Fresh Beginning

Rajeev Dhavan / May 10, 2006, 00:00 IST

Text Size

Small
Medium
Large

Nepal's constitution must reflect people's will.

In October 2005, I was privileged to interact with some of Nepal's formidable and courageous lawyers while delivering a speech before Nepal's Bar Council in Kathmandu.
What concerned my colleagues in Nepal was: What do a people do when a constitution contains loopholes, the king dismisses prime ministers at will and then assumes autocratic power and an otherwise creative judiciary cannot find the gaps, restore constitutionalism and provide the answer?
The answer to all this has now come from the people of Nepal.
The revolt of the people ushers in a new process of constitution-making. A technical view cannot be taken of the appointment of G P Koirala as prime minister even though the new parliament has been revived beyond its normal life of five years.

Tumultuous circumstances led to a comprehensive failure of the constitution. The return to democracy was best achieved by making Koirala prime minister who undoubtedly has the backing of a majority of parliamentary parties (Article 35 of the Nepal constitution of 1990).
Such a democratic initiative cannot be compared with dictatorial extensions of parliament as in India in 1975-77 or usurpations of power in Pakistan and elsewhere.

Once revived, parliament needs to create a constituent assembly so that the very basis (called grundnorm by jurists) is changed.
Prima facie, this is not a case for making amendments to the constitution, through the revived parliament using Article 116 of Nepal's constitution of 1990, for two reasons. In the first place, a new assembly needs legitimacy.
Secondly, the amending power in Article 116 interposes limitations that "the spirit of the Preamble" (which includes the constitutional monarchy) cannot be 'prejudiced'.
Without considering whether the constitutional monarchy should be retained, there should be no impediment to the people and a new constituent assembly examining the vast powers claimed by the monarchy in the various constitutional disguises devised by the king.
Under the aegis of a constitutional monarchy, the king claimed many indepen-dent powers to preserve the constitution in respect of an emergency (Article 115), to promulgate ordinances (Article 72), and to remove difficulties (Article 127).
Amidst arbitrary chaos, the king changed media ordinances, reworked anti-terrorist laws with in camera trials and constituted a Royal Commission on Corruption inspired by political vendetta leading to the imprisonment of many, including former prime minister Deuba.
No less, there are various other provisions of the Constitution as for example the inclusion of members of the royal family in the Raj Parishad (Article 34) and those relating to the king's status and privileges (Article 27-33).
There is an inherent contradiction between an exalted constitutional monarchy, which claims special privileges and autocratic power, and a people-based constitution.
The constitution of 1990 was promulgated only, as the preamble says, in "keeping with the desire of the Nepalese people expressed through the recent people's movement to bring about constitutional changes".
A new constitution needs to ensure that it is "We, the people, who give unto ourselves the new constitution".
Few can doubt the creativity of Nepal's lawyers and judiciary in public interest and especially environment matters. The courts find it easier to handle the 'justice' texts of a constitution as opposed to its 'political' texts.
Amidst conservative reticence, the supreme court had made interesting decisions in 1995. But in 2004-05, the court did not entertain a bid to restore the old parliament.
This is an issue on which the people have now answered back to force the king to restore the old parliament and make Koirala the PM.
In 2006, however, the supreme court of Nepal did invalidate the king's Royal Commission on Corruption and released former PM Deuba from jail. What flows from this is that lawyers and judges will support a people-based democratic constitution.
But it is essential that the new constitution is not worded in such a manner that there are loopholes present to enable an elastic autocratic power in the hands of a future executive.
The process of constitution-making is arduous and complicated. Compromises are inevitable as long as they are principled and do not undermine democracy and justice. Nepal's constitution of 1990 was what the king gave, not what the people won or wanted.
We are now in a changed situation for which the people of Nepal have paid a tragic and traumatic price. But this is a beginning of a new process. India's Constitution took four years (1946-50), Pakistan's constitution took eight (1947-56) but collapsed two years later.
Sri Lanka's constitution was replaced and needs major surgery. Constitutions of South Asia suffer amendments, non-completion and abandonment.
It is often said that if India's Constitution had to be replaced today, a new consensus for one may not be possible.
Yet there is no running away from the fact that Nepal has called upon itself not just to make cosmetic changes in its present constitution but to create a new one.
This is going to require wisdom and grit because it entails the people of Nepal reviewing not just their basic law but also their immediate and past history.
The writer is a senior Supreme Court advocate.

End of Article