Ans. The first thing we must remember is that 'civil supremacy' is a democratic concept and it functions under the principle of the rule of law, i.e., under the framework of a democratic Constitution, in our case. In a strict sense, it connotes to 'civil-military relations' under a democratic system of government in which security forces are eventually regulated, managed and controlled by a democratically elected government through internationally acceptable standards and institutional set up, however, without eroding the basic tenets of security system. Civil supremacy as understood by authoritarian or totalitarian or one-party rulers is different from what democratic or pluralistic leaders may mean.

Is it there in the past?

In Nepal, from a constitutional point of view, civil supremacy has been fully recognized since 1990, as stipulated in 1990 Constitution and now in the Interim Constitution, by the 4th and the 5th amendments. But political party leaders have failed to give it a democratic meaning through appropriate legislative measures and fair implementation of laws.  Functionally, civil supremacy will be fully in place in Nepal only after PLA/ cantonment issue has been resolved in compliance with democratic principles and international practices and  autocratic temperament of party leaders to direct the rule of law has been changed.    

Maoists have charged the President with violating the constitution by preventing the removal of the previous army chief ? How do you look at this?

It is unfortunate that party leaders are distorting the spirit and true meaning of the Constitutional provisions and laws in this regard. They are also conveying a wrong message to the people. The very decision of the previous Government to remove and appoint CoAS was constitutionally faulty, procedurally wrong and in violation of the Interim Constitution. The present Government in its cabinet decision has clearly stated so.  Publicly expressed legal opinion of the Nepalese prominent lawyers in this regard substantiates this fact. Moreover, all political parties except UCPN(M) and a couple of others have accepted in written while submitting a petition to the President that removal and appointment of the then CoAS (Mr. Katawal and Mr. Khadka) was against the provisions of the Interim Constitution and made  a request for immediate intervention for correction. Some comments made by politicians and several scholars in media are in ignorance of actual facts.

Do you mean president is right?

The President has not violated any constitutional provisions, neither has he made any substantive decision at all. He, of course, did ask the then Council of Ministers in his capacity as the Head of State and protector and defender of the Constitution to review its constitutionally erroneous decision and comply with the words of the Constitution. In response to the letter of the then CoAS, the President had simply asked him to stay until the Prime Minister had not responded to President's written advice. Tell me, how did the President violate Constitution? An act of fulfillment of 'constitutional obligation' is not 'constitutional violation'.

If Maoist leaders had dismissed the then army chief by violating the constitution in overriding the constitutional rights of the president? Why has only the Maoist voice prevailed on this?

I don't think Maoists’ voice has prevailed. In fact, their democratic credentials have been seriously and repeatedly questioned. Maoists should really be serious about it. Has not Prime Minister Madhav Kumar Nepal's government out rightly rejected the decisions of the UCPN (M) led government?  As you are saying, by commissioning the letters of dismissal (to CoAS Katawal) and of appointment (to Mr. Khadka) directly to the individuals concerned, the then Government blatantly encroached upon the constitutional power of the President to act (i.e. to appoint and dismiss) on the advice of the Council of Ministers. And moreover, it was against the procedure clearly prescribed by the Constitution and the laws of interpretation. Actually, key political parties, and to some extent, even intellectuals and media failed to convey the facts and true legal message to the people and the world community about the whole episode.  

How do you look at the current crisis? Is it political or constitutional?

Neither is it a political crisis nor constitutional. The crises are artificial, and the issue is mainly ethical and related to political 'morality'. Is not the whole act suddenly sponsored and directed against the spirit of Jana Andolan and also against the commitments made by the political parties to the people as expressed in the CPA. If the political leaders fail to deliver the results, i.e. production of a democratic Constitution and the institutionalization of the rule of law, within the constitutionally promised period, it would be a great political and moral betrayal to the country and people.  You can see, the whole constitution making and legislative processes have been stalled, and the failure to pass the budget through parliament is to invite a bigger crisis. We are heading towards a breakdown of the constitutional process.

If it is not a constitutional problem, what is it then? Do you see any solution to this problem?

Eventually, the 'wisdom of the people' is the only solution to all the national problems. In a democracy, the people must ultimately prevail. The people have articulated the 'framing of a democratic Constitution' through the Constituent Assembly with priority, as a solution to the problem. There is no alternative to it. Failure to produce a Constitution means the end of the peace process, and revival of anarchy and conflict. The parties will be blamed for deliberately pushing the country towards a failed state. People should be very watchful and be prepared for any untoward consequences if the political leaders do not wake up in time and change their behavior. If anarchy escalates, another form of authoritarianism may forcefully enter into the scene. Continued instability in the region may invite external powers to get involved in the internal affairs in the name of establishment of peace. Therefore, political parties should no more be left unbridled. Internal pressure must be built on them by civil society and the people. Media in this context has a big role to play.

It seems that Maoists have been rocking the state’s institutions, in one way and the other. Don’t you see a design in this?

