Nepali Times
MENAKA GURUSWAMY
Guest Column
Romancing power, courting a constitution


MENAKA GURUSWAMY


On that fateful day of May 28, 2010, as the midnight hour approached, some members of the CA did manage to rise above party politics. Amidst swirling rumours of a possible state of emergency being declared, women members of the house crossed party lines and came together for a two-hour chant asking for the Constituent Assembly to be extended. Their young male colleagues, uninvolved in the power plays of their seniors outside the house, sat and watched silently. Finally the 'big three' political parties arrived at a three-point program.

Political gamesmanship and formulas for a 'consensus' government, code for who will really be prime minister, are the major concerns of influential politicians in Nepal. The drafting of the constitution doesn't quite seem to consume them as much as one might hope. Constitution-making itself is precariously positioned at present, in terms of disagreement over constitutional choices. Choices that shape the political and legal fabric of a nation, such as the form of government, whether presidential or parliamentary, and even the basis of the federal state, are in question. Other significant areas where convergence is needed include the appointment of judges and the nature and number of fundamental rights.

The Constituent Assembly's thematic subject committee reports which came to their conclusions on the basis of a majority vote, usually reflected the CPN (Maoist) position. For instance, the committee report on the Determination of the Forms of Governance of the State provided that all power be concentrated in the president. The president is to be the head of state, government and the military; and will be elected by popular election for a five-year term. This version of a strong presidential system is often at odds with the needs of fledging multi-ethnic democracies. A parliamentary system, with the space that it provides for the voices and narratives of all ethnicities and for regional diversity manifest through a multi-party system, might be wiser. Alternatively, convergence could be arrived at via a popularly elected prime minister in a parliamentary style democracy.

The method of appointment of judges is also a cause for concern. The Judicial Committee report provides that the head of state on the 'recommendation' of the Federal Legislative Special Judicial Committee (comprising the vice-chairman of the federal legislature, the law minister, and nine members from the legislature) shall appoint the chief justice and other judges of the Supreme Court. Similarly, structures are in place at the other levels of the court system. Judges of the Supreme Court are to have a term of four years and a retirement age of 65. Further, the powers of the Federal Judicial Committee, astonishingly, include interpretation of the constitution. All of this disrupts the separation of powers between the executive, legislature and the judiciary. This in tandem with a strong president structurally locates all power in the executive.

Finally, the Committee for Fundamental Rights and Directive Principles has provided for around 30 enforceable and justiciable fundamental rights. These include the fundamental rights to food, housing, employment and social security. In principle all nations must prioritise such guarantees. However, to create fundamental rights that the state cannot implement due to financial considerations, implies that drafters inadvertently compromised the absolute mandate of such a category of rights. It is preferable to have a few generic fundamental rights, for instance the right to life. Within it, one can progressively create jurisprudence that includes, for example, a right to food that the state can afford to implement.

Amidst the game of musical chairs for the prime minister's seat being played by all the major and now even some minor political parties, the obstinate terms of engagement of India, and the coy appearances of deposed monarch Gyanendra Shah, the business of making a constitution and therefore a new nation languishes. Nepal's political elites need to recognise the historical terms of reference of the Constituent Assembly. They need to set aside their personal quests for power, and instead focus on coming to a shared understanding of the idea of their country, and craft its character through a constitution.

The writer practices law at the Supreme Court of India.

READ ALSO:
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Elusive unity, PRASHANT JHA
Chhi-chhi to chichi, RABI THAPA
Freedom to market, ARTHA BEED
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1. Anu Lohani

Really well written, Menaka! Thanks for this article.

 



2. Arthur
In a country where half the children under 5 years old are malnourished lawyers object to a constitutional right to food on the grounds that the state cannot afford it.

No country can afford to let half its children go hungry. Better to save on other things.

But the author prefers that priority should go to preserving the present corrupt parliamentary system of playing musical chairs forming governments continuously instead of actually governing, with a special place for lawyers.




3. hange

"Further, the powers of the Federal Judicial Committee, astonishingly, include interpretation of the constitution."

Why is this astonishing?  Perhaps this is a misunderstanding on my part but I thought that the purpose of the junciary was to interpret the law- and the constitution is the law of the land.

Wikipedia states, "The judiciary (also known as the judicial system or judicature) is the system of courts which interprets and applies the law in the name of the sovereign or state". 

Granted, I realise that we're talking about the committee here but given that everything in Nepal is currently in an "interim" state, shouldn't one of the judiciary committee's primary responsibilities be to interpret law so that it formulates new ones as necessary?



4. Battisputali
Hange, I'm not much of a constitutional expert but from common sense i can tell you, Nope. Judicial committee consists of folks from the legislature and executive. They make and execute laws already. They can't be given another power to interpret it. This power should be given to some other body that is independent of both the aforementioned institutions.

The power of interpretation is very important. It means that anyone who can interpret the constitution will be able to evaluate laws and actions (of legislative and executive). We can't allow the legislature or executive to review the same laws that they pass. That means whoever controls legislature and executive can have control over laws. And laws aren't always just. You need a buffer against a crazy power hungry parliament or a crazy power hungry Prime Minister. This is why it is absolutely necessary that the power of interpretation of the constitution lies with a federal supreme court, and a federal supreme court alone.


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