National 4 (Spotlight Weekly)

‘Politicians Are Criticizing This Constitution To Hide Their Own Faults’

— MUKUNDA REGMI

Senior advocate MUKUNDA REGMI, who served on the commission that drafted the Constitution of the Kingdom of Nepal 1990, is the sole member of that panel who continues to defend the document. He spoke to KESHAB POUDEL on various issues relating to the constitution at his residence. Excerpts:

You are the only member of the drafting commission who is openly defending the Constitution of the Kingdom of Nepal 1990. Some of your colleagues have demanded that the document be scrapped. How do you explain your position?

Irrespective of the way the Constitution of the Kingdom of Nepal 1990 was made, the document has embodied all democratic ideals and guarantees the fundamental rights of the people: human rights. Moreover, the constitution is not obstructing the pace of overall development and prosperity of the country. Therefore, I hold the view that the country can be transformed through the exercise of the present constitution. For the prosperity of the country, constitutional monarchy and multiparty democracy are inevitable needs. The constitution has all these elements, so I am defending the constitution.

The revolutionary leaders' demand for a constituent assembly is understandable, but strong groups of intellectuals affiliated with the leading liberal democratic party are also making the same demand. How do you look at this?

Those intellectuals and politicians who are pressing for a new constitution have to point out which article or clause of the present constitution does not protect the interest of country. I have not seen anybody citing flaws on particular points of the constitution. What change do they want in the constitution and political system through the constituent assembly? They are just arguing in favor of the constituent assembly for the sake of prestige. I have not read any strong arguments in favor of constituent assembly.

Experience has shown that the constitution cannot be made but is developed through practice. Does this constitution hinder the growth of constitutionalism?

As I have already said, this constitution does not stand against any democratic ideals and constitutional practices. There are various ways through which the existing constitution can be developed. We have the judiciary, legal system and the parliament through which the constitution can be improved. There are many unwritten parts in the constitution where the constitution will itself give the way for interpretation. We have conventions, laws and judicial interpretations. I do believe that the constitution is developed through practice and that it is a long process. I agree that the institutions are yet to function in accordance with the spirit of the constitution. We have made some mistakes in the course of practicing the constitution. The houses were dissolved on personal grounds. I am surprised to see deviation in the behavior of those politicians who made enormous sacrifices for constitutional monarchy, parliamentary system and multiparty democracy. These political leaders have not shown any concern to the problems of the people. I am still confident that we can find every solution through this constitution.

Do you mean the constitution is moving in the right direction?

Yes. It is perfectly moving in its own direction. You cannot build democracy by writing it on paper. It will take time to evolve democratic habits and practices. Although the constitution is democratic, it cannot change personal tastes and habits. What happened to the process when the house was dissolved on personal whim and the parties were split? The constitution has shown a clear way for the democratic exercise. It has not said anything on it. I would like to emphasize that writing ideals and processes in the constitution will not change the practices, culture and habit. The constitution is just like a bundle of guidelines. In the words of Ganesh Man Singh, it is a like a Lal Purja (property document). In other words, the constitution is document of faith, which needs to be filled in the course of practice. The constitution in itself is nothing; it is the actors' actions that determine the results.

What is the constitution, then?

The constitution can draw just the skeleton; it is the political parties and leaders who have to fill in the details. The implementation of constitution depends on the role and behavior of the actors. No matter how good the constitution may be, it is up to the actors to perform their role.

In other democratic countries, it took centuries of practice to evolve a constitution. But Nepalese intellectuals and politicians want frequent changes in the constitution. How do you look at this situation?

I have not seen long-term thinking among our political leaders and intellectuals. Our political leaders must have a long-term vision for the overall development of the country. But the parties that were in power and in the opposition just concentrated on how to grab power. Political leaders have shown more interest in petty matters.

But some intellectuals are arguing that there is no alternative to a constituent assembly?

If the constitution obstructs the process, it has its own methods of amendment. One cannot blame the constitution for one's inaction and weaknesses. In every political party, there are a group of people who are criticizing the constitution to cover up their personal faults.

Some of your colleagues on the drafting panel have declared that constitution is dead. What do you say?

The statements and opinions expressed by all the members during the course of formulating the constitution are still there on record. They discussed on all the issues and articles of the constitution before agreeing on it. After the publication of the book, people will know what were their opinions and comments. In the case of the CPN-UML, a party that took part in the constitution making declared its "critical support" to the document. The representatives signed on the document without writing any reservations, but then sided with the party on critical support. In the process of making the constitution, no one wrote a minority opinion. The country has seen many ups and downs and irresponsible behavior of political parties in the last 12 years. The ruling party avoided parliament so the opposition chose street demonstrations and unconstitutional methods to counter the government. Not only from the opposition side, I read comments from a colleague who represented the same party as I also demanding the constituent assembly.

As there are various modalities of constituent assembly, do you see any specific framework given by the parties?

