Opinion | Saving Nepal’s flawed constitution

Bishal Thapa

Bishal Thapa

Opinion | Saving Nepal’s flawed constitution

Only a truly non-partisan a-political civilian movement can bring about this shift to institutional stability and help reinforce our crumbling constitution

Nepal’s constitution offers a flawed concept of democracy. The current constitutional crisis is, in part, an exhibition of those flaws.

In this five-part series, I explore the elements that make our constitution inherently frail, and call on civilians to build a truly apolitical (or non-political) movement to save it. This constitution may be flawed but it is our only and last hope.

Part I: Stable governance             

Our constitution makes the incorrect assumption that stable governance requires stable political authority. (A regime that retains the same prime minister, or key political leadership, over a long period would be an example of such stable authority.)

Clause 100(4) states that a “motion of no confidence shall not be tabled [against the prime minister] until the first two years after the appointment of the prime minister and until another one year after the date of failure of the motion of no confidence.”

Ask yourself: why should the prime minister’s immunity against a motion of no-confidence be limited to two years, or to a year after the failure of a previous no-confidence motion? Why should it not extend to five years instead? Because five years would make the prime minister and, by extension, the entire executive branch of the government, immune from sanction by the parliament for a long time. But if five years is too long for such immunity why should two years or even a year be acceptable?

The idea that the prime minister is immune from parliamentary sanction even for a moment—let alone a year or two—is contrary to the premise of a democratic parliamentary system in the first place. The prime minister must always, repeat always, be within the sanction of the parliament. And if that means frequent changes of the prime minister because parliamentarians are always conniving and plotting, then so be it.  

The motivation for the clause perhaps stems from the desire to avoid past experiences, where infighting within and among political parties led to frequent government changes.

The drafters of Nepal’s constitution appear to have retained this dim view of parliamentarians as self-interested politicians who wouldn’t hesitate to bring spurious no-confidence motions to satisfy their own political ambitions even if that meant inviting political instability. They perhaps saw the clause limiting when a no-confidence motion could be tabled as a way to limit self-interested, politically motivated behavior. But it is this approach, the reliance on rules, rather than principles, that makes our constitution inherently unstable.

To achieve stable governance, our constitution relies on pre-established rules for governing behavior, for instance in getting parliamentarians to act in a certain way. Unfortunately, rules can always be gamed. There will also be a strategy that may be within the rules but contrary to the underlying principles from which those rules were developed.

Principles are the underlying philosophy of the system. Rules are merely the instruments through which those principles are to be achieved. Principles endure, though they may be interpreted differently over time. But rules must continually change and adapt to stay ahead of players who will always be devising strategies to game the system. A constitution that relies primarily on rules to keep the system stable is immediately irrelevant.  

The current constitutional crisis around the decisions of the prime minister, council of ministers and the president results from this problematic emphasis on rules. The Supreme Court is now being asked to interpret whether the prime minister, council of ministers and president followed constitutional rules in dissolving the parliament and calling fresh elections.

The court’s previous ruling reinstating parliament was similarly a judgment about the violation of rules, not a statement about whether the actions were in keeping with the principles of parliamentary democracy as described in the constitution.  

To save our constitution, we must return to the core principles of a parliamentary democracy as enshrined in the constitution without worrying too much about the rules for how the parliament functions. That’s for parliamentarians to sort out, so long as the core principles are honored.

One way to do this is by changing our assumption on stability. Stable governance is the result of ‘institutional stability’ not ‘political stability’. Institutional stability would allow governance to continue no matter who the prime minister is or how many times parliamentarians vote for or against the prime minister.

Only a truly non-partisan a-political civilian movement can bring about this shift to institutional stability and help reinforce our crumbling, frail constitution.

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