ILLEGITIMATE CONSTITUTION

Murari Sharma

There are many differences between a democracy and a dictatorship. The most important of them is this. The means must justify the end in a democracy whereas the end justifies the means in a dictatorship. In democratic societies, the end becomes invalid and illegitimate if the means applied are illegal and wrong. Going by this logic, the new constitution, if and when written by this constituent assembly, will be invalid and illegitimate at birth.

In dictatorships, the dictators decide what to do and how, and there is no need to justify why. In democracies, the due process — the right means to an end – is an absolute must for a decision to be valid. For instance, the police cannot arrest anyone without a warrant. Before the court passes a verdict, the prosecution must prove the guilt and the defendant must have the opportunity to prove his innocence. The public must be consulted before something affecting them is launched. Elections must be held before the mandate of parliament and other elected bodies is renewed.

In democracies, an elected legislature can amend the constitution and pass the laws in keeping with the established due process. But it cannot extend its own term because of the conflict of interests. Only voters have the right to change the mandate of parliament. If the sitting members of parliament were to enjoy this right, they may choose to award themselves a lifelong term. When the parliament’s term is increased, the new term applies only to those members who would be elected under the new rules, not to the existing ones.

Parliaments and other elected bodies become invalid as soon as their term expires and they must be dissolved no matter how critical agenda they might have been tackling at the end of their tenure. The critical business has to wait until after the fresh elections. Any decision taken by the date-expired parliament becomes null and void. The key determinants here are the due process and the need to prevent the conflict of interests, not the importance or urgency of the issue on hand.

How does the constituent assembly measure up against these fundamental democratic principles, norms and values?

Very poorly. The assembly, elected in April 2008 to write the new constitution and work as the interim parliament, had a two-year term, extendable by another six months if a state of emergency were declared, under the Interim Constitution. Since there was no emergency, the assembly could not extend its term under that provision. So the term was prolonged by amending the constitution three times, despite the sitting members had a direct and personal interest in it.

The supreme court acquiesced citing the principle of necessity. This principle is useful only when it does not contradict the due process and avoidance of the conflict of interests. The assembly could use the principle to bridge any other legal gap, but not to extend its own life due to such a conflict. Unfortunately, the supreme court, afraid of the parliamentary hearings for justices before their reappointment under the new constitution, failed in its obligation to defend the constitution and put a stamp of approval on the unconstitutional extension of the assembly’s term three times.

As the third extension expires at the end of this month, I know the term will be renewed once again. The president does not have the power to block it. Tied in by its own unhelpful precedent, the supreme court will stand meekly moaning in a dark corner of irrelevance. Those who raise the constitutionality of the renewal will be castigated as anti-democratic, anti-republic, or whatever, even though many of them might have contributed to the success of the People’s Movement II more than many of the sitting members of the assembly. Put differently, internal checks and balances have completely broken down.

This leaves only friends of Nepal to inject a sense into the political establishment. Generally, external interference in internal matters of another state should be objected. But when those in power break all barriers of legality and decency, external exhortation becomes essential. In fact, worried about excesses in the name of transition, friendly countries have already begun to express their misgivings. Western countries and the United Nations have been urging Nepali leaders to expedite the peace process and constitution drafting, follow the due process and rule of law, and not pardon Balkrishna Dhungel, a Maoist member of parliament who murdered Ujjan Shreshta in cold blood.

Time and again, Indian leaders have also been pressing their Nepali counterparts on these issues to remove political uncertainty and ascertain peace and security. Upendra Yadav, now the incredibly dwarfed leader of once mighty Madheshi Janadhikar Forum, has said recently that India is trying to get the constituent assembly dissolved. He might have vented his personal frustration with New Delhi for supporting his opponent to join the Baburam Bhattarai government, but the message is consistent with India’s concern, which has to do with the constitutionality of the assembly’s term extension without election.

Tutored under British legal conformism, Indians are more careful about legal norms than Nepalis. Recall the Tanakpur Understanding of 1991. India had warned then-Prime Minister Girija Koirala and his delegation visiting New Delhi that the agreement had to be approved by a 2/3 majority of parliament under Nepal’s constitution of 1990. The Nepali side neglected the warning and signed the agreement, inviting a political tsunami back home. Nepal will defy India’s warning about the assembly at its own peril once again.

Nepal is faced with a cruel irony today. The majority of people want liberal democracy that gives them voice, vote and freedom. The largest political party rejects liberal democracy and wants to place Nepal somewhere between the People’s Democratic Republic of Korea and Belarus, a hereditary communist state and a disingenuously elected ruthless dictatorship. Democratic exercise will help strengthen democratic values and institutions and rebuild democratic checks and balances. Political adventurism will assist in strengthening the hand of those who want to undermine democracy.

Clearly, renewing the constituent assembly’s term without fresh elections is an act of political adventurism. Churchill is attributed as saying that democracy is the worst form of government except all the others that have been tried. The democratic process could be incredibly slow, inefficient and expensive, but this is what the Nepali people have chosen over dictatorship and semi-dictatorship. Even more importantly, if the constitution is written by this constituent assembly, it will be an illegitimate document in the eyes of those who believe in the due process and in the imperative to avoid the conflict of interest.

22 NOVEMBER 2011

MYREPUBLICA@COM


 

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