Experts of an interview with Bishwa Nath Upadhyay, a former Chief Justice and the main architect of the 1990 Constitution that defined the post-Panchayat Nepal:

Q. How do you evaluate the state of state affairs after the restoration of the dissolved House of Representatives?

Bishwa Nath Upadhyay: The House of Representatives (HoR) itself violated the rule of law. Saying that the King in his Baisakh 11, 2063 royal proclamation had conceded that the sovereignty was vested in the HoR, the House alone amended the then Constitution. The House thus amended the very Constitution under which it was revived. The then (1990) Constitution was violated then and there. Yes, it’s true that sometimes a nation’s politics is not in line with the Constitution. Things that are not in line with the Constitution and if the people approve those things then such things may also get political legitimacy.

Q. Wasn’t it the Interim Constitution that institutionalized the People’s Movement of April 2006?

Upadhyay: Under what right? Isn’t it that only a body with full sovereignty can amend the Constitution? When did the people’s sovereignty get transferred to the HoR alone? Not from the legal point of view.

Q. That means the HoR had no right to issue the Interim Constitution?

Upadhyay: Constitutionally or legally speaking, the HoR did not have this right. The seven parties are in power; the people have accepted this, the international community has accepted this. Thus the constitution made by them (seven parties) has become acceptable too.

Q. So, then is the country running on the will of the seven parties?

Upadhyay: Even if this is unconstitutional, if a solution comes out tomorrow, it would gain a political legitimacy. But if there’s no solution at the end, then a question could be raise over its legitimacy.

Q. They are talking about reviving the Constitution of 1990. Is it possible?

Upadhyay: I don’t see the situation of the revival of the (1990) constitution. If, suppose, the present government fails to do what it is trying to do, the people get too depressed and seek an alternative, then someone could say that the whole system is unconstitutional. And only then can the constitutional system of the 1990s come. The revival is not possible politically.

Q. So you think that even if a revolution changes the ruling-system, the legal-system should be changed solely through a mental homework?

Upadhyay: After its revival, the HoR could have amended the 1990 Constitution by inserting the necessary constitutional provision for the Constituent Assembly election. That would make the whole process legitimate and sovereign.  There would be no question of legitimacy. All that the current interim constitution, too, has got is political legitimacy. Political legitimacy means the people’s acceptance. But this political legitimacy, too, is gradually on the decline after the polls were postponed three times. Now the people and the international communities are expressing doubts.

Q: In this regard, have you had talks with the Prime Minister?

Upadhyay: Immediately, after I returned from the United States in August 2007, I had talks with the Prime Minister. He said that he made a mistake. I said, “You opened a Pandora’s Box; Caste, sovereignty, division and many other things escaped of it. In spite of this, if you find a solution, you will be a great leader. But I don’t think you’ll be able to find a solution to this. In that case, the whole country will blame you. The interim constitution will create a lot of problems.” He said that he had brought such a constitution to ‘adjust’ the Maoists. But now he is saying he made a mistake by bringing in the interim constitution. I had already raised this issue. 

Q. How much quality of a constitution does the interim constitution have?

Upadhyay: Nothing. Everything is based on the agreements of the seven parties. “Seven-party agreement” gets a mention almost everywhere. It seems like the constitution is for the seven parties rather than for the people. Even in the preamble, it’s been said it’s for the seven parties. A weird constitution has been made. The names of the parliamentarians and the seven parties are also specified in the constitution. The constitution seems like a mere document of seven-party agreement. Anything can be done with the agreement of the seven parties.

Q. Do you mean the interim constitution has a lot of flaws?

Upadhyay: Yes. There are a lot of errors. In order to appoint a minister, the PM needs to ask the party under whose quota the previous minister came. He needs to ask the concerned party while removing a minister. The PM alone can’t remove the minister no matter what he says in the cabinet. It is said that the government is responsible to parliament, but everyone does whatever he feels like doing. If the PM has got no right to choose, appoint and remove any minister then, how can there be the fulfillment of collective responsibility? Truly speaking, there have been a lot of mistakes in the making of the constitution.

Q. There were 133 Articles in the 1990 Constitution, but 167 in the interim constitution. Was such a long constitution needed for such a short time?

Upadhyay: This is an amusing thing. The interim statute has guaranteed rights not given by the previous constitution. According to it, the rights for employment, free education and health treatment have been termed as the fundamental rights. Has the state fulfilled these things? Can it fulfill in the near future? Nothing bothers the drafters of the constitution. The writers wrote it down, now it is limited in papers. It has only helped to make political speeches saying “we have included these new rights as compared to the past”, that’s it.

