Exit from Constitutional Cul-de-Sac

Murari Sharma

Bhagirath Basnet

Nepali state has been operating in a constitutional limbo. The original mandate of the Constituent Assembly, which also works as the national legislature, ended constitutionally on 29 April 2010. After that, all three extensions of the Assembly’s term have breached the principles of natural justice and due process. Such unconstitutional extensions, as they are wrong, should not be repeated again.

Writing a democratic constitution has never been easy. Yas Ghai, a constitutional expert, says the purpose of building a constitution is not just writing the document. It is also to bring reconciliation among conflicting groups, strengthen national unity, empower the people and prepare them for participation in public affairs and the exercise and protection of their rights, elaborate national goals and values, broaden the agenda for change, promote knowledge and respect for principles of constitutionalism, and enhance the legitimacy of the settlement and the constitution. This is a quite complex political smorgasbord to handle in a short period. Only a few countries like the United States, and Nepal in 1990, have been able to draft democratic constitution in less than three years.

 

Nepal embarked on an ambitious project of writing its constitution in two years, and by extension, two and half a year, after the political change of 2006. This is a medium-size country having political, economic and social challenges of a continent. There are diverse genuine interests and widely divergent political views to reconcile. In the hill, two races – Aryan and Mongolian and several ethnic groups within the Mongolian race — coalesce with their own languages and cultures. In the terai, there are several ethnic groups mainly within the Aryan stock with their different tongues, religions and ways of life.

Wide chasm also exists within and between the regions along majority and minority cultures, castes, and classes in terms of opportunities. Some groups have done better than others. In this situation, each group aspires to have its own state and more opportunities in a federal republic of Nepal, something made enormously complex by overlapping distribution of various racial and cultural groups. On top of that, some fringe groups are also seeking to break Nepal. To accommodate all these divergent strands of an intricate web of relations and write a consensual constitution is an extremely difficult and time-consuming task.

But in the natural euphoria of victory, political leaders chose an unrealistic timeframe to write the constitution and made a provision in the Interim Constitution accordingly. Article 64 of the Constitution stipulates that the assembly will have the term of two years from its first meeting unless it dissolves itself before that time. Those two years ended in 28 April  2010. The proviso to the same article allowed the assembly to extend its term by 6 months if the constitution could not be written within two years due to the announcement of a state of emergency in the country. But there was no emergency and that proviso was never applied.

Constitutional norms were breached the moment the Assembly extended its term by a year resorting to Article 148 of the Interim Constitution. This article allows the assembly to amend or repeal any article of the constitution by a two-thirds majority in the house. While assembly can use this provision to address political, economic and social imperatives of the country, which is the objective of the article, it cannot use the provision to prolong its own life without patently flouting the principles of natural justice and due process.

When the decision to extend the Assembly’s term for the first time was challenged, the Supreme Court stamped a seal of approval for the extension arguing that it was appropriate based on the principle of necessity. Using that precedent, the Assembly has extended its term twice. Thus, it cornered the Supreme Court to stand by its verdict, though shakily the third time around a few days ago in which the Court has expressed its displeasure with repeated extension of the term under Article 148.

The principle of necessity offers a useful legal avenue insofar as it serves society’s pressing needs without undermining the principles of natural justice and due process. Some argued and the Supreme Court agreed that the extension of the Assembly’s term was necessary to prevent disruption in the key task of writing the constitution and concluding the peace process and to save the country time and expenses needed for fresh elections. But that argument is faulty because it stands in conflict with the more abiding other two principles. By siding with the principle of necessity in this case, the Supreme Court has put itself in an unenviable cul-de-sac and set a dangerous precedent for the future.

As we all know, all public decisions should follow the principles of natural justice and due process. The first principle stipulates that such decisions should have no conflict of interest and should be impartial. Under this doctrine, no public entity or public official is allowed to extend their own term because it will have the conflict of interest. US congress, British parliament and Indian parliament cannot extend their own terms. The American president, British prime minister, and Indian prime minister cannot prolong their term on their own either. Judges cannot serve beyond their terms of office and have to recuse themselves from a case in which their impartiality could be compromised. If such bodies and officials are allowed to set their own term or tenure, they may choose to remain elected or appointed forever. Only monarchs and absolute dictators exercise such powers.

The principle of due process stands at the heart of rule of law and democratic society. The essence of democracy is not about doing things quickly or inexpensively; it is about following the due process based on the pre-set norms and criteria, no matter how long it takes and how expensive it becomes. That is why we have norms and procedures for elections, appointments, term, tenure, etc. US and British courts free many known criminals when the police and prosecution fail to follow the due process. Nepali courts have been doing that as well. Exception could be contemplated for extraordinary situations, but there has been none for the Constituent Assembly. Thus, the principle of necessity has been used to trample the due process in the Assembly’s term extension.

Dictatorship is far more cost effective because it can make and implement decisions quickly trampling the due process. On the contrary, democracy requires periodic elections and people’s mandate, consultations and consensus, investigation and evidence, all of which are expensive and time-consuming. People have chosen democracy over dictatorship knowing well that it is slow in speed and expensive, in the hope that the due process secures everyone’s interests and promotes everyone’s welfare better. One can only seek and ensure efficiency and economy within the parameters of the due process.

Nepal is already paying the price for compromising the principles of natural justice and due process. Despite the breach of these time-tested principles, the new constitution is not in sight yet. Confident that they can extend the Assembly’s terms as they wish, political leaders have been fighting over political posts rather than writing the constitution. While the Assembly did not sit even for once in the last three months, politicians have been busy changing the government. Since April 2008, three governments have come and gone, with long interregnums under caretaker administrations in-between, and the fourth government has been formed which is again a majority government, as good or bad as the previous ones that failed to deliver the constitution.

Therefore, it is about time that people exercised their right to assess the performance of their representatives in the Constituent Assembly and give their decision. A repeated lie does not make it a truth; neither does an unconstitutional extension make the Assembly constitutional. Since the Assembly’s very mandate is in doubt, anything done by it is going to be inconsistent with natural justice and due process, even if the outcome is good. For instance, if a fraudster contributes part of his theft to a charity, the contribution, though good in outcome, remains unlawful.

If the Constituent Assembly fails to deliver the constitution in this unconstitutionally extended term, there must be no further extension. In a democratic society, the principles of justice and due process must trump the principle of necessity based on political convenience and cost and time needed for elections. Let the people decide who is going to represent them and give them the constitution.

 

(Published in Republica of 10 September 2011).


 

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