“A Genuine And Credible Election Is Needed To Reactivate The Constitution”
- DR. SURYA DHUNGEL
Dr. Surya Dhungel is an eminent constitutional lawyer of Nepal. He has a long experience of teaching constitution law at Nepal Law Campus. He has also worked in conflict-prone areas around the world. He spoke to KESHAB POUDEL on various issues of constitution and political crisis. Excerpts:
How do you see the present political crisis in reference to Constitution of Kingdom of Nepal 1990 ?
We all know that armed conflict and wrong handling of the political problems arising out of it led to the erosion of constitutional values and political ethos in early years of political experiment in nineties. All political parties worked for cross-purposes. Political parties had their own show in power games. The scenario has totally changed with His Majesty coming into the scene. By now, the divided political forces and external power centers have understood well the present King’s strengths as well as His style and ambition. But they have miserably failed to weigh His weight and forge alliance to adopt an appropriate approach to deal with Him on political issues. Even now, distrust amongst key political actors and their lack of self confidence continue to vitiate the environment for an open and genuine dialogue on national issues with the King, and the ever widening gap between the palace and other political forces has proved detrimental to the cause of nation. Demand for a ‘constituent assembly’ to replace the Constitution, however without any explanation and reason, has come in reaction against a King, without giving due thoughts on the importance of the constitutional monarchy as an institution that late B.P. Koirala and others always adored.
How do you see the role of politicians defending the constitution?
Except the lawyers, I don’t find any younger generation politicians defending the Constitution. Meek voices of Former Prime Minister K. P. Bhattarai and Former Chief Justice Biswonath Upadhyay, who played crucial role in making this Constitution, are being silenced by several workers of his own party and key members of Constitution Draft Commission. Some dishonest politicians have a tendency to make the Constitution a mockery and ‘political toy’.
As a constitutional lawyer, how do you explain the present crisis? Is it constitutional crisis or political crisis?
As mentioned earlier, Nepal as a nation is going through a serious political crisis, and all constitutional problems have their roots in the political problem linked to the armed conflict. Hence, the country is basically facing political crisis. Constitutional solution is possible only when political crisis has been resolved. We are noting that extra-constitutional methods are repeatedly and irrationally being used to achieve desired political goals by all concerned. The Constitution has been overstressed by the excessive use of exceptional constitutional clauses like Articles 72,115 and 127. In order to prevent the over use of Article 72 and 127 for carrying out and legitimizing all extra-constitutional exercise of legislative and executive functions, time has come for the Supreme Court to speak on the limits of these provisions. In fact, it would be good if help is sought from the Supreme Court through proper constitutional process to give its opinion on it.
In such a situation, how do you see the functioning of the present Constitution?
The Constitution is not dead as some political forces are trying wrongly to depict. But it is certainly functioning under serious stress with occasional jerks on it due to extra-constitutional exercise of political power in order to legitimize the unconstitutional action through self-indulged illogical and irrational interpretation for justifying actions executed beyond the constitutional parameter. Therefore, it is urgent for both political parties and monarchy to give a serious thought to the emerging political scenario and possible consequences. Otherwise, external factors will start playing their role in the interest of their perceived security problem that may end up denying our sovereign and territorial paradigm. Let us be sensible now more than ever.
Thendo you think a constituent assembly will bring better than this constitution?
No. I don’t think so. The Constituent Assembly may deliver to us a worse constitution than what we have now. The constituent assembly is a political tool currently being advocated by political forces and some intellectuals for resolving immediate political crisis by enabling Maoists to come to the country’s political and constitutional mainstream. It is only for their safe political landing, they claim. But if it is meant for heading towards republicanism, as recently agreed by CPN (UML) and Maoists in their six-point MOU, there is no reason why the Monarch should agree to it for his self-destruction. Without giving space for the monarchy to accommodate within the framework of Constituent Assembly (CA) modality, I doubt that this will provide a solution. Moreover, in a divided political house of Nepal, I doubt any modality of CA will be easily accepted by political forces. I am not against CA if its advocates can convince the key political actors and the people about its needs and purpose. My personal reservation about CA is not because I don’t believe in this institution but I have a serious doubt in the ability of our leading political forces to handle the process. Recently, a prominent Indian Constitutional expert spoke to the Bar Association and said if India goes for CA now, it would come out with a much worse Constitution. CA is not an easy venture, he opined.
If it is not a good idea, why are we wasting time discussing such issues ?
Discussions on issues related to constituent assembly are taking place for resolving political issues and satisfy the political ego of the warring political faction. Hence, the nation must be prepared for all legitimate options if it offers a long-term solution. But the warring factions must convince all legitimate political stakeholders and the international community before venturing into it. I don’t think the King will have any objections to such a solution as it appears from His speeches and expressed commitment to democracy. But political forces must come together and come out with a political solution, which all of them must publicly own.
What is required to reactivate the present constitution ?
Election, a genuine and credible election. People must be allowed to speak their mind through a fairly and legitimately conducted elections for the parliament.
How do you see the role of Army?
