Interim Crisis or Interim Learning?
By Prof. Andrew Arato
(The interim constitution places Nepal in the forefront of the best recent experiments in non-revolutionary democratic transformations, starting in Spain and culminating in South Africa . These experiments all involved two stage models of change, negotiated for most of them through round table or multi-party agreements, and in the most advanced form relying on interim constitutions)
The new Interim Constitution of Nepal is an important achievement of a democratic process. It is however a document with serious problems of drafting and formulation, that could lead to political difficulties, even constitutional crisis. Fortunately it is relatively open to constitutional amendments, that is constitutional learning. With a few necessary amendments, this constitution should be strongly supported by democrats because there is no alternative regulation for the transition period.
The interim constitution places Nepal in the forefront of the best recent experiments in non-revolutionary democratic transformations, starting in Spain and culminating in South Africa . These experiments all involved two stage models of change, negotiated for most of them through round table or multi-party agreements, and in the most advanced form relying on interim constitutions. Nepal unlike many of the cases had a legal break initiating the changes, but like the most developed form had a series of multi-party agreements and now completed an interim constitution. And that, under difficult historical circumstances is a great achievement, especially if it works.
With this said the Interim Constitution recently enacted has serious faults, some of which became clear during the recent popular movement in the Terai region that is already forcing probable amendments. Let me note the main problems. First, the Interim Constitution makes a great mistake in its Preamble to speak in the name of “We, the people of Nepal ”. The American original could do so because it was submitted to ratification by popularly elected bodies. Other constitutions that follow this example are drafted by popular bodies, or are submitted to popular ratification, or both. Neither is the case for the Interim Constitution of Nepal; it was drafted by an 8 party bargain, and ratified by a chamber elected in 1999, and illegally (though perhaps legitimately) recalled. These two instances do not add up to the authority of the “people” in any sense. Moreover, an interim constitution does not need such an authority, because its function is to enable the people, or those legitimately speaking in its name to draft a new constitution. While greater legitimacy in negotiating the Interim Constitution through a more public, consultative and open process would have been important, taking on the mantle of the people is especially paradoxical in the absence of such proceedings. It has finally a very dangerous consequence: it is assumed that the makers of the interim constitution had the authority in principle to decide questions that only a democratically elected body could decide, in particular to transform the state from a centralistic to a federal one. Now under pressure the government seems to be getting ready to make an amendment on this question, pre-empting the work of the constituent assembly. But to some extent it invited the raising of this problem, and who knows what others, with the possible absurd end result that the constituent assembly would have nothing left to decide.
In fact, a careful examination of the document shows (rightly in my view) a conservative rather than innovative spirit at work, belying the supposed popular mandate. Most of the interim constitution tracks the structure and sometimes the very paragraphs of the 1990 Constitution of the Kingdom of Nepal , eliminating most references to royal powers and prerogatives of course, or worse substituting Prime Minister for King in some crucial instances. When such tracking and repetition is unfortunate is when it invites repetition of the authoritarian practices of the old regime. In particular the presence of the Constitution of 1990 is obviously visible in many of the provisions concerning civil rights for example that are full of the old loopholes and in the provisions concerning judicial structure. The latter justifiably raised questions, in Nepal and outside, concerning judicial independence. Granted, the Interim Constitution adds whole sections on The Right to Equality and Rights against Untouchability and Racial Discrimination (articles 13 and 14). But these new rights are in no better shape than the old if the judges needed to enforce them are picked exactly in the old way, with Prime Minister substituting for the King in the exact formula of the 1990 Constitution.
Moreover, astonishingly enough, this Prime Minister will be for the next two and half years under less parliamentary control than the old one was supposed to be, though of course that control was shared with the King in a highly undesirable fashion. In the Interim Constitution, the PM is supposedly picked by consensus among the 8 parties, and failing that by 2/3 of the new parliament (Legislature-Parliament in the new terminology). There is however no possibility of removal through loss of or votes of no confidence as there was in Article 36(5b) of the Constitution of 1990. Astonishingly, with the election of the Constitutional Assembly (rightly defined as also a new Legislature-Parliament) there is no requirement of new government formation. So appointed under one majority, a PM may choose to govern when he is in a weak minority position. Of course he could resign, but he does not need to, and the Constitutional Assembly has no powers to force him. Even more astonishingly Art 160 of the Interim Constitution states that the Council of Ministers in office at the time of the promulgation of that constitution stays in office making Art 38 (1 and 2) basically irrelevant, except in cases of death or resignation of a Prime Minister. The road is open for the current government to stay in office for 2 and ½ years, if it wishes, and if it is favored by natural factors. If the idea was to produce a power sharing formula among the major parties, this was not the way to do it, especially because it is hard to know what will be the major parties after the elections for the Constituent Assembly.
