Populism in constitution making is not a new phenomenon. Hardly any systematic study exists in this area. But this phenomenon exists, and exists in the most powerful sense. Nepal is definitely going through this process.

The latest case in point is Ecuador. A very unstable South American country, it has adopted a new democratic constitution just recently. In a way, enacting a new constitution is no more a very important occasion in this country. Independent since 1822, Ecuador already has a history of enacting 19 constitutions — and mourning the untimely demise of all, one after another. Its score is better than that of some other countries in Latin America. For example, the Dominican Republic has recorded 34 constitutions, Venezuela 26 and Haiti 24. There is no guarantee that this new constitution will not face the same fate for the same reasons.

Bolivia is also following suit. Its congress has recently agreed to send a new constitution backed by President Evo Morales to a national referendum on January 25. Drafted by an elected constituent assembly, the constitution is supposed to solve all the problems of Bolivia. Independent since 1825, this country is the fifth country in Latin America with a competitive score in constitution making. Its 1967 constitution was revised in 1994, 1995, 2002, 2004 and 2005 — each time for the purpose of achieving major reforms, but always failing. Morales, Bolivia’s first indigenous president, maintains that only this new constitution will give more political power to the country’s downtrodden native (Indian) majority and entrench his leftist economic reforms. Again, there is no guarantee that this new constitution will not go the way of its predecessors.
Myanmar is set to be a new case in point. The democratic thrust of the people of this beautiful country is not a new issue. But the international pressure that is being exerted now is not for a democratic regime, but for a change in the balance of power in view of its strategic importance. Local causes have little significance. In response to the pressure, Myanmar’s ruling junta has not only drafted a new constitution for Myanmar, but also issued its English version last week. But the constitution still intends to perpetuate military involvement in politics. Again, it is because of the reluctance of the historical partners of Myanmar to leave it alone that this country is still in turmoil.

Drafted under the junta’s influence, it guarantees 25 percent of the parliamentary seats to the military and allows the president to hand over all power to the military’s commander in chief in a state of emergency. Going beyond, it also stipulates that no amendments can be made to it without the consent of more than 75 percent of the lawmakers, making any proposed changes unlikely unless supported by the military. The constitution, passed by a national referendum in May, allegedly received the backing of 92.48 percent of the voters.

However, the constitution will come into force only after parliament convenes following the general elections scheduled for 2010. As such, critics say the constitution is designed to maintain the military’s decades-old grip on power. Indeed, it does so, but again for certain foreign interests. There are more than a dozen African countries like Sudan and Somalia exhibiting a similar pattern.

This Nov. 8, Nepal would have celebrated the 17th anniversary of the 1990 constitution and its democratic credentials had the then Prime Minister Girija Prasad Koirala and his intriguing partners not agreed to glorify violence and accept the plea of external elements to pull this constitution down. A new democratic constitution seems to be a distant dream. Many of the formulations of the 1990 constitution were better than the existing constitutional rules and traditions practiced at Westminster or No. 10 Downing Street, the office of the British prime minister.

In fact, the United Kingdom, the mother of parliamentary democracy, is still grappling with major issues of policy reform in devolving power from the executive to the legislative, which include the power of the executive to declare war, to request the dissolution of parliament, to recall parliament, to ratify international treaties without involving parliament; to make key public appointments without effective scrutiny, to restrict parliamentary oversight of the country’s intelligence services, to choose bishops, to appoint judges, to direct prosecutors in individual criminal cases, to order the civil service and to determine the rules governing entitlement to a passport and the granting of pardons.

Moreover, they are the 12-point reform agenda of British Prime Minister Gordon Brown, which was published in the U.K. Chamber’s Hansard recently. In most of these areas, the 1990 constitution of Nepal had made a remarkable breakthrough in holding power more accountable and upholding and enhancing the rights and responsibilities of the citizen.

None of the four constitutions promulgated in Nepal one after another was allowed to operate and grow smoothly based on the brilliance of its people. Each of them had been scuttled because it had outlived its utility for somebody. As long as there are such factors causing instability in local politics and politicians willing to become their tools, constitutions come and go — they don’t reflect the sovereignty of the people or the popular will.

Again, no matter what is written in the constitution, what matters most is the mindset of politicians and their commitment. Without this, a constitution is just a scrap of paper even if it has popular legitimacy. Populism does not help anybody in the long run. There is a need to pump some seriousness into the constitution-making process.
lawyers_inc_nepal@yahoo.com