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VOL. 27, NO. 41, June 27 , 2008 (Ashadh 13 2065 B.S.)
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Danger of revival of 'conflict' still exists if the CA process is not wisely handled
Dr. Surya Dhungel
Dr. SURYA DHUNGEL is a well known constitutional lawyer. Having written a number of books on constitution, Dr.Dhungel spoke to SPOTLIGHT on various issues regarding the CA. Excerpts:
What is your views on current politics and political parties ?
From a layman's perspective, I don't see any 'politics' in Nepal at the moment. There is simply a crude struggle for power, and the leading political parties' role is demonstratively limited to sharing the cake, as their ongoing negotiation and partially agreed deal to propose fifth amendment to the Interim Constitution suggests. Obviously, the business of the constituent assembly has been overshadowed by the business of the normal legislature. The political parties may not have realized that they have terribly disappointed the people and friends in the international community. In the name of people's mandate and jana-andolan, the leading political parties appear to have been carrying imposed and imported agenda that are not in the national interest and keep on changing everyday.
What are the worries?
This worries the people most. The love for nation, people, human rights, the rule of law, democracy and justice are becoming far from cry. The silent cries of the masses narrated in Father Stiller's book (The Silent Cry), as is unnaturally subdued in the shadow of state lawlessness and political anarchy, are well reflected in the gloomy faces and grim eyes of politically disciplined but maddening crowd of the huge constituent assembly, which has still been deprived of its core business of participatory constitution-making. The nation cannot afford to wait any longer.
What kinds of reform needed?
Internal reform of radical nature therefore has become essential in all political parties; time has come for them to change the old and orthodox guards. Nepal now needs, and will hopefully produce soon, young, competitive and dynamic leaders of high integrity with innovative ideas and new global vision. Nepal is in serious political crisis now. And crisis normally gives birth to a new national leader.
What is the role of statesmen?
Gandhi of India as a global leader and crusader of nonviolence was born in South Africa at his early thirties when he had just started his legal career. Lee Kuan Yew as a leader of modern and prosperous Singapore was born in mid-sixties when a new nation was born, freed from the colonial power. Nelson Mandela emerged as a real leader only after he was released from the prison and started negotiating with the then political forces and rulers of the country to transform the country from 'Apartheid' to an independent and unified South Africa as a modern nation in the eighties and nineties. Dr. Ambedkar as a prominent leader of India was born only in 1947 when he was tasked to chair the drafting committee of the Indian constituent assembly and produce a durable democratic Constitution. Hence leaders are born at different ages and places at different periods of history. I am confident, if the constituent assembly in Nepal is allowed to function, a new national leader will be born in the assembly itself.
Do you have some recommendations to make for the CA members and political parties in bullet points ?
I have five points that I like their attention drawn to. First, since you (CA Members) are entrusted with a noble task of formulating the most sacred constitutional text, the supreme and basic law of the land, you (political parties/leaders) yourself need to respect the rule of law, and let the people be assured of minimum governance. The way the first CA session on the first day was conducted was in total violation of the rule of law. Second, draw a clear roadmap for formulating (drafting, adopting and promulgating) the new constitution in a participatory way. This can be done while adopting the internal rules of CA procedure. Provisions for expert inputs through various committees may be included in the rules. The CA is short of experts on many fields, and grievances of various unrepresented groups are increasing every day. It is not harmful to add 25 more members through nominations in the already big house of 601, provided only experts from various fields and acutely under-represented groups are impartially picked up.
What will be third option?
Third, make sure that all political parties agree on 'fundamental constitutional principles' which will provide a basis for the nature and main contents of the new constitution. If political parties and CA members open up their minds to welcome all possible options and try to keep themselves free from vested external political influences, even the contentious issues like ethnicity, language, religion, federalism, devolution of power, selection of political system etc. could be amicably addressed. Fourth, effective consultative devices and processing of the public submission have to be innovated for ensuring local ownership. Even the draft adoption process needs to be simplified. Last but not the least, access to and use of mass media for public awareness of the CA deliberations. This includes to recording of debates and providing briefing notes to the CA members with expert inputs on the issues under debates.
One last question about your views on the abolition of monarchy ?
