Interim Constitution: Laws and Flaws
- By Sanjaya Dhakal
As a document of compromise among the liberal democrats and communists, the recently finalized interim constitution though appears sound in a given political reality has been shred apart by lawyers and constitutional experts who believe that it lacks basic norms of constitutionalism like separation of power, checks and balances and inclusiveness.
The interim constitution, which has been signed but is yet to be promulgated, has generated an intense debate among the lawyers and intellectuals with many of them pointing out at the grave flaws in it.
By vesting all the executive, legislative and judicial authority upon the Prime Minister, the interim constitution has side-stepped internationally set constitutional norms and values. The Prime Minister is now de facto head of government as well as the head of state. With power like appointment of Chief Justice vested in the PM, the executive could, for all practical purposes, now hold sway over the judiciary.
Power corrupts and absolute power corrupts absolutely. Going by this dictum, this interim constitution lays the ground in which a dictator can be born although in the garb of a democrat.
The independence of Constitutional Council, which in the previous constitution included even the leader of opposition as its member, has now been diluted. In the interim constitution, the Prime Minister, Speaker, Chief Justice and three ministers nominated by the Prime Minister will be its members.
Another important deviation in the interim constitution is its written clarification that political understanding will mean the understanding among the eight parties only. The clarification of Article 38 states, "For the purpose of this constitution, political understanding will mean the understanding among the seven parties including Nepali Congress, CPN-UML, NC (Democratic), People's Front Nepal, Nepal Sadbhavana Party (Anandidevi), Nepal Workers and Peasants Party and United Leftist Front and the CPN-Maoists who have signed in the November 8 political agreement."
This provision is clearly analogous to the Orwellian episode whereupon it seems that "all parties are equal but some (read, eight) parties are more equal."
"It is the height of fault to state such provision in the constitution itself," said a constitutional lawyer. "It will mean that this constitution is of the eight parties, by the eight parties and for the eight parties."
"More than a constitution, this appears like a document of give and take," added Kumar Regmi, a reputed lawyer. "It includes nebulous provisions like the spirit of People's Movement and has weakened the judiciary. It appears that the parties wrote this constitution with the individual Girija Prasad Koirala in their minds. If anybody is to replace Koirala as the PM, this constitution could invite grave danger."
Even Shambhu Thapa, the president of Nepal Bar Association (NBA) who was also a member of the interim constitution drafting committee, likes to call it a "political whip" rather than a constitution. "The eight parties have issued this political whip. We have to follow it whether we like it or dislike it," Thapa has said publicly.
"There are several areas where this constitution can be improved. There are many unclear provisions. I think the top leaders should not have put their signature on it. They could have only adopted it as a policy and left the parliament to improve upon it," said Kashi Raj Dahal, former secretary of Judicial Council. He, however, believes that fundamental rights and recognition of people's right to basic amenities are its positive features.
The defendants of the constitution say that this constitution has been written for the transitional period. "Lets not look at it purely through the legal lens. If we study it on the basis of realities of transitional period and political consensus, this constitution is exactly like what it should be," said Khim Lal Devkota, a member of the interim constitution drafting committee who is close to the Maoists.
Saying that the Prime Minister has been made all powerful in order to reach the political balance, Devkota said politics should be in command of everything else.
His remarks sound logical but there is one big question mark. This is touted to be a transitional constitution, which will be replaced by the new constitution written by the Constituent Assembly. And this constitution itself states that the tenure of the elected CA could be two years with a provision for extension by another six months. This means that this interim constitution is going to be in place for around two and a half to three years.
Three years is a long time in politics. If anything is to happen and the current alliance is reshuffled, then there would be constitutional problems. "As per this constitution, there will be problem even if any one of the eight parties is to change their name," said Lalit Bahadur Basnet, a constitutional lawyer. It is also a matter of speculation how long the ailing Prime Minister will be able to continue in his office. For the time being, all parties have, directly or indirectly, presupposed that Koirala will be in office at least till the new constitution through CA replaces the interim one. What happens if somebody replaces Koirala midway and takes over the absolute power – this is a question whose answer is not clear especially when there are all shades of political personalities including democrats and totalitarian communists who are in queue to become next chief executive of the country.
"Furthermore, there are impractical provisions in the constitution regarding the CA decision-making whereby each article will have to be decided through consensus or through two-third majority if consensus is not possible. This could unnaturally prolong the discussions," said Regmi. For a country that had witnessed the rampant abuse of the Article 127 of the 1990 Constitution – which was touted as the most democratic one – these unclear provisions could be frightening, rife with unintended consequences.
The lawyers agree that the political parties would have done well to follow the constitutional norms with proper checks and balances in the interim constitution. "If this constitution is abused, there could be a grave crisis," said Basnet.
"I urge the government not to translate this interim constitution into English. Otherwise, it will expose the utter lack of capacities of our legal brains," said a lawyer without wanting to be named.
Even independent analyst like senior journalist Dhruba Hari Adhikary has said that the provisions in the interim constitution have been finalized in a very light, immature and vision-less manner. "Provision relating to citizenship is an example," he added.
"All in all, this document has come as a package of understanding among eight political parties. But it is yet to get a constitutional form with proper constitutional norms and values. The parliament should be allowed to improve this constitution. If it is promulgated in the current form, then it could disgrace the country," said Basnet.
Paralyzing Rayamajhi Commission Report
Another serious matter pointed out by lawyers regarding the interim constitution is its provision, which could effectively paralyze the report of Rayamajhi Commission.
The Clause 4 of Article 24 of the interim constitution states that no person can be penalized based on laws with retrospective effect. This means that persons who committed an act, which is not construed as a punishable offense under the prevalent law of the land, cannot be penalized by the introduction of new laws (that state that the same act now is punishable offense) with retrospective effect. Although it is in accordance with the internationally recognized legal principles, this provision can also absolve a number of offenders named in the Rayamajhi Commission as oppressor of people's movement.
"In the previously drafted interim constitution, there was an additional clause that said that persons who have committed crime against humanity could be tried under laws with retrospective effective. But this clause is absent in the newly finalized interim constitution. Perhaps, this clause was deleted under Maoist interest. But this could be equally beneficial to those named in the Rayamajhi report," said Basnet.
As the country is poised to promulgate the interim constitution, there are still many unanswered questions. One can only hope that the interim constitution will function without any constitutional or political accident till a new constitution written by the elected CA replaces it – preferably at the earliest. nepalnews.com Dec 25 06
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