“Our Draft Constitution Is Full Of Flaws”

At a time when Nepal is all set to table the bill on the new Constitution, senior advocate and eminent constitutional lawyer Badri Bahadur Karki, who has also held the post of Attorney General, spoke to KESHAB POUDEL about the processes involved. Exc

Aug. 28, 2015, 5:45 p.m. Published in Magazine Issue: Vol.: 09, No. -5, August 28 2015 (Bhadra 11, 2072)

How do you view the present action of political parties in handing over the constitution bill to the Constituent Assembly chairman?

If you want a new frame or system, you need to make legitimate starts. Howsoever powerful or wise an individual may be, he or she cannot substitute an institution. Out of four parties in the frontline of the constitution-making process, two have written notes of dissent. By that action, they have diminished the validity and legitimacy of the constitution bill.

How legitimate has been the draft constitution making process?

There is the need to forge a broader political and general consensus among the parties represented in the Constituent Assembly. This is the reason the constitution is known as a document of consensus. In the history of constitution-making in Nepal, there was a broad and high level consensus among the political parties and general public on the constitution of 1990. Political parties had a consensus on what kind of constitution they were writing. There were clear-cut mandates for the drafters of the 1990 constitution as it was based on constitutional monarchy, parliamentary multi-party democracy, independent Judiciary and guarantee of fundamental rights like liberty and equality. There were no disputes on those fundamentals. Thus, it was possible to write that constitution in the shortest duration possible.

Why is so much delay now?

At present, Nepal is divided over each and every issue. It took us almost eight years to decide the form of government and boundary of provinces. The Nepali society has never been divided in such a deep manner as now. I am not surprised to see this kind of oppositions and disputes because the issue which is in public debate now has never been in public discussions before. People gave one opinion by way of filling the questionnaire and now the agitating groups have different demands. People had not opposed anything as such when they submitted their suggestions. However, they started the opposition only after the political leadership started to write the constitution on the basis of their opinion. There is now a demand for unified mid-west, unified Sindhuli and so on. The reason behind this entire dispute is due to the failure of political leaders to gain public trust and confidence. There is a deficit of trust and confidence between the common people and leaders of political parties.

How do you take the opposition?

It is said that this is a draft of four parties. But two parties have registered notes of dissent. The draft has already lost fifty percent of weight. If someone questions Prachanda and Gachchhadar on what moral grounds they criticized the opponents, they wouldn’t reply. Prachanda and Gachchhadar do not have the moral grounds to ask not to issue statements opposing the draft. If the constitution cannot come with consensus among four parties, nothing is wrong with the opposition that we get to see now.

What do you say of the preamble?

Draft-wise, it is a poor document. It is said that the constitution is not written but it is made. Drafting is the legal aspect and the legal brains should work during the drafting process. The persons involved in drafting should be clear-headed on the philosophy of liberalism and fundamental rights. There is the need to have the trust of the politician on those drafting the document. Draftsmen should be given a free hand to write, by reflecting the voices of the 601. By reading the draft, you can say who was behind writing it. There was no suspicion about the capacity of the drafters of 1990 constitution, because everybody knew this was Bishownath Upadhyaya. His personality as jurist was reflected in the draft. This was well recognized. Nobody knows who wrote the present constitution. We all know Krishna Prasad Sitaula is not a constitutional lawyer. As he is a politician, the legal community cannot accept his work with the legal aspects. There are nameless and faceless advisors behind the draft. There is no one to own the constitution.

If the drafters write the constitution, what do our 601 members do?

All 601 members cannot write the draft. It is the drafters who write it. Persons involve in the draft are seen and very much countable. For instance, the Indian constitution was drafted by Ambedkar and B.N Rao. As 601 members are not experts, they need to hire constitutional experts to prepare and write the document with their views as per the legal and constitutional procedures.

What do you say of the flaws now?

From the beginning to the end, this document is full of flaws. There is a major flaw even in defining Nepal. India was created by the constitution. There was no unified India before the promulgation of the Indian constitution. As the father of Indian constitution, Ambedkar said India is the Union of States. However, Nepal is there before writing the constitution. Thus, the constitution cannot create Nepal as the boundary and foundation of Nepal are there even before the promulgation of the constitution. Nepal has already written seven constitutions in the past. There are many fundamental laws in the constitutions. However, the constitution cannot depend upon law.  Constitution is a self-contained supreme law. It should include everything. If there are flaws in the document, it is likely to be a lawyer’s paradise. The court will have to interpret many articles. 

How do you look at the current controversy on carving the provinces?

You cannot satisfy all by creating as many provinces as they want. The provinces need to be fix on certain principles and bases. If they are set up on certain principles, less controversy will be there. Now the framers divide province no 2, for inclusion of 12 districts of Terai. Now, there is rumor that a few more districts like Udayapur, Sindhuli and Makwanpur will be incorporated. Udayapur, Makwanpur and Sindhuli are now in agitation. It is natural for the people living in those areas to call an agitation because many people who are living in those districts had fled during Madhesh Andolan. How can they support integration with those who asked them to vacate? Political parties have created confusion and mistrust. If political leaders demand unified Midwest or Farwest, or one Madhesh, it is natural for people to follow.

How do you look at the judicial aspects?

It is said that 70-75 percent of any constitution is part of its history. Ten to fifteen percent are national and international instruments. There will be a little space left to write new things. For instance, 75 percent of Indian constitution was borrowed from India Act 1935. Ambedkar himself said it publicly. What we have created is a myth that we will write a completely new constitution. I still remember statements of political leaders saying that the Constituent Assembly is free and independent and it cannot inherit anything from old constitutions, even the present interim constitution. Now the same politicians are demanding that the new constitution should be written within the framework of interim constitution. How can you distinguish this? Even the Supreme Court issued a stay order saying that the new constitution cannot overlook the spirit and principle of the Interim Constitution.

