrated their capabilities to run the democratic governments in the past. The country has seen tremendous success in the twelve years under various democratic governments.
Thanks to the elections of local bodies, the process of leadership making had already started at the grassroots level. Elected local leaders were in a position to challenge the central leaders. The elections of local bodies also helped to train the efficient and capable leadership to the center. There were more than 300.000 leaders elected to the local levels.
“A constitution when written does not breath. It comes to life and begins to grow only when human elements gather together and work it. Yet, it is men, more than anything else, who shape and mould the destiny of written constitution,” writes Indian constitutional lawyer M.V. Paylee. Nepali intelligentsia is yet to realize this very fact before it is too late.