Constitutional iceberg

Not all, but some of the problems of the nascent Nepali democracy seem directly linked to the Constitution which was drafted over the course of 1990 under the aegis of three mutually suspicious forces — the royal palace, the Nepali Congress and the Communists. Promulgated hurriedly in November of that year, the flaws in the master document have become more glaring over the years as day by day the country suffers from the antics of unaccountable politicians. These new rulers are, of course, amply supported by an intimidated bureaucracy, an undemanding academia and a politicised bar.

Jurist Shambhu Prasad Gyawali, who has been Nepal´s longest serving Attorney General from 1959 to 1970, observes that Nepal´s polity is in a state of "functional anarchy". This is so because constitutional organs have been hamstrung by structural defects in the Constitution that leave these bodies unaccountable. Gyawali suggests that many gaps and omissions, which have become obvious in the last seven years of its application, should be rectified through suitable amendments that do not leave room for contradiction between Acts passed and the Constitution. At the current stage of evolution of democratic culture in Nepal, it is unrealistic to expect politicians to discipline themselves; and this is the reason why some amount of constitutional engineering is in order. Here are some of Gyawali´s suggestions.

• The Nepali judiciary has emerged as one of the weakest entities under the 1990 Constitution, ample judicial powers notwithstanding. This has happened particularly because the Chief Justice has been left with very little powers for the administration of justice. His position is today completely beholden to the Justice Council, a motley group made up of three judges, a politician and a lawyer. Today, the Chief Justice of Nepal is unable even to ensure discipline among junior colleagues, much less direct an important wing for the functioning of democracy.
• That the role of the constitutional monarchy has not been clearly defined under the Constitution has often been cause for friction between the prime minster and the king. On the one hand, the executive power of the government has been unnecessarily divided among the king, the cabinet and the several ineffectual constitutional organs. Ideally, all executive actions of the government should be the responsibility of the prime minister, with the king acting only on advice. On the other hand, the king´s ability to provide suggestions to the cabinet is not sufficiently defined, which has kept King Birendra away from independently providing counsel on occasions when it might have been useful.
• The Constitution of 1990 has not provided for local self-government, and this lacuna has to be filled. Until such time, politicians and ministers will only mouch platitudes about decentralisation without doing anything about it.
• The Constitution should limit the number of members in the cabinet, pegging it to around 15 ministers and 10 junior ministers. The option of allowing unlimited expansion, which on one occasion resulted in 48 MPs flying flags, creates a situation in which selfish expectations are heightened.
• To stop the ´criminalisation´ of national politics, the Constitution itself should bar from Parliament a person who has a criminal case pending or has been convicted in such a case. This would immediately raise the moral quotient of the government and pariament, as a few, but extremely troublesome, criminal elements have exercised great mischief-making power.
• There is presently no compatibility between the Constitution and the law dealing with defection from political parties. While the Constitution´s understanding is that defection involves a written resignation or some other such obvious indication of withdrawal, the law seeks also to penalise for defection an MP who goes against his/her party´s whip and is absent during a ballot or does not vote in the case of a division in Parliament. This leads to a contradiction that, if challenged successfully in court by such MPs, may prevent political parties from maintaining discipline among members and ideological consistency.
• The Constitution stipulates that the matter of perks and privileges for ministers and MPs is to be laid down by an Act of Parliament. But the practice has developed to confer more privileges by fiats of government. It seems important that the Constitution should furthermore now specify that any violation of the concerned Act would result in the loss of the guilty party´s official position. This is necessitated so that the politicians do not get carried away (as they have), act illegally, and force great losses on the national exchequer.

The Constitution is not an end in itself: it is but the means towards providing a country with a polity which will deliver social and economic well-being to its citizens. No national charter is sacrosanct, and if it has problems it has to be altered. The period of experimentation with the 1990 Constitution is over, and as it is unlikely that the legislature, or the judiciary of Nepal, is going to take the initiative, it devolves upon lawyers, scholars and journalists to start building up public opinion for such change.

As jurist Gyawali notes, "If corrective action is not taken, there is an accident waiting to happen to the Nepali ship of state."