Q. Is the country then moving along a course of consensus, the spirit of the interim constitution?

Upadhyay: No. Different agreements are made, but no implementation is done. Take the comprehensive peace agreement, for instance. There has been no resettlement of the war-torn people, the looted property has not been returned. The situation is of impunity and anarchy. Everyone is doing whatever they like.

Q. The recent voting in parliament was an exercise of democracy or an indicator of a constitutional crisis?

Upadhyay: A wrong way was chosen to find an outlet. At first, those who called for the special house session made a mistake. The PM should not have called the special house session for the proposal that had come against the constitution.

Even if the PM called the session, the speaker should not have registered and allowed discussions on such motions. Even if he registered it, the parliament should not have passed such motions. Mistakes have been made at every level. The PM, Speaker and the whole parliament have erred. The parties, the PM and the Speaker, all defied the constitution. So, a constitutional crisis has arisen in the country.

Q. Is a vote division in parliament also a defiance of the constitution?

Upadhyay: It is also against the constitution. Because, no proposal can be tabled without an agreement. The government can not be directed against the constitution. The government can not be directed to declare a republic or adopt a fully proportional electoral system. Such proposals can come only after the constitution is amended accordingly.

Q. Isn’t the establishment of a republic the mandate given by the Jana Andolan II to the parties?

Upadhyay: It is a matter of the individual parties’ stands to declare a republic or not. As far as I know, the mandate of the Jan Andolan II was the end of the autocratic monarchy and establishment of democracy. The people showed through the Jan Andolan II that the sovereignty is vested in the people themselves, not in the King. That the rights taken by the King by force belonged to the people. The King restored the House of Representatives and elected the Prime Minister. And then the Jan Andolan came to an end. The mandate was fulfilled right at that moment. The issue of republic came only later, didn’t it?

Q. Even if the seven-party alliance is in an awkward situation right now, isn’t the acceptance of the competitive multiparty system by the Maoists a victory for the democratic powers?

Upadhyay: It is hard to say if it is a victory for the democratic powers or a Maoist compulsion. The Maoists fought for a decade. Had they thought of winning by continuing the armed struggle, they wouldn’t have come to this point. The seven parties were also not in a condition to fight with the King alone. So they found a common point of interest. I think it’s more a Maoist compulsion a democratic powers’ victory. If it were a victory, then the situation would be moving along smoothly. If the Maoists entered the multiparty competitive politics honestly, then the present turmoil would not have been there in the country.

Q. An Independent Judiciary is the backbone of a democracy. Do exercises like administering the oath of office to the Chief Justice in front of the PM and standing him in the parliamentary hearings bolster or weaken the notion of judicial independence?

Upadhyay: Regarding the judiciary, the 1990 constitution provided the provision of appointing the judges from the Supreme Court to the district courts on the recommendation of the Judicial Council. The provision of parliamentary hearing has been added in the interim constitution; it was not necessary. The head of the parliament-the Speaker represents in the Judicial Council that appoints the Chief Justice. A parliamentary committee can raise questions over the person appointed by the head of the parliament. The process of recommendation by the Judicial Council should be scraped. If not, both processes cannot be kept.

Q. Do the activities of the seven-party consensus Prime Minister and Speaker suggest that they are keeping themselves above party interests? 

Upadhyay: The Speaker and the PM are also the persons of some parties. They haven’t risen above their parties. The PM refused to vote in parliament during the special session saying he was a PM elected by all the seven parties. But, why is he continuing as the leader of the Nepali Congress parliamentary party then? If he can’t vote, then he can’t remain the leader of a party, either. He could resign as the leader of the congress parliamentary party! A representative in parliamentary politics always votes in his favour. But he showed an idealism which nobody would beleive.

Q. Could your 1990 Constitution solve the issues of the marginalized communities and regions?

Upadhyay: A long discussion was held while making the constitution. Everyone inside the (constitution drafting) commission agreed that nothing should be based on caste and region. Nirmal Lama had raised the strongest voice that no system including elections should be based on caste. At present, his colleagues are asking for full autonomy and the right to self determination. That way, it is clear that Nepal is sure to divide if not today, then tomorrow and if not then, then the day after tomorrow. Once I had also said to Baburam, shall we split Nepal into baise and chaubise (the many principalities that existed before the unification of Nepal) again?

Q. What could be an exit to the present political turmoil?

Upadhyay: I doubt if the Constituent Assembly would give an outlet to the turmoil. If the leaders of the seven parties can’t decide anything by meeting together, what can an assembly of 500 representatives do, I really doubt it. Additionally, there will be disputes. However, something is better than nothing. The Constituent Assembly polls should be held as soon as possible. The leaders should not vacillate repeatedly.