Constitutionalism debate on House dissolution

Birth defects of the statute make it a farce

Constitutionalism concern a farce:

In an unprecedented and extraordinary move four former chief justices of the Supreme Court of Nepal with a reputation for incorruptibility and distinctive professionalism have jointly put out a press statement rebuking the Oli government for the unconstitutional dissolution of the lower house of parliament, and later, presented themselves in person in the apex court for providing a rebuttal to a complaint against them on that issue. Their statement had come at a time when the apex court itself has been conducting hearings on the writ petitions filed against the dissolution and is therefore widely seen as a moral pressure on the top court to rescind the dissolution.

In the hearings just completed, the lawyers supporting the move argued that dissolution of the House is an authority that naturally resides in a sitting PM in a parliamentary democracy, even as those against maintained that, in view of the chronic instability brought about by the exercise of such authority by earlier prime ministers, the current Constitution purposely denies this discretion to the PM. Most lay observers agree with the latter position in that Oli had indeed exercised this non-existent authority mainly to escape the looming no-confidence motion against his government.

However, the story involves a paradox that is uniquely peculiar to Nepal in particular. While in other democracies such no-confidence motions are tabled by the opposition, in this particular case such a vote was reportedly being mooted by PM Oli's fellow leaders in his party, the NCP. They have apparently long been resentful of Oli ignoring the party diktat in governing the country. But PM Oli himself has reportedly alleged that this euphemism underscored only their unfulfilled avarice for bhagbanda that remains the root cause for their opposition to him. Bhagbanda itself is a long-running part of Nepali political culture under which bribes, commissions, the award of contracts and appointments to lucrative and powerful positions are apportioned among important politicians not only in the governing party but also across the aisle in opposition essentially to subdue any possible criticism of the misdeeds of the corrupt politicos and keep the people in the dark as much as possible. It is this mafia-like system of corrupt dealing that has turned just about every single politician in Nepal a blatantly corrupt man or woman, constantly beholden to such possible windfall with no shame or fear associated with being corrupt. It is this atmosphere of totally corruptibility and impunity that has kept the vast majority of the Nepalese chronically impoverished and dispossessed even as the country continues to be branded as "democratic" all these years.

The hallowed political philosophy of constitutionalism prescribes that "the government authority is derived from the people and is limited by a constitution that clearly expresses what a government can and cannot do". However, Nepal's politics remains so very corrupt and convoluted that it defies the textbook application of the principle for restoring the House. Because should that happen, in all likelihood, Prachanda would find himself the next PM, a man known for limitless loot of banks and people in a decade long campaign of terror, for swindling the government of tens of billions in payment for non-existent combatants and above all, for the bloodletting of 18,000 innocent lives, including that of thousands of the former UML cadres and NC members in the process. One often questions the moral standards of the NC and UML wallas who have had no qualms in cohabiting with the Maoists. In this particular case, an unquestioning application of the principle of "constitutionalism" would only amount to the proverbial jumping from the frying pan -- that would be Mr Oli -- into the fire that would be Prachanda. Clearly, constitutionalism applied in this manner would only amount to a farce.

"Birth defects" in the Constitution:

