Nepal's Interim Constitution: Democratic It Is Not

One doesn't have to be a great constitutional expert or renowned political scientist to conclude from the thrust, contents and manner of its promulgation that the Interim Constitution (IC) may be 'loktantric' – to use the ambiguous portmanteau term in vogue these days – but it is hardly democratic.

OLIGARCHIC

How can it be termed democratic when it is based on the oligarchic doctrine that institutionalises political power in the hands of just eight parties that constitute SPAM? On what legal, moral, or political grounds can the flawed assumption be justified that the 25 million plus people of Nepal are "represented" ONLY by SPAM?

Phrased differently, how can the IC be considered democratic when it has, in effect, created two distinct categories or classes of Nepali citizens: one, a privileged or elite grouping belonging to SPAM, entrusted with the responsibility of framing laws affecting governance and the other, a plebian one those attributes of citizenship are limited to merely casting occasional votes, paying taxes and abiding by laws in the formulation of which they have had absolutely no representation?

As matters now stand, even politicians such as former prime minister Surya Bahadur Thapa of the RJP and RPP president Pashupati Shumshere Rana, who have represented their constituents in parliament several times through victory in free, fair elections, only secured a place in the vastly enlarged, non-elected Interim Legislature (IL), an outgrowth of the IC, via approved by SPAM. (One rumour making the rounds in Kathmandu is that such munificence was the result of Indian pressure on SPAM.)

Be that as sit may, the inherent unfairness of representation has furthermore been enshrined by the undemocratic provision relating to the registration of new political parties. Thus, while accepting the premise of a multi-party polity, the IC has imposed the impossible, undemocratic condition that the signatures of at least 10,000 voters would have to be produced for its registration.

Surely, it should have been enough for a party desiring official recognition to secure the written support of, say, 500-1,000 voters. Under present conditions, the registration of any new political party has thus deliberately been rendered impossible. It is a major obstacle in the path of new parties that may wish to contest the CA elections scheduled before June.

It may satisfy the whims or desires of 'loktantrik' SPAM but it can, by no stretch of imagination, be considered democratic. Will the UN team that is entrusted to supervise the CA process examine this issue?

The exclusionist anomaly referred to above hardly sits comfortably with the reference in the IC to Nepal as an "inclusive" democracy. Besides, by willfully excluding vast numbers and sections of the populace in governance of the nation, today's political masters may very well have implanted the seeds of a Janaandolan-III in the future.

UNSEEMINGLY HASTE

Yash Ghai, a constitutional lawyer who was chair of the Kenyan Constitution Drafting Committee as well as of the Kenyan Constituent Assembly, had in an article entitled 'Path to a new constitution' (Kathmandu Post, 25 May 2006) indicated that "a minimum period of 14-18 months would be necessary for making the constitution."

Developments on the ground since the thoughtful piece was published underscore that the architects of 'loktantra' have quite deliberately rushed through, not caring a fig for such niceties, as Ghai suggests, such as those "designed to ensure level playing fields for all parties and to promote cooperation and trust between them."

Quite apart from the hurried manner in which the IC has been drafted, which in turn preempted proper or wide-ranging discussions, taking into account the views of various constituents of Nepali society, it has never been adequately explained why its real drafting work took place mostly in a condition of non-transparency, with crucial decisions, more often than not, being reached at the dead of night and an eager media often being left out in the cold.

The haste-at-all-cost imprint on the IC was even more glaringly demonstrated to the world when erstwhile HoR lawmakers, even of SPAM, were not provided texts of the IC until it was almost time for its promulgation! Incidentally, the manner and pace of its promulgation, first by HoR then by the expanded 330-member IL, was, once again, peremptorily determined by the top-dogs of SPAM, and none else.

One can now merely hope that the aberrations from democratic principles that have been committed in haste will not cause all to repent at leisure in the future?

POLITICAL GLUTTONY

That aside, SPAM advocates of 'loktantra' have exposed themselves as politically greedy by going back on their oft-stated commitment to set aside 48 seats in the IL for persons to be nominated from civil society, in consultation with them.

As all know, on 9 January 2007 the four Big Boys of SPAM sat down and changed that understanding to an agreement on sharing those 48 seats among themselves! [In the vernacular, this attitude can be summed up as: kale, kale meelayra khau bhalay! ('Let's divvy up the goodies amongst ourselves', would be an idiomatic translation.)] If such personages were not to be included it should have been enough merely to increase the strength of the IL with induction of the agreed number of Maoists. This Oliver Twist-asks-for-more syndrome is thus not only suggestive of political gluttony but it also undermines all their high sounding 'inclusive democracy' rhetoric.

That apart, as former Election Commissioner Birendra P Mishra rightly argues in an opinion piece (Himalayan Times, 16 January, 2007): "Allocating some of these seats to those who were defeated in the last general election would mean insulting the voters on the one hand, and it also weakens the claims of elected Members of Parliament that they should continue in the extended House as people's representatives. They have really succeeded in becoming members of the IL with the approval of the Maoists."

AMENDMENTS SIDELINED

The very same non-democratic or hasty approach was painfully evident when adequate time was not set aside for proposed amendments. While SPAM had taken months in the drafting of the IC merely half-a-day was devoted to listening to or registering proposed amendments. In the event, they were either withdrawn, including those of the UML, NC members, and NSP (A), or rejected by voice vote by a soon-to-be-dissolved HoR.

