NATIONAL 3 -(Spotlight Weekly)

Subverting Stability

Demands for changes in the basic law would only prolong the country's political turmoil

By KESHAB POUDEL

CPN-UML general secretary Madhav Kumar Nepal seems to have run out of political or development programs. Wherever he goes, the leader of the opposition in parliament, raises the need to amend the Constitution of the Kingdom of Nepal 1990. Although Nepal was a member of the panel that drafted the constitution, he seems to have lost faith in it. During an interview with BBC Nepali Service while on a visit to Britain, Nepal called for major amendments to the basic law.

Political leadership : Failure to guide

Actually, the UML had recorded a lack of faith in the constitution from the outset. Immediately after the basic law was promulgated in November 1990, the party extended its "critical support" to the document. For those who believed one either accepted or rejected something, the UML's stand came as a surprise.

These days, however, Nepal is not alone in demanding constitutional changes. An all-party meeting held in the presence of Nepali Congress president Girija Prasad Koirala, Rastriya Prajatantra Party (RPP) leader Surya Bahadur Thapa, the UML's K.P. Sharma Oli and Nepal Sadbhavana Party's (NSP) Badri Prasad Mandal endorsed a proposal for the amendment of the constitution. While the country has been facing major challenges on the road to economic development and political stability, the leaders of the major political parties see faults in the constitution.

The communists' and the RPP's desire for constitutional changes is understandable, since they expect to advance their electoral politics. However, the Nepali Congress's interest in amending the constitution defies comprehension.

"We need to amend the constitution to curb corruption and to make the government more effective," the UML's Oli said. "The constitution should have a provision for a neutral government to conduct elections. There is nothing wrong in amending the constitution."

Leftist leaders : Equivocal?

Constitutional lawyers, however, are not so sure. In fact, many ask how many constitutional experts the UML has? "How have Nepal, Oli and other political leaders come to the conclusion that the constitution needs to be amended?" asks senior advocate Mukunda Regmi, a member of the team that drew up the constitution. "Have these leaders done any homework? If not, what has inspired them to prolong political instability?"

He adds: "Even if the UML comes up with an agenda for amendment, how can the party accommodate the programs of the other 10 left parties, and three major rightist parties? It is unfortunate that voices against the democratic constitution are being raised by political leaders who have sacrificed so much for the cause of democracy."

It has become fashionable among political parties and certain individuals to blame the constitution for the country's ills. These individuals and leaders, disappointed by developments in the country since the restoration of multiparty democracy in 1990, maintain that the constitution simply has not worked. What they overlook is the fact that the constitution by itself cannot work because it is inert. It is the responsibility of citizens and elected and appointed leaders to implement the letter and spirit of the constitution.

Experts argue that the constitution is a tool to achieve a new democratic and equitable society, and such a society is to be achieved through a social-economic revolution pursued with a democratic spirit using constitutional and democratic institutions.

Granville Austin in his book "The Indian Constitution: Cornerstone of a Nation," says: "No founding document can contain solutions to every situation, and that leaders in the future should find, within the constitution's principles, their own way out of difficulties that might confront them."

John Marshall, who served as the chief justice of the US Supreme Court from 1801-1835, said a constitution is framed for ages to come, but its course cannot always be tranquil. Representative government with adult suffrage, a bill of rights providing for equality under the law and personal liberty, and an independent judiciary are to become the spiritual and institutional bases for a new society.

Yet a constitution, no matter how well conceived, can only establish institutions on paper. Breathing life into them is up to succeeding generations. Despite attacks from different quarters and frequent breakdowns in the political process, the Nepalese government has operated under the constitution. Most importantly, the institutions of the constitution have been able to respond to the local environment.

Constitutions can be amended through judicial interpretation and through normal constitutional procedures. But why are Nepal and other political leaders calling for changes while the country is passing through a state of emergency that cannot be blamed on the constitution?

The institutions created under today's constitution have shown that they are capable of meeting the challenges. Despite some hindrances, the constitution has proved capable of ensuring the smooth transfer of power between governments. The country has conducted three general elections and two local elections.

Although there were many lacunas in the functioning of the judiciary, the courts have been successful in interpreting the constitution and other laws. A major achievement of the constitution was witnessed last year with the enthronement of two monarchs over a couple of days. After the imposition of the state of emergency, the constitution has completed its circle.

While the country is facing the challenges of socio-economic development, is a constitutional amendment such an important issue for Nepalis? By insisting that it is, UML general secretary Nepal seems to be creating a vacuum the country cannot afford. If his amendment does not work, what will he propose next?

Untimely debates over the constitution would only prolong the country's political instability. "This cannot be done by the wises of the lawyers sitting together in conclave; it cannot done by small committees trying to balance interest and calling that constitution makingÖ. It can only be done effectively when the political and psychological conditions are present, and the urge and sanctions come from the masses," said the late Indian prime minister Jawahar Lal Nehru.

The constitution cannot be amended on the wishes of certain individuals and political parties. The ethos of the constitution will depend upon the faith of the people, including lawyers, doctors, engineers and people on the street.

As Nepalese leaders seem to be in a mood to amend the constitution, renewed political instability looms on the horizon. The real challenge before the country is to safeguard the constitution not only from the extreme left and right, but also from mainstream parties like the Nepali Congress, UML and RPP.