The point is that many of the causes for the making of this farce remain built into our Constitution itself, including in the events leading up to its adoption in 2015. Firstly, the constitution itself was the result of forced, premature "caesarian delivery" resulting in a few highly malignant "birth defects" continuously undermining its democratic character. As per the mandatory requirement of the then Interim Constitution, the draft of the new constitution was subjected to a nationwide poll, and as per the media reports then people had overwhelmingly opined against the federalization and secularization of the state. But just at that time, a power struggle was at its peak between the then incumbent PM, NC's Sushil Koirala -- who insisted on launching the new statute before stepping down as per their agreement -- and the UML president, KP Sharma Oli who was in unbearable haste to succeed him. So, Mr Oli conspired with fellow leaders including Prachanda in the CA to formally launch the new Constitution without ever consulting the findings of the national poll, thus willfully breaching the letter and spirit of the Interim Constitution. It has been this "birth defect" that has since opened up the "Pandora's Box" of federalism and secularism that otherwise had never been a part of political discourse in the country. The "second birth" defect has been the 600-strong jumbo size of the CA that made room for all manners of politicians including self-confessed Maoist killers in their bid for generous bhagbanda in the constituent parties. But the resulting body was simply ill-prepared for the erudite task of statute writing and thus, spent ages going back and forth on such non-issues as ethnicitybased federalism even as the myopic and disruptive donors made funds available in abundance. The environment was occasionally further vitiated by the "Madhesi" leaders -- mostly firstgeneration Indian immigrants--who were espousing their own bigoted demand for one single "Madhes Pradesh" for the entirety of the multiethnic tarai belt, a proposition that only reminds of the then Indira Gandhi's belligerent design of annexing Nepal's tarai. What finally yielded from the many years spent by two CAs was a document rather hastily stitched together from the blinkered agenda of various bigoted groups like the Madhesis and Maoists that, as later developments would show, only made matters worse for the nation.

The third major birth defect came at the heels of the constitution's adoption. A bunch of illprepared party loyalists formed the so-called State Restructuring Commission that drastically cut down on the number of local bodies to 753 or one-fifth of the nearly 3600 VDCs and Nagarpaalikas that existed then. While the populist slogan at the hands of these corrupt, poorly educated, and habitually deceptive politicians was to "bring Singh Durbar to the doorstep of the villagers", what they in effect ended up doing was to make what "Singha Durbar" already existed in the communities five times more distant from them, thus setting the stage for boundless corruption at the hands of mostly the construction contractors who had bought nominations for contesting election from the corrupt party politicians and found themselves at the helm of those local bodies.

The professional deficiency of the Restructuring Commission kept them oblivious of Nepal's own experience to the contrary. They were clearly unaware of the strength and impact of the nationwide network of user-owned institutions in the communities, mainly the ubiquitous forest user groups and mothers' groups that number 20 thousand and 52 thousand respectively in the country. While the forest user groups have been at the centre of the historic restoration of Nepal's forest wealth that had once deteriorated to the point of near-desertification, the mothers' groups too enjoy the worldwide applause for having catapulted Nepal as the top performer in the attainment of UN's Millennium Development Goals in Maternal Mortality Reduction and Child Survival in 2015.

The secret behind these dramatic successes has been the twin good governance factors of transparency and accountability constantly at work. Since all the members -- rich or poor, high caste or low, or male or female -- participate in the management decisions of their groups, their operating systems remain transparent and their leaders necessarily accountable to the members. In a country like Nepal where people remained chronically dispossessed and ill-informed due to widespread poverty and lack of access to education, such an opportunity for hands-on participation alone ensures good governance conditions in the communities. But the party-loyalists in the Commission probably were guided by their textbooks they studied ages ago.

And finally, the history of Nepal's multiparty democracy, particularly since its restoration in 1990 has been one of blatant and sustained corruptibility and impunity. It has been that one single factor that has kept Nepal "least developed" all the time. So, the framing of the 2015 constitution should have learnt from this experience and made a difference. But as explained above, that was never on the cards with the poorly educated, corrupt, murderous and Thalu-reincarnate politicians dominating the two CAs.

Looking forward:

While it is a very good omen that the distinguished legal luminaries, the former chief justices, have come forward as a united force in the interest of the hallowed principle of constitutionalism, it must not be mistaken for replacing one corrupt set of politicians with another at the helm. Just now Nepal needs neither the restoration of the lower house of parliament nor going for a fresh election that would only further embolden the corrupt politicians. What is indeed needed is to revisit our democratic polity in a manner that empowers the people themselves in the communities and rebuild our democracy from the grassroots up. After all, no two democracies are totally alike in the world. The structure of the democratic polity must be customized to the specific needs, strengths and debilities of the people it is intended to serve.