NATIONAL 4 - (Spotlight Weekly)

‘Constitutional Amendment Not Needed Yet’

— KUSUM SHRESTHA

Senior advocate KUSUM SHRESTHA - one of the renowned constitutional lawyers of the country - believes that the time has not come to start a debate on amending the constitution. He argues that the constitution requires extensive experiments to fully evolve. Shrestha spoke to KESHAB POUDEL on various issues relating to the constitution. Excerpts:

As a constitutional lawyer, how do you see the proposal of the CPN-UML on amending the constitution?

The question of amendment is related to the development of the constitution, which is developed through practice. The constitution is not an all-inclusive document. Underlying and incidental meanings are developed by practice and conventions established by the government and by judicial interpretation. We are still in the initial stage of such development, constitutional practices, conventions and judiciary interpretation. By such exercises, the constitution is enlarged in line with the realities and the necessities of the nation.

What is your opinion on amending the constitution?

As far as formal amendment is concerned, the constitution has made a special procedure. The constitution is not meant to be amended in accordance with a person's whim or political doctrine. Of course, it may be amended and it can be amended. If the circumstances and conditions of the nation impel. If there have been deliberations in the acts of the intellectuals of the state and there is an approval from the people. But so far as I am concerned, I have not found any imperative need for amendment.

Is this the proper time to talk about amending the constitution?

So far as the proper time is concerned, first of all let us see the voices in favor of amendment. There are nihilistic voices calling for an annulment of this constitution. There are those who want another constitution through a constitution assembly or otherwise. This nihilistic approach is very dangerous and we may lose the constitution. By annulling the present constitution and introducing another one, we may lose not only a democratic set-up of government but may also lose our nationhood. Those who are in favour of replacing the current constitution do not have rational integrity in the protection of democracy in the country.

How do you see the different voices raised on amending the constitution?

One of the major points raised by some intellectuals is the role and power of monarchy. Those raising this point seem to be ignorant of the power of the king. As per the present constitutional set-up, the king has very important powers. First of all, the king has been dignified as the symbol of the nation. Second, he acts not only as the head of state but also has the inherent power to suggest, warn and to be informed. These are very big powers. These powers make the king not only a ceremonial head but also a very responsible head of state. The third thing is that the king has been invested with a very responsible residuary power, that means he is the protector of the constitution. He has to protect the constitution if some elected government tries to destroy the basic framework. If that situation arises, the king must act to protect the constitution.

Then why are these quarters demanding more powers for the king?

To make the king more active than what he is now will be asking the king to be answerable for his actions. I must remind you that monarchies have been passing through a very difficult time around the world. In England, because of the act and behavior of other members of the royalty, the whole institution of monarchy has been questioned. We have to take very big lessons. We are in a peculiar situation as we stand between two Asian giants that are selfish powers. We have to be very careful to safeguard our national entity. Therefore, the king has been made the symbol of the nation and the people's unity. Because of the enlargement of the royal family and recent acts of a member of a royal family, the monarchy has come under serious criticism. In such a situation, we should not think of making the king answerable to the people for his actions.

How practical would it be to have a directly elected prime minister?

Direct elections for prime minister has already been experimented in Israel, but it has been not so successful. Direct elections do not mean that the prime minister is not answerable to the house. Such a prime minister has to carry the confidence of the house as the leader of a party which commands a legislative majority. Moreover, we should not indulge in experimentation. We have already suffered in our constitutional experimentation.

Would it be possible to constitute a national government for elections?

The logic for an election government has been put by a very large party which is now out of the government. Had that party been in the government, it would not have raised this issue. This is very dangerous. Why should a party want an election government when it has a system of continuity of the government?

At a time when every government exploits the administration to rig the elections, would it not be right to form an election government?

Elections are not made free and fair by the government. It is the duty of different agencies of the state. The Election Commission is responsible for conducting elections in a free and fair manner. The real focus should be on empowering these agencies. Those demanding an election government just want to exert some of their own influence in the elections.

How do you see the citizenship issue?

Those who want to amend the constitution on grounds of citizenship are misguided. They do not have substantial grounds to prove that many people in Terai regions are deprived of citizenship because of the constitution. As far as the reality is concerned, it is a misunderstanding to the constitution. Our constitution has specified certain provisions on citizenship. The constitution has established that those people who are permanent residents in Nepal up to 1964 be made citizens. This provision has not been seriously implemented. The problem in not in the constitution but in the lack of seriousness in the implementation of law.

Then why are politicians frequently demanding amendment to the constitution?

As I said, they might be making the demand because of their political bias. Politicians think they will have some political gain in raising such issues. There are also some intellectuals who want to amend the constitution. This is nothing more than intellectual fancy. I don't think there is any serious deliberation on that point. Some very responsible political parties are throwing the idea to amend the constitution to provide for an election government. They are not serious in their deliberations either.

Do you know any country where free and fair elections have been held by a neutral government?

First of all, no government is neutral. The very concept of a neutral government is bogus. During the Panchayat regime, we formed election governments and we knew what happened. When you say a neutral government, you lack the concept as to who will represent and who will be the representatives of the people even during the time of elections. This is something which is contrary to the elected government.

But the proponents are saying that Bangladesh has experimented in such government?

Bangladesh should not be an example for our nation. We must see under which circumstances the election government was formed in Bangladesh. If the example of Bangladesh is repeated here, we are finished.

What are the main challenges of the present -- economic development or political issues?

Economic development is something different and the constitution does not make a country economically prosperous. It is the policy, implementation and the action of the government and the people. Political development, institutionalization of democracy and other things are just fanciful, or, you can say, intellectual luxury. The constitution should not be left to intellectual luxuries and fancies.

But the CPN-UML - one of the major political parties - argues that the flaws in the constitution are responsible for the present situation?

Their statement is just for political gain. They also know their limitations. I have not seen any concrete point in their proposals to amend the constitution. The amendment to the constitution is not a serious consideration but some sort of slogan for political gain.

Why does Nepal have such frequent political instability?

This is not because of the constitution. There are so many factors. Unfortunately, Nepal is sandwiched between two big nations of Asia. It is a buffer state between two regional superpowers and both of them are very selfish. Our northern and southern neighbors have their own perceptions on security, water and market. When we speak of our political instability, we cannot ignore these factors. We have not been able to evolve a political consensus. We have not been able to function as a responsible democratic government. I would say the constitution is not the impediment to development. Under this constitution, there can be development. But what is required is the will in the government, determination of the people.

Then what is reason behind the ongoing debate on the amendment to the constitution?

Frankly speaking, these voices are not outcome of serious deliberations. Wishes cannot be fulfilled by the constitution. They have not pointed out that this is our deliberated thinking and they have not said that this is what the people want. The people are not interested in what constitution should look like as much as they are in the prosperity and stability of the nation.