RECURRING CONSTITUTIONAL CHALLENGES: MERE SYMPTOMS OF A LAGER DISEASE

Parties are yet to clearly come to the people with politics of agenda and their stance on a variety of issues ranging from federalism, citizenship, form of governance, social inclusion and election process among other important topics left unsolved f

July 27, 2013, 5:45 p.m. Published in Magazine Issue: Vol.: 07 No.-04 July 26 -2013 (Shrawan 11, 2070)

One could argue that the epitome of political/ constitutional crisis of Nepal has manifested itself through the presidential order dating March 13, 2013 appointing the sitting Chief Justice as the Chairperson of the Council of Ministers. Obvious questions were raised as to the sanctity of separation of powers and the flagrant violation of Article 106 (1) which precludes any judge or the Chief Justice to be engaged in, or to be deputed to any other assignment apart from that of a judge. The Special Bench of the Supreme Court is currently occupied with these questions in seeking to settle multiple petitions challenging the constitutionality of the incumbent government, which is slated for the near future.

The events from March 13, leading to multiple challenges of the mentioned presidential order can eventually and quite easily be traced to the lack of political agreement among the political parties in finding any other candidate as the Chairman of the Council of Ministers. Yet again, political disagreements have translated into constitutional nightmares which have challenged the integrity and independence of the judiciary. However,these constitutional/legal complications are merely symptomatic in nature while the underlying political disagreement is the chronic disease that needs to be dealt with before anything meaningful can be achieved.

Nepal’s road to peace was marked by the signing of the Comprehensive Peace Accordleading to the Constituent Assembly (CA) elections. Despite numerous renewals of mandate given to the CA for writing the Constitution, the said body was unable to produce the much awaited document leading the nation to the present situation of heightened crisis. At the heart of this disaster lies the inability of the political parties/ leaders in separating political issues from constitutional/ legal ones. The trade-off between political issues and constitutional issues as bargaining chips over one another was a salient feature of the last CA which eventually led to a situation of great confusion in the process of constitution drafting. Another outcome of this unholy trade-off was the birth of the culture of ‘consensus seeking’ among political parties/ leaders which made a hash of political/constitutional issues by seeking to wantonly trade one over the other in the name of forging agreements. These were further justified as tools of negotiation in finding a way forward for the nation.

Although, upon the expiry of the people’s mandate to draft the Constitution, a fresh election is the only way out, it however does not automatically flow from this that the next one will be marked by success. For any tangible resultin drafting the new document, key political/ constitutional issues should be separated, common grounds forged and most importantly the demarcation of the basic boundaries of the Constitution should be carved out. Furthermore, only if there is clarity as to the basic blue-print of the new Constitution, can one hope for a successful drafting process in the future.

Another important aspect related to this is the status of the preliminary reports drafted by the last CA. Although a draft of the Constitution was not possible there were negotiations and successful understandings on quite a host of issues as contained in the preliminary reports of the various thematic committees. It must also be noted that some important aspects of the Constitution such as fundamental rights had been dealt with in quite an exhaustive manner in preliminary report of the said committee. These reports containing the draft provisions were achieved through huge national and international investments and it is therefore, all the more important to use this as a stepping stone for the drafting of the next Constitution. Time and resources could be saved by the upcoming CA and the prospects of the new Constitution would also be much higher.

However, the current political climate of the country is far from seeking to learn valuable lessons from a catastrophic disaster. This is a cause for great worry as it shows all the signs of another episode of failure in the drafting of the new Constitution. As far as level of political agreement is concerned, the very fate of the proposed CA election is being argued over by the political parties and desperate negotiations are underway in seeking to gather the agitating parties for the polls.

As leaders run from pillar to post flaunting international support from neighbours in a futile attempt to display their grasp over Nepali politics, there has been an absolute negligence in seeking to forge any common ground before the nation sees the next CA into being. Parties are yet to clearly come to the people with politics of agenda and their stance on a variety of issues ranging from federalism, citizenship, form of governance, social inclusion and election process among other important topics left unsolved from the last drafting attempt. Although Nepal faces an uncertain tomorrow regarding the formation of the next CA, what is certain is the fact that, without a minimum understanding among the political parties about the boundaries of the next Constitution and the declaration of party positions on constitutional issues, no success can be anticipated.

Ankit Dhakal

Ankit Dhakal

Ankit Dhakal writes on legal and constitutional issues

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