The political parties must not distrust the national army which has been irrationally distanced from the civilians too far. Intelligent officers of the army know that the country’s destiny should be determined by the honest and committed political leaders of the country. Chomsky has rightly pointed out that a prolonged militarization may cause side-affects. Authoritarianism and violence cannot provide a lasting solution to a national problem, and army should not be blamed for this. Derecognizing the role of military by political forces will complicate the problem, as their engagement may be essential for initial stage of the restoration of the peace process.
Is there any provision in the constitution to curtail the fundamental rights of people including freedom of speech and expression?
Yes, many fundamental rights may be derogated for certain specific purposes. But it can never be curtailed with an ulterior motive and derogation may be made in the larger interest of the society for protecting the interest of the people themselves. The role of the Supreme Court to guard the fundamental rights through its extraordinary tools of writ petition and other means under Articles 87 and 88 are strong enough to prevent the state from illegally curtailing fundamental rights. The legal community must not discourage the justices by undermining their enormous judicial powers to vindicate in favor of fundamental rights and freedoms during the time of stress and crisis. But one should not expect a judge to play the role pf political activist.
Can this government hold the elections?
Since the credibility of many members in the present council of ministers is questionable, any exercise of state powers by and through such people do not hold any legitimacy. Many actions of His Majesty are therefore being questioned because of the wrong choice of the people in the cabinet. Moreover, the access for the genuine people to reach King has either been blocked or limited to a few loyalists of the palace secretariat. Hence, the people feel that King is not interested to hear people’s voice. Mere royal visits to the districts, do not bridge the widening communication gaps between King and the people, especially with political forces. Accumulation of dissatisfactions eventually bursts in a different form in an unfathomable magnitude.
Let me move to a different question. Since you have had wide experiences of working in different conflict prone Countries of Asia and Africa, how do you evaluate Nepal’s situation ?
Nepal’s position is not as bad as it is depicted in comparison to many countries that were once declared failed states. But the danger of Nepal moving towards the same direction impels many to be scared. Political process in Cambodia, for example, was brought back to normalcy several years after the genocidal regime was overthrown and authoritarianism continued. During the Pol Pot regime between 1975 and 1979, more than 1.7 million innocent people were killed. But it was only in 1990/1991, intervention of the international community through UN democratic process was restored. Sufferings of different type that the people went through during the post Pol Pot era between 1979 and 1990 were totally ignored by the world community. Elections in Liberia was just concluded last week where hundreds of thousands were victimized by the warring factions during 14 years of civil war that destroyed the nation to an unbelievable magnitude. Nepal has not reached that stage yet, and problems here are different and still manageable. Lack of political wisdom of leading political forces to honestly deal with the problems is the key problem here. Despite weakness of political leaders and widening gap between the palace and political parties, the international community has already started putting efforts to offer sincere advice and assist Nepal from getting over the problems by resolving conflict before it is too late. I think the political parties and the King must show maturity and wisdom in order to address the issue jointly and collectively.
How do you see the role of international community?
Allowing diplomatic community, occasionally working for cross-purposes also, to openly intervene on internal issues may undermine the credibility of political leaders, who have miserably failed to forge a common ground on national problems. Unless the nation itself is prepared for this by bringing new leadership and new vision in the forefront, external support alone would not help resolve any problem. The political actors should wake up now, and mobilize international support, especially from neighboring India and China, for resolving the problem.
Do you see any possibility of unity between organized political forces and monarch ?
Yes, I see. There is no other solution except that. But the path is not easy as external elements also have been directly or indirectly playing part in it. But one has to understand that it is our problem and we have to find out solution for resolving this. But a strange ideological polarization seems to be taking place now. If any political faction unduly tries to take undue advantage of the fluid political situation at this critical juncture of time, the country will head towards militarization and economic collapse that will take thousands of tolls before the country is able to realize its mistake and start healing the wounds caused by the ills of its own actors. The political forces appear to be plunging the country into a ditch through adoption of a confrontational line. They must stop this.
What would be the role of international players?
International players’ role could be immensely helpful and constructive provided the Nepalese political leaders demonstrate courage and skills to utilize the generous offers and goodwill of the international community, including UN, India and the west. Support and good will must be sought from all concerned, especially from southern neighbor, and including China even if it is simply moral, for resolving conflict peacefully. The world scenario has been changing now. China’s silence does not mean that political instability in Nepal does not worry Chinese leadership. The problems that can be comfortably resolved with the support of international community and southern neighbor now, will confront difficulties in future with the support of China also, if it is not properly and sensibly handled now.
Can UN play any role?
UN can extend its support in various forms-through technical and financial support as well as through expertise, goodwill, negotiation and other tools, including resolutions if necessary- as done in the past in many countries that went through serious conflicts that caused serious human sufferings. It is fortunate that Nepal has not yet reached the stage of no return. Friendly countries, if seriously offer good offices now, can help avert the situation from getting worse and bring all key political factions on a table and impel them to work together to resolve problems. But the question is: are key Nepalese political actors prepared for that?
