Although political parties, despite wide publicity, did not table the charter declaration, which will supposedly nullify many articles of the present constitution at the House of Representatives on Monday (May 15), the count down to the formal death of the Constitution of Kingdom of Nepal 1990 has already begun. The prolonged political instability in Nepal has brought this fifth constitution prematurely to the revolutionary guillotine. The parliament has almost declared a charter that has nullified many provisions of the constitution. Once the parliament passes the charter declaration, the constitution will simply turn into an antique. The charter declaration supposes to declare many of the articles of this constitution null and void and the constitutional safeguard of fundamental rights, freedom of expression and press right will come to an end. Nobody knows what the new situation will be like in the context of charter declaration
By KESHAB POUDEL
The countdown to the death of the Constitution of Kingdom of Nepal 1990, which was promulgated following popular uprising of 1990, has begun. The government is set to announce a charter declaration in the parliament any time nullifying all the articles contravening the charter declaration.
People power : Supreme forever
Although one of the important aspects of the present constitution is the recognition of people’s will as an important character, those who want to bring change on the basis of the same will have not made any efforts to rationalize it. The preamble of the constitution of Kingdom of Nepal 1990 says, “Whereas, we are convinced that the sources of sovereign authority of the independent and sovereign Nepal is inherent in the people, and, government of the country in consonance with the people’s will”
The spirit of constitution is based on people’s will and article 116 of the constitution permits the parliament to bring any kind of amendments desired by the will of people.
Although the leaders of Seven Party Alliance (SPA) have not revealed reasons behind the sudden postponement of the announcement of charter declaration, it is reported that there are differences among the ruling parties about the contents of the charter.
Unlike communist parties, who are demanding an interim constitution and scrap the present one, Nepali Congress, though it has yet to publicly come out with its stand on the formulation of the new interim constitution, is said to be stressing to make the present constitution as an interim one with amendments in certain articles.
“The declaration of the charter has been already finalized by leaders of seven party and it will be announced in the parliament soon after the expansion of the cabinet,” said CPN-UML general secretary Madhav Kumar Nepal. “This will bring historical change in Nepal shifting all sovereign power to the parliament.” According to CPN-UML general secretary, the cabinet will take full shape by Thursday, May 19.
The new Speaker of the House of Representatives, too, sees the forthcoming charter declaration will be historic. “This is going to be a historic decision in the democratic evolution of Nepal,” said Subhash Nemwang, Speaker of the House of Representatives. “There is no supreme body in the country other than the House of Representatives.”
People launched the agitation to make themselves sovereign but politicians who led the agitation are now making efforts to make themselves sovereign. A phase of agitation has concluded by replacing politicians in power by the reinstatement of the parliament but the wave of political instability shows no sign to abate. From expansion of cabinet to the declaration of charter, the parties are yet to develop consensus.
“This is a parliament restored by a great upsurge of the people aspiring for democracy but the way it is involved in the drafting of the charter, one is reminded of a constitutional declaration by general Yahya Khan after assuming the power in Pakistan in 1960s. Khan had then proclaimed – I, hereby, declare that any law contravening this shall be null and void. That kind of jurisprudence is being developed in the same pattern by a democratic parliament here,” said a political analyst.
Despite all rhetorics and commitments, it is still uncertain when peace and stability will come in the country. Persons – who had disunity among themselves for several years – seem to have joined hands to deal with the changed situation but it is not easy to make permanent deal for peace. The rural-centered terror of extortion has now entered into the urban areas.
Politics of Dissension
All the political parties have internal dissensions on the issue of joining the government and the declaration of the charter. Thanks to differences among its top leaders, Nepali Congress Democratic is yet to propose its candidates for cabinet. Although Nepali Congress, too, is facing similar problems, Prime Minister Girija Prasad Koirala has an excuse of ill health to pacify internal dissensions.
All prominent leaders of UML have their different emphasis on the performance of the government. The government’s responsibility has perhaps, some sobering effect on foreign minister KP Sharma Oli but general secretary Madhav Kumar Nepal, who is immune from such a responsibility, has threatened to walk out from if the government is not ready to change status of the army and scrap the military secretariat at the Royal Palace. “We will bring all necessary changes in the government. Once the cabinet expansion is completed, the government will work in full swing,” said deputy prime minister K.P. Sharma Oli.
Status of the army and its accountability and several such matters are related with the provisions of the constitution. Without following the amendment process of the constitution, one cannot change such status under an executive decree.
Another CPN-UML senior leader Bharat Mohan Adhikary is proposing that the parliament be declared a sovereign body whereas the popular agitation was to declare people of Nepal as sovereign.
