The leaders of ruling seven party alliance and the Maoists recently finalized the interim constitution. The constitution will be promulgated once the United Nations starts monitoring of Maoist combatants. Though the mandate of the Jana Andolan (People’s Movement) II is to make a new Nepal, the constitution finalized by the political parties has failed to reflect the people’s aspiration expressed during the April movement. Constitutional experts have defined the constitution, which is the fundamental law of the country, as a document of compromise rather than a constitution. The interim constitution established supremacy of politics, neglecting the supremacy of constitution, the internationally recognized principle. In this regard, there is a fear whether the Nepali people, who just got rid of royal autocracy, might face another type of autocracy. In this context, Pratibedan Baidya talked about various aspects of interim constitution with the Constitutional Lawyer Bhimarjun Acharya.(source of this interview is Nepalnews.com )
How do you analyze the recently finalized interim constitution?
This constitution is not based in the format of a normal constitution and many of its provisions are controversial. Some of the provisions are against the interest of the nation as well. The constitution does not have any destination, so I have said this constitution has more politics, little constitution. It will be very difficult to manage the transitional period by this constitution and it won’t be able to take the nation towards the proper destination through the election of the constituent assembly.
What types of controversies do you see in the constitution?
The constitution is full of controversies. For instance, the controversy starts from the preamble itself. Every constitution carries the source of authority and objectives in the preamble, but these things are not clear in this constitution. The source of authority of the present constitution is the Jana Andolan (People’s Movement) II but the preamble has not mentioned it and the objectives are also not clear.
In Article 4 of the constitution, holding elections of the constituent assembly by mid-June 2007 was placed under the liability of the state, but under the chapter of election of the constituent assembly, it says that the government will decide the date for the elections of the constituent assembly.
The constitution has adopted the independence of judiciary and pluralism as basic principles of the state, but there is also a provision that the Prime Minister will appoint the Chief Justice, which is controversial. Though the constitution has the provision for corruption control and ending of impunity, there is a provision of pardon in Article 151, which will promote impunity and there is no mechanism for ending corruption.
Under the chapter of the Executive, the constitution has adopted the parliamentary system but it has named Prime Minister as the head of the state and the head of the government, which is not possible in parliamentary system.
The basic difference between the parliamentary and the presidential system is that in the presidential system, one person is made both the head of the state as well as the government, but in a parliamentary system, the same person cannot be the head of the state and also the head of the government. The interim constitution had adopted the parliamentary system but made Prime Minister as the head of the state as well as the head of the government.
Another point is that the constituent assembly is the sovereign body and it can decide the framework of new Nepal, but the constitution has assumed that there will be parliamentary system even after the election of the constituent assembly, which is totally wrong. Article 82 of the constitution has mentioned that the constituent assembly will be dissolved after the constitution drafted from the CA comes into force, but it also has the provision that the CA might work till a new legislature is formed, so how can the constitution predict that there will be parliamentary system even after the new constitution comes into force.
Is it appropriate that the PM should be the head of the state as well as the head of the government?
No, it’s totally wrong in the parliamentary system. The constitution has adopted the principle of parliamentary system, but the provision of PM being head of the state and government was included, which is not correct.
As per the provision of this constitution, the Prime Minister will be the head of the state and the government, which means there is no role for monarchy. If the constitution does not give recognition to the crown, there will be no monarchy in the country. However, this constitution also has the provision that the first meeting of the election of the constituent assembly will decide the fate of monarchy, which is quiet ridiculous.
The constitution has ended the monarchy and parliamentary system of the country.
Will the provision create problems even after the election of the constituent assembly?
Yes, the situation will be complex after the election of the constituent assembly. The first provision is that the Prime Minister will be appointed through consensus, but if that does not happen, the leader of the political party with majority will be the Prime Minister, who might misuse his power. The misuse of power is one concern, but there is also confusion in principle as to what kind of government it will be.
How do you view incorporating education, health, employment and social security as fundamental rights?
The interim constitution has included free education, health, employment and social security as fundamental rights, but it has also mentioned that such provisions should be as mentioned by laws, which is against the principle of fundamental rights. Fundamental rights are the rights, which the state should provide immediately; otherwise, such rights would only be legal rights. So inclusion of such rights as fundamental rights seems noble but such rights are not guaranteed as fundamental rights.
It is said that the interim constitution has undermined the judiciary. What is your comment?
There are various objectionable clauses regarding judiciary in interim constitution.