Actually, the power initially granted to CA to decide on the fate of monarchy by the Interim Constitution was unconstitutionally snatched by the interim legislature. However, it does not deprive the CA from its rights to decide on the nature of political system that Nepal needs to adopt. It was wise on the part of the king to amicably accept the changes. There is no prospect for monarchy to restore again in Nepal. However, as the monarchy itself paved the path for its earlier exit, any wrong and irresponsible moves from the political parties may similarly pave the path for the rise of a new authoritarianism in the country. A wise and reasonable handling of the CA process without antagonizing the powerful 93,000 army and with due consideration of assimilating 19,000 combatants in the new political system without any threat, is a must. Otherwise, we have seen the reemergence of authoritarian regimes and revival of conflict in some parts of the world even after the peace process had once been completed. Liberia and Haiti are the glaring examples.
Let us change the subject. As a constitutional expert and partly as a situational analyst also, do you think the Constituent Assembly will be able to formulate a new and durable Constitution for Nepal ?
Honestly speaking, there are many 'ifs and buts' in the constitution making process. It is true every where in the world where new constitutions are formulated. The Constituent Assemblies despite their merits may not be able to produce a workable constitution. The life and bloods to the constitution is given by the implementing devices and the leadership of the committed actors, competent and skilled enough to ensure the functioning of those devices. Firmness in respecting the constitutional principles and values and flexibility to accommodate necessary changes are equally important for the success of any constitutional and political system, only if it has been owned by the people through their involvement in the constitution making process. Hence legitimacy is gained through acceptability and participation. This is what the lesson has been leaned from the experience of the South African constitution making. Hence, the quality of the constitutional document alone is not sufficient for ensuring its durability.
How do you see the quality of draft of 1990?
The quality of the draft of the 1990 Constitution as such was excellent, and it was much better than the 1959 Constitution which was basically drafted by Sir Ivor Jennings, one the most prominent constitutional scholars of the world. But it did not survive. Durability of the Constitution does not depend only on the quality of the text, it mainly depends on the quality of the political leadership and the capability and flexibility of the societal leaders responsible for modifying the document to suit the changing needs of the society. Therefore, no constitution should ever be blamed for its failure, neither it should be blamed for the failure of a political system that the political actors of the country concerned have poorly designed and badly managed. In fact, a wrong choice of an unworkable political system, which is unaccountable and non-representative, and the continued disagreement amongst the prevailing political forces about the choice of political mechanisms for dividing and balancing the state powers, with equally accessible institutional devices to distribute opportunities and secure justice for all, are the key reasons behind the failure of a political systems. But the poor political managers always have a tendency to blame the constitution rather than their own management skills to deliver the political, economic and social goods to the societal consumers.
What can be done, then ? We don't have any dependable national leader ?
Before it is too late, time has come for the political parties and their leaders to be serious; they should immediately stop an ugly 'insinuation' of the peace process and the constituent assembly against people's trust. Without any further delay, they must start their main business that the people have tasked and entrusted on them. The fast eroding image of the political party leaders and continued decline of people's confidence on them are not good signs for the future of the country. People's growing impatience, as they feel terribly betrayed, could be too costly for the nation, and for the key political parties in particular.
What is required?
Prolonged negotiation amongst a few limited political parties without any tangible results in agreeing on an interim political arrangement and the continued political impasse in the formation of government for so long may invite untoward incidents of lasting consequences. It is unfortunate that the political parties and their leaders claim for compensations and returns against the sacrifices and contributions they made during their long years of political struggle and movements for change. Solely because of the predominance of irresponsible, selfish, motivated and incompetent leaderships in the existing political parties, the leaderless Nepal is bound to suffer more in coming days.
How will you accommodate 25 political parties?
In an extremely divided house of 25 political parties and one independent, a mix of 601 radicals and conservatives, it is not an easy job for the CA to handle. But it would be too difficult for the large political parties to whip their party members when vested political interest of an individual party directly clashes with genuine constitutional demands of an individual as a CA member and as citizen, based on his/her self realized individual, inclusive, community, regional or national interest. Taming an animal is easy, but taming ideas and interests of a citizen at the CA, simply on the ground of party membership, will be a hardest nut for any political parties to crack. We have therefore reasons to be optimistic, and we should spend our energy to enrich the knowledge of CA members and strengthen their capacity to freely identify and articulate their interests and make informed decisions. Hence, we have no choice but to be very watchful and maintain 'eternal vigilance' during two years of the constitution making period.
