Interview with constitutional Lawyer Bipin Adhikari : Prime minister faces growing threat from parliament

Biswas Baral and Kamal Dev Bhattarai talk to constitutional lawyer Bipin Adhikari about recent attempts to amend the constitution for the benefit of certain individuals and interest groups.

How did you see the recent attempt at amending the national charter, reportedly to help with the election of senior NCP leader Bam Dev Gautam as the next prime minister?

Our politicians see the constitu­tion only from a power perspective. All our constitutions from 1948 till date have been misused to make certain politicians powerful. Those constitutions were promulgated to serve certain interests, not the people. For the first time in Nepal’s political history, a participatory approach was adopted when the country promulgated the constitu­tion in 2015 through the Constituent Assembly. But even then, certain people sought to fulfill their own interests, disregarding larger public interest.

Now, the issue of amendment has come up. Opposition parties, mainly Madhes-based ones, and Dalits have grievances with the new constitu­tion. However, we are yet to start a detailed study on what kind of con­stitution amendment is required. This is because our constitution has not completed even a single elec­toral cycle. Laws are yet to be made in line with it. Even the formulated laws are beset with problems.

As the constitution is still new, it is immature to talk about amendment. In an emergency, an amendment could be necessary. But this is not the case now. The talk of consti­tution amendment has surfaced only to make a certain leader prime minister. One can become prime minister only through political backing, not constitution amend­ment. Parties should not choose this wrong path.

There were also attempts to get the consent of the Madhes-based parties to the amendment process with the promise of incorporating their agenda.

Actually, the force which is back­ing this agenda thinks that once the agenda is tabled in the parliament, Prachanda and Bam Dev Gautam will lose their control over it. In this scenario, the force can fulfill its interest. Look at our recent history. The first CA was dissolved without delivering a constitution. The sec­ond CA promulgated a new con­stitution due to a strong position taken by then Prime Minister Sushil Koirala. Otherwise, there was no possibility of the new constitution. The missing constitution was only giving opportunistic elements more space. We certainly have issues of Madhesi, Janajati and Dalit people, but there is a need for a national per­spective on how to address them.

Will it be justified to give Nation­al Assembly power to elect prime minister?

Let’s look back to the time KP Oli became prime minister. Politics was heated then. He somehow got the coveted post, but it was difficult for him to put the house in order. There are two houses in the parliament, and both have similar powers about making laws. But why does only the lower house have the right to form government?

There are certain constitution­al principles behind it. The House of Representatives is larger than the National Assembly. It is more inclusive, and more diverse too. More important, the House of Representatives has powers over money bills and committee systems which are formed under various themes. The leader of the largest party in the lower house stakes the claim for prime minister. I do not think the House of Representatives would agree to tie up its hands and legs by allowing the National Assembly to pick a prime minis­ter. The people who are pushing the amendment have not thought this through.

What do you think was at the heart of the constitution amend­ment demand?

It is an anti-government strategy. It does not address public expecta­tion. Some forces want to disturb the current political stability. Such an amendment proposal cannot be tabled as it could invite unexpected upheaval in national politics. Even if required, there should be adequate discussion among stakeholders. All parties should be involved. The NCP leaders are ready for an amend­ment because someone is mislead­ing them about the outcome. Nepal has a big potential for a consolidated democratic system. There are forc­es that do not like it. They helped initiate the Maoist insurgency. The same forces are trying to scuttle consolidated development in Nepal.

Are you hinting at internal or external forces?

There are both internal and external forces behind it. In certain aspects, the current government is different from the previous ones. India did not support us when we promulgated the constitution. But we had an assertive government which told foreign powers that Nepal will promulgate a new consti­tution, no matter what. KP Sharma Oli received popular votes in 2017 elections due to his strong stand against the Indian blockade. So long as he stays, the same forces will con­tinue to play. The Oli government has also made departure in relation with China. It has given a message to the international community that a second or third power is not needed in Nepal. Some elements do not like this. Obviously, Indian interest always influences things here.

Is such abuse of the constitution common in South Asia?

In weaker countries, it is difficult to explain the constitution on the basis of its worth. Nepal is much better off in this regard. In India, we saw Prime Minister Modi amend the charter and decide Kashmir’s fate without a thought about the Kash­miri people. India is a federal coun­try, but it is concerned more with security than power devolution in Kashmir. There are many constitu­tional issues in Pakistan and Arabian countries. In those countries, consti­tutions have little meaning. We can see similar tendencies in East Asia and South East Asia. Our problem is related more to geopolitics than the constitution. If Nepal is allowed to function independently, we will be better off. We can consolidate constitutionalism.

How do you evaluate the process of constitution implementation in Nepal over the past four years?

First, the constitution was pro­mulgated amid much political ten­sion. But we have made progress and achieved stability. The forces that challenged the constitution have joined mainstream politics now. This is positive. Second, our goal is not only political change but also transformation: we wanted to qualitatively change our political culture in line with the new con­stitution. But we are yet to make laws to implement constitutional provisions.

Another important issue is good governance which is a day-to-day affair. But when we think of long-term, we have to make our vital state institutions vibrant. We have to for­mulate laws and procedures in order to make this constitution strong.

On constitution implementa­tion, we have a mixed experience. On stability, we are in a safe posi­tion. But there are some weak­nesses in formulating laws. One example is the recent media bills. The government has not had a positive outlook on the media. On governance, we have to deal with corruption and build institutions. In general there is no threat to the constitution. But many agendas related to transformation are yet to be addressed. Each provision of the constitution should be imple­mented. Remaining laws should be formulated.

Some say the new Nepali consti­tution too will fail, just like its predecessors. How can you say there is no threat to it?

The biggest threat to the constitu­tion is lack of national unity. Nation­al unity will create an environment for the constitution’s stability. To maintain national unity, we have to ensure justice for all, at least on fundamental issues. There were foreign interests in our past con­stitutions. They failed for the same reason. Nepali people were barred from having their say when big decisions were made. For example, Nepali people were not asked to vote whether they wanted a republican system or a monarchy. We could have gone for federal structure by amending the 1990 constitution, but we took a more risky path.

There are claims that the government is trying to weaken key state institutions.

On the issue of National Human Rights Commission, yes. The NHRC was formed with a view that it should be out of government influ­ence. Now, an amendment bill has been registered which states that the NHRC could recommend the gov­ernment to take action on human rights violation cases. But such rec­ommendation can be implemented only with the consent of the attor­ney general, the prime minister’s legal advisor. This shows the gov­ernment has a dismal outlook on human rights. But there are also reports that the government is think­ing of withdrawing such problematic provisions.

Does the parliament pose any kind of threat to the current gov­ernment?

Till date, the government was under no threat from the par­liament. But now that threat is increasing. This is a challenge not only for the government but also for the stability of Nepal, as well as for the new constitution. While exercising political and con­stitutional powers, PM Oli should accommodate the concerns of all parties. The PM should strictly control wrong activities where gov­ernment ministers are involved, including corruption. This will help not only the government but the entire country. We certainly don’t want a repeat of the vicious circle of political instability we witnessed in the 1990s