I have not seen any modalities, just demands for the constituent assembly. According to my study, I have seen only three constitutions prepared through the direct elections of the constituent assembly. One was in 1917 in Russia when Russians voted for the constituent assembly and Menshevik party secured the majority over the Bolsheviks. But, the Red Army of the minority Bolsheviks threw out the Mensheviks and the central committee of Lenin's party formulated the interim constitution. Later, the Soviet Parliament passed the full-fledged constitution. Although the elections were held, the constituent assembly did not formulate the constitution. After the French Revolution, elections were held to formulate the constitution for the First Republic. After the elections, France encountered deep political instability, including the rise of Napoleon. After that, they have had constitutions for the second, third and fourth republics. The present constitution is said to be the constitution of the Fifth Republic. The members of the constituent assembly did not make those constitutions. The first constitution made by the assembly was never implemented. The third instance was the German Constitution, which was drafted in Weimer. The constituent assembly drafted the Weimer Republic constitution, but it gave unstable governments. In the course of 14 years, the Germans saw 21 governments. Hitler rose though the constitution. After that, Germans threw out the constitution and formulated a new one for West Germany.

Do you mean no constitution is formulated through direct elections for constituent assembly?

That's true. Some constitutions, like those of India, Pakistan and the USA, were formulated through indirect elections. The Indian political parties nominated their elected members of provincial state assemblies as representatives in the constituent assembly. Pakistan had a similar case as the constituent assembly was set up on the basis of the provincial assembly. But the constitution prepared by the assembly was rejected. Then another constituent assembly was formed by nominating members on the basis of early elections. Within two years, General Ayub Khan overthrew the constitution formulated after nine years of hectic debate. Constituent assembly is just a temporary type of body elected to formulate the constitution.

If that is the case, why is the constituent assembly being demanded so vigorously in Nepal?

I am still searching for an answer. It will make no difference whether a constitution is made by a constituent assembly or constitution recommendation commission. If we see the case of the United States, the present constitution was drafted by 13 states through a convention, which is known as Philadelphia Convention. The 13 states that declared independence against the British colonialists formulated the constitution, which is now applied in the 50 states. Although it was formulated by 13 states, the other states never said they did not frame the constitution. No one raised the objections to the constitution. The United States turned itself into a strong prosperous nation through one constitution. This is the shortest and least amended constitution in any democratic country. On one side, there has been such an experience of the evolution of the constitution in the world, and, on the other, our politicians are always demanding a new constitution and waging a needless struggle for the constituent assembly. It is shameful to listen to some of our colleagues demand the constitution be changed.

The constitution, as you said, is a document of faith. Don't you think continuous assaults on the document will erode the people's faith in it?

Such assaults will definitely erode the people's faith in the law of the land. Along with that, the country will be pushed into a series of political uncertainty and instability. Even if the new constitution were to be written on the basis of election majority, the country will not see longevity of the constitution. Majority in the elections means securing 51 percent of votes. So the fate of the constitution will depend upon the thin majority of the members. Every political party will change the constitution as soon as it secures a majority. If we go for such practices, we will be framing a constitution every five years. The real problems of the country would remain ignored amid the debate on the constitution assembly. There will be competition among political parties to formulate the constitution.

How do you settle the problems, then?

I don't think the constitution has anything to do with the present problems. If a political party considers holding the gun to demand constituent assembly, another will follow the same route. This time the Maoists came. Next time another party will appear. The constituent assembly can be formed as demanded by the Maoists, if they are successful to bring the revolution and overthrow the monarchy. One of the aims of the Maoists is to establish a people's republic overthrowing the monarchy. Even in their 40-point agenda,
they have criticized multiparty democracy as a system of capitalists and oppressors. Had they succeeded in their aim to overthrow the monarchy and multiparty democracy, it would have paved the way for constituent assembly to formulate the people's constitution.

Don't you see any possibility of a constituent assembly?

I don't see any such possibility. The Maoists are now negotiating with the representatives of the King. Since they have also shown that they will share the power with other forces, including monarchy, why do they need a new constitution? I don't understand the rationale behind the demand.

The present constitution guarantees press freedom, right of political parties and other professionals. In the absence of this constitution, will the people continue to enjoy such freedoms? If not, why is there such a clamor for a constituent assembly?

I am very surprised to see such opinions appearing in the newspapers. This constitution fully guarantees the rights of the press, but the media are not defending it. Instead, they are writing in defense of the constituent assembly. This is a strange thing. If the election for the constituent assembly were to be announced, will the new constitution guarantee such rights? What will happen in the interim period? One has to take into consideration all these crucial aspects before taking sides.

Do you believe re-writing the constitution will change the whole social and democratic process?

It will take time to achieve democratic sturdiness. We need to change our habits, culture and practices to match with the present democratic system. Such habits cannot be developed overnight. I have not found much difference in our habits and practices today than those in the Rana days. The social trend and culture resemble the Rana period. People still treat the person in power differently than others. Everyone wants power as all worships it. Qualification does not make difference in appointment and nepotism is widely accepted. No one holds trust in another. It will take time to change the typical Nepalese character. Whatever type of political system or constitution is developed, we will be the same people practicing it. You can change the constitution, but not the people. It is the role of political parties to develop a democratic political culture and teach the people about their rights. Our habits, character and culture remain same.

How do you see the state of politics today?

From the King to the political parties, including the Maoists, everyone is talking about the need to uplift the life of people. Everyone is expressing commitment to the people's welfare. If everyone want to do politics for people, they must agree to hold elections and let the people decide what they want. The present need is to restore peace in the country and all parties must join hands. Once there is peace, the country would need an elected government. No party can press the demand for the constituent assembly without holding elections. There is a provision in the constitution through which every political party can execute its programs by amending the constitution.