Nepal has a history of very troublesome constitutional development leading to major political upheavals bringing the nation’s life at ‘precipice’ and even at the extreme end of decrepitude. Right from the first constitution, the Government of Nepal 1948 which never saw the light of the day up to the 7th Constitution of Nepal -2015, one or the other ways have been devised to discredit the Constitution. Normally, power mongers find their unscrupulous way to either leave overt space while drafting the constitution or find a covert room for manipulation of constitutional provisions with a view to furthering their personal political interest in a constitutionally led polity. Their political interest, in most of the cases, is not fine-tuned with national interest. Their flagrant approach of keeping oneself first over and above the overall nation’s wellbeing undermines the essence of the Constitution – the supreme law of the land, which provides the guiding rules (and principles) to operate a polity. In a situation like this, the Supreme Court must step in to ‘hiss away’ the ‘political vagabonds’ from nibbling (or poisoning) the very essence of democratic republic society that the constitution claims to protect.
A glaring case in point is Bidya Devi Bhandari who served as the first woman president of Nepal after the promulgation of the present Constitution. She was reelected for her second term on March 13, 2018 after a successful completion of the first term. Article 64 (2) of the present Constitution says that a person who has already been elected President for two terms, shall not be eligible to be a Presidential candidate for the future. Well then! Bidya Devi Bhandari will never be the president of Nepal again. Can she become the chairman of her mother party – CPN (UML)? Or can she become a political worker as an MP (Member of Parliament) or even the first woman Prime Minister, like the first woman president? These questions are deafening the ears of political observers. She has already renewed her old party membership, which has stirred up controversy on political ethics and constitutional propriety. Bidya Bhandari as the president of Nepal was also the head of state. Even during her tenure as the head of the state, she had been inviting political controversies by taking a partisan stance in favor of her mother party that she has lately joined as a communist comrade. Hers is the classic case of raising the question of constitutional propriety (if not the political morality) for being always seen with her political ideology (and her mentors).
This prompts us to examine the trend prevailing in the democratic republic constitution of the neighboring country India. After the Constitution of India came into force on January 26, 1950, as many as fifteen presidents held the position of the elected heads of state justifying it as a republican state. Not a single ex-president in India went back to renew or obtain the party membership to join active politics, rather they chose to act as senior experienced guardian of the country and grace social occasions, seminars and lectures sharing their erudition and wisdom -- not a political rhetoric propelled by political exigency as politicians do. Dr Rajendra Prasad was elected as the first constitutional head of state, the President of India, just as Bidya Devi Bhandari became the first elected president of Nepal on October 29, 2015 after the adoption of the new Constitution of Nepal, 2015.
Is not it a travesty of constitutional justice by setting such a dangerous trend in Nepal when the constitution is finding its own balance to stand firm on ‘sticky political soil’? This kind of political avarice not only contaminates the political culture of the country in times to come but also tarnishes the ‘basic structure’ of the constitution for which it stands. Where does the Constitution of Nepal permit the ex-President to join active politics? It never intended the head of the state to join politics. Even the hierarchical model set out in the present Constitution doesn’t allow the ex-President of Nepal, who has been the head of the legislature and the commander-in-chief of Nepal army, to renew the party membership to take commands and directions from the chief of political party and getting rapacious to join the ranks and rub shoulders with the elected Members of Parliament (MPs) or ministers.
The legislative intent of the present Constitution, as it is revealed by applying the doctrine of necessary implication, makes it amply clear that the framers of this Constitution never intended the ex-President to join or renew the party membership for being actively engaged in politics.
Which direction is constitutionalism heading in Nepal? It has just produced two elected presidents under the present Constitution as of now and this kind of ‘unsavory political spectacle’ is unfolding before our eyes. It is high time the independent judiciary – Supreme Court of Nepal stepped in either on its own (on suo motto basis) or via PIL (public interest ligation) for initiating course-correction in misguided political landscape as per the letter and spirit of the present constitution.
In a situation like this the role of judges is of a paramount importance as they are constitutionally beholden to the people for safeguarding the ‘basic structure’ of democratic republic polity through their exclusive interpretative power of the constitutional provisions absence of which are always cited by politicians for advancement of their personal interest. The legislative intent of the present Constitution, as it is revealed by applying the doctrine of necessary implication, makes it amply clear that the framers of this Constitution never envisaged the ex-President to join or renew the party membership for being actively engaged in politics.
The current political model of Nepal is very different from the one-party communist rule in China. A similarity for the existing political model and the Constitution of Nepal, however remote that may be, can be drawn from India. And, what India did in such a grave situation where the political model and constitution was at risk? Justices of the Supreme Court vested with extraordinary power of interpreting the constitutional provisions reaffirmed the sacrosanct principles of parliamentary democracy functioning in a republican state guided by ‘separation of power’.
The Doctrine of Harmonious Construction, a fundamental principle in legal interpretation, plays a pivotal role in resolving conflicts and ambiguities. It is not possible to write everything in the constitution. Therefore, interpretation given by the judges of the high courts and the Supreme Court with regard to constitutional provisions and any other law becomes very significant.
Let us take one example here. Article 97 (1) of the present Constitution authorizes the House of Representatives and National Assembly to form committees according to the law. Should any ex-President, after joining active politics, be steered to be a part of such a committee? If an ex-President, who also happened to be the head of state, argues that joining politics is the fundamental political right for him or her, then being MP or a committee member is also a valid constitutional right. Aah! This is really a constitutional crisis. This is the time when the supreme court of Nepal must devise its interpretative tools to establish the pith and substance of parliamentary democracy just as India did in landmark judgements in the Kesavananda Bharati case (1973) and the Minerva Mills case (1980).
(Binod Kumar Pathak is an editor (of academic books), educator and academician)
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