National 4 (Spotlight Weekly)

“Because Of Its Dynamism And Sophistication, The Constitution Is Confronting Threats From All Corners Now”

— Dr. Surya Prasad Dhungel

Dr. Surya Prasad Dhungel is a constitutional and human rights lawyer. He spoke to SPOTLIGHT on various issues related to the ongoing debate on the significance and appropriateness of the constituent assembly as a tool for solving the country’s problems. Excerpts:

How do you see the present political crisis?

The present political crisis appears to be taking a new turn after the reinstatement of extra-constitutionally dismissed Prime Minister Sher Bahadur Deuba. The situation may be examined from long-term and immediate perspectives. Despite contradictory views floated by political leaders about their stand on "constituent assembly" and " round-table summit", as a means to resolve Maoist problem until recently, major political factions now appear to have taken a common position in its favor. From the long-term perspective, I doubt whether political leaders have given any serious thought about its lasting political consequences to Nepal. NC leader GP Koirala who had secretly met Maoist leaders in India in the past has now become forthright enough to speak about his radical position in public saying that he was prepared to go for 'republicanism' if needed, and he was even going to meet Dr. Baburam Bhattarai soon, possibly in India, to discuss these matters. At the moment, politics has taken a 'U' turn, and all key political forces are coming close to the political position of CPN (Maoists). Although open debates on these issues are certainly welcome, but the new political trend that seem to be unconvincingly emerging might even be dangerous sometime and could radically change the political scenario of Nepal. Reactions from the pro-monarchical forces and neighboring India on these developments are yet to be seen.

What do you think about the appointment of Deuba as prime minister?

Reinstatement of Deuba as Prime Minister could be used as an opportunity for political parties to set aside their petty programmatic differences and urgently put the derailed constitutional process on the right track again. If the PM is able to give a stable Government for a reasonable period of time with participation and sincere support from major political parties, there is a hope that the Constitution and institutions under it will gradually start becoming functional again. Vital and essential for this would be an initiation of serious efforts to open all possible avenues to politically and diplomatically resolve Maoists' problem. Without any effective move towards restoring peace and strengthening of Election Commission for initiating steps to hold elections for the new parliament, a long-term solution would be impossible to end the chronic political problem. Dominance of vested interest in all political factions has so far made the politicians themselves a cause of political crisis rather than an instrument to resolve it. Time has come for all concerned now, including civil society groups, to give a fresh look at the crisis and open up their mind to address the gripping problems. For more than two years, the country has been governed without an elected parliament, as the Upper House also could not fill in the gaps created by the absence of an elected lower House. Locally elected government bodies also are not in existence at the moment. Hence absence of proper and effective governance mechanisms throughout the country and the adopted ad hoc method to substitute elected authorities through nominations are matters of serious concern. Destruction of development infrastructures and growing public insecurity caused by violence and brutal actions of the Maoists, on the one hand, and incidents of human rights violation by the security forces, on the other hand, have made life miserable for commoners in rural areas. A new roadmap for urgent action, including rehabilitation schemes for the displaced, has to be drawn up now.

Is it a political crisis or constitutional crisis?

It is mainly a political crisis. Neither is Maoists' violence a constitutional issue nor is the failure of political forces to be united to identify and address key national issues, due to the state of their deeply ruptured political factions, a constitutional crisis. In reality, bad politics is responsible for derailing the constitutional process.

If it is not a constitutional crisis, why some politicians are demanding the constituent assembly?

Demand for holding a "constituent assembly" is not a new phenomenon in Nepal. Expression of commitment to the concept of CA was made in back-and-white in the Interim Constitution of 1951, even without any forceful demand from the political groups concerned. This issue came into serious public debates prior to the drafting of 1958 and 1990 Constitutions also. Political scientists and scholars, including personalities like Rishikesh Shah and Professor Krishna Khanal, have raised this issue through their writings time and again. Maoist leaders have recently pushed this issue to the height of public debate and argued in its favor as a source of people's sovereignty. Opinion among lawyers is divided about the need of the CA. Some consider this as a procedural means for achieving an end, while others take this as a source of sovereignty. Hence, many argue that a CA is not going to offer anything new that the present Constitution does not possess or cannot provide through amendment. However, for moderates CA is a compromise formula. The proposal for holding CA elections is simply a suggested way out to peacefully resolve the growing political crisis created by Maoists through violent means and terror. There is no harm in holding elections for CA if the Maoist problem can be resolved, even if it is used as a face saving device. For some, CA has a symbolic value as people's representatives elected for CA would eventually author a new Constitution.

