Today (November 9) is perhaps the last anniversary of the Constitution of Kingdom of Nepal 1990 – which was the outcome of a glorious uprising of 1990 – and hailed as “the KESHAB POUDELbest constitution of the world.” If responsible persons in power as well as public opinion don’t care about establishing healthy traditions and conventions in the constitutional process, what will be there to guarantee the survival of the next constitution – even up to the period this constitution survived. In other democratic societies, the people are not taken for granted as just an object by politicians but in Nepal it is the politicians who decide how to rule and who should rule the people and the country. Otherwise, the present constitution would not have been scrapped without placing it before the people through referendum or similar democratic exercise. The way the constitutions are being made and unmade has established negative precedents. As long as Nepal ’s neighbors do not come up with peaceful and workable relations, no constitution, whether it is democratic or undemocratic, can escape from similar fate as the present one
By KESHAB POUDEL
“Following our agreement, the life of present constitution is over and we will promulgate the new interim constitution and new interim government formed under it will hold the elections for Constituent Assembly,” thundered Maoist leader Prachanda. “People have got what they desired to make the constitution through the CA.”
Not only Maoist leader Prachanda, Nepali Congress leaders like Ram Chandra Poudel, too, holds similar views regarding the quiet burial of the Constitution of Kingdom of Nepal 1990 – which was drafted as per the mandate of popular uprising of 1990. He, too, considers its burial as a great victory. ‘The new era of political course has been ushered and the new arrangement will restructure Nepalese society,” said NC general secretary Poudel.
Although the decision of scrapping the present constitution may give moral victory to Maoist leader Prachanda as his party had waged the war against it, nobody understands the reason behind the jubilation in the face of persons like Nepali Congress leader Poudel.
Canceling the official holiday (on the Constitution Day, which falls on November 9 this year) a week ago, the SPA government, which was formed under the present constitution and whose works are legitimatized by it, indicated that the previously best constitution of the world has no admirer in Nepal – to pay even the last respects to it. In similar manner, four earlier constitutions were scrapped one after another in the last five decades without paying any respect. All the constitutions, which could not survive in the heat of regional rivalry, were scrapped when they were in the process of evolving.
“Our political problem is not due to the constitutions nor can any constitution resolve them. The geo-political situation of Nepal is such that constitutions and the political stability of the country became its favorite casualty. As long as Nepal ’s neighbors do not come up with peaceful and workable relations across the Himalayas , peace is a mirage and no constitution has any prospect to bring successful result,” said a political analyst. “ Nepal has no enemies and Nepalese are not against any of their neighbors. Whatever Nepal is suffering from is the direct result of activities directed against third country.”
Notwithstanding the hopes expressed by Prachanda and Poudel about the new constitution, it, too, might face similar fate in a country where every politician demands the constitution as a bounty to begin negotiations.
Healthy precedents are essential for a success of any democratic constitution. The people, who are illiterate in constitution and constitutional law, have been misled all the time as political leaders guided by petty interests to be in the power have reaped all the benefits.
Fourteen years ago, then supreme leader Ganesh Man Singh and communist leader late Manmohan Adhikary were jubilant when the present constitution was promulgated and old constitution was scrapped. At that time Prachanda’s party was an insignificant force, which opposed the constitution. Similarly, when Prachanda and Poudel are now jubilant, opposition voice is already being raised by a small armed group from Terai opposing the agreement.
“Although there would not be any seminar, symposium or meeting about the tragic situation of present constitution, there are sensible persons who had the respect for the constitution up to the last because no society can live in civilized relationship in anarchy and confusion,” said the analyst. “The present constitution could have been amended to imbibe the whole spirit of present political consensus. Had the question of prestige of some radicals not been at stake; the constitution could have been redrafted and implemented after a referendum. But the whole exercise of Constituent Assembly is going to open a Pandora’s Box abut which none of political leaders have a clear vision.”
After studying the prospect of making a constitution, UNDP employed expert on constitution Yesh Ghai has cited the experiences of Kenya , which is yet to get a constitution by CA even after 15 years of elections. If Kenya – which has definitely better infrastructures inherited under British colonial rule, cannot come out with a successful draft of a constitution, it is virtually impossible for Nepal to do so.
