Reinstatement of the Nepal 1990 Charter only remedy

Shrish S Rana

Senior Political Analyst Nepal

We asked our analyst former minister Shrish S. Rana, also a senior political analyst, for his take on current events. The results:

Q: On the draft constitution and the public reaction?

A: Firstly the tremendous public participation is encouraging. It was much beyond the expectedly staged reaction and the overflow on the streets and violence is indication that not only a few papers will be burned by a few dissatisfied, the intensity makes evident that any cosmetic change is likely to result in a spontaneous popular agitation for which, it would be wise to presume, preparations are already underway. The two day time limit and the planting season obviously hindered, as evidently designed, the public reaction. But whatever the reaction, it would be wise not to wish it away.

Q. You, of course, want the 1990 constitution re-instated. Your reaction would be anticipated.

A. You are right. I see the reinstatement of the 1990 constitution as the only viable constitutional remedy to the unconstitutional process augured in nine years ago in the name of the Janaandolan 2 and constitutionalism. Developments since the 16-point program and the draft constitution that resulted merely highlight the unconstitutional excess of which the public outpouring of protest is mere indication of their disaffection. A large section of the population were politically mobilized on ethnic, linguistic, gender, religious and regional grounds in course of the Janaandolan 2 and its aftermath with the assurance that their say in the New Nepal polity would be enhanced by constitutional provisions through federalism, proportional representation and the likes. It turned out that no particular race, ethnic community dominated any region and the local population was made increasingly aware of the sell out that has occurred in the eight federal states of the supposed constitution. Indeed, it is not surprising that those opposed to the 16 point accord need merely cite their individual agreements formally signed by the dominant leaders in government promising to insure their separate federal states which they have now conveniently forgotten in the draft constitution. So the charade is too naked and is a convenient rallying point for a section of the politically organized population.

Again, the wide demands for the Hindu state that spurs much of the public reaction to the draft constitution could have been anticipated. In essence, federalism, republicanism, and secularism were never in the agenda of Janaandolan 2. They were never put to public vote for endorsement. This is to the extent that even sitting members of the duly dissolved but Monarchy- reinstituted parliament express blatantly their unawareness of how the agenda cropped up of a sudden prior to even their parties formally endorsing it. The public reaction across parties for the Hindu state is the first time it has been allowed in the mainstream media which had continued to underplay it until fairly recently. This must be the only country in the world where a seemingly ignorant attempt to distant politics from religion has actually politicized the Hindu religion in the 21st century. That, too, in a country admired for longstanding religious, ethnic, regional amity and co-existence.

In essence, the total agenda for a new constitution has no constitutional base outside the Janandolan 2 where the major contentious issues surfacing today were never part of the agenda. Again, the very fundamental principals of  respect for and rule of laws have been so repeatedly flagrantly violated in what is said to be an exercise for constitutionalism that the ad hocism and convenience sought by the current leadership in the draft constitution has now been too blatantly exposed.

Q. But so much water has flown down the Bagmati since we were declared a federal, secular republic. The country also needs a constitution and the public commitment for a constitution drafted by a constituent assembly has remained outstanding since the Interim Government of Nepal Act of 1950?

A. That’s just the point. The South Asian milieu has changed since 1950. Our politically educated intellectuals should have been more educated on the source of that clause in the tripartite Delhi agreement of 1950. They should have dug empirically into how the interim government of 1950 failed and how the promised elections to the constituent assembly were scuttled by politicians until agreement was reached for the constitution of 1958. I have been saying that even that constitution was made to fail by convenient turnarounds by our politicians of publicly committed standpoints sanctified even in their charters to suit their individual leadership preference. The 1990 Constitution is the basis of the resumption of the duly dissolved parliament that swore in the government which oversaw the debunking of that very constitution. So many principles of law and constitutionalism have been broken since then on politically convenient grounds with the backing of the money, muscle and media that is at the beck and call of the current monopoly that any coherent constitution and a lasting one is most unlikely under the current dispensation. The irony is that the 1990 constitution should already have come to play had the minimal accountability expected in democratic governments were to have been resorted to by the current monopoly through resignations. But this has never happened in our democracy.

And so we are landed with an ad hoc draft that threatens the country with further constitutional instability. Had normal norms of constitutionalism come to play, we would have recognized that the 1990 constitution should already have been activated.

But the compulsions are many for our outsourced politicians and politics on which much money, time and effort have been invested to pursue policies that need not necessarily be to our national interest through the current purported constitutional exercise currently being promoted as exemplary democracy. It is these compulsions that suddenly awoke them to concoct the sixteen point program that made possible a haphazard draft being sold to the public as a document of compromise. The fact is that our outsourced politicians were bound to be asked of their investments by their sponsors.   

The quake jolted the need for more investments for the rehabilitation and relief of the country. It is this that makes it possible to conclude that the political monopoly would rather force the draft as constitution with only perfunctory at attempts to accommodate the public demands. This would be to tremendous peril to the state and its population.

Q. What about the republic? The Monarchy?

 A. How can a house reinstated under the 1990 constitution by which a government constituted by the 1990 constitution get get rid of  the constitution? This is my standpoint. Please recall that I am neither talking of the monarchy, nor the Hindu state when I see the reinstatement of constitutionalism through the revival of the 1990 constitution as the only constitution constitutional solution to the current constitutional impasse.

The sources of the tremendous contradictions regarding the elected head of state in the current draft emanate from confusions regarding the constitutional head of state who is to be elected, obviously from one or the other party, but is not to use his or her residuary powers in favor of his or her constituency. A head of state without residuary powers makes redundant that august office which is to guard the constitution. All the confusion regarding the army, the presidency, the constitutional Ombudsman all emanate from these nefarious mistrusts and inhibition of our new Kings. Instead of them I would rather have my constitutional King. In any case, which other king would rather leave office than to see his countrymen massacred in the name of a Loktantra propped by foreign governments. Indeed, the fear is that our new kings will do just that to ramrod the draft as constitution and bask in its exclusivity.

Q. Lastly, there is this question of Loktantra, 21st Century democracy?

A. What sort of democracy? Centuries of self government at the local levels are to be done away with so that party cadre hold sway instead of elected people’s representative at the local levels. You are aware that this system actually impeded  prompt delivery of relief at the grass roots in course of the earthquake. A democracy that is by design the monopoly of an exclusive club of party bosses is by no means one however much endorsed by powerful international sections. One must understand that this is to our peril. Democracy must be for the Nepali people in order for us to identify with the state. The distance between the state and the people has actually increased since Loktantra as the massive public reaction to the draft attests. Indeed, by the looks of it, the draft constitution merely manifests the continuity in efforts to undermine and dismantle an indivisible, independent sovereign country. The tragedy is that our new kings failed to implement their own agenda in their own party but seek to impose it on a constitution.

Text courtesy: The People’s Review weekly: Thanks: Ed.

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