Do you see any faults in the present Constitution?

No Constitution in the world is perfect. The Nepalese Constitution is one of the most sophisticated in the world and has many features of checks and balances that have been claimed by some as elements of distrust. There are certainly some conceptual anomalies in the Constitution that need a sensitive and skillful handling while imputing appropriate meaning to them. However, constitutional shortcomings and gaps may be easily filled out through amendment process under Article 116 of the Constitution, which has imbibed in it and its Preamble some basic features also. The draftspersons of the Constitution have rightly envisaged a provision (Article 116) to make the Constitution a dynamic document that permits changes. The parliamentarians have power to introduce any bill for any changes to meet requirements of the changing time. The Nepalese parliamentarians failed in the past to appreciate and take benefit from this dynamic aspect of the constitutional amendment process. A flexible constitution was transformed into a rigid Constitution in an attempt to overtly preserve its basic sanctity. Hence, faults are there not in the Constitution but in the faulty understanding of the legislators who could not make use of their power to amend it. In a nutshell, I can say: the Nepalese Constitution is more dynamic than the political actors of this country, but all of them failed to understand and appreciate that dynamism. Because of its dynamism and sophistication, the Constitution is confronting threats from all corners now.

Don't you think there are possibilities to amend the Constitution to fulfill the demands of the Maoists?

The present Constitution can meet all demands except its own destruction. Like elections for CA, those interested for amending or changing the Constitution must, at the outset, get elected for the House of Representatives. However, in order to reach a political compromise, an understanding may be reached among all relevant political forces to recognize and consider the new House of Representatives as CA until the required constitutional amendments are made through a legitimate process. If Maoists project themselves under a legitimate process as " permanent dissenters or rebels", even CA or a republican form of government cannot provide a permanent solution. They have to be elected to the parliament even under a republican form of government created under new Constitution promulgated by the CA. Can anyone explain to the fellow Nepalese citizens: what the constituent assembly or referendum is going to add in the Constitution that it cannot provide through amendments?

In case of elections of constituent assembly, do you believe that a new Constitution will guarantee more freedom than the present one?

A Constitution simply provides a basic skeletal legal framework and lays down fundamental guiding principles for creating state institutions and establishing their interrelationships, including state's obligations to protect and promote individual's rights enshrined in the Constitution. State organs eventually supply the flesh and blood during implementation of the constitutional mandates. Hence it is not the drafting process alone that determines the guarantee of freedom, it is the implementation process that secures rights and freedom of the people. As said earlier, I don't think the CA has anything to add in the present Constitution. I am rather afraid that more riders may be added to restrict the rights. CA has a political connotation, and it indicates as to who is the author of the Constitution, and it may open the door for republicanism if no riders are imposed on the CA.

What will be the solution of present political and constitutional deadlock?

I don't think there is any Constitutional deadlock at the moment. The transitional political deadlock with regard to current political crisis has to be eventually resolved through electoral process. With full support of all political parties, civil society groups, Government and the King, the Election Commission must be activated and entrusted to accomplish its constitutional tasks to hold elections of the House of Representatives fairly and peacefully within the prescribed period. However, for addressing political problems arising out of armed conflicts and Maoists' violence all political forces must rise above their vested interest and work together for opening all possible political and diplomatic avenues for a dialogue with the Maoists, however, without compromising with basic security issues of the nation. Good offices and tangible support from the institution of monarchy and external friends, including UN, India and China, for ensuring a peaceful resolution through dialogue without resorting to arms and violence must be solicited.

