Why should we save the ethos of 2015 Nepali constitution?

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As the results of the second round of local elections are coming in and Nepali public sphere has returned to the question of constitutional amendment, it’s important that we think about our constitution—not the nitty gritty of the document, but the totality of its existence. In what follows, I will argue why we should work to enhance the dignity and longevity of the present constitution.

What I’m sharing comes from my study of constitutions from around the world from the perspective of rhetorical genre studies. This method of studying constitutions offers us some unique insights about the constitutions and their formative impact, generally not revealed by the methods used in political and legal studies.

Here are some insights that would be relevant to Nepali context:

First, the fate of a constitution and a nation are intricately intertwined. The longer a constitution lives, the better the country has chances to uphold political stability, rule of law, and general prosperity. In 1788, the United States was the first country to adopt the written constitution that still functions as the main law of the land. Many scholars of American history have described the ability of American founding fathers to come up with the constitution as a miracle. Fierce debates persisted for long, and even the founding generation did not anticipate that the constitution would live this long. But it could withstand all the vicissitudes of time—including the Civil War in 1860s. Republics did not last this long before. The American success story as a nation largely rests on the longevity of its constitution.

We don’t have to go that far away to understand this nexus. India and Pakistan were born together after the fall of British Empire in South Asia; India—with all its problems and diversity—could handle its political process smoothly, while Pakistan faltered many times. The reason largely is that India could stick to its original constitution while Pakistan did not. What the difference in the history of India and Pakistan suggests is that it pays for a country to preserve the existing constitution, to use it creatively to solve political conflicts, and to maintain some form of sacrosanctity around the document.

Our own story is not different. Nepal wrote six constitutions in six decades before the Constituent Assembly approved the present Constitution in 2015. This fact should explain why we find ourselves in the lowest rung in many development indicators among the nations. It can be said safely that the country would have been in a much better position if she had managed to write a full-fledged democratic constitution in 1951 and retain it thereafter.

Second, no constitution is perfect. Everybody does not agree fully with any constitution. Rhetorician Kenneth Burke, for instance, calls the American Constitution a document of contradictory wishes. The Indian Constitution itself is a big bundle of too many ideas. So, while Nepal should address voices that question the constitution, it should not undermine the document’s dignity and longevity if the country wants to establish a constitutional culture. As stated earlier, no constitution can fulfill all wishes. The drafters of the present constitution should not feel guilty in not securing the consent of all citizens. If the constitution is not fundamentally discriminatory, it has chances to grow further. If the history of the United States is any indication, even a discriminatory constitution can grow if a country works on it.  

Third, amendment is the key to constitutional longevity. Undoubtedly, a document produced at one time cannot serve perpetually without any change. A constitution changes in two ways—through amendment and judicial interpretation. Amendment is a tricky procedure for maintaining the ethos of a constitution: if it is too easy to amend a constitution, the document loses its ability to provide stability; it can be a victim of short-term political gains by a party or a person. Recent Turkish amendment is an instance. On the contrary, if there are unalterable provisions as in the 1990 Nepali Constitution, the constitution loses the capacity to speak for different time. So, for the longevity of the document, a constitution should be able to maintain a balance—it should have processes for change, but they should not be so laxing that they would erode the ethos—the dignity and credibility—of the document.

A constitution is also a living document in the sense that the same text (without modification) can mean differently in different historical contexts. Courts interpret constitutions by considering their contexts. And, as a result, a constitution develops ability to be relevant to various situations without textual modification.

So, the dissatisfactions over the present constitution should certainly be solved through modification and judicial interpretation. But, in course of addressing concerns, the constitution should not be made an easily-modifiable text. We must be extra careful in our context because Nepal has constantly changed constitutions in the past. As a result, the constitution as a genre has not gotten an opportunity to hold high ethos. It takes decades of practices for a constitution to be a fully-acceptable document by habit. Too much of maneuvering of the document will not be helpful to establish constitutional culture. While it is not a perfect analogy, just think how the football as a game would be if the rules were changed constantly.

Fourth, abolishing the monarchy is a boon for the constitution. One reason Nepal failed to have a stable constitution was the king’s presence. Irrespective of the constitutional provision, the king always believed himself to be above the constitution, and national political culture provided the king some authority to exercise power beyond the then constitutions. After all, there was a king even before the first adoption of the written constitution in 1948. That the monarchy is now scrapped, the document has a better chance of survival. But the absence of monarchy itself is not a guarantee of constitutional longevity: Just look at the history of our neighbors in South Asia. We should be vigilant about authoritarian interests to safeguard the constitution, particularly by maintaining the separation of power among the branches of government.  

Of course, we need great policies and programs for the progress of our country. But even more important is the collective national culture and determination for saving the constitution. Studying the history of constitutions from around world, it can be said that national progress depends substantially on a nation’s collective perseverance to work on the document for making it better instead of shattering it for an alternative.

(Aryal is researching constitutional rhetoric and republicanism at West Virginia University.)



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