NATIONAL 2 (Spotlight Weekly)]

Prolonging Instability

Tinkering with the basic law during the state of emergency risks undermining its liberal features

By KESHAB POUDEL

If Nepalese politicians cared to the read what Indian statesman and the country's first prime minister, Jawaharlal Nehru, had to say on the importance of the constitution, they would not have been in such a hurry to amend the basic law.

"This [amendment] cannot be done by the wisest of lawyers sitting together in conclave; it cannot be done by small committees trying to balance interests and calling that constitution-making; it can never be done under the shadow of an external authority. It can only be done effectively when the political and psychological conditions are present, and the urge and sanctions come from the masses," said Nehru. (See the book "The Indian Constitution: Cornerstone of a Nation" by Granville Austin).

Leaders at a program : Misplaced debate?

It is the Nepalese people's misfortune that their political leadership neither understands the constitutional process nor follows it. Even if Nepalese politicians were to come across Nehru's wise counsel, chances are they would contemptuously dismiss it as irrelevant.

Those calling for amending the constitution have ignored a crucial fact. At a time when an escalation of Maoist violence has forced the people to support steps curtailing their rights and freedoms, one cannot expect any amendment to reinforce liberal values. Instead, there is a greater chance of it being pushed towards harshness.

"This is not the right time to amend the constitution, as the country is under a state of emergency," says Laxman Prasad Aryal, the senior-most judge of the Supreme Court. "If the constitution is amended on the whim of certain political parties, it would set a bad precedent," says Aryal, who was a member of the panel that drafted the Constitution of the Kingdom of Nepal 1990.

At a time when the country wants to make a fresh start, amending the constitution haphazardly would derail the process. When political parties use the issue of amendment as a tool in their struggle for power, it would weaken the letter and spirit of the constitution.

Nepal (left) with Oli : Conditional support

Amendment supporters, however, remain undaunted. "The sky will not fall by amending the constitution," CPN-UML general secretary Madhav Kumar Nepal said on Nepal Television's Bahas program. "There is no question of seeking a popular mandate for amendment as the constitution already has specified provisions for amendment," said Nepal, one of the architects of the constitution. "An amendment is necessary for a radical transformation of society."

It is the role of politicians and other leaders to breathe life into the institutions envisaged by the constitution. A constitution, no matter how well conceived, can only establish institutions on paper. "There is nothing wrong in the constitution," says senior advocate Mukunda Regmi, who also served on the constitution-drafting panel. "However, constitutional illiterates and political amateurs are pushing the constitution into trouble waters," he says.

"The need of the hour is to guarantee the stability of the system. Democracy has never been under such a serious threat in the history of Nepal. Are politicians ignorant about the situation or they are trapped in the conspiratorial tactics of antagonists of the present dispensation?"

There has been no popular demand for amending the constitution. Political parties did not seek a mandate from the people on amending the document during the last general elections. However, the main opposition party floated the idea last year. For his part, Nepali Congress leader and then-prime minister Girija Prasad Koirala had flatly rejected the demand in public functions.

In an intriguing turnaround, Koirala spoke the language of the UML in the House of Representatives before the vote on ratification of the emergency proclamation last week. "We are ready to do everything to transform the country. We will bring a proposal to amend the constitution in the current session of parliament," Koirala said in his speech.

No one argues that the constitution is written in concrete. The document itself has laid down provisions and procedures for amendment. However, the endeavour must be based on a careful study of shortcomings and full cognizance of how the proposed changes would benefit the nation. "For normal change, why did you wait for an abnormal situation to emerge. If there are abnormal changes, they should not be pursued in normal times. This is an elementary lesson in constitution making," says a constitutional lawyer.

The three major parties ó the Nepali Congress, UML and the Rastriya Prajatantra Party ó insist that their demand is in accordance with the wishes of the people. However, each leader is approaching the issue with purely self-centred motives. "Unfortunately, party members are compelled to follow the leadership as ëbonded laborers'," a political analyst says.

Nepalese politicians have developed a habit of faulting the constitution every time anyone criticizes their performance. Who can guarantee that an amendment would ensure the smooth functioning of state institutions? Moreover, who can guarantee that the UML, which offered critical support to the constitution drafted by a panel that included two senior members of the party, would accept the amendment wholeheartedly?

A more momentous question also needs to be addressed. Who actually determines the fate of the constitution ó political parties or the citizens? According to constitutional experts, calls for amendment should have come from the people ó common citizens on the street, professionals, farmers and workers.

The political parties cannot seek an amendment without the consent of the people. "This is not a proper time to amend the constitution, especially when the country is under a state of emergency," says MP Radheshyam Adhikary. "One has to debate the issue of amendment with a cool mind. What amendments are required? I don't see any relationship between constitutional amendment and resolution of the Maoist problem. The amendment demand concerns the mainstream parties, whereas the Maoists want a constitutional assembly."

The constitution is framed for ages to come but its course cannot always be tranquil, the 19th century US chief justice John Marshall once said. When the constitution faces a crisis, it is the duty of rational people to defend it. Unfortunately, Nepal seems to have very few rational politicians left. Otherwise, they would not have taken such a momentous issue so lightly.

One of the basic tests of the constitution is whether it can provide a durable framework for government in the midst of great social and economic change and political chaos. In the last 12 years, the constitution has been able to work in accordance with the demands of the time. The constitution paved the way for the peaceful succession to the throne after last June's royal palace killings.

The constitution successfully handled the imposition of the state of emergency and its ratification by the House of Representatives. Moreover, three general elections and two local elections have been held under the constitution. It has overseen the change of prime minister numerous times. The constitution itself has proved that it is a modernizing force.

The UML is the most vociferous in calling for constitutional amendment. "All the parties must amend the constitution, adding a few articles, including the provision for an all-party election government and strengthening anti-corruption bodies," says the UML's Bharat Mohan Adhikary, who was among the drafters of the constitution. "We are demanding the amendment to make the constitution more effective," he says.

The leaders of the ruling and opposition parties seem to be too obsessed with the notion that an amendment would strengthen constitutional practices to accept any rational suggestions. Senior and junior leaders of political parties are locked in a feverish contest to advocate changes without realizing what consequences they might bring.

One thing is certain, though. Moves to amend the constitution at a time when people are being asked to sacrifice their liberties in exchange for the right to live in peace and security, would risk undermining many of its liberal tenets.