Dr. Surya Dhungel
Dr. Surya Dhungel is a renowned constitution lawyer. Dhungel has a long experience of teaching constitutional law and has also practiced law for a number of years. Dhungel spoke to KESHAB POUDEL on issues related with constituent assembly. Excerpts:
How much assured are you of the proposed Constituent Assembly?
No matter what an individual thinks, efforts should be made by all the Nepalese and stakeholders, including the monarch, to work towards creating or agreeing on a suitable model of the Constituent Assembly through a fair, transparent and inclusive democratic process at the earliest. This is not an easy task, and the all concerned will have to responsibly contribute to the process with full vigilance and alertness. Managing a transitional process of change and governance is very challenging.
Do you think the newly elected CA would be able to resolve the current political and constitutional crises?
I am optimistic about the final outcome, provided we are able to convey a strong message to all that the Nepalese people and political parties are committed to a peaceful democratic transition and that the people and the civil society will not ever tolerate any direct or clandestine attempt from any quarters, both internal and external, to undermine the spirit of Jana Andolan. The national stakeholders should also be able to galvanize the support of the people, including the goodwill of the international community and friendly nations, for a constitutional transformation through a meaningful deliberation in the CA. The responsible role of political parties, especially the Seven Party Alliance and CPN (Maoists), will remain very critical throughout the constitution making process, and the Nepalese people have already made it clear that they will not forgive the political party leaders if they failed to manage their internal problems and betrayed the democratic causes by distorting the process.
How do you explain the CA?
The myth of a Constituent Assembly (CA) created by the 1951 Interim Constitution of Nepal is likely to be a reality in 2007. The people are given the impression by many political and civil society leaders that their sovereignty will be secured only when the newly elected CA adopts and promulgates a new Constitution, replacing the present one. Hence, the House of Representatives (HOR) took no time right after its restoration to approve a resolution proposed in the House for holding elections for the CA at the earliest in order to draft and promulgate a new Constitution of Nepal. With opportunities open for the CA to deliberate on all possible forms of government, including a republic, and make a choice under a new Constitution, in principle, all major demands of the CPN (Maoists) are met by the Seven Party Alliance (SPA), the HOR and the Government even without disarming the insurgent Maoists. Once the CPN (Maoists) joins the Government, doors for the Maoists would be open for advocating their agenda through the interim Government. This certainly will not be an easy process, as the Maoists are still in possession of arms and their ability to play a democratic role in an open and transparent political environment is yet to be seen.
What can the CA do?
I think, through an inclusive democratic exercises, the Constituent Assembly can only bridge the constitutional gaps that still remained in the 1990 constitution and bring about some structural changes if the Assembly members so decide. But it is the task of the political parties and leaders, not that of the Constituent Assembly, to resolve political crises. For this, we need to strengthen democratic and accountability institutions. Even the constitutional crisis was the creation of the politicians and aberration of the political process. The royal political ambition to unconstitutionally take over state power in October 2002 and February 2005, was in fact responsible for taking the political problems to a new culmination of Jana Andolan. The seed of political instability was initially sowed by the over decade long Maoist insurgency and political party leaders’ subsequent failures to address them.
If you are not sure that the new Constitution can address the nation’s problems, what else the Nepalese people can do to resolve them?
We must understand that no political problem in Nepal was ever created by the Constitution. As stated earlier, the repeated failure of the political leaders of all major political parties during the last few years to timely deal with and properly address the social, economic and political problems was in fact the main reason behind the Maoists’ violent insurgency also. Even the Maoist problem was not seriously tackled by any political forces of the day, including the monarchy. And no serious diplomatic effort was ever made to solicit support from the neighbouring nations and the international community to address the Maoist insurgency at its infancy. Offer of the United Nations to help resolve armed conflict was repeatedly ignored, and every subsequent government claimed that it is capable to address by its own. No government ever disclosed the truth about its refusal to accept UN offers. The King’s political ambition and authoritarian approach and mishandling of the situation further compounded the already growing chronic national problems. Every rational individual understands that such political problems cannot be addressed through a mere constitutional change. A political problem must be resolved by political actors through political means, and the Constitution cannot be blamed for the failure of the political forces and actors. The Nepalese Constitution has in fact become a victim of bad politics in Nepal. Over decade long Maoists’ armed insurgency has added serious human rights related problems also. I doubt whether the new political order and the CA can address the massive human rights problems, especially excessive abuse of human rights against children, women and innocent common people who were either killed, terrorized, abducted, detained or forcefully displaced.
What will be the role of political actors in the changed context?
Under the new political order, if the political parties and leaders of the country can rise above their petty political and personal interests and are prepared to work together in the interest of the Nepalese people and the nation, the democratic Constitutional framework will be an effective tool to ease their task to address the national problem under the rule of law. The politicians must themselves be able to play a role model in respecting the rule of law and human rights. They must not hesitate to take bold political decisions in the interest of the nation, but it has to be under the constitutional and democratic framework. The political movement that vehemently opposed the royal usurpation of state power against the Constitution, will never accept the politicians do the same in the name of restored parliament’s authority. Respect for constitutional norms and the rule of law should be paramount but in compliance with the spirit of the Jana Andolan.