How do you view the transitional system?

The draft of the present constitution shows that there will be two constitutions, functional and parallel, the new constitution and interim constitution.  The present draft is said to have some provisions of the interim constitution that will be functional. The draft fails to manage the transitional period. Transitional provisions are incomplete. You cannot implement two constitutions at the same time. One constitution needs to be scrapped or substitute by a new one. In the transition, there are many flaws. The constitution has made a mandatory provision for the reelection of the president and vice president. However, under article 286, the provision is there to transform the present CA for another term. If president and vice president need reelection, the CA members' transformation also needs to follow suit. However under the article 286, present CA members will continue in the post till the filing of the nomination for new parliament. It is full of flaws. There are contradictions.

What do you say about the controversy on religion?

They have many options as they may discard secularism and replace it by religious freedom or nothing can be written. So far as religious freedom is concerned, Article 31.1 says an individual has the right to give up his religion and to be declared neutral in terms of religion. It is a perfect way to separate the state and religion. However, our context is different. Unlike the west, the meaning and exercise of religion in Nepal is very broad. Our religion also means law, ethic, moral and integrity. It sounds absurd to have the clauses which allow you to betray morality and integrity. You take oath in the name of religion, committing to abide by the moral and ethical codes. This is very immature.

What is the function of the judiciary?

It is surprising to see the reappointment of judges after the promulgation of the constitution.  How many times do you need to go for appointment. If the same CA members who were elected in the last elections can continue, why do others need reappointment. I am also against the present hearing system proposed by the constitution.  It is unfortunate that our legal communities and politicians ignore our long practice of hearing in the parliament for the appointment of judges and other constitutional bodies. This is a kind of hearing for the political appointment.  We cannot say now our judiciary is politically neutral because we have already introduced a hearing by politicians.  Hearing is a political process. It means like politicians the judges also need to listen to the criticism and condemnation. Our intention is to make that kind of judiciary.  On the one hand, there is a provision of Judicial Council for an independent judiciary but the hearing process is of political nature. Once you go for political confirmation, we cannot say that the judiciary is independent. There is a political appointee among judges. Judiciary has already suffered. If we want hearing, judicial council should have a mechanism for this.

How do you see the possibility for the improvement of courts?

I am against the constitutional court and Supreme Court.  Nepal does not need a constitutional court in parallel with the Supreme Court. We have failed to convince the politicians that the Supreme Court is itself a constitutional court. Even the constitution has made temporary arrangements for 10 years with three members of Supreme Court and two experts from outside who are always in minority. This cannot fulfill the desired results. One can make a special court in dealing with constitutional issues. This is the result of our justice of Supreme Court to retain constitutional expert title we have already practiced for 25 years in a long exercise. Our court has declared itself as the constitutional court. We are unable to specialize it. We can substitute constitutional court. The Supreme Court will emerge as a powerful court. As there are so many contradictions, the court will have to hear numbers of petitions. It is Supreme Court which will define a lot of articles. Even in India, court clears a lot of contradictions.

If the bill fails, what will be the consequences?

If a two-thirds majority is not possible, there will be a political and constitutional deadlock. Four parties are playing a very risky political game. You cannot issue whip in CA, or force CA members. All party leaders have written some or the other notes of dissent. There is a possibility to see rifts during the voting. If the constitutional bill fails to secure votes from a two-thirds majority, it will be suicidal for the country. Political leaders need to settle the dissenting voices and oppositions before going for vote.

How do you see the present proposal to pass the constitution bill through a voice vote?

There is the need for the CA of intensive discussions and opinions.  It is a system under which a constitution is made following a tedious and lengthy process. Every article needs to go for vote.  If possible, there is a need to spend a lot of time. Our tragedy is that we make the constitution in a hurry and face a setback in the future. We can overlook many things if we go by voice votes. Members might not know that which articles got through and which failed. Even the laws cannot be passed by a voice vote. It is unthinkable to see the constitutional bill being passed through a voice vote. Constitution is a document which can be interpreted at several dimensions. It seems that they are in a hurry to bring a piece of constitution.

What is your view of a constitution?

A constitution is a document and article of faith. However, Nepal’s constitution is going to be an article of fate. You can rarely find a person who can believe that the constitution promulgated by politicians will solve their problems. This constitution will take a lot of time to gain recognition. Nepalese are the persons who know how to make a good work in a bad way. It is historical, a very good thing, to write the constitution through the CA but we have made the institution the worst. Article 4 of the draft constitution is itself faulty, for example.

What do you suggest?

Do we want to promulgate a partial constitution?  It is a big question whether we want a complete constitution or not. If the constitution is promulgated as the draft, there will be the need to promulgate another constitution because the draft of the constitution says that many provisions of interim constitutions will be functional even after the promulgation of the new constitution. This means there will be part I and Part II. How can there be part II constitution. How can you run with two parallel constitutions.  There is an order of Supreme Court which said that the promulgation of partial constitution is unconstitutional. As the government is yet to vacate the stay order, it is not easy for president to promulgate the new constitution.  The question now is whether president should ignore the order as political parties or to adhere the order. This is a serious constitutional question.

What other things are missing?

It is unfortunate that there is no provision in the draft constitution to settle the political deadlock between the province and center. For instance, the constitution has said nothing about what would be the constitutional remedy in case if the province denies to follow the central law or the center needs to declare the emergency.

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