Similarly, Pakistan spent more than a decade in the past but could not come out with a successful draft of a constitution. In Nepal , there is debate going on to make an interim constitution which constitutional expert Ghai also endorsed in his recent writing.
“Taking Pakistan and Kenya ’s experiences, Nepal might be governed for a pretty long time by unelected leaders having no accountability to the people for even longer time than those countries. Without considering all these consequences, our leaders have a tendency to decide in haste and regret in leisure,” said the analyst.
Vanishing Euphoria
Thousands of articles were written in defense of the present constitutions but the past euphoria is vanishing now and populist media and public figures are praising the decision to hold the elections for Constituent Assembly.
Gone were the days just after the promulgation of the Constitution of Kingdom of Nepal 1990 when all available media, TV, Radio and the print used to be over-flooded by rhetoric and high words in the praise of this constitution as “the best in the world.”
There were populist figures from politics, social and professional sectors that were over-beating each other to highlight unique features of this constitution as a favor of the sovereign rights of the people.
The common point in its praise was that it converted the Royal subject of Nepal into a sovereign citizen of the multi-party system.
“Constitution can be changed in accordance with the wishes of the people as people can make and break any constitution. No constitution can be best constitution for ever,” said CPN-UML leader and one of the framers of present constitution Bharat Mohan Adhikary, adding, “The forthcoming constitution drafted by CA will protect the Loktantra.”
“Nobody knows where and how all these leaders have been converted to adopt the new political dogma, which is being popularized as Loktantra. People in general have no say yet over the matter of scrapping out this constitution by which they elected three subsequent parliaments and expressed their belief in this constitution through their involvement as citizens for fifteen years,” said the analyst.
“ Nepal has been passing though the most dangerous period in its history. Any miscalculation by any of its neighbors may endanger the peace and progress of the whole region. It is, therefore, the world community wants to contribute for the peace and progress of this country but the greatest obligation is of its own citizen. All leaders are in the trial at this moment and particularly persons who are at the helm of affairs have to prove their mettle as a politician and as a patriot,” said the analyst.
“The time is very difficult and crucial,” 84-years-old prime minister Girija Prasad Koirala told SPOTLIGHT. Brother of Nepal ’s popular political figure B.P. Koirala, Prime Minister Girija Prasad Koirala is going through the greatest trial of his political career. If he commits any mistakes, he will be the most condemned politician in the history of Nepal . If he is able to rescue the country from his calculative risk, he will have established himself as a leader. In his major trial, Koirala has to show his guts to prove that he is patriot and democrat.
Debate on Referendum
One cannot predict the weather of Kathmandu just as one cannot measure the attitude of Kathmandu-centered politicians. Till Sunday (5 November), UML leader Madhav Kumar Nepal was at the peak of a political debate by his stand to hold referendum on monarchy but he did not get his time to consult his committee before changing that vital stand on Monday 6, November. CPN-UML leader gave up his stand in political compromise but everybody knows that it was not only through the internal initiative.
Even if UML leader has changed his political stand, the utility of referendum has not yet been lost. There is still a lot of walking left to do before successfully climbing the summit.
“Only referendum can decide the fate of monarchy. This is a legitimate way to say good bye to monarchy forever,” said CPN-UML leader Madhav Kumar Nepal . (November 4). “Our party gave up the stand for referendum to pave the way for peaceful settlement of the present political crisis,” he said on November 6.
It is just a populist rhetoric to confuse the masses of the people. To be in the news headline, the persons take populist path. CPN-UML leaders were not talking what type of monarchy they want to put in referendum.
“The politicians must have political honesty to enlighten people in a matter which they are proposing otherwise people may unnecessarily be confused. Monarchy has varied forms in its history. Except the position of constitutional monarchy, even the King may not claim to be the absolute monarch or monarch like prisoner during Raja’s autocracy,” said the analyst.