The first thing is that the Prime Minister will be appointing Chief Justice under the recommendation of constitutional council, which is heavily dominated by the executive. If the Prime Minister is to appoint the CJ, there will not be independence of Judiciary.
The Supreme Court is the body, which corrects the wrongdoings and reviews the unconstitutional works of the Legislature and Executive while protecting the encroachment of fundamental rights of the people. If the Prime Minister appoints the head of such institution, how can he review such cases? So the provision is against the independence of Judiciary.
Another thing is that as per the provision of the constitution, all the court’s decision and the annual report of the Supreme Court could be discussed in the parliament, which is also against the principle of independence of Judiciary. Such provision will invite crisis in the Rule of Law and enjoyment of fundamental rights of the people.
Why do you think the constitution came in such a format and how is it not democratic?
It is unfortunate that the constitution was prepared by leaders of political parties and not legal experts. Leaders should have only given framework for it but not prepare it.
One of the characteristics of this constitution is the supremacy of politics rather than supremacy of the constitution. For example, Article 86 of the constitution states that no voice should be raised against the decision of the legislature and if someone does so, s/he can be detained for three months or fined 10 thousand rupees and there shall be no review of the punishment.
The constitution has imagined such despotic legislature, which is objectionable. The constitution lacks constitutional supremacy, which is the universally accepted principle.
Another objectionable principle is the provision of pardon. In any penalty given by any court, judicial or semi-judicial authorities, the cabinet may give pardon. Based on this provision, pardon can be given against the people who were found guilty by the report of the Rayamajhi Commission. Similarly, there will be no punishment for violation of human rights and humanitarian laws in course of the 11-year long Maoist insurgency.
The provision of pardon mentioned in Article 151 of the constitution will institutionalize the impunity.
Similarly, all people will get citizenship on the basis of birth, which is objectionable. The constitution also made the provision that all people who have naturalized citizenship will be eligible for the appointment in all constitutional bodies, which is against the national interest. The naturalized citizenship is given to foreigners, so under this provision, any foreign citizen will be eligible for the post of President, Prime Minister or Chief Justice of the country. I can’t imagine how the leaders, who received posts on the basis of people’s movement, included such provision in the constitution. It’s totally against the national interest.
As a constitutional lawyer, how do you evaluate the provision of constitutional council?
There is the provision of six members in the constitutional council, which is not correct, as the even number keeps no meaning in legal term.
Three members of the council will be appointed by the Prime Minister; if such a council recommends the name of the Chief Justice, the independence of the judiciary will be compromised. Independence of Judiciary is the international principle, but the constitution is trying to create controlled or committed Judiciary.
As, there will be majority of the Executive in the constitutional council, they can control the Judiciary, which is not acceptable in a modern state.
How do you see the provision for managing transitional period in the interim constitution?
Politics was made supreme in the interim constitution, which is not good as supremacy of constitution is related to the protection of people’s rights.
Supremacy of politics will not give a good result. Based on the interim constitution, the proposed constituent assembly will not give good results and the constitution to be formed from the constituent assembly will not be inclusive. There was no need of an interim parliament ahead of the constituent assembly polls.
I have studied around 40 countries where constitution was drafted from CA, but in all of them, there was no interim parliament. As far as Maoists’ inclusion in legislature is concerned, they could have been included through CA polls, so the interim parliament is just for the sake of give and take. If the CA poll is going to be held by mid-June 2007, why is there a need of interim legislature for less than six months? The interim legislature does not have authority to take decision about the interim constitution as well.
Another serious issue is that a person holding public post or receiving remuneration will be disqualified for being a candidate in the election, but the constitution has made the provision that elected and nominated people will be able to be the candidates, which means, a person who is a member in interim parliament will be able to fight the elections of the constituent assembly and member of the constituent assembly be able to fight for the next elections, which is against the electoral norms.
How do you see the provision of dissolving constituent assembly after the constitution formed from the CA comes into force?
The interim constitution has created the situation of vacuum in the country. As per the provision of the constitution, present HOR will be dissolved after issuing the interim constitution.
The interim legislature will endorse the interim constitution. The interim legislature will be dissolved after the first meeting of the Constituent Assembly and the Constituent Assembly will be dissolved once the constitution formed by Constituent Assembly comes into force.
There will be a vacuum till next legislature is elected, which is a blunder. As per the international norm, there should be provision that the constituent assembly should work till a new legislature is formed.
So, the constitution is not in the format of a constitution, it’s just like a political document. Another thing is that the 425-member constituent assembly is not appropriate as the number is not manageable. The mixed election system is also not a good concept.