Preparation for those elections and the rules for the Constituent Assembly were in fact the major tasks to be solved by the Interim Constitution, and I strongly disagree with those who argue that it was their makers’ task to come to agreements about all kinds of substantive issues confronting the country, like federalism and material social justice. Those issues are the legitimate province of the democratically elected Constituent Assembly, and even subsequent legislatures to the extent that social and economic policies are involved. The task for now was only making sure that the Constituent assembly would be constituted in a free, fair and truly inclusive way, so that its decisions on all the relevant questions will be democratic, fair and inclusive in turn. It was also important to restrain the Constituent Assembly by rules so that minorities could not be simply outvoted by majorities, producing an imposed, majoritarian constitution, and the Interim Constitution accomplishes this last task reasonably well. The way the Constitutional Assembly is supposed to deal with the issue of kingship through simple majority is not too reassuring, but there is the option still of calling a referendum on this question according to the Interim Constitution. (Articles 157, 159(3)). The really difficult issue remains that of the Constituent Assembly’s membership. While I do not sympathize with those raising the issue of federalism now, others questioning the Interim Constitution’s decisions on the electoral rule and citizenship have a much stronger point because these two domains have to do with the very composition of the Constituent Assembly and the possibility that it will not be genuinely representative of both the unity and the diversity of the people of Nepal. As to citizenship, I am no expert, but the kind of additions I detect vis-à-vis the Constitution of 1990, though important, do not seem to go very far. So (I cannot judge) if the grievances of the Madhesi community are serious, more adjustments and changes in this area would be called for. Perhaps independent international experts need to give their opinion on this question. If the lists of citizens can be expanded in the Terai, I must admit I think this would be a better solution than adding more first past the post districts in that region. The mixed system in the Interim constitution is not a bad one (though I would have chosen a single country PR with rules for ethnic and gender fairness) reflecting the fact that some minorities are geographically concentrated and would benefit from more districts in their area, while others like the Dalits (and women who are not a minority) are dispersed and need PR with legal restrictions to get seats. The present regulation is however a muddle (Art 63 (3 and 4) as far as I can see, though I admit that my judgment can be based only on the provision regarding women where it is required that their 1/3 parliamentary representation be assured. There is simply no way to do this with almost half the members running in First-Past-the –Post single district races, because even if parties were required to nominate 1/3 women, all these could lose. The creation of all woman candidate districts (1/3 of them) would be possible but absurd. What I am arguing is that only in the proportional representation part of the competition could the law mandate fair representation of women and other groups, and adding more first First-Past-the –Post races to help one underprivileged group winds up hurting the others. If both types of seats are added as currently proposed, the size of parliament grows and no group is helped. Thus, it would be better to handle the citizenship issue head on, rather than further tinkering with the electoral rule.
In my view then two issues still require adjustment: judicial independence, and (possibly) the question of citizenship. The Interim Constitution allows its own amendment by 2/3 of (in the English it is unclear:) all or attending members. That rule should be used, though sparingly so that the Constitution is not converted into a simple statute. It is equally important now that the Interim Constitution be accepted, even with its glaring faults. Renegotiating it would put off elections indefinitely, and who knows what conflicts a new Interim constitution would unleash. The current document seems to provide internationally accepted criteria for moving toward free lections, and the most important thing is that it be enforced and upheld during the two and ½ years of its likely existence. Since the government created by it is a power sharing one composed of many forces one would imagine that their internal relations would play some role in constitutional enforcement. Political forces that feel excluded are right to charge an elite agreement to some extent over their heads, and the absence of really open, public and consultative negotiating process, but their best hope in a more democratic outcome is a speedy movement toward a freely elected constituent assembly.
(The author is a Professor at the NewSchool for Social Research, New York . He has visited Nepal and delivered talk programs as an expert on constitution-making and can be reached at Aarato1944@aol.com