If the CA also does not succeed to resolve the country’s problems, would it not disappoint the people who took the risk of defying curfew several times to make the last Jana Andolan (people’s movement) a success?
The Nepalese people are closely watching the moves and political behaviour of the parties and their leaders. They don’t want to be betrayed by political leaders any more. People’s anger will now be turned towards political actors, mainly towards the Seven Party Alliance and CPN (Maoists), if they failed to put the derailed constitutional and democratic processes on the right tract due to their irrational and amateurish behaviour and approaches, against the spirit of the recent political movement. Until Maoists surrender their arms and join the mainstream politics of the country through peaceful and legitimate means under the rule of law for working together with SPA and others for creating a new legitimate political and constitutional order, the people will remain vigilant. The question is how far the national actors are capable and prepared to transition the change process without being unduly influenced by external elements? Are the new changes going to be our for us? Failure of the political forces to respect the verdict of the people will certainly disappoint them.
You as a constitutional expert must contribute to the constitution making process in coming days. What major constitutional issues should the CA address?
As a citizen of Nepal and also as a student of constitutionalism, I must not fail to contribute my share in coalition and coordination with other colleagues. Every individual of the country, especially those who have been hitherto excluded from the participatory process should be enabled to contribute in the CA process. New inclusive democratic devices may have to be created to allow maximum participation of the people. But equal attention should be paid not to allow wrong elements to erode the process of chance. More damage might be done by undemocratic elements and antinational factors. We must accept CA as an inclusive democratic process. It may not necessarily produce a better Constitution than the earlier one. But CA has a symbolic value: it represents people as a collective author of the Constitution. The people should not be left under the impression that the Constitution framed by CA can address all political problems of the nation. In many countries, including France, Russia, Pakistan and Sri Lanka, the Constitutions framed by CA did not last long and could not deliver any good. In some countries, like Soviet Russia and Israel, the CA was not able to even deliver a Constitution. We must not forget that a Constitution is simply a legitimate tool, if the political forces are capable to skilfully use the tool in the interest of the people, it can deliver good results. Otherwise, we may have to wait for another decade for drafting from seventh to eighth Constitution without any rational democratic exercises. As far as the model of CA is concerned, there are indirect, direct, proportional representative, and a blend of multiple electoral processes that may be borrowed to create a CA of a real inclusive character. The latest model is the Bolivian model which would be used in July 2006. But for Nepal, we will have to make our own choice that suits us best. Without any reservation, I can say that it must be of democratic and inclusive character, and simple in form. A serious study must be made by experts and political and social scientists for suggesting a right model of CA for the country. But before that a consensus must be reached by all relevant political forces without any prejudice and biases about the mandate to be given to CA before we start talking about the possible models.
What the forthcoming CA can do through the new Constitution that the 1990 Constitution could not do?
Few issues that were not included in the 1990 Constitution, such as local government structure, representation of minority groups, gender, federal (or unitary) feature of provincial governance, national army under civilian control, secularism, ceremonial monarchy, republicanism, etc., have already come to the surface for public discussions. But the danger is always there that while trying to include everything, we may end up losing everything. Hence, the Constitution should never be an emotional document, it should always be an objective charter that serves the interest of the nation best. It should not be an abstract document loaded by theories and concepts alone, it must be a functional document that can be effectively implemented.
Are you in favour of a republican form of Government? What is the future of monarchy?
As long as a democratic system is in place under a pluralistic constitutional framework, I am not against any form of Government. The Nepalese people have repeatedly voiced against all forms of autocratic system and they have always publicly demonstrated their immense faith in democracy during the past several decades, especially through the last two but very peaceful and powerful political movements (two Jana-andolans) that Nepal does not have any alternative to a pluralistic democratic system. I don’t want to make any guess and speak on behalf of the people, but I am sure, they will decide through ballots in the Constituent Assembly as to what form of Government would be best suited for Nepal. So far, I have sensed that the people and the leading democratic forces still favouring a parliamentary form of government with a ‘ceremonial monarchy’ as Head of the State. But they are hesitant to admit that. They don’t want to see any loopholes in the new system that allows the Head of the State, whether a ceremonial monarch or an elected president still to unconstitutionally usurp state power. Of course, the people are angry against the authoritarian and unpopular political behaviour and attitude of some individual monarchs, but in view of the geopolitical, cultural and historical context of Nepal they may not be in favour of abolishing monarchy yet. Actually, the future of monarchy in Nepal will depend on the wisdom of the monarch himself. Authoritarianism has no place in Nepal anymore. But this is to be decided by the people through the proposed CA, I don’t want to make any prediction about it.
What about the future of Royal Nepalese Army in Nepal under the newly drafted Constitution by the CA?
As far as the Nepalese Army is concerned, the 1990 Constitution itself has brought it through Article 118 under the civilian fold. It is the subsequent governments that failed in the past to bring the army under the constitutional and civilian folds through legislative changes. Nepal simply needs a more professional, competent, and people and human rights oriented army guided by legal norms under the national legal framework. I believe, even the army want to see so. Politicians should abstain from making irrational and irresponsible statements about the army which are bound to humiliate and distance them.
(Courtesy: Spotlight)
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