Slogan of Constitution Making Weapon for Political Instability
"Whenever politicians failed in power in the past, they had populist slogans in their hand to divert the attentions: changing the constitution. Without facing any problems, politicians had scrapped previous five constitutions and the current interim constitution is already going to be replaced. Given the past experiences, nobody is sure whether politicians will make the seventh constitution through Constituent Assembly (CA). Even United Nations Secretary General Ban Ki-Moon – who paid two days visit to Nepal (October 31-November 1) smelled something wrong and reminded political leaders that they need to pay their attention in drafting a new constitution for stable and prosperous Nepal. Sandwiched between Asia's two major power India and China, the constitution has nothing to do with Nepal's perennial political crisis and prolonged political instability. All previous constitutions were prematurely abrogated under populist slogans with leaders urging the people to support them to bring new constitution for political stability, economic prosperity, protection of individual freedom, and democratic rights. The tragedy of Nepal is that politicians use populist slogan of constitution making as a weapon to go to power and destabilize the whole political process"
"You must also draft a new constitution. This will be extremely difficult, but also extremely rewarding. The process will bring you face to face with a number of contentious issues, such as state restructuring. You will have to create a federal state that empowers different ethnic groups while maintaining national unity. This is a tremendous opportunity to lay the foundation for a stable Nepal for generation to come," said UN secretary general Moon addressing Constituent Assembly.
No one has any disagreement over what UN secretary general Moon said during his visit as Nepal's priority should be to make a constitution for shortening the interim period. However, recent political trends indicate that the constitution making process has to face many political hurdles. Some time the seen forces obstruct the process and some time unseen force-which is more determining than the seen political forces - creates the trouble.
The process of making constitution is now stalled thanks to the dispute over the clauses to be included in CA Regulations. Thanks to the dispute among political parties over the question of right to issue party whip, Constituent Assembly Regulation Committee is yet to complete its task.
The recent objection raised by Nepali Congress over the formation of high-level committee for the integration of Maoist combatants diverted the debate to other directions. Despite UN General Secretary's call, the question of integration is prevailing over all other agenda.
"As long as leaders of three parties do not take sincere initiative, it is impossible to prepare a Constituent Assembly Regulation. Without drafting Regulation, we cannot start the constitution making process," said Narayan Man Bijukchhe, chairman of CA Regulation Drafting Committee.
According to Article 65 of the Interim Constitution, unless otherwise dissolved by a resolution passed by the Constituent Assembly, the term of the Constituent Assembly shall be two years from the date of its first meeting. There is a provision for extension of its tenure for six months in case of extraordinary situation.
Although more than four months have already passed since the formation of a committee to daft CA Regulation and six months have already passed since the elections for CA, leaders of 25 parties representing 601 member jumbo house just agreed on 19 clauses out of proposed 110 clauses of the draft.
Various institutions from western democracies have been spending their money to support constitution making process by organizing exposure visit for political leaders, newly elected constituent Assembly members and civil society members but it has not made any effect on the mind of top leadership.
"As the leaders of major political parties are interested in power, making inclusive democratic constitution is nobody's priority," said Bijukchhe. "If political leaders are really sincere in constitution making, they would have supported me."
As the disputes over certain fundamental questions in drafting the CA Regulations have been creating the trouble, the new dispute regarding the formation of committee for integration of Maoist combatant has pushed constitution making process in dark.
"Maoists have already indicted their intention by undermining democratic values and ideals. There is no question to join hands with Maoists unless they agree to correct authoritarian behavior," said Nepali Congress leader Girija Prasad Koirala, who led the political agitation to replace previous constitution of 1990 and draft a new constitution through Constituent Assembly.
"If necessary, I am ready to lead another agitation against any form of authoritarian rule."
The message of Congress leader Koirala showed where the priority of his party is. Similarly, leaders of Maoists and CPN-UML indicated that they too are more interested in prolonging their stay in power than making the new constitution. "If Congress does not join five members Special Committee to integrate Maoist combatants, we will announce the referendum," said Maoist leader Dinanath Sharma. "Integration of Maoist into national army is one of the key agenda of comprehensive peace agreement and constitution making process."
At a time when there is uncertainty over the constitution making process, top leaders of CPN-UML and CPN-Maoist constituted high level political committee to reduce tensions between the two parties.
Instead of pushing for constitutional agenda of inclusive democracy, federalism and role of prime minister and president, leaders of two ruling parties seem to be determined to prolong life of the government.
All the major political parties were together till the abolition of monarchy and drafting the new constitution was their main agenda.
However, the situation has changed after the formation of the new government under the leadership of Maoist leader Pushpa Kamal Dahal. When he was in power, congress leader Girija Prasad Koirala accepted all the demands of Maoist including the question of integration of Maoist combatants into the national security force. However, when he is out of power now, he is leading the wrath against the Maoist.
All political leaders see power is their main agenda. The question of drafting a new constitution for federal, democratic republic is left to the NGOs and INGOs.
In the last three months, about 200 CA members and some intellectuals have already been taken to the trip of western European countries under a special funding and some organizations like GTZ have already organized national seminars for federal, democratic republic. When the Constitution of Kingdom of Nepal 1990 –which guaranteed fundamental rights, freedom of expression, democratic ideals including the periodical elections, parliament accountable to the people and independent judiciary - was drafted, western countries supported the process. However, the constitution was abrogated without even an attempt for its amendment.