“We have to declare the parliament as sovereign. This is the mandate of people,” said senior CPN-UML leader Bharat Mohan Adhikary. “Only after declaring parliament as sovereign, can we safeguard democracy.” However, the constant demand of agitating mass was to end King’s autocracy and make people sovereign.
Another CPN-UML leader Pradeep Nepal, too, has similar views as those of Adhikary. Each of them seems to have their personal agenda to promote as some are in the seat of power while some are aspiring for that. The status of a person is defined by his being in or out of power. It seems that Nepal, Adhikary and others who are not in power now are trying to create trouble to persons who are in power representing the party.
Instead of promoting national or party agenda, personal feuds in the parties have come into prominence. They have started by themselves what the Royal Regime failed to initiate – the dissensions amongst themselves.
Controversy on Army
New Speaker Nemwang : Crucial job
One of the most serious controversies, at present, with the alliance government is related to the status of Royal Nepalese Army. The army has never been shaken up in such a manner like it is today. In none of the democratic movements, the position of army had ever been put into controversy like this.
The number one agenda of CPN-UML seems to be to deal with the army and bring it down to its natural status from the high pedestal. The proposed Declaration, too, has many clauses related to it. It is an open secret and has been widely reported in foreign and domestic media that there was a pressure from the army upon the King to relax the situation by accommodating political parties in the power. Is it for this pressure, the army is going to be humiliated or is it to serve other ulterior interests?
Without amending some provisions of the constitution, the government or the House of Representatives cannot do what the alliance parties are insisting for. A long list of issues can be prepared as utter disregard of the provisions of the constitution by the alliance leaders. Is it merely confusion or a deliberate violation of the provisions of the constitution? Ironically, they had launched the people’s movement charging Royal regime violating the constitution.
So long as Constituent Assembly is not formed with a valid constitution, nobody has the authority to trample the existing constitution and violate its provisions.
Highlights of Charter Declaration
The proposed Charter can only announce the reinstated house as the supreme body of the nation making it the only institution able to exercise all powers of the state and the sovereignty that is vested in the people.
Besides limiting the powers of the King, the much publicized declaration will also change His Majesty’s Government of Nepal into the Government of Nepal. It also proposes to place the army under the parliament. It also will dismiss the Military Secretariat of the Royal Palace, which is quite redundant, among others.
Political parties hold the view that the mandate of the People’s Movement II is to make the parliament sovereign and take necessary steps to protect and preserve democracy. Charter Declaration will also stipulate this.
Constitutional experts, however, say that political declarations do not have binding legitimacy like amendment of the constitution will have. Without amending the constitution, the political declarations cannot be taken as mandatory, they say. “So far as the constitution is concerned, it can be amended. If they want to amend the constitution, they have to follow the constitutional road or route,” said a former attorney general.
Although it is a lengthy process, amendments always are legal and constitutional. “Democracy is not what majority groups decide. But democracy means a legitimate people’s voice under constitutionalism,” said senior advocate and eminent constitutional lawyer Kusum Shrestha. “The parliament has reinstated because of failure in holding elections within six months from the dissolution of date of parliament. Though the reinstatement of parliament should have been as early as possible in the event of non-elections. Presently the parliament has been re-instituted to fill up the constitutional void by the proclamation of the King under the pressure of the people and consent with the political forces,” said Shrestha.
“Presently, the members of parliament, instead of solemnly and seriously discussing, are accomplishing tasks expected by the people under the norms of constitutionalism but they are crowing with hubris that the reconstituted parliament is supreme and whatever it acts is legitimate. That, itself, is absurd and fallacious. How come a reconstituted house could be more powerful than what previous parliament was from which it was reconstituted? Their whole arguments contradict democratic acts. Under the limit of constitutionalism, absolutism is contrary to democracy,” he said.
According to international practice, a declaration, in whatever form, itself cannot take the status of law. So, it requires to be incorporated into the framework of constitution. Either the parliament should completely repeal the Constitution of the Kingdom of Nepal and enact a new interim constitution to bring required changes, or it should make amendments that it deems as obstacles.
If SPA wishes to see the continued existence of the Constitution of Kingdom of Nepal 1990, they must incorporate principles and provisions of declaration into the existing constitution. Simply because the process of amendment of provisions of the existing constitution are cumbersome and lengthy, one cannot flout the constitutional provisions. The best legal course would have been the incorporation of the basic principle into the constitution through the process of amendment.
Violation of Constitution
Parliament : Asserting supremacy
The People’s movement was against the autocracy of King Gyanendra and his unconstitutional rule. People sacrificed their lives not to encourage the autocracy in the name of democracy. When the King rigged the constitution constituting Royal Commission for Corruption Control, the Supreme Court declared it null and void. By taking that decision, the apex court has shown that it has the authority to judge the legitimacy of any executive action. For the last fifty years, the Supreme Court, despite many ups and downs, has evolved as an institution to safeguard fundamental rights and democracy.