Government must take the initiative for breaking the ice. It is good that NC leader GP Koirala has claimed that he would take a lead role now. He should have done this six years ago. Immediate ceasefire from "Maoists" and "National Security Forces", with a new mechanism installed to ensure public security and monitoring of the situation during ceasefire, should be a precondition for any dialogue between the Maoists and other political actors. One serious question yet unanswered is how can the people of Nepal be assured that Maoists will not return to jungle if the CA votes in favor of constitutional monarchy, and more undemocratic elements are entrenched in the newly framed Constitution drafted by the CA elected through a compromised process.

Where does the sovereignty lie in the current Constitution?

I do not understand why this question is being raised again and again in Nepal. It is just like asking the sun: where is your light? Sovereignty is vested in the people through the Constitution, as an outcome of the people's movement. It is clear in the Preamble and Article 3 of the present Constitution that sovereignty lies in the "people", and Article 1 clarifies that the Constitution is supreme. Even the organized army, which may dislodge the location of sovereignty, is accountable to the elected Prime Minister under Article 118. Hence, the question of army's loyalty to the king is a psychological weakness. Nepalese army is under civilian government, which has failed to make it accountable to the elected government. It is just like a husband complaining to his father- in-law that his daughter is not loyal to him. Institutional relations determining sovereignty to a large extend depends on how much we trust and rely on each other. Foundations of both Constitution and sovereignty are laid down in the trust, cooperation and eternal vigilance.

Having worked for a log time in conflict prone areas, how do you see the political conflict in Nepal?

Conflicts in Nepal have made life of the common people miserable and effective governance impossible. Rather than moving forward, Nepal is moving toward the reverse direction. With the rise of Maoists' violence, and inability of the political forces to work together to address the problems, and many times due to mishandling of the situation by them, Nepal has reached at the verge of being declared a "failed state", as has been mentioned by UN Assistant Secretary General and Deputy Director of UNICEF Kul Chandra Gautam in one of his recent papers. If the situation is not carefully handled we may even encounter a situation worse than pre-1974 Cambodia, which had to go through its darkest period of genocidal regime that massacred around 3 million people within four years of Pol Pot regime. Reconstruction of a nation after total destruction of social, cultural, political and economic bases of the country is a very difficult task; and the most difficult is to free the victims from the trauma of genocide and human tragedy. Cambodian friends have alerted us several times not to follow the same path.

What does the new government needs to do?

The challenge before the new Government is firstly to restore the confidence of the people and civil society on the Government. For this, it must try to make it a stable entity with as much support from political parties and leaders as possible. Support of the palace and friendly neighbors must be genuine and visible, to give a sense of assurance that all are serious to address the problem. How to create an environment to convincingly work together with all political forces and civil society groups to resolve the crisis through dialogue and by enabling the Maoists to join the mainstream political process through necessary changes is the primary task of the Government at the moment. Without mustering support from all internal and external friendly forces, I would like to repeat, especially from the Monarchy, political parties and India, it is impossible to resolve this crisis. It is good that positive indications are given from all quarters. Activating constitutional institutions, restoring the parliament and local bodies through electoral process with Election Commission shouldering the task of holding election as soon as possible and opening all avenues for creating proper environment for a meaningful dialogue with Maoists, however, without compromising national and security interests are essential tasks before the Deuba Government. The primary responsibility of all political and civil society leaders at this critical juncture is to set aside all their differences and rise above their petty vested interests in order to extend their sincere support to the right initiative of the Government to resolve the crisis. It is the political parties and their leaders alone who must show their nationalism and charisma to break the ice. Maoists' problem is a political problem, and it must be politically solved by the politicians as they are also partly responsible for inflating it. It is, therefore, a tricky challenge before the politicians as to how they would be able to skillfully mobilize support from both the palace and friendly India for a common cause and goal. While resolving problems, the Prime Minister must not forget that he is also responsible to govern the country and defend the Constitution and constitutional monarchy. We must not forget that Maoists are the product of the Nepalese soil and they are human and have expressed interest to make a political deal. If they are doing politics, they also must show their political acumen to resolve it by peaceful means.