"Bring any constitution; it is doomed to fail if politicians are not sincere to it. Constitution is not a problem at all. In spite of solving the problems of the country through programs and actions, politicians use catchy slogans to arouse new expectations. Whenever they failed to deliver the goods to the people, instead of introspecting themselves, they condemn the constitution as obstruction. Surprisingly, same political figures champion populist slogans to fit all the time," observed a political commentator.
Most of the Nepali Congress leaders including Girija Prasad Koirala, CPN-UML general secretary Jhalnath Khanal, leader Madhav Kumar Nepal, the chairman of the CA Subhas Chandra Nembang took part actively in the making of the Constitution of Kingdom of Nepal 1990 terming it as the best constitution written by the blood of hundreds of Martyrs.
The same brand of politicians supported the Maoist demands to scrap the constitution and promulgate an interim constitution.
"None of the Constitutions promulgated in Nepal, one after another, were allowed to operate and grow smoothly based on the genius of its people. Each of them have been the victim of external forces," said constitutional lawyer Dr. Bipin Adhikari.
No politician has clear cut vision about the constitution. They have been fighting among themselves for power sharing. If they don't have any possibility of power sharing, they will not accept the constitution.
"If Nepali Congress does not abide by the provision of interim constitution, we too are free to choose our course," threatens C.P. Gajurel.
Nepal has produced some best constitutions in the last five decades but all these constitutions were abruptly abrogated without experimenting them.
The first Constitution was promulgated in 1949 by Rana prime minister, and then Interim Constitution was promulgated in 1951 followed by Constitution of Kingdom of Nepal 1959, Constitution of Nepal 1962, Constitution of Kingdom of Nepal 1990 and Interim Constitution 2007.
Even the constitution by Rana Prime minister Padma Sumsher was commended by late Jawaharlal Nehru, prime minister of India, and largest democratic country of the world, as well as then democratic leaders M.P. Koirala and Ganeshman Singh (See Matrika Prasad Koirala's autobiography) as a democratic constitution. Similarly, the Constitution of Kingdom of Nepal 1959 which was drafted under the guidance of a renowned British constitutional expert Sir Ivor Jennings failed to work in Nepal. Similar fate was with the Constitution of Kingdom of Nepal 1990.
In the stable democratic countries like USA, Japan, India and United Kingdom, no political parties won the elections on the slogan of changing the constitution. American constitution has history of 235 years and United Kingdom even does not have written constitution and Japan's Constitution is more than six decades old. India too has been functioning under a same constitution prepared more than 60 years ago. Even Israel is perfectly running its democratic system without constitution.
Thanks to strong and stable state, a single constitution has been properly functioning in US. Even African American and white candidates have not talked about the constitution even though when it was promulgated the constitution permitted slavery. The same constitution is now allowing African American to be the president of the country. However, in a fragile country like in Nepal, the constitution is the soft target to hit for reaching the power. As long as politicians are in power, they don't bother about the constitution. They can use and misuse the sanctity and provision of constitution and its ethos.
"Recently, British Prime Minister Gordon Brown outlined twelve areas where he proposed power will devolve from the executive to the legislative: the power of the executive to declare war; the power to request the dissolution of parliament; the power over recall of parliament; the power of the executive to ratify international treaties without decision by parliament; the power to make key public appointments without effective scrutiny; the power to restrict parliamentary oversight of the country's intelligence services; power to choose bishops; power in the appointment of judges; power to direct prosecutors in individual criminal cases; power over the civil service itself; and the executive powers to determine the rules governing entitlement to passports and the granting of pardons,"Dr. Adhikari said.
No constitution is going to last till Nepal enjoys the political stability. But, Nepal will not have political stability as long as its two neighbors are scared of each other.
"Many of the formulations of the 1990 Constitution were better than the existing parliamentary rules and traditions practiced at the Westminster or No. 10 Downing Street, the Office of the British prime Minister," said Dr. Bipin Adhikari, a constitutional scholar.
"In most of these areas, the 1990 Constitution had made a breakthrough to hold power more accountable and to uphold and enhance the rights and responsibilities of the citizen," he said.
Similarly, all humanitarian agencies of the democratic world have put the priority of debate on constitution as if Nepal did not have constitution in the past. In fact, Nepal has sufficient experiences of making and exercising constitution. Basic infrastructures are already there since democratic change of 1951. Nepal's own experience is enough to accommodate growing aspirations of the people. Unfortunately, due to our politician's outcry, the democratic world believes that Nepal doesn't have any experience of democratic constitution.
The experiences have shown that the longevity of the constitution depends upon the stability of political system. If political situation is stable, the constitution works with it. If political system is unstable, any constitution is doomed to fail. Constitution is stable in that country where political system is stable.
Nepal has enough of experiences in drafting laws, constitutions and regulations. Nepal's constitution suffers because of clash of interest among internal and external players.
At a time when Nepal's major political parties, which waged all kinds of struggle demanding a new constitution to make New Nepal, are struggling for power, United Nations Secretary General, in his recent visit to Nepal, reminded that their prime work is to formulate the constitution for New Democratic Republic Nepal.
More than five months have already passed since the elections for Constituent Assembly, but nobody seems to be seriously debating over the framing of the new constitution.
Every one raises the issues of constitution but all of them want power. If one is in power, it is alright. Once they are out of power, they see many things wrong in the constitution. As survival of political leaders depends upon the state power, nobody bothers about democratic values and principles. Politicians have not given the impression to the people that they have been working for good and functional order.
By abrogating a democratic constitution of 1990, political leaders are walking on a dark road where nobody knows what type of constitution are they going to have for the country.