Interim Constitution & Constituent Assembly
By KUSUM SHRESTHA
We had previous experience of interim constitution promulgated in 2007 BS (1950 AD). That constitution was written by India and was in force till another constitution formulated by elected constituent assembly. That constitution remained in force for eight years amid various political upheavals. The constituent assembly could not be elected. However, a constitution formulated on the basis of understanding among the mainstream political forces and which followed the norm of constitutionalism was promulgated in 2015 BS (1958 AD). But this constitution, too, did not enjoy stability. Amid inexplicable conspiracies, the constitution was brutally annihilated.
Following three decades of guided constitution, a new democratic constitution, which also embraced the norms of constitutionalism, was promulgated and enforced in 2047 BS (1990 AD). However, owing to external influence, terrorism, subdued environment, compulsive situations, disunity, conflict, discord, intolerance, crisis of confidence and especially due to commitments and mandatory considerations made by the actors, harbingers and leaders of new change, we are yet again experimenting with the interim constitution and constituent assembly. Consequently, the 1990 Constitution, too, is facing the end from the permanency of the written constitution as the previous constitutions. Again, after half a century, we are returning to the same period of experimentation with interim constitution and constituent assembly.
Historic background cannot be dismissed even if one wishes to do so when building the structure of a constitution. Basically, a constitution is a living document. It is not something that is imaginary or utopia. The living document encompasses present reality, people’s aspirations and spirit of time in the context of past experiences, lessons, knowledge, instances, education, weaknesses and successes and failures. It espouses qualities of democratic constitution that can guarantee stability by drawing roadmap for future. In the context of Nepal , there are a few strands of seamless web that cannot be overlooked when writing a constitution. They are – national unity, democracy and constitutionalization of democracy. It is upon us to develop our country amid the inherent geo-political compulsions and characteristics such as multi-religious, multi lingual, cultural diversity of the people.
Our nation has specific sensitivity as it is a weak but strategically important nation located between two very big and powerful countries. Late Leo Rose has left behind an invaluable contribution in his Strategy for Survival. Perhaps, inspired by his work one Nepali intellectual has published this book. However, Nepalese want not merely to survive but also to develop their nation as a member of comity of civilized nations. Likewise, they want to develop their country as a democratic entity where the state sovereignty and final power will be vested on the people and where individual rights and freedom will reign supreme. But they do not wish for uncontrolled and bindles democracy where inhuman and autocrat like Hitler could born. For the constitution to become lively legal norms, rule of law and constitutionalization of democracy are pre-requisites.
Basically, strands of seamless web mentioned above are inherent in our constitution. When a constitution that is going to be promulgated lacks these elements, the country may have to face unimaginable misfortune.
In this context, it is noteworthy to take notice of an article written by Jenik Randon, Associate Professor of Columbia University, which was published in The Kathmandu Post on June 17, 2006 . That article was based on the constitution written in South Africa after historic changes there. There, the new constitution was written by following the spirit of the existing democratic elements and setting aside demerits and unacceptable practices of apartheid regime. “The people of South Africa resisted the temptation to suspend the rule of law in their process of writing a new constitution and they have reaped the benefit. Under the oppressive apartheid regime the government reluctant to give up their power initiated constitutional reforms to meet the demand of the people, but 1983 constitution only r-entrenched the same internationally denounced apartheid system. And yet, even after the government’s abuse of the rule of law, the equal rights crusaders and Nobel prize winner Nelson Mandela and his party did not abandon it entirely. Despite their revolutionary spirit, they distinguished between the ruling regime and the spirit of rule of law and drafted the new constitution heralded as one of the most progressive in the world, is actually The Act of 108. A less glamorous title but it demonstrates that constitution came not ex nihilo but from a constitution enshrining South Africa ’s commitment to the rule of law, which resulted in the country’s peace and prosperity of today.”
Our 1990 Constitution was not a merciless document; neither was it written by a dictator. That was the result of the People’s Movement and reflected people’s aspirations. I only have one question: Why shouldn’t we follow the even tiny footstep of Nelson Mandela?
(Excerpts of the article written by senior advocate Shrestha. This article is based on remarks he made at an interaction program by CiSAPR on December 07 2006 )