Three major institutions, which still had legitimate credibility despite problems, have been seriously threatened. Reasons for this may be ideological and belief in orthodox political values. The UCPN (M) which raised arms for a political mission may have their own goal as agreed in their political conventions. But the global reality and international trends are totally different. It is in favor of democracy and economic prosperity. Therefore the modern democratic institutions, such as the Constituent Assembly, judiciary, democratically regulated army, media and emerging institution of presidency, must not be allowed to be discredited. Many other key institutions like local government bodies, parliament, executive, civil service, security system and political parties, have been eroded and they have lost their institutional foundations and luster.

What about other institutions?

Even socially rooted good traditional values and institutions have been slowly uprooted one after another, and the vacuum is yet to be filled up. At this critical juncture, it is not the system that is sustaining the state; it is the patience, tolerance and hope of the people, supported by the goodwill of the international community, that have actually helped the survival of the nation.

How do you evaluate the constitution making process?

It has been stalled and slowed down, mainly due to wrong attitude of the key political parties and their leaders. Absence of towering national leader as uniting factor and to mange change during transition is a big problem.  Unfortunately, priority of political parties has been shifted from constitution making to constitution unmaking due to their love for state power. When the leaders themselves are the problem in a country, it has no future. The people will have to fight a new war against its own irresponsible leaders first. In this situation, we may have a new Constitution but we are not going to have a good Constitution.

Is new constitution going to be People’s constitution?

It is not going to be people's Constitution; we will have to own a party-imposed constitutional text. Ideologically divided civil society leaders and intellectuals are also partly to be blamed for this state of affairs. Sadly, even friendly countries and well-wishers are not speaking these days in order to avoid an allegation of foreign interference. Although time is running out, we still have enough time and we can produce a reasonable draft of the Constitution if the civil society and enlightened citizens start speaking. The Chairmen of the Constituent Assembly and Constitution Committee of CA have to change their role now, and they have to be firm for fulfilling their main tasks.

Do you think the new constitution will be promulgated in time?

It can still be promulgated in time, and it has to be promulgated within the stipulated time in the interest of the nation. As our experiences show, in the past we have drafted good constitutional framework in less than six months’ time. The CA should now engage more technical experts, whom it has not fully utilized, and use the remaining time fully geared towards drafting, revising the draft with technical support, and taking them to the people for education and input. But this has to be done with all sincerity and honesty by CA members and political parties. The CA Chairman must demonstrate his leadership role; he cannot escape by shifting his responsibility on political parties alone. The simple question before the people is: do the political parties and their mentors want a democratic Constitution prepared democratically?

How about International role?

Time has come for international and national stakeholders also to build pressures on the CA and political parties to focus on the constitution making, as peaceful and democratic Nepal has become, and will be more, essential for the stability and peace of the whole South-Asian region . Blaming others for interference is the sign of our own weaknesses. We should be able to welcome and utilize international support as per our needs and not allow meddling in our affairs against our national interest. It is up to us as to what we want and what we permit.

How do see the possibility of extension of tenure of CA?

I must mention here that the idea of extending the timeframe for constitution drafting is wrong and unconstitutional. The Constitution, although it does not categorically prevent constitutional amendment, but as far as the tenure of the Constituent Assembly is concerned, it cannot simply be extended except for six months in the case of emergency. That emergency cannot be imposed for stretching the life of Constituent Assembly, which can be dissolved earlier if its tasks are achieved but cannot be prolonged for finishing the tasks. 

How do you see the rising differences among political parties?

These differences are actually not a problem. In democracy differences on national issues do exist, and solutions are amicably discovered if there are trust and faith amongst parties. In the present day Nepal, the main problem is the lack of nationally acceptable political leadership and absence of party leader's sincere commitment to democratic values and ideals. State power has become predominant for all political party leaders. Firstly, we must bring them to a term and make them ready to reconcile. All stakeholders must work together for this as political leaders are accessible. Once they come to a new agreement, the process and drafting mechanism have to be made much simpler.

Where do need to focus?

The Constitution making should now focus on the roadmap and constitutional framework rather than the details, which we see in the CA Committees' concept notes. We must introduce a basic framework for new elements of governance, such as federalism, which can be only progressively implemented in ten to twenty years of time. Changes should be introduced gradually, progressively and democratically. Now focus should be on the process and principles rather than the contents, if the constitution has to be drafted. Let the technical experts and professionals be entrusted with more and more for technical tasks and responsibilities, and allow politicians to play their political games without interfering in the technical field. For this, right political environment has to be created with the help of civil society leaders and friendly international community in the spirit of democratic comradeship.

Where do you see the role of donor communities in constitution making?

If donors collectively feel that their stake, i.e., the stake of the people and organizations of the countries they represent, is in producing a democratic constitution in time, they can help diplomatically to persuade the local actors to wake up and do the job responsibly. However, the international community must try to bring the neighboring diplomats- i.e., Indian and Chinese - on board while meeting the political party leaders and telling them frankly what their views and stakes are

Courtesy: The Spotlight

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