Referendum can be held in any system. However, undemocratic previous Panchayat system was, the constitutional system of that time was put into a referendum responding to the politics of national reconciliation led by B.P. Koirala.
“In fact, the emergence of multi-party system was a consequential outcome of referendum of 1979. At that time the constitution was silent about the process of referendum but as the people were considered sovereign, referendum was considered as a legitimate process for exercising that sovereign rights. Thus, a very noble process was introduced in the past to resolve the politics of distrust, mistrust and animosity,” said the analyst.
“Keeping in view that democratic process of referendum to resolve controversies and conflicts, it should have been again exercised while deciding the fate of fundamental law of the country,” said the analyst. “There are opinions nearer to the idea of resolving the dispute by a referendum. The leader of the largest party in parliament has been persistent in his latest stand that the fate of monarchy should be settled by the referendum. But there appears to be a flaw in the argument as he has not explained what form of monarchy they propose to the people.”
Two Views
Earlier, among the two major constitutional parties, Nepali Congress Supremo and prime minister Girija Prasad Koirala said that the position of monarchy will be settled by Constituent Assembly whereas leaders CPN-UML – largest party in parliament – Madhav Kumar Nepal had a stand that the position of monarchy must be resolved by the referendum before the elections for Constituent Assembly.
In due course, prime minister Koirala prevailed but the question to referendum- which CPN-UML gave up still has valid points.
“The priority of the government is to hold the elections for Constituent Assembly- which will decide the future of monarchy and other main political issues,” said prime minister Girija Prasad Koirala. “The first meeting of newly elected Constituent Assembly will decide the future of monarchy and the issues of Maoist militia. Referendum will establish the monarchy. If King secures reasonable votes, international community will also find valid point to raise the role of monarchy,” prime minister Koirala told SPOTLIGHT. “If we hold the elections for CA and referendum on monarchy together, it will create obstruction on holding the elections for CA,” he added.
Leaders – who were involved in preparing the final draft of the Constitution of 1990, know that it had a constitutional monarchy. Perhaps, PM Koirala has the same thing in his mind which he described in changed words “ceremonial monarchy.”
“If the constitutional monarchy is not the ceremonial monarchy, a person of G.P. Koirala’s stature and command at this time, must have guts and honesty to explain what that form of ceremonial monarchy is? Both, these two leaders of the largest parties have to explain to the people in a explicit manner what they propose to the people,” said the analyst.
If UML leader Madhav Kumar Nepal sincerely desires to put the monarchy into referendum, he must come clear out about the form of monarchy which people has in different periods of history in different forms. In pre-Rana period, it was almost an absolute monarchy. During Rana regime, it was almost a symbolic institution. During Panchayat, it was an active monarchy in an absolute form.
“One can very easily guess that the present King including the large number of monarchists will never support absolute form of monarchy. However, in the last few years in the absence the parliament, the King assumed the power in an absolute way, which was counter productive to him and pushed him to this stage of isolation and humiliation. As the King has burnt all his fingers, it is humanly unperceivable that he would again try for that. In fact, the constitution or the institutions under it are neither for the King nor for politicians’ needs. All these things are needed for the people and therefore the people in general must have a final say over such matters,” said the analyst.
A time comes in the life of a nation when every responsible citizen has to come out from his or personal interest and prejudices into a national consensus. The call of the time at present is to find out reasonable solution of the pressing problems.
“The lower strata or the poorest people of Nepal have been always ignored while deciding the forms of government and imposing the constitution and other laws. Let this class of the people be in the polling booths with the top head of the country. There was a memorable scene in 1979 when the tallest leader of that time B.P. Koirala was there in the queue behind an insignificant identity who was as distinguished at that moment as that leader was. Let that scene be repeated in the process of endorsing new constitution,” added the analyst.
Whatever type of constitutions and political arrangements are make, they will not work in a situation as long as Nepal ’s two powerful neighbors do not develop workable relations. “As long as Nepal ’s neighbors do not come up with peaceful and workable relations across the Himalayas , peace in Nepal is a mirage and no constitution has any prospect to bring successful results,” said the analyst.
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