For the record, it should be mentioned that those by RPP, RJP and Janamorcha Nepal were not withdrawn despite request from PM Koirala who assured that the IL would, if necessary, tackle them in due time.

What is also an eloquent if bitter commentary on the nature of the IC now rammed down our collective throats is that, earlier, despite the public demand for amendments suggested by the NC, Sadbhavana and Nepal Peasants' and Workers' Party, these too were, in the end, rudely and inexplicably cast aside, leading, in many minds, to this still unanswered and tantalizing query: who is really calling the shots these days?

For, after all, it was PM Koirala and none other who, 13 days after the IC had first been inked, proclaimed in Biratnagar that he was determined to amend provisions in the IC that had rendered the PM a dictator. In the event, however, nothing of the kind happened. In other words, the clauses that heap dictatorial powers upon the PM are still enshrined in the IC.

Though much is sought to be made of the fact that the IC is only of a short duration, clearly it will continue for an undetermined length of time should, for any reason, the CA elections not be held on time or postponed indefinitely. Besides, it does not tackle the ticklish possibility of having to decide on the PM's succession, should that be necessary, before the CA elections take place.

Before proceeding any further it may be germane to note that despite a groundswell of informed opinion that had suggested that the 1990 Constitution, now rendered dead as yesterday's mutton, be kept alive, with only necessary amendments affected until the CA process was completed, such a commonsensical option was summarily rejected.

Indeed, in an insult to the framers of the 1990 Basic Law, drafted largely by SPAM stalwarts, the government decided not to observe Constitution Day last November. It was, at that time, still extant and valid.

Yet, as columnist Bipin Adhikari recalled in his article 'Demise of the constitution' (Kathmandu Post, 9 November, 2006) it was the 1990 Constitution that "for the first time in history declared that sovereignty of Nepal vests in the Nepali people; introduced a functioning Westminster model of parliamentary democracy in the country; ensured the power of the independent judiciary to judge over the issues of constitutionalism; and preserved the national interest by means of several constitutional institutions and procedures."

ASSAULT ON JUDICIARY

Incidentally, although many thoughtful citizens outside SPAM's pale had for sometime argued the importance of an independent judiciary has been dangerously undermined by the IC, as Supreme Court justices recently reminded one and all, their suggestions were sent into the garbage can. What dangerous reefs and shoals lie ahead with this sheet anchor of the ship of state cynically tossed aside is thus anyone's guess.

However, any attempt to render the judiciary a mere tool or plaything of the executive cannot, by any stretch of imagination, be considered auspicious despite the IC's promulgation, oddly enough, on Makar Sagranti, a day holy to millions of Hindus whose sentiments have been severely hurt by the obliteration of Nepal's Hindu status via the very same document.

Indeed, as scores of non-partisan commentators have energetically argued since the IC was first brought to light on Poush Ek a little more than a month ago; the IC has wrecked havoc on another cardinal principle of democratic governance: that of the sacrosanct principle of the balance and separation of powers. It is highly unfortunate that the powers of three independent organs of state should be concentrated in one, the executive. As advocate Laxman Karki has rightly reminded: "an autocratic system no matter who imposes it, be it the King or the Prime Minister, is not acceptable to be people."

If truth be told, there are many among members of the thinking class in Nepal who share Karki's pessimism: "The future of liberal democracy may end with this interim constitution. This constitution has only fulfilled the nefarious intention of the radical communists…The result of throwing (out) the 1990 constitution, which is known for its balance of power, will be known very soon in the form of repentance and regret."

LIMITS ON FREE EXPRESSION

Finally, it must be pointed out that in the IC, as advocate Bhimargun Acharya stated before an audience of journalists: "There is a provision in the interim constitution that anyone questioning proceeding in the legislature or speech made by any member of the legislature may be sentenced to jail for a maximum of three months."

That is indeed a chilling thought and should, at the very least, trigger a re-think in those sections of the media that have been unthinkingly gung-ho about establishing a 'new Nepal' that, today, looks increasingly or unmistakably red.

INTERIM LEGISLATURE: VOICES

Though there has been much back-slapping and cheers among SPAM constituents over the promulgation of a new IL, with 83 Maoist representatives, largely overlooked were expressions by Maoists MPs, including its leader in the IL, stating, inaccurately, that the Monarchy has already been abolished and a People's Republic been established. (Vide Himalayan Times, 16 January, 2007).

So, too, their claims reported in the same daily that "we are now closer to our mission" and the admission: "Yes, we are still short of our objective. But what we have achieved today should take us forward."

Before signing off, a flavour of the shape of things to come can be had from this shortlist of headlines: Promulgation of the constitution without amendments will sow the seeds of dictatorship: Surya Bahadur Thapa, chairman, RJP; Constitution is incomplete and lame: Pari Thapa, Janamorcha Nepal; IC neither Bible nor Gita: Rajendra Mahatao, NSP (A); IC, beginning of tyrannical fascist rule: Chita Bahadur KC, Janamorcha; and IC being approved by rubber-stamp parliament: Pashupati Shumshere Rana, president, RPP.

In other words, while it is possible to go on endlessly enumerating flaws in the IC and dangers that lie ahead to liberal, tolerant and democratic governance as it is generally known around the world, it should be enough, in the end, to return to the point made at the very beginning: that the IC may be 'loktantric' but it is not democratic!

ENDS

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