New Constitution, for Mockery of Democracy?

This expert’s study clearly proves that the functioning of the constitutional provisions were always at the mercy of the politicians, who love to render lip service to ‘democracy’ and ‘democratic norms.’

By Deepak Gajurel

Deepak GajurelNepal is waiting to have seventh constitution in less than seven decades. A people’s ‘sovereign’ body Constituent Assembly (CA), in its second edition, has been working towards this end.

Though almost eight years have gone futile in the name of drafting a new ‘democratic’ constitution, Nepali citizenry has been made to believe that once the CA hatches the new ‘Loktantrik‘ constitution, all of the people’s grievances would be magically solved/removed.

Yes, a number of contentious issues are yet to be resolved among political players within the CA and outside of this ‘sovereign’ body. Some ‘major’ parties in the government and in the opposition have formed alliances against each other, with no sign of meeting anywhere for ‘consensus’ that would pave way for the smooth drafting of the law of the land.

Mockery of Democracy
Democracy is the other name for rule of law. In democracy, law prevails supreme, and all have to unconditionally obey the law in its words and spirit. In case this situation is altered, a mockery of democracy begins, resulting into rule by law, where rulers behave as if they are the supreme and rampage the laws in the name of democracy.

Since the ‘advent’ of democracy in Nepal, that is, from the day when The Constitution of the Kingdom of Nepal, 1990 was promulgated, rulers of this nation have always made mockery of democracy.

The drafter of the 1990 constitution named that law of the land as ‘greatest democratic’ constitution. Though in principle, this greatest constitution survived for around one and a half decade, it was always ‘raped’ by the politicians.

Almost all of 133 Articles of the Constitution of the Kingdom of Nepal 1990 were violated by the politicians during its 15 years’ regime. ‘All but three articles of the 1990 constitution were rampaged at least once by one or the other politician,’ says Dr. Bhimarjun Acharya.

A prominent Nepali expert on constitutional law, Acharya has conducted a research on the functioning of the Constitution of the Kingdom of Nepal, 1990.

According to the outcome of the research, Dr. Acharya says, ‘Only three Articles of that constitution were not violated, rather those were even not activated/used. The first among the ‘intact’ articles was the provision for the amendment of the constitution itself. Since that constitution was not even tried to be amended, this provision was not violated.’

The second one escaped violation by the politicians was the provision for the impeachment of the Supreme Court judges. No judge was tried under this constitutional provision during the regime of the 1990 constitution.

The third intact article was: ‘no Nepali citizen was expelled from the country violating the provisions to this end,’ Dr. Acharya adds.

This expert’s study clearly proves that the functioning of the constitutional provisions were always at the mercy of the politicians, who love to render lip service to ‘democracy’ and ‘democratic norms.’

Why Constitution?
The devastating experiences of the 1990 constitution and politicians’ rampage over that law of the land, continues unabated till this day.

The current Interim Constitution too has been facing the same fate as that of its predecessor. The ‘Loktantrik’ system of Nepal since 2006 has been a rule by law regime, where the country is ruled by a few ‘major leaders’ in the name of ‘consensus’, and not by due process of the law.

While the Interim Constitution itself provides grounds for the rule by ‘consensus’ among the major political parties, the constitution has been amended without even applying the provisions for the same. The latest amendment to the current constitution was made through an ‘agreement’ among major parties, without even going through ‘due process’ provided for in the constitution.

Since its promulgation, which itself is under question going by the universally accepted norms of constitutionalism, the violation of the constitutional provisions are numerous.

The past and present experiences, behavior of the Nepali political parties, their leaders and other players prove that they don’t need a law of the land in the real sense, or for democracy. In other words, our politicians prefer rule by law to rule of law.

It is by now proven that Nepali politicians always want to utilize the law for their own vested interest, which never goes for the benefit of the nation and the people.

In this context, an interesting question remains to find answer: why Nepali people, and this nation, need a constitution in the first place? When there are several ‘monsters’ in the form of ‘people’s leaders’, ready to kill whether that is constitution or other laws.



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