Thursday, 9 December, 2021
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Towards Sustainable Democratic Exercises 



towards-sustainable-democratic-exercises

Dhruba Hari Adhikary  

Events and trends witnessed in the preceding six years are a pointer that challenges Nepal's new constitution faces to remain persistent, requiring political forces to be sincere to the people and assure them that the pledges made on proclamation day were not based on a set of fallacies. September 20, 2015, was to be a red-letter day for the Nepalis. And the launching of the constitution, the main statute, was also set to signify that Nepal was finally embarking on the irreversible path of a republican setup. The monarchy under the Shah dynasty, which ruled the nation for about 240 years, was being formally relegated to the pages of history.  

A quick recapitulation of events serves as a reminder of how swiftly alteration plans were set to motion to a particular direction. By placing specified procedures as well as processes on a 'fast-track' mode, the Chairman of the second Constituent Assembly and leaders representing various political parties decided to float the constitution on the day they thought would be appropriate. And while doing so, the leaders responsible for overseeing the political transition glossed over the opinions and suggestions collected from the members of the public they had earlier authorised.

Had those suggestions been taken into account, drafters would have been persuaded to revise the final draft differently. As a result, some of the suggested changes could have met the expectations of those who wanted retention of Nepal's cultural inheritance. The grievances of the regional leaders too would have been taken care of.  

Exercise 
Another annoying moment came when the democrats and communists in the assembly, in tandem, displayed utter callousness towards the plight of the people who had just endured a devastating earthquake claiming over nine thousand lives. The scale of death and destruction that engulfed the entire country---first in April and then in May---was yet to be fully ascertained, let alone the start of the reconstruction phase. In short, it was a rather hasty moment to engage in a major constitutional exercise that would inevitably have far-reaching consequences for the nation and its people. The major political players had to act on their plans. Whether they were under external pressure remains a matter of conjecture.  

In a bid to swiftly institutionalise the 'great achievements' of 2006 political agitation, both democrats and communists found it expedient to expedite the whole p rocess. After all, the Constituent Assembly had to do its job after its prolonged existence, an assembly that continued for over seven long years (in two terms) which entailed colossal expenses and exercises. All said and done, what they acquired had a legal legitimacy though an added bit of work would have been needed for political consensus.  

The legitimacy question aside, has the constitution been a working document taking national politics to a phase of much-needed stability? This is a question that needs to be reflected upon. The legal battles fought in recent months over the dissolution of parliament and the appointment of officials for the constitutional agencies are two striking examples in this context.

A group of lawyers advocated for the power of the incumbent prime minister to dissolve the House of Representatives for fresh polls, while another group of legal experts argued that since no specific provision could be found in the statute that allowed dissolution. Hence the presidential order to dissolve the House on the recommendation of the then prime minister, KP Oli, was unconstitutional. As we all know, the Supreme Court's final verdict went against the dissolution. 

The attention of the country's legal pundits also got focussed on Article 76(5), generating interpretations fiercely contesting each other. Since Nepal’s political system is multiparty-based, goes one set of arguments, none of the House members could be considered as an independent member; hence s/he could not be a candidate for the post of prime minister. The lawyers who countered this contention pleaded that Article 76(5) must have been inserted in the statute as the last resort to save the 275-member House of Representatives from being arbitrarily dissolved before completing its five-year term.  

Similarly, Article 18 specifies that all citizens are entitled to equal protection of the law - without any discrimination, either based on gender or ethnicity. But subsequent addendums contradict the original guarantees. Separately, Article 35 says every citizen should get a 'free basic health service'. The pledge on this count remains unmet. In full public view, privately-run hospitals are doing roaring business amid the Covid-19 pandemic; those in the insurance sector too are running brisk trade.  

Unique features 
People entrusted with writing a democratic constitution were keen to insert provisions that would make it unique - distinctly different from countries accustomed to democracy. What our writers produced ultimately turned out to be a hybrid of the British and American models. The system of parliamentary (confirmation) hearings for the appointment of officials such as judges and ambassadors is a relevant template. Or else, why should a judge, who entered judicial service through a series of tests and scrutinies, be summoned by a House committee for an interview?  

The enthusiasm to transform Nepal from a 'semi-feudal' to a constitutionally egalitarian nation was also palpable. But little did the progressives realize that the 1990 constitution also contained a provision that has universal application---including in the republican setup. It has to do with the health of the Head of State. What happens when s/he is "mentally or physically incapacitated" while in office? How do you run the state function if the person with state powers becomes the victim of a prolonged illness? However, proponents of republican Nepal did not bother to think about such a possibility. They only foresaw the ultimate cause--death--when the seat of authority would lay vacant.     

Despite some inconsistencies, the 2015 constitution has provided a basis for sustainable democratic exercises. The level of awareness it has generated nationwide is the most striking accomplishment thus far. The younger generation of Nepalis - belonging to all sections of society---should be able to apply necessary innovations and add institutions so that opportunities are expanded to extend coverage to the entire nation.  

(Adhikary is a journalist active since 1978 and writes on regional issues.)