National 5 (Spotlight Weekly)

Revival Is Survival?

The constitution will start showing signs of life once elections to the House of Representatives are held

By KESHAB POUDEL

"The successful working of a democratic constitution requires in those who work it, a willingness to respect the viewpoints of others, a capacity for compromise and accommodation, and a real feeling of forbearance," said M.V. Paylee, eminent constitutionalist of India in his book "Constitutional Government in India". "Inflexibility and intolerance on the part of those who happen to be the rulers of the day will sow the seeds of hatred and vengeance."

Public protests of 1990 : Violence incites violence

The constitution is a document of faith and trust. It will work as long as all the actors respect its core and follow it. Nepal's experience, too, has shown that the separation of power on paper alone cannot guarantee a democratic functional government.

Nepal's five-decade journey of constitutional development is littered with misunderstanding and upheavals. There has been a tendency to violate the constitution to achieve personal goals and to demand replacement whenever it becomes politically expedient. This behavior leaves out the core reality that no constitution is perfect.

The Constitution of the Kingdom of Nepal 1990 - Nepal's fifth - is passing through the most critical phase in its 12-year existence. The ongoing crisis of confidence among the major players and the postponement of the elections to the House of Representatives have pushed the constitution to the point where there is an equal possibility of revival and disappearance. When an influential group of Nepali Congress leaders and intellectuals close to the party are raising voices against the constitution, it is clear that a hate campaign has already begun.

As the state machinery is functioning under the provisions of the constitution, however, it is absurd of responsible quarters to affirm that the constitution has outlived its utility. "The constitution is functioning except for the voids. The voids are House of Representatives and Council of Ministers, which must constituted under Article 36 or 42, but it was not possible without the election for the House of Representatives," says eminent constitutional lawyer Kusum Shrestha.

Members of constitution drafting committe : Faded commitment

If elections are held, the constitution will get back on track. "As far as other institutions are concerned, they are functioning normally. Despite the debate over its formation, even the council of minister is functioning under the constitution. The Supreme Court, the Commission for Investigation of Abuse of Authority, Attorney-General, Auditor-General are all functioning. The fundamental thing is that the constitution is still functional as people still enjoy fundamental rights," Shrestha adds.

If the Constitution of the Kingdom of Nepal 1990 fails, constitutionalists argue, the country will have to pass through a very chaotic state. If the constitution were to be declared dead, virtually all other institutions would also have to be run on an ad-hoc system. Interestingly, some drafters of the constitution have declared the end of this constitution and have been calling for fresh elections for a constituent assembly.

"With the appointment of a new prime minister by the king, the letter and spirit of the constitution of the Kingdom of Nepal 1990 is dead. The time is now ripe to go for the elections for a constituent assembly to formulate a new constitution," said powerful Nepali Congress central committee member Narahari Acharya.

The future of the constitution is dependent upon the nature of people who work under it. As Dr. B.R. Ambedkar, framer of the Indian Constitution, said, "Who can say how people of India and their parties will behave? Will they uphold constitutional methods of achieving their purposes or will they prefer revolutionary methods of achieving them. If they adopt the revolutionary methods, however good the constitution may be, it requires no prophet to say that it will fail. It is, therefore, futile to pass any judgment upon the constitution without reference to the part which the people and their parties are likely to play."

The constitutional process has been disrupted following the failure of political parties to the hold elections on schedule. Had they held the elections, the king would not have had to exercise Article 127 to dismiss the government and form another one. "The spirit of the constitution seems to have gone by single act of king because of default of all political parties who are failed miserably to protect, preserve and practice the constitution," says a constitutional lawyer. "Revival in its original form and substance seems to be far away."

The king's action is warning and challenge for political leaders. "How a single act purported to be invoked under Article 127 of the same constitution could completely paralyze the rest of the provision of the constitution," says a political analyst. "Although other parts are working, people do not notice it. Unless there is an accountable government, the constitution cannot function as per its words. There is no perfection. What I can say is that the country is being governed under a practical constitution. We have to be practical in our constitution."

Document of Mistrust

The Constitution of the Kingdom of Nepal 1990 remains a document of mistrust and distrust among the players who were supposed to abide by it. The constitution was formulated when there was a massive hate campaign against the king and his authority. In the process, the framers of the constitution tried to isolate the king, ignoring the balance of power.

If there is no regard for the existing balance of power, the constitution cannot be expected to work. The constitution framers failed to visualize the use of Article 127 in future. "The constitution is a document of trust and faith but in our case it was framed under an environment of mistrust and distrust. It was bound to collapse," says a political analyst. "One of the main parties to the constitution, the CPN-UML, openly declared critical support (with limited faith and elegance) to the constitution on the very first day of promulgation. Some framers have demanded a constituent assembly to replace the constitution. There is distrust and mistrust among the makers themselves."

The Maoists challenged the constitution years ago. Instead of defending the basic law, political leaders of various strata even agreed to amend it to accommodate all the parties. Even at this crucial juncture, no party has expressed faith in rescuing the constitution. If political parties do not defend the constitution and declare unity against antagonists, the constitution cannot survive.

From former speaker of the House of Representatives Daman Nath Dhungana to Acharya and other intellectuals, the demand for elections to the constituent assembly is getting louder, which has created further uncertainty.

Nepal has already experimented with five constitutions in the last five decades. No democratic constitution survived longer than the current one. The first constitution, drafted during the Rana period, was buried before it was implemented. The Interim Constitution lasted for eight years till the constitution of 1959 replaced it. That was scrapped in 1960 and replaced by the Panchayat constitution in 1962. The partyless constitution, which was amended three times, was displaced in 1990.

"We may tend to think of the American republic and its constitution as solely the product of leaders inspired by extraordinary wisdom and virtue. Yet without a citizenry committed to republican principles of government and capable of governing themselves in accordance with those principles, the constitution would soon have been little more than a piece of paper. As historical experience would reveal, in countries where democratic beliefs were fragile or absent, constitution did indeed become little more than a pieces of paper soon violated, soon forgotten," says renowned American political scientist Robert A. Dahl in his book "How Democratic is the American Constitution?".

Whoever formulates the constitution, it will be no more than piece of paper without the requisite commitment and resolve to abide by it. If the spirit of the constitution is not respected, no constitution can stop the abuse of power.

The decisive safeguard against the abuse of political power is the institution of periodic popular elections. The very fact that political power is subject to recall and can be taken for granted only for limited periods of time limits the duration of political power with mechanical sharpness.

Dr. Ambedkar said, "The constitution as framed only provides a machinery for the government of the country. It is not a contrivance to install any particular party in power, as has been done in some countries. Who should be in power is left to be determined by the people, as it must be, if the system is to satisfy the test of democracy."

The Indian constitution retains its pride since Indians have been less likely to fault the constitution and more likely to view it with pride, both because they did themselves create it an because, having written it themselves, it was better suited to their needs.

"The constitution still has its utility. In the context of constitutional development, such accidents can happen. The constitutional will evolve in its best form through practices and exercises," says senior advocate Mukunda Regmi, a member of the panel that drafted the current constitution. "Now we have to respect the spirit of the constitution rather than words. King Gyanendra's commitment to uphold the constitutional monarchy and multiparty system of governance is an indication that it will continue. The King has also accepted that it is his objective to restore law and order and make society free from corruption. It is not wise to enter into a confrontation with the king when the country is passing through such a difficult phase."

Despite power struggles and institutional conflicts, the Constitution of Kingdom of Nepal 1990 averted many political crises in the last 12 years. How the document can survive in the changed political scenario is difficult to gauge.