“Simply arguing that it is time consuming to abide by the constitutional process, one cannot flout or throw the constitution into the wind. But, beoing in haste, the politicians seem to bury the constitution promulgated by the Popular Uprising,” said a former attorney general.
It seems that there is no value of the constitution and the constitution will have no role or no worth. Like King Gyanendra, political leaders too are heading to violate the constitution, which they have taken oath to protect. If political parties do not preserve the constitution and law, it will not protect them in future.
Thanks to the existence of this constitution, many sufferers were able to seek remedy from the court. Even former prime minister Sher Bahadur Deuba was released under the Supreme Court’s decision. Whether it was the case of manhandling of Kantipur FM or Girija Prasad Koirala’s decision to challenge the CIAA, the present constitution did prove itself as a guarantor of civil rights and civil liberties. Even the Maoist rebels were protected by this constitution. If the constitution has protected all citizens, media and politicians against the excesses of the executive, why some groups affiliated to the leftist and democratic parties are demanding the new interim constitution is difficult to fathom.
It reminds the observation made by Brian Hodgson, the first resident representatives of Britain to the court of Nepal more than one hundred fifty years ago, “these barbarians (Nepali) do not understand where their interest really lies.”
Mandate Of the People
Deuba : Facing dissensions
Although the mandate of People’s Moment II was to revive the House of Representatives, form all party interim government including the Maoists and hold the free and fair elections for Constituent Assembly (CA) and bring peace and prosperity in the country, the recent activities of SPA leaders show that they want to settle all the issues, which only the CA is prvilaged to decide. Initially, the SPA promised to fight for the supremacy of sovereignty of the people but once back to power, they claim they are themselves symbols of sovereign power. Constitutionalism has suddenly disappeared.
“The recent popular movement has three demands – to restore Parliament, to form an all party government including the Maoists and to hold free and fair elections for the constituent assembly,” said senior advocate and prominent human rights activist Bishwokanta Mainali. “The first demand of Seven Party Alliance (SPA) has been fulfilled. Now the SPA and Maoists have to fulfill their promises to bring peace and prosperity in Nepal and to conduct the elections for CA fairly. The verdict of CA should be respected by all,” said Mainali, executive member of Law Asia, Asia and Pacific Region Lawyers and Judges Association and general secretary of South Asian Forum for Human Rights Nepal.
The mandate of the agitation was to go through constitutional process but their whole emphasis now is to proceed through political decrees. “The constitution is being rigged and trampled to maintain a political image of fierce agitators and ultra-revolutionaries. Maturity and sobriety are, at present, rarest values in Nepalese politics, which cannot contribute to attract foreign aid or donations. If they are going to do away with the provisions of the constitutions by executive decree, what remains next to be done by the CA? A law protects everybody only if the law is duly observed and preserved,” said the political analyst, adding, “The constitutional process in this country has never been so unprotected and misused.”
The reinstatement of parliament warrants the reconstitution of local bodies under the pursuant of amendment of local bodies law. The parliament has to restore to meet the aspiration of the people.
“Recent experience has shown that the introduction of democracy is a complex process which involves more than mere political transformations. The transition to democracy concerns the whole body politic – that is to say, all the individuals that constitute it and their social relationships. Success in constructing a democratic civil society depends on the commitments of the population at large to the democratic ideal, on its active involvement in all aspects of political, social and cultural life, on tolerance of difference combined with respect for majority opinion, as well as on the existence of democratic institutions and wise political leadership. Democracy cannot therefore be achieved rapidly – particularly in countries emerging from decades of totalitarian or authoritarian rule – since changes in human attitudes are less easily accomplished than the remodeling of political structures,” said Federico Mayor, former Director-General of UNESCO (in the preface of Democracy An Analytical Survey by Jean Baechler).
A democratic system can endure only when citizens as a whole hold fast to constitutional methods for achieving their social and economic objectives. Now that constitutional methods are open and available, they must abandon the bloody or coercive methods of revolution, of civil disobedience, and of non-cooperation.
While politicians of Nepal are practicing horse trading for power, the people in Nepal have to keep in mind, as said by prominent British satirist Alexander Pope, “Let fools quarrels over the forms of government, that which is governed best is the best.”
No constitution, declaration and proclamation will last long if it is unrealistic and against the ground realities of the country. Only a constitution, which reflects the balance of powers between political forces, will give a lasting stability. Despite the recent upsurge, power balance and country’s ground realities have not changed much.