Dr. Surya Dhungel is a well-known constitutional lawyer having LLM and Ph.D. With a long experience in constitutional practice, Dr. Dhungel has presented numbers of papers in national and international seminars and symposium. Dr. Dhungel spoke to New Spotlight on various issues. Excerpts:

Do you think the Constituent Assembly can produce a new Constitution for Nepal?
‘Yes’ is the simple answer. The Constituent Assembly is meant for that and it can produce a Constitution in less than six months if the political parties are willing to do so. The Assembly could have promulgated a new Constitution even before 28 May 2010, had they really put their efforts in both resolving cantonment related issues and the constitution making process as both are linked together.

What are the most difficult questions?
However, the more difficult question for anyone to answer remains:  Is this Assembly at all willing to produce a Constitution? The political parties and their leaders do not look ready for it. The people have divided opinion about the willingness of political leaderships.  In absence of their commitment, it is very difficult to accomplish any task. As all the major decisions on key issues are made outside of the Constituent Assembly, the CA process has become redundant. Hardly any top leaders of the parties ever attend the Committees and Assembly sessions. They have simply paid no respect to the Assembly. How can it perform such a big task of drafting and promulgating a supreme law for the land when the leadership of a party has least interest in the constitution making and resolving combatants’ problems? The Constitution making and the peace process are interlinked.

How do you see the role of political leader?
Leaders are betraying the people and turning their head away from the promises made before the people at the jana aandolan. The Interim Constitution, CPA and other agreements and understandings are becoming meaningless day by day.  These are the symptoms of failing states, as are being reported in the US Foreign Policy magazine. When the national leaders and state institutions fail to fulfil their responsibilities, the nation starts failing.

Do you mean Nepal has become a failed state simply because the CA has failed to draft a Constitution?
No it is not yet a failed state. Symptoms of a failing state are certainly visible and threatening. You don’t have to read Noam Chowmsky’s and Ashraf Ghani’s characteristics of a failed state published in their books. Just check the indicators of a failed state listed in the annual survey of the US Foreign Policy magazine which has been publishing such ratings of failed and failing nations every year.

But, many others are saying so.
For god sake, we are not yet Somalia, Afghanistan, Chad and Sudan. Twenty five states, including Bangladesh, Myanmar, Pakistan and Sri Lanka are behind us. If the recognized attributes of a failing state, such as weak central government with no control over much of its territory, non provision of public services, serious law and order problems, widespread corruption and criminality, refugees and involuntary movement of populations, sharp economic decline etc, are examined, we will find the symptoms in Nepal pervasive although major state apparatus have not crumbled yet.

Is Nepal’s situation is manageable?
Hence, Nepal’s situation is still different and manageable than other countries with similar characteristics. The political parties and the rule of law institutions are still functional here. Our main problems are incompetency and dishonesty of our political leaders and they have been perpetually undermining the strength and capacity of the people to make them accountable. Hence they are not serious to deal with and address the problem. If they wish and rise above their vested party interest, the situation is not out of control and can be smoothly handled. Immense international goodwill and support for peace and democracy is our asset, and the people don’t want violence and instability at all.

Don’t you think common people are losing faith?
The common people and elites of the country are fast losing faith on the political leadership and the government. This is not a good sign. Even the civil society are politically divided and losing their credibility to function as political watchdog. The common people are suffering from want and fear, and the energy and strength of youths is being discarded and wanted.  For a common peace loving Nepali, the danger of rupturing social harmony and plunging the society deep into conflict, violence, and political and economic chaos, is much scarier than being called a failing state.       

Then what is the way out?
There is no alternative to peace and democracy, which of course is well linked to the constitution building process. Failure to produce a new Constitution through the CA means giving continuity to the Interim Constitution and forcing the country to be a perpetual hostage of transitional government. Such a scenario might eventually help breed authoritarianism, which will again be disastrous. Hence, the politicians must free themselves from intoxication of political alcoholism and wake up. Who can help do so? Can political parties and their leaders themselves do so, as we don’t have a towering leader like Nelson Mandela of South Africa or Gandhi and Nehru of India? What roles can President as Head of State play is effectively advising and activating the political leadership? WE have to admit that the present leadership failed to produce a new Constitution as mandated by the people and the Interim Constitution. 

Who do you think are responsible for present situation?
We all failed, including the leaders of all political parties, the CA Chairman, the subsequent Prime Ministers, the civil society, so called national scholars, and even the international friends and UN could not play a persuasive role to impel the CA members. Diplomatic failure of the political leaders to positively mobilize support in favour of peace and constitution building process is more apparent from the irresponsible utterances of many political leaders against friendly nations. 

What solution do you suggest?
Solution must be found in the democratic and civilian process. First of all, government institutions and especially political apparatus of the state, must be reoriented, encouraged and activated to respect and abide by the rule of law. There should be no compromise on the issue of the rule of law and impunity.  Secondly, the Judiciary and constitutional bodies and security institutions must not be politicized and activated subject to sanctions public criticism, media pressure and judicial scrutiny. 
What role the head of the state can play?
Perhaps, the Head of State must reinvent its constitutional custodian role from political perspective but within the norms of transitional constitutionalism.  Culture of impunity and disrespect of law must be discouraged by all means. Thirdly, change of government should be left to the political instruments to decide but only through the standard process. Failure to reach a consensus should not at any cost stop the constitutional and legal process.

If political negotiation fails, what option would the country have?
If the political negotiation fails, let the defined constitutional process be followed, even for removing and installing the government. The answer to all questions should be searched in the Constitution and the Constituent Assembly. Are our political parties ready to follow the constitutional path? If not, no one in this country can stop authoritarianism to emerge. It may emerge in any form. But it all depends on the political behaviour of the political parties and their leaders. Are they ready to abide by the rule of law? Answers to all questions are in the Interim Constitution and standard constitutional practices. Let us all ask one question: how many politicians have been punished under the rule of law since the promulgation of the Interim Constitution ? Let rule of law govern, not the political party leaders who do not respect laws.