Constitutional Deviation

Having the best constitution in the world doesn't mean a thing if no one is going to follow it.

By Ganesh Raj Sharma

Nepal's geopolitical location, sandwiched between China and India, has proved to be both a boon and bane, advantageous and disadvantageous, from the viewpoint of political stability.

The year 1951 marked a significant change in Nepal's politics, and India played a major role in that change. Although the royal proclamation got legitimacy in the country, it was designed and drafted in Delhi on December 1950 and became known as the 'Delhi agreement'.

The deadline for writing the constitution in the 1951 movement was not met, creating a political vacuum, uncertainty and instability. There were high spirited politicians who lacked experience in state affairs, so the king and other external political forces were able to meddle in Nepali politics.

As the country gradually embraced democratic values, India tried to mould the hanging political situation in its favour. It imposed an economic blockade, which ultimately resulted in the 1990 Constitution, which its writers claimed was the best in the world. Despite a few inconsistencies in the 1990 constitution, it has generally been hailed as a broad document of consensus under which three general elections were conducted and a lasting solution for national integration and development was forged.

The constitution remained uncontested and no amendments were proposed in parliament. But the political parties that had drafted the constitution of 1990 criticised it and ultimately promulgated the Interim Constitution in 2006. The influence of regional politics was there for all to see. There have been six amendments to the interim constitution since it was passed two years ago.

The main highlights of the 1990 constitution were the prime ministerial parliamentary system and universal adult franchise. Under the prime ministerial parliament, the PM inherits the right to dissolve parliament and call for a fresh mandate from the people any time he deems it necessary.

Unlike in India, there has never been consistency in the court verdicts on the PM's prerogative rights in Nepal. The court has given contradictory verdict at times. The house was dissolved in 1994 in which the court upheld the newly elected government. Man Mohan Adhikari's decision was scrapped by the court.

Ignoring the spirit of parliamentary democracy, this verdict established the power of parliament to remove the PM and infringing the prerogative of the PM. Consequently, the PM kept on changing and MPs became pawns to make and break the government. The irony is that those who had drafted the constitution and those who had set the precedence made decision against their own decision. In this process, politics prevailed on legal knowledge and expertise.

Before this verdict of the Supreme Court, the PM had stayed in power for more than three years but after the verdict the PMs lasted less than two years. It would cost him dearly if he wanted to stay in power. The parliamentary members could bargain for their price.

It was a turning point in Nepali constitutional practice and a deviation in the prime ministerial parliamentary system. The position of the PM remained constantly unstable while MPs had greater bargaining power.

In 2001, after the royal massacre, the ambitious King Gyanendra sacked Prime Minister Sher Bahadur Deuba and announced the date for the election. He introduced direct rule, another major setback in the constitutional practice.

The third major deviation in the constitutional process is the proclamation made by the reinstated parliament in 2006, which had no constitutional base. The constitution which reinstated the parliament was annulled by the reinstated parliament. This parliament then went on to promulgate the interim constitution before the constituent assembly drafted it.

Political parties and individuals are busy fighting for power. They don't seem to be concerned about the new constitutional framework, and they hold intractable views on what it should be like. It is unlikely that we will be able to finalise the constitution but we will rather end up endorsing the draft of a constitution prepared elsewhere. The problems associated with the constitution writing process are beyond the control of Nepali people and politicians.

(Ganesh Raj Sharma is a legal expert.)

Courtesy: Nepalitimes

(Editor’s Note: Nepalis, wherever they live, as well as friends of Nepal around the globe are requested to contribute their views/opinions/recollections etc. on issues concerning present day Nepal to the Guest Column of Nepalnews. Length of the article should not be more than 1,000 words and may be edited for the purpose of clarity and space. Relevant photos as well as photo of the author may also be sent along with the article. Please send your write-ups to editors@mos.com.np)

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