National 2 (Spotlight Weekly)

Against Constitutionalism

From university professors to Maoist cadres to lawyers, there is a common call for the abrogation of the present constitution

By KESHAB POUDEL

Regardless of ideological persuasion, influential members of society seem to have rallied around a single agenda: blocking the evolution of constitutionalism in the country. Be they senior university professors, Maoist leaders or civil society members, all want a new constitution prepared by a popularly elected constituent assembly.

A crowd : Misplaced priority

When such a large group is campaigning for change, the whole process of constitutional evolution and institution making has been stalled and people find themselves living in new uncertainty. If the present scenario is any indication, the country is heading toward a major constitutional crisis.

As the constitution is a document of trust and faith, any disillusionment with the document would have far-reaching consequences for the country. The Constitution of the Kingdom of Nepal 1990 is facing a similar crisis. Constitutional makers and professionals, who have enjoyed enormous freedom under it, are talking about the need to abrogate the constitution and formulate the new one.

"This constitution has already lost its legitimacy and there is no other way than to draft a constitution through the elections of the constituent assembly," said Professor Dr. Lok Raj Baral in Deshantar. A broad array of personalities ranging from Maoist leaders to former prime ministers and speakers is echoing Dr. Baral's stand.

If the constitution crumbles, the nation's goals and the necessary governing structures will also turn redundant. In a vacuum, the country will be ruled by decree or another similar way. In the absence of a credible document to give legitimacy to the institutions, the country's whole generation will grow up in circumstances without a binding document. Since the elections have gone out of the priority of political parties and civil society, the situation allow a dual rule of revolutionary and central force.

Not that this constitution is short of defenders. "This constitution has every element to meet the aspirations of a changing society. It will not hinder the process of safeguarding Nepal and ensuring the country's prosperity," said senior advocate Mukunda Regmi, a member of the panel that drafted the existing constitution.

But such voices are gradually being drowned out. For Nepalese scholars and politicians, the opinions of framers of the American constitution may be an eye-opener. One wrote: "It was in fact a model draftsmanship of constitutional elegance, of brevity and of apparent clarity. Indeed, it was a skeleton constitution since framers of the constitution left the details to be filled in by the act of the Congress. The constitution was thus a starting point of taking off grounds. It has been adequately clothed with the conventions customs, judicial decisions and legislative measures. The unwritten element in the form of convention has played a vital role so much so that the very nature of the constitution stands changed now."

At a time when various groups, including women, ethnic groups, professionals and other communities, have demanded their position in the new constitution, one cannot guarantee what kind of constitution a constituent assembly would prepare even if the elections were to be held.

The longer the constitutional practice is in limbo, the greater the number of people who lose confidence in the document. The referendum rocked the basis of the Panchayat system and paved the way for its replacement by the current constitution. The present chaos and confusion could further erode the constitutional system.

"This is a major setback in the process of making institution and constitutionalism, as people are gradually losing confidence and trust in the constitution and efforts are under way to challenge the legitimacy of the constitution," said a political analyst. "The country will be without a constitution for quite a long time."

Forces are pushing the country toward a constitutional crisis by creating a vacuum in the institutional process. Derailing of the present constitution will result in a phase of uncertainty and chaos. Responsible forces, however, seem firm on their agenda.

As the constitution is facing all kinds of assaults, people are losing faith in the constitution. Instead of finding solutions through the existing constitution, scholars are pushing for a new basic law. "I believe that 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," writes Granville Austin, in his book, "The Indian Constitution: Cornerstone of a Nation".

"Along with the constitution, there is hate campaign against the institution of the monarchy and the Royal Nepalese Army," said political analyst. Political stability would depend on how quickly the constitutional process is put on track.