Does Nepal Need An Interim Constitution?

Do we need an Interim Constitution? Why do we need it? Can’t we move to Constituent Assembly without Interim Constitution? Is there any justification for the Interim Constitution?

By Surendra Bhandari
Lawyer, in Japan

In one or other ways, all of us should be thinking on these issues. I happened to think on these issues when one of the participants on UWB observed to my opinion that government is empowered by the people’s movement II and therefore capable to take any decision on political grounds and such political decisions are immune from any judicial test in the language of some of the political leaders and lawyers in the country. In my opinion these are completely wrong ideas and unhelpful for democratic transition in the country.

In fact, what my critiques are aspiring and what I am aspiring is the same thing – democracy – a liberal democracy in Nepal. But we are sharply differing on the point of process. It is because I am trying to look at things from the point of view of rational justification and my friends are looking at things on broader political terms.

More than this dissonance, the most important thing is that how we can successfully institutionalize democracy in the country. Against this background, I am arguing for Interim Constitution as the means for smoothen the process of democratic transition in the country.
Always, in a transitional stage every country faces different problems and we are also facing problems associated with transition.

First, the insufficient existing laws and regulatory instruments are creating a big problem to the new government taking needed important political decisions. In this situation, either political decisions should be taken ignoring fundamental ruling doctrine – constitutionalism or immediately start working for legitimizing the needed authority. There is a profoundly established jurisprudence and political theory since 1610’s Proclamation case that– Be You Ever So High You Are Not Above the Law. It applies both to an autocratic and a democratic government. But the difference is that autocracy ignores it and that is why due to the very reason the regime falls into autocracy.

A democratic government follows and abides by it and that is why it is called a democratic government. This is a fundamental distinguishing hallmark between autocracy and democracy. Talking on our present political context, the 1990 Constitution does not allow the present government to take necessary political decisions that were / are aspired by the people’s movement. For example, Madhav Kumar Nepal strongly spoke to remove “Royal” from the Royal Nepal Army. It is a popular voice, of course. However, the 1990 constitution provides the word “royal” to the RNA and until the 1990 constitution remains the RNA also remains “Royal”.

Parliament has formed a probe commission to penalize the persons who suppressed the people’s movement. It was demanded by the people as well. I am sure the Rayamajhi Commission comes off with specific recommendations to punish those persons who suppressed people’s movement. But the question is that how can the government punish them without a clear law and legal mandate? Only ousting them from office might be done on political basis but if serious action is to be taken against those imposing criminal liability there should be a clear law.

The government can remove those who are in the post but how can it punish e. g. to Kamal Thapa without a proper law, because he is no more in the post? And, importantly, just ousting from the position is no more a punishment. Why Mallik Commission’s Report was not implemented? Among many reasons, one of the reasons was that there was no law to punish them on the charge that they had suppressed people’s movement. Another issue I am continuously talking since few weeks is that declaration of the CA.

There are other important issues as well. I am not arguing that the government should not carry out important political decisions. But my humble submission is that these actions should be based on due process of law. Due process should be respected. Question arises that how to secure due process in this situation? The only answer is that in the first step the Parliament as a repository of people’s movement can immediately start enacting a law that authorizes the government (if needed also retrospectively) to take all political decisions needed for smooth democratic transition subject to be followed by validation of such decisions by the Parliament.

In the second step but urgently, the Parliament can draft an interim constitution retaining all necessary authority and state power in its hand including declaring CA and other matters so that the Parliament truly becomes repository sovereign people. The interim constitution is a tool for this and it also should withdraw the 1990 constitution in its entirety fully empowering the Parliament and the government for taking necessary political decisions. This is what I mean due process of law for democratic transition. It only gives legitimacy and validity to the political decisions otherwise the political decisions will be indistinguishable from the basic characteristics of autocracy.

Second, during interim period the government needs to take many decisions. It needs to revoke some (most) of the earlier decisions and embark on new decisions. These are taken on political hallmark but the political hallmark needs to be legitimized for its validity and legitimacy. For this reason too the Parliament needs to prepare an Interim Constitution so that the government would be authorized with needed authority and power.

Third, no system of a democratic government functions even a fraction of second without having a fundamental governing law. If a government starts governing country without having a fundamental governing law anarchy just breeds from there. In the present situation of the country, as the 1990 Constitution cannot be a fundamental governing document because it is full of anachronisms and many impediments to democratic transition. It has already been felt. On the other hand, the government is serious and desirous to take many important decisions but the 1990 constitution is in the way as an inroad.

Until there will be an Interim Constitution the present state organs (executive body, legislature and judiciary) keep willingly or unwillingly functioning under the 1990 constitution, which is not acceptable to the Nepalese people. Therefore, to keep up the feelings of the people’s movement the Parliament urgently needs to embark on drafting an Interim Constitution. It is nonetheless a time consuming job but important one.

If the interim constitution is not prepared and the government and the Parliament are not provided with needed authority and power there is a high chance that the democratic transition will be hijacked and suffer again.

Dr. Surendra Bhandari is a lawyer, currently working as a think-tank in the United Nations University, Institute of Advanced Studies, Japan. Here is his previous blog on UWB.

57 thoughts on “Does Nepal Need An Interim Constitution?”

  1. Yes i agree who will do it ? Is it the foreigners or the Nepali leaders who do it. They are walking in a slow motion right now. Even they can not control the RNA and how is it possible ?

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  2. tell me one thing mr. bhandari… if UK can \continue without a written constitution why cant we go forward with this same consttitution… the problem is not with the constitution as i see…but with the people who iimplements it…

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  3. lee you said it yourself ‘people who implement it’. The history and culture of the British people and the Nepali people are very different. Thus the need for a system that suits us.

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  4. Mr. Lee,

    It is ashamed to say the fact that we don’t know what system is suit for us, definately democracy but what kind? What we are seeing is future of the politics will be much weaker than 2046 constitution. King’s power maybe wiped out but other powers will come to disturb the democracy.

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  5. Mr. Lee,

    Thank you very much for raising an insightful issue.

    I was tended to write you a long response, but when I read Kirat I found a perfect representation.

    You are perfectly right that a country can be governed without a written constitution but not without a constitution. Britain does not have a written constitution but it does have unwritten constitution, which consists of constitutional conventions and written judicial decisions that have unflinchingly established a body of constitutional law. Therefore, Britain has a strong constitutional law. For example, since 1610’s Proclamation Case – Be you ever so high the law is above you – has become an established principle of constitution. This means the King / Queen is not above the law of the land but under the law. Even the great seal of the Queen are used by House of Commons itself. Queen is a ceremonial Head of the State. Interestingly, still she is the Head of the State of Australia.

    We don’t have such a body of established constitutional principles.

    Mr. Lee you are equally right when we look at why the 1990 constitution was derailed? Was it just because of the ambition and power-hungriness of the King or the actors (leaders) role as well in translating the constitutionalism as a dysfunctional norm? I always found the role of political leaders at the center for derailment of 1990 constitution, but King’s takeover of 2002 and 2004 slew constitutionalism of the 1990 constitution. When constitutionalism is slain the constitution theoretically becomes dead. If you are interested, I will advise you to visit this there is a book on Future of Nepalese constitution that has tried to analyze this issue.
    Having a good constitution alone is not an armory form being it slain in the future. It cannot ensure that the country infallibly rejoices democracy, rights will be protected and state organs abide by the constitution. The most important thing is social attitude – a constitution needs to be owned by society. That is why we are arguing for constituent assembly. But the present state of understanding of an unstructured CA is not much helpful in this direction. If there are well-established governing norms, principles and values in society, perhaps we don’t need a written constitution. But it is not the case of Nepalese society, which is unfortunate indeed. Any good constitution can easily be turned into a bad lot if the actors are not able to understand, abide by and implement it or are so clever to avoid and evade it. In my opinion, both of these dangers are still looming large in our society.

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