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| Abhishek Jha |
The second Constituent Assembly (CA) is in the process of finalizing the floating words of major agreements on constitutional issues. Prima facie of the recent 16-point deal clinched by the four major parties of the CA, which is now proved to have been the basic base of the draft, is a proper common ground for all party stances.
But parties’ stances are not what constitute the constitution. It’s the assemblage of public aspiration, cherished with clean hand and clean heart. The constitution is expected to square off remnants of the archaic power structure within the Nepal’s political movement and society. Every group of its kind is speculating the draft of the constitution a step forward to reform a historically exclusive state into a state that ensures principles of inclusion. The draft is the standpoint of the forth coming constitution and it has to be tested on the ground of global treatise on the Principles of Constitutionalism.
‘Law is what judges say it is’
Major political parties and CA members in the committees responsible for constitution drafting process were in greater pace to hastily complete the draft via a ‘fast-track’ method. CA adopted the 16-point deal as a guideline for breakthrough in constitution writing process. The march was contested in court of law as standing inconsistent with the Interim Constitution, which is the basic guideline for the new constitution. Supreme Court stayed the implementation of the deal and ordered the parties and CA to move ahead in line of the Interim Constitution and maintain a level of consistency with it. This was an ameliorative judicial activism by the SC to maintain the standards of constitutional principles.
But the leaders of the nation, which is supposedly in the stage of progressive democratization, publicly criticized the court decision and acted against it. The discourse was then misled to the controversy attracting judiciary. The parties would have focused on the object and intent of the decision instead. The decision of the SC came along with the doctrine of necessity when the on-going political disillusionment was acknowledged by the judiciary and the circumstance got judged on the basis of unique social-constitutional competence of the justice.
The decision was radical in its structure but was not beyond its jurisdiction. For instance, the SC of Bangladesh in 2008 case of M.A Mannan vs. Bangladesh had ruled that the judiciary can go beyond the doctrine of political question in order to decide constitutional issues inspired by politics. And SC’s decision was in line with that because the issue on demarcating the provinces is a politics-inspired constitutional issue. A court always has to move forward by preserving the constitutional aspect of any deed. Political parties should have understood that it’s because of the political environment in the country that court had acted ambivalently towards them.
Jurisprudential view of the Constitution
Egalitarian concept of justice sanctions inequality of conditions implied by equality in opportunity. It also accords more priority to those born with fewer resources and into less favorable social conditions. Constitution in Nepal is meant for limiting the liberty and leverage of certain identical group having defined hierarchical status in power sharing, which they were enjoying in the realm of different political phases. But the draft of the constitution does not find the relevancy of the egalitarian concept of justice. A list of provisions in the draft had undermined the basic feature proportional inclusion of Interim constitution. Exclusion of such a feature can cause irreparable damage to the politically excluded and educationally, socially, culturally backward castes. The constitution should instead should take affirmative actions and insert sunset clauses in mechanisms where a degree of proportional inclusion is not possible.
Hans Kelson opines law is developed on the basis of law itself. It is independent from ethics, politics, sociology, etc. He says so because a law based on any particular ethics, politics or sociology is not independent and cannot be enforced on all, because law which is good today may be bad tomorrow. Draft of the constitution gives a sense of it following the pathway of ‘socialism’. This has been clearly expressed in the preamble and its footnotes. A country where contesting parties are more than a hundred, where people residing hails from background incomparable and where ideologies differ from steps to steps, it’s so unnatural to give a defined shape of ideology to the constitution, which is to be enforced on diverse bearers. This makes the ground of sustainability of the constitution weak.
The draft doesn’t show any following of feminist jurisprudence. Provision relating to citizenship in the draft has given lesser recognition to mothers by not allowing one to have citizenship in the name of mother only. This is again a violation of Interim Constitution. Such a provision is usurpation of the achievements made by the feminist movements in past. The draft has proved in a way that men and women are different and not equal.
‘Constitutions may differ, but not the Constitutionalism’
Constitutionalism is political accountability charged with constitutional mandate. It is important to test if the draft holds political accountability or not. The drafting process is accused of not giving enough space to the opposition to express their views. This act is refusal to a democratic process of giving equal opportunity to the opposition to forward and establish their claims. The draft equivocally is seen to have stepped ahead of the decision of the SC. Courts are recognized as the real and final interpreter of constitution and its principle. This is the constitutional fact that was accepted in the 17th century by the Court of Common Pleas in Dr.Bonhams Case.
As already mentioned above, the new constitution in Nepal is a need for indigent and underprivileged, and the draft was meant to address them and their rights. The draft instead has slammed the demand for sovereign immunity of the states. The discretion to decide on the residual power solely resides within the ambit of the Center. This gives an impression that the draft of the constitution has strengthened and enhanced the power making part of the federal government and has weakened the state governments. If enshrined, such provisions will always timid non-subordination of federal and state governments.
Interim Constitution is based on the political agreements by different parties and was drafted for different causes and their effects. It is a contract that ensures the upcoming constitution will incorporate what Nepalis demanded through People's Movements in different period, the Maoist conflict, and the Madhesh Aandolan. Agreements signed by political parties show their firm commitment to address the transformations demanded by all these movements. But in contradiction to all these, the draft has breached the basic features of the Interim Constitution and has bypassed the monumental agreements. These long years were spent to set the Grundnorm for the historical constitution. If the constitution goes beyond its own Grundnorm, it will most likely lessen its span of sustainability.
Constitution in Prospect
Applicability of this constitution can be anticipated on the ground of its amenity with the people’s aspiration for a right reserved future. The draft with impression of having willful flaws, unitary bias and unanswered questions raised by epoch-making revolutions, will certainly give divisive implications. Instead of uniting all, it will carve out ground for disputes and chaos in federal Nepal. A review that is very genuine, realistic, aligned to proper discourse and which rises up to internalize the sources of real constitution, is what Nepal in transition demands. I hope members in CA will understand the crux and will act proactively to enclose principles of constitutionalism in texts.
(Jha is a student of Law at the Kathmandu University School of Law